<PAGE>
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON APRIL 10, 2000
REGISTRATION NO. 333-
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, DC 20549
--------------------------
FORM S-1
REGISTRATION STATEMENT
UNDER THE SECURITIES ACT OF 1933
--------------------------
ESSENTIAL.COM, INC.
(Exact name of registrant as specified in its charter)
<TABLE>
<S> <C> <C>
DELAWARE 7399 04-3438666
(State or other jurisdiction (Primary Standard Industrial (I.R.S. Employer
of incorporation or organization) Classification Code Number) Identification Number)
</TABLE>
--------------------------
THREE BURLINGTON WOODS DRIVE, FOURTH FLOOR
BURLINGTON, MA 01803-4543
(781) 229-9599
(Address, including zip code, and telephone number,
including area code, of registrant's principal executive offices)
--------------------------
AKHIL GARLAND, PRESIDENT, CHIEF EXECUTIVE OFFICER AND CHAIRMAN
ESSENTIAL.COM, INC.
THREE BURLINGTON WOODS DRIVE, FOURTH FLOOR
BURLINGTON, MA 01803-4543
(781) 229-9599
(Name, address including zip code, and telephone
number, including area code, of agent for service)
--------------------------
COPIES TO:
<TABLE>
<S> <C>
LINDA DE RENZO, ESQ. MARK L. JOHNSON, ESQ.
KATHY FIELDS, ESQ. HALE AND DORR LLP
TESTA, HURWITZ & THIBEAULT, LLP 60 STATE STREET
125 HIGH STREET BOSTON, MASSACHUSETTS 02109
BOSTON, MASSACHUSETTS 02110 TEL: (617) 526-6000
TEL: (617) 248-7000 FAX: (617) 526-5000
FAX: (617) 248-7100
</TABLE>
--------------------------
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC: As soon as
practicable after the effective date hereof.
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, 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,
check the following box. / /
--------------------------
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
PROPOSED MAXIMUM
TITLE OF EACH CLASS OF AGGREGATE OFFERING AMOUNT OF
SECURITIES TO BE REGISTERED PRICE(1) REGISTRATION FEE
<S> <C> <C>
Common Stock................................................ $86,250,000.00 $22,770.00
</TABLE>
(1) Estimated solely to calculate the registration fee pursuant to Rule 457(o)
under the Securities Act of 1933.
--------------------------
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 OF 1933 OR UNTIL THIS REGISTRATION STATEMENT SHALL BECOME
EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID SECTION 8(A),
MAY DETERMINE.
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
<PAGE>
SUBJECT TO COMPLETION--APRIL 10, 2000
WE WILL AMEND AND COMPLETE THE INFORMATION IN THIS PROSPECTUS. ALTHOUGH WE ARE
PERMITTED BY US FEDERAL SECURITIES LAWS TO OFFER THESE SECURITIES USING THIS
PROSPECTUS, WE MAY NOT SELL THEM OR ACCEPT YOUR OFFER TO BUY THEM UNTIL THE
DOCUMENTATION FILED WITH THE SEC RELATING TO THESE SECURITIES HAS BEEN DECLARED
EFFECTIVE BY THE SEC. THIS PROSPECTUS IS NOT AN OFFER TO SELL THESE SECURITIES
OR OUR SOLICITATION OF YOUR OFFER TO BUY THESE SECURITIES IN ANY JURISDICTION
WHERE THAT WOULD NOT BE PERMITTED OR LEGAL.
<PAGE>
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
PROSPECTUS
, 2000
[LOGO]
SHARES OF COMMON STOCK
- ----------------------------------------------------------------------
ESSENTIAL.COM, INC.:
- - We are a leading online communications and energy marketplace offering a broad
range of branded essential services to residential and small business
customers.
PROPOSED SYMBOL AND MARKET:
- - ESSE/Nasdaq National Market
THE OFFERING:
- - We are offering shares of our common stock.
- - The underwriters have an option to purchase up to additional shares from
us to cover over-allotments.
- - This is our initial public offering. We anticipate that the initial public
offering price will be between $ and $ per share.
- - Closing: , 2000
- --------------------------------------------------------------------------------
<TABLE>
<CAPTION>
PER SHARE TOTAL
<S> <C> <C>
- ----------------------------------------------------------------------------------
Public offering price: $ $
Underwriting fees:
Proceeds to essential.com:
</TABLE>
- --------------------------------------------------------------------------------
THIS INVESTMENT INVOLVES RISK. SEE "RISK FACTORS" BEGINNING ON PAGE 5.
- --------------------------------------------------------------------------------
NEITHER THE SEC NOR ANY STATE SECURITIES COMMISSION HAS DETERMINED WHETHER THIS
PROSPECTUS IS TRUTHFUL OR COMPLETE. NOR HAVE THEY MADE, NOR WILL THEY MAKE, ANY
DETERMINATION AS TO WHETHER ANYONE SHOULD BUY THESE SECURITIES. ANY
REPRESENTATION TO THE CONTRARY IS A CRIMINAL OFFENSE.
- --------------------------------------------------------------------------------
JOINT BOOK-RUNNING MANAGERS
DONALDSON, LUFKIN & JENRETTE MERRILL LYNCH & CO.
----------------
PAINEWEBBER INCORPORATED
E*OFFERING
<PAGE>
TABLE OF CONTENTS
<TABLE>
<CAPTION>
PAGE
<S> <C>
Prospectus Summary................... 1
Risk Factors......................... 5
Special Note Regarding
Forward-Looking Statements and
Market Data........................ 15
Use of Proceeds...................... 16
Dividend Policy...................... 16
Capitalization....................... 17
Dilution............................. 19
Selected Financial Data.............. 20
Management's Discussion and Analysis
of Financial Condition and Results
of Operations...................... 21
Business............................. 28
</TABLE>
<TABLE>
<CAPTION>
PAGE
<S> <C>
Management........................... 41
Related-Party Transactions........... 49
Principal Stockholders............... 51
Description of Capital Stock......... 53
Shares Eligible for Future Sale...... 56
Underwriting......................... 59
Legal Matters........................ 62
Experts.............................. 62
Where You Can Find More Information.. 62
Index to Financial Statements........ F-1
Appendix: "Meet the Management"
Presentation....................... A-1
</TABLE>
<PAGE>
PROSPECTUS SUMMARY
THIS SUMMARY MAY NOT CONTAIN ALL OF THE INFORMATION THAT IS IMPORTANT TO
YOU. YOU SHOULD READ THE ENTIRE PROSPECTUS, INCLUDING THE RISK FACTORS AND THE
FINANCIAL STATEMENTS AND RELATED NOTES, BEFORE MAKING AN INVESTMENT DECISION.
ESSENTIAL.COM, INC.
THE COMPANY
We are a leading online communications and energy marketplace offering a
broad range of branded essential services to residential and small business
customers. We define essential services to be the recurring services necessary
to operate a residence or small business. The essential services we currently
offer in selected areas include telecommunications services, such as long
distance telephone service, local telephone service and Internet access, and
energy services, such as electricity and home heating products. We intend to
expand the geographic areas in which we offer these services and to offer
additional essential services such as wireless telecommunications, natural gas
and satellite television. We generally enter into contracts to buy essential
services from leading service providers at wholesale prices and resell these
services online to our customers at retail prices. As of March 31, 2000
approximately 55,000 customers were purchasing services from us and we had
signed agreements with 42 service providers.
OUR MARKET OPPORTUNITY
The Internet has emerged as a significant global medium for communications,
information and commerce. The emergence of the Internet has coincided with a
period of extensive deregulation of the large telecommunications and energy
markets by state and federal lawmakers. According to the Federal Communications
Commission, the telecommunications industry generated 1997 telephone services
revenues of approximately $78 billion from households in the United States.
According to the Department of Energy, the electric power industry generated
1998 revenues of approximately $93 billion from residential customers in the
United States.
Deregulation is intended to promote competition by opening markets to new
entrants and ultimately to promote consumer choice. As deregulation leads to
increased competition and more complex essential service offerings, customers
face numerous challenges including identifying and locating essential service
providers; researching and comparing service plans and prices; analyzing usage
data to optimize service selection; and manually paying multiple monthly bills.
Suppliers of essential services face challenges including cost-effectively
increasing revenues and capacity utilization; increasing brand awareness;
reducing high costs associated with servicing and billing individual customers;
and developing and implementing an online strategy. We believe that these
challenges, combined with the large and recurring nature of the demand for
essential services by residential and small business customers, provide a
significant opportunity for an online communications and energy marketplace.
OUR SOLUTION
BENEFITS TO OUR CUSTOMERS
Our online communications and energy marketplace provides our customers with
convenience, choice, simplicity and value in selecting, managing and paying for
essential services. We offer access to essential service offerings and billing
information 24 hours a day, seven days a week from anywhere that a customer has
Internet access. We are able to provide our customers with one consolidated
online bill for the essential services we provide to them. Customers may pay
their consolidated bills electronically by either credit card or bank account
debit. We intend to offer a choice of multiple branded service providers
representing a mix of price and service plans within each service offering. We
intend to offer up to four brands within each service category at our online
marketplace. Detailed information, such as monthly fees, surcharges, service
fees and rates, may be compared for each
1
<PAGE>
available service plan at our web site. Using our proprietary tools, customers
can easily evaluate different service plans by sorting by rates or monthly fees.
Through aggregation of customer demand, we believe that we will be able to
negotiate favorable pricing for most of our services and to pass on a portion of
these savings to our customers.
BENEFITS TO OUR SERVICE PROVIDERS
Deregulation is creating a more competitive market for telecommunication and
energy service providers in which they are increasingly seeking to maximize
capacity utilization while reducing costs. Our marketplace offers service
providers a distribution channel which enables them to increase revenues without
incurring direct customer acquisition costs. This results in greater utilization
by service providers of existing capacity. Service providers are seeking to
differentiate themselves in increasingly competitive markets through branding.
This is particularly true for service providers that are new entrants in their
markets or participants in deregulating markets. Visitors to our web site, as
well as our customers, are exposed to the brands of the service providers we
select. By providing comprehensive support services to our customers, including
customer service and billing, we enable service providers to reduce their
operating costs. We also assume the responsibility for collections and the
related credit risks. By providing services through our online marketplace,
service providers gain immediate e-commerce capabilities, expand their existing
capabilities or gain an Internet presence with a low up-front investment.
OUR STRATEGY
Our goal is to be the leading online marketplace for essential services for
residential and small business customers. Our strategy includes the following
key elements:
- expand geographic coverage of our current service offerings and include
additional essential services in our marketplace;
- establish a national brand by expanding our marketing campaign to increase
awareness of our online communications and energy marketplace and drive
traffic to our web site;
- establish partnerships and strategic alliances in order to provide
marketing and customer acquisition opportunities;
- offer essential services that generate recurring monthly revenue streams,
and cross-sell additional essential services to our customer base;
- develop and maintain long-term relationships with our customers by
becoming their primary source for essential services;
- continue to invest in technology to support our growing business and
ensure high standards of reliability; and
- focus on the residential and small business markets where provisioning and
billing of services are standardized, scalable and can take advantage of
the capabilities of the Internet.
OUR CORPORATE INFORMATION
We were founded as a Massachusetts corporation in 1995 and reincorporated in
Delaware in 1998. Our principal executive office is located at Three Burlington
Woods Drive, Burlington, Massachusetts 01803-4543 and our telephone number is
(781) 229-9599. Our web site is located at WWW.ESSENTIAL.COM. The information
contained on our web site is not a part of this prospectus.
ESSENTIAL, ESSENTIAL.COM, ESSENTIAL.COM and design, TELEGUARD and
COMPARILATOR are trademarks or service marks of essential.com, inc. Other
trademarks and tradenames in this prospectus are the property of their
respective owners.
2
<PAGE>
THE OFFERING
<TABLE>
<S> <C>
Common stock offered by essential.com............ shares
Common stock outstanding after this offering..... shares
Use of proceeds.................................. We intend to use the net proceeds for working
capital and other general corporate purposes.
See "Use of Proceeds."
Proposed Nasdaq National Market symbol........... ESSE
</TABLE>
The number of shares of common stock to be outstanding after this offering
is based on the number of shares outstanding on April 6, 2000. This number does
not include:
- 2,392,385 shares of common stock issuable upon the exercise of outstanding
options with a weighted average exercise price of $0.74 per share;
- 5,379,003 shares available for issuance and grant under our stock
incentive plans; or
- 338,851 shares issuable upon the exercise of outstanding warrants with a
weighted average exercise price of $3.76 per share.
------------------------
UNLESS OTHERWISE INDICATED, ALL INFORMATION CONTAINED IN THIS PROSPECTUS:
- REFLECTS THE CONVERSION OF ALL OF OUR OUTSTANDING SHARES OF PREFERRED
STOCK INTO A TOTAL OF 18,404,581 SHARES OF COMMON STOCK UPON THE
COMPLETION OF THIS OFFERING;
- REFLECTS THE EFFECTIVENESS UPON COMPLETION OF THIS OFFERING OF OUR FIFTH
AMENDED AND RESTATED CERTIFICATE OF INCORPORATION, WHICH SETS THE
AUTHORIZED NUMBER OF SHARES OF COMMON STOCK AT 395,000,000 AND SETS THE
AUTHORIZED NUMBER OF SHARES OF PREFERRED STOCK AT 5,000,000; AND
- ASSUMES NO EXERCISE OF THE UNDERWRITERS' OVER-ALLOTMENT OPTION.
3
<PAGE>
SUMMARY FINANCIAL DATA
The following tables are a summary of financial data for our business. The
information should be read in conjunction with the financial statements and
related notes appearing elsewhere in this prospectus. See "Management's
Discussion and Analysis of Financial Condition and Results of Operations." Pro
forma net loss per share amounts reflect the conversion of our preferred stock
into shares of common stock upon the completion of this offering.
<TABLE>
<CAPTION>
YEAR ENDED DECEMBER 31,
---------------------------------------
1997 1998 1999
(IN THOUSANDS, EXCEPT PER SHARE DATA)
<S> <C> <C> <C>
STATEMENT OF OPERATIONS DATA:
Revenue..................................................... $ 45 $ 142 $ 527
Total operating expenses.................................... 84 709 13,440
Loss from operations........................................ (39) (567) (12,913)
Net loss.................................................... (41) (584) (12,954)
Net loss applicable to common stockholders.................. (41) (584) (13,522)
Net loss per share:
Basic and diluted......................................... $ (0.02) $ (0.14) $ (3.03)
Pro forma basic and diluted............................... $ (1.18)
Weighted average shares outstanding:
Basic and diluted......................................... 2,540 4,211 4,459
Pro forma basic and diluted............................... 10,990
</TABLE>
The summary balance sheet data as of December 31, 1999 are prepared:
- on an actual basis;
- on a pro forma basis to reflect our sale of 6,411,004 shares of Series C
redeemable convertible preferred stock in February and March 2000 and the
conversion of all of our outstanding preferred stock into 18,404,581
shares of common stock upon completion of this offering; and
- on a pro forma as adjusted basis to also give effect to our sale of
shares of common stock in this offering at an assumed initial
public offering price of $ per share, after deducting the estimated
underwriting fees and estimated offering expenses payable by us, and our
receipt of the estimated net proceeds from this offering.
<TABLE>
<CAPTION>
AS OF DECEMBER 31, 1999
----------------------------------
ACTUAL PRO FORMA
PRO FORMA AS ADJUSTED
(IN THOUSANDS)
<S> <C> <C> <C>
BALANCE SHEET DATA:
Cash and cash equivalents................................... $ 3,341 $ 74,591
Working capital............................................. 1,660 72,909
Total assets................................................ 5,947 77,197
Redeemable convertible preferred stock...................... 15,342 --
Total stockholders' equity (deficit)........................ (12,789) 74,130
</TABLE>
4
<PAGE>
RISK FACTORS
YOU SHOULD CAREFULLY CONSIDER THE FOLLOWING RISKS BEFORE MAKING AN
INVESTMENT DECISION. OUR BUSINESS, OPERATING RESULTS AND FINANCIAL CONDITION
COULD BE ADVERSELY AFFECTED BY ANY OF THE FOLLOWING RISKS. THE RISKS DESCRIBED
BELOW ARE NOT THE ONLY ONES THAT WE FACE. ADDITIONAL RISKS AND UNCERTAINTIES
INCLUDING THOSE THAT ARE NOT YET IDENTIFIED OR THAT WE CURRENTLY THINK ARE
IMMATERIAL MAY ALSO ADVERSELY AFFECT OUR BUSINESS, RESULTS OF OPERATIONS AND
FINANCIAL CONDITION. THE TRADING PRICE OF OUR COMMON STOCK COULD DECLINE DUE TO
ANY OF THESE RISKS, AND YOU COULD LOSE ALL OR PART OF YOUR INVESTMENT. YOU
SHOULD ALSO REFER TO THE OTHER INFORMATION SET FORTH IN THIS PROSPECTUS,
INCLUDING OUR FINANCIAL STATEMENTS AND RELATED NOTES.
RISKS RELATED TO OUR BUSINESS
WE HAVE A HISTORY OF LOSSES AND MAY NEVER ATTAIN PROFITABILITY.
We incurred substantial net losses and negative cash flows from operations
in 1998 and 1999. For the year ended December 31, 1999, our net loss applicable
to common stockholders was $13.5 million. As of December 31, 1999, our
accumulated deficit was $14.2 million. We cannot be certain when we will become
profitable, if at all. Even if we do achieve profitability, we may not sustain
or increase profitability on a quarterly or annual basis in the future. To date,
we have generated relatively small amounts of revenues while increasing
operating expenditures in all areas, particularly in customer acquisition,
selling and marketing, technology, and general and administrative. If revenues
grow more slowly than we anticipate, or if operating expenses exceed our
expectations or cannot be adjusted accordingly, our business, results of
operations and financial condition will be materially adversely affected.
OUR LIMITED OPERATING HISTORY MAKES IT DIFFICULT TO EVALUATE OUR BUSINESS
AND PROSPECTS.
We are still in the early stages of our development. Therefore, evaluating
our business operations and our prospects is difficult. We incorporated in 1995,
began limited business operations in April 1998 and launched our web site in
June 1999. As a result of our limited operating history, we cannot forecast
operating expenses based on our historical results. Accordingly, we currently
base our expenses in part on future revenue projections. Our ability to forecast
accurately our quarterly revenue is limited because we are in the earliest
stages of implementing our business model, acquiring customers and integrating
service providers. If our revenue does not meet our expectations in any quarter,
our business, operating results and financial condition would be materially
adversely affected and our net losses in that quarter would be greater than
expected.
We will encounter the risks and challenges frequently encountered by
early-stage companies in new and rapidly evolving markets. These challenges
include the need to:
- cost-effectively attract and retain customers;
- enter into and maintain agreements with service providers;
- rapidly expand our customer service capabilities;
- manage the credit and collection risks associated with our business; and
- hire and retain highly skilled employees, particularly sales, customer
service, marketing and technology development personnel.
If we fail to manage these challenges successfully, our business might not
grow as we anticipate, which would harm our business, results of operations and
financial condition.
5
<PAGE>
OUR BUSINESS MODEL MAY NOT BE WIDELY ACCEPTED.
Our business model provides that we will function as an online
communications and energy marketplace. We generally buy essential services at
wholesale prices from our service providers, aggregate them online and resell
them as branded services to our customers at retail prices. Some service
providers do not allow us to use their brands and logos. The traditional
business model for essential services contemplates that customers will purchase
essential services directly from the service providers. It is too early to
determine whether our business model will be widely accepted by either the
service providers or the residential and small business customers we are
currently targeting. If it is not, we may be required to alter our business
model.
OUR OPERATING RESULTS ARE LIKELY TO FLUCTUATE SIGNIFICANTLY.
As a result of our limited operating history and the rapidly developing
nature of the market in which we compete, our quarterly revenue and operating
results are likely to fluctuate from period to period. These fluctuations may be
caused by a number of factors, many of which are beyond our control, including:
- the number of customers who contract with us for the provision of
essential services and the timing of the initiation of such services;
- our customers may terminate their agreements with us at any time;
- unexpected delays in introducing new services, including delays caused by
regulatory authorities;
- our expenses may exceed what we project, whether related to customer
service, selling and marketing, technology, or general and administrative;
- the online market for essential services is changing rapidly;
- changes in the mix of service revenue; and
- our revenue associated with energy sales may fluctuate significantly both
due to demand-led factors, such as climatic changes and seasonality
affecting demand for natural gas, electricity, propane and heating oil,
and supply-side factors that result in fluctuations in the prices at which
such products are provided by our service providers.
Accordingly, we believe that quarter-to-quarter comparisons of our operating
results are not necessarily meaningful. Investors should not rely on the results
of one quarter as an indication of our future performance.
We plan to increase our operating expenses to expand our customer service
and sales and marketing operations, develop new customer acquisition channels,
broaden services and support and improve operational and financial systems. If
our revenues do not increase along with these expenses, our business, operating
results and financial condition could be materially adversely affected.
WE MAY NOT SUCCESSFULLY MANAGE OUR GROWTH.
We have recently experienced a period of rapid growth that has strained, and
may continue to strain, our customer service, financial, operational, marketing
and management systems and resources. Our anticipated growth, as well as the
requirements we will face as a public company, will place additional burdens on
our resources. Our existing personnel, systems, procedures and controls may not
be adequate.
In the past we have had difficulty managing customer service during periods
of growth. We have recently supplemented our customer service efforts with an
outsourced customer service organization. This organization may not be able to
expand its operations sufficiently to meet our needs and may not
6
<PAGE>
provide the level of customer service we intend. Our inability to expand our
operations effectively or outsource customer service could cause us to lose
customers and service providers and may harm our brand and reduce customer
loyalty.
We are implementing operations support systems to help us manage customer
service, bill customers, process customer orders and coordinate with suppliers.
Implementation of these systems, and subsequent enhancements and integration of
these systems, could be delayed or, when implemented, could cause disruptions in
service or billing. To manage our growth effectively, we must successfully
implement these systems on a timely basis, and continually expand and upgrade
these systems as our operations expand.
THE SUCCESS OF OUR BUSINESS DEPENDS ON A RELATIVELY SMALL NUMBER OF SERVICE
PROVIDERS AND WE MAY ENCOUNTER DIFFICULTY ATTRACTING AND RETAINING SERVICE
PROVIDERS.
If we are unable to broaden or maintain our service offerings, we may be
unable to attract and retain customers. In 1999, four service providers supplied
services which accounted for 88% of our total revenue. We expect that a
substantial portion of our total revenue in future periods will continue to be
derived from a limited number of service providers. Loss of a service provider
could cause disruption in service to our customers until an alternate service
provider can be identified and integrated. We could lose customers as a result
of this disruption or due to dissatisfaction with the replacement service
provider. In addition, our ability to offer local telephone service would be
materially and adversely affected by the loss of any contract, or other
disruption in our relationship, with any Regional Bell Operating Company.
WE FACE INTENSE COMPETITION IN THE PROVISION OF ESSENTIAL SERVICES.
The market for essential services is intensely competitive and, in some
cases, highly fragmented. We presently face competition from service providers,
agents and resellers. We face competition from Internet start-ups and potential
competition from more established Internet companies. We do not have exclusive
relationships with our service providers and they may offer services that
compete with us directly or through our competitors. Many of our current and
potential competitors have longer operating histories, greater name recognition,
an established network of potential customers and significantly greater
financial, technical and marketing resources than we do. Our competitors may be
able to adapt more quickly to new or emerging technology and changes in customer
requirements or to devote greater resources to marketing, customer service and
other operations than we do. Barriers to entering the market for an online
communications and energy marketplace are relatively insubstantial. Cooperative
relationships among our competitors could increase their ability to address the
needs of our prospective customers. Increased competition could lead to reduced
margins and fewer customers and service providers signing with us, resulting in
a loss of market share and an adverse effect on our ability to achieve
profitability.
WE BEAR CREDIT RISK AND BILLING RESPONSIBILITY FOR OUR CUSTOMERS.
We are responsible for payment to our service providers for services
provided by them to our customers, regardless of whether we are ultimately able
to collect from our customers. Until the third quarter of 1999, we experienced
difficulties with our provisioning and billing systems that resulted in some
customers receiving services without being billed for them. The failure of our
customers to pay their bills in a timely manner, or at all, or our failure to
maintain adequate billing and collection programs could materially adversely
affect our business, results of operations and financial condition.
A failure to adequately control fraudulent credit card transactions would
harm our revenues and results of operations because we do not carry insurance
against this risk. We may suffer losses as a result of services purchased with
fraudulent credit card data even though the associated financial
7
<PAGE>
institution approved payment. Under current credit card practices, we are liable
for fraudulent credit card transactions because we do not obtain a cardholder's
signature. Because we have a limited operating history, we cannot predict our
future levels of bad debt expense.
OUR SUCCESS DEPENDS UPON OUR ABILITY TO ATTRACT AND RETAIN NEW CUSTOMERS.
We must cost-effectively attract and retain large numbers of new customers.
We cannot assure you that our web-based and other marketing techniques will
prove effective in achieving this objective. If our marketing efforts are not
successful, our business, results of operations and financial condition would be
materially adversely affected.
OUR BUSINESS WILL BE HARMED IF THE INTERNET FAILS TO BECOME A WIDELY ACCEPTED
MEDIUM FOR THE SALE OF ESSENTIAL SERVICES.
We rely on sales of essential services through our online marketplace. The
market for e-commerce is new and rapidly evolving, and it is uncertain whether
e-commerce will achieve and sustain high levels of demand and market acceptance,
particularly with respect to essential services. Our success will depend to a
substantial extent on the willingness of residential and small business
customers to increase their online purchases of essential services. Our success
will also depend upon service providers' acceptance of our online marketplace as
a means to market and sell their services. Moreover, our growth will depend on
the extent to which an increasing number of residential and small business
customers own or have access to personal computers or other systems that can
access the Internet. If e-commerce in the essential services industry does not
achieve high levels of demand and market acceptance, our business will be
materially adversely affected.
OUR BUSINESS MODEL DEPENDS ON THE CONTINUED USE AND GROWTH OF THE INTERNET
AND E-COMMERCE.
Demand for recently introduced services over the Internet and commercial
online services is subject to a high level of uncertainty. Our business could be
materially adversely affected if use of the Internet does not continue to
develop or develops more slowly than expected. The level of demand and
acceptance of Internet services may not increase for a number of reasons,
including:
- inadequate network infrastructure and congestion of traffic on the
Internet;
- actual or perceived lack of security or privacy of information;
- inconsistent quality of service;
- lack of availability of cost-effective, high-speed service;
- lack of access and ease of use;
- excessive governmental regulation; and
- uncertainty regarding intellectual property ownership.
Capacity constraints caused by growth in the use of the Internet may, unless
resolved, impede further development of the Internet to the extent that users
experience delays, transmission errors and other difficulties. Further, the
adoption of the Internet for commerce and communications, particularly by those
individuals and companies that have historically relied upon alternative means
of commerce and communication, generally requires the understanding and
acceptance of a new way of conducting business and exchanging information. If
the necessary infrastructure, products, services or facilities are not
developed, or if the Internet does not become a viable commercial medium, our
business, results of operations and financial condition could be materially and
adversely affected.
8
<PAGE>
TO COMPETE EFFECTIVELY, WE MUST BE ABLE TO HIRE AND RETAIN HIGHLY SKILLED
EMPLOYEES.
Our future performance depends in part upon the continued service of our
current and future key members of management, as well as technical, sales,
support, service and marketing personnel. The loss of one or more of our key
personnel could have a material adverse effect on our business, results of
operations and financial condition. We believe our future success will depend in
part upon our ability to attract and retain highly skilled management, sales,
support, service, marketing and technical personnel. We are currently conducting
searches for a new Chief Executive Officer and a Chief Financial Officer to
supplement our current management team. Competition for all of the people we
need to hire is intense, and there can be no assurance that we will be able to
retain our key employees or that we will be successful in attracting,
assimilating and retaining such personnel in the future. Failure to attract,
assimilate and retain key personnel could have a material adverse effect on our
business, results of operations and financial condition.
IF WE FAIL TO CONTINUOUSLY IMPROVE OUR WEB SITE, WE MAY NOT SUCCEED IN
ATTRACTING AND RETAINING CUSTOMERS.
Our business model depends on driving traffic to our web site and converting
visitors to customers. If our customers do not find our web site a convenient
place to shop for essential services, we may not attract or retain customers and
our sales will suffer. To encourage the use of our web site, we must
continuously improve its accessibility, content and ease of use and provide
timely and efficient customer support. If our competitors' web sites are
perceived as easier to use or better able to satisfy the needs of a similar
customer target group, our customer traffic and our business, results of
operations and financial condition could be adversely affected.
OUR BUSINESS WILL SUFFER IF OUR COMPUTER SYSTEMS FAIL OR OVERLOAD.
The success of our online marketplace depends on the efficient and
uninterrupted operation of our computer and communications hardware systems. Our
communications hardware and other computer hardware operations are located
offsite at Exodus Corporation, Inc. in Waltham, Massachusetts. Fire, floods,
earthquakes, power loss, telecommunications failures and similar events could
damage or cause interruptions in these systems. Computer viruses, electronic
break-ins or other similar disruptive problems could also adversely affect our
web site. In addition, we may be subject to denial of service attacks. If our
systems or web site are affected by any of these occurrences, our business,
results of operations and financial condition could be harmed.
WE DEPEND ON SERVICE PROVIDERS TO DELIVER ESSENTIAL SERVICES TO OUR
CUSTOMERS.
We depend on our service providers to supply and deliver essential services
over their delivery and distribution infrastructure. Any disruption in service
could harm our brand name and lead to customer dissatisfaction and a loss of
revenue and marketshare. In addition, our agreements with service providers are
generally of a short duration, such as one year. We can not assure you that the
agreements will not be terminated or that we will be able to negotiate new
agreements with service providers as existing agreements expire. If a provider
terminates its arrangements with us, customers may not be willing to accept
service from any alternative or replacement provider we identify. Accordingly,
our customer retention and financial condition are dependent upon our service
providers.
WE MAY HAVE DIFFICULTY INTEGRATING SERVICE PROVIDERS INTO OUR ONLINE
MARKETPLACE.
Our failure to integrate service providers into our online marketplace and
billing systems could limit our product offering. Integration of a service
provider into our online marketplace and billing systems requires a commitment
of time and resources on our part and on the part of the service provider. Our
accurate and prompt billing of our customers depends on our timely receipt of
accurate
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<PAGE>
customer usage data from our service providers. We cannot be certain that our
current or future service providers will supply us with accurate data in a
timely manner. Failure to successfully integrate service providers would
adversely affect our ability to offer additional services and to promptly and
accurately bill our customers.
WE MAY BE UNABLE TO BUILD BRAND AWARENESS THAT WE BELIEVE IS NECESSARY FOR
WIDESPREAD ACCEPTANCE OF OUR ONLINE MARKETPLACE.
We must continue to build our brand awareness to achieve widespread
acceptance of our online marketplace. We believe that brand recognition will
become more important as competition increases. We intend to increase spending
on marketing to attract new customers. We plan to do this through online
marketing, direct mail, and selective national and regional advertising. If our
branding efforts are not successful, our sales and ability to attract new
customers will be adversely affected.
OUR SUCCESS DEPENDS UPON THE PROPER OPERATION OF OUR COMPUTER SYSTEMS.
Currently, we use commercially available software applications to manage
certain components of our operations. Some of the software we license from third
parties would be difficult to replace. This software may not continue to be
available on commercially reasonable terms, if at all. The loss of, or inability
to maintain, any of these licenses could result in disruption to our online
marketplace until equivalent technology is developed or, if available, is
identified, licensed and integrated. In addition, we are in the process of
developing proprietary software applications to address scalability and data
management issues in our software. There can be no assurance that this
development will be successful or that we will be able to transition to
proprietary software. Any disruption in service resulting from the transition or
errors in the propriety software could injure our reputation and result in lost
revenues and customers.
In addition, we must expand and upgrade our systems and network
infrastructure if the volume of traffic and transactions on our system increases
substantially. We could experience periodic temporary capacity constraints which
may cause unanticipated system disruptions, slower response times, and lower
levels of customer service. We may be unable to accurately project the rate or
timing of increases, if any, in the use of our services or expand and upgrade
our systems and infrastructure to accommodate these increases in a timely
manner. Any inability to do so could harm our business, results of operations
and financial condition.
THE PROVISION OF ESSENTIAL SERVICES IS HIGHLY REGULATED.
Many of the essential services that we offer to our customers are or may be
subject to substantial regulation at either or both a federal and state level.
We must comply with such regulatory framework both as it currently exists and as
it will exist in the future. Our business has grown rapidly over a relatively
short period of time and we may not always have been, and may not always be, in
compliance with applicable federal and state laws and regulations. Failure to
comply with the laws and regulatory requirements of federal and state regulatory
authorities may result in, among other things, revocation of required licenses
or registrations, administrative enforcement actions and fines, class action
lawsuits, cease and desist orders, and contractual, civil and criminal
liability. The occurrence of one or more of these events could materially affect
our business, results of operations and financial condition. Existing and future
regulations may impact our ability to offer services and the prices we can
charge. Changes to existing regulations, as well as new regulations, could have
a material adverse effect on our business, results of operations and financial
condition.
10
<PAGE>
REGULATIONS AFFECTING US MAY HAMPER OUR FLEXIBILITY IN ACCESSING CAPITAL
MARKETS.
As a common carrier and/or energy supplier subject to various state and
federal regulatory requirements, we may need to obtain state regulatory approval
before issuing securities depending on the nature of our business operations in
various states. Any delay in obtaining, or failure to obtain, such approval
where required could adversely affect our flexibility in accessing capital
markets on the most advantageous terms possible. Any such delays could have a
material adverse effect on our business, results of operations and financial
condition.
GOVERNMENT REGULATION OF THE INTERNET MAY AFFECT OUR ABILITY TO CONDUCT
BUSINESS.
We expect there will be an increasing number of laws and regulations
pertaining to the Internet in the United States and throughout the world. Any
new laws or regulations may adversely impact our ability to conduct business.
These laws or regulations may relate to liability for information received from
or transmitted over the Internet, online content regulation, user privacy,
taxation and quality of products and services sold over the Internet. Some
jurisdictions have sought to impose taxes and other costs on providers of
Internet access services, and to regulate content provided via the Internet and
other information services. We expect that proposals of this nature will
continue to be debated in Congress and state legislatures in the future.
Moreover, the applicability to the Internet of existing laws governing
intellectual property ownership and infringement, copyright, trademark, trade
secret, obscenity, libel, employment, personal privacy and other issues is
uncertain and developing. Any new law or regulation, or the application or
interpretation of existing laws, may decrease the growth in the use of the
Internet or our web site. This could decrease the demand for our products,
increase our cost of doing business or otherwise adversely affect our business.
REGULATIONS IMPOSED BY THE FEDERAL TRADE COMMISSION REGARDING THE COLLECTION
OF PERSONAL INFORMATION MAY AFFECT OUR BUSINESS.
The Federal Trade Commission has issued regulations effective April 21,
2000, regarding the collection and use of personal identifying information
obtained from children aged twelve and under when accessing web sites. The
Federal Trade Commission has strongly advocated that even general audience web
sites establish privacy policies that:
- include procedures to disclose and notify users of privacy and security
policies;
- obtain consent from users for collection and use of information;
- provide users with the ability to access, correct and delete personal
information stored by the company; and
- include enforcement and redress provisions.
Moreover, even before adoption of these regulations, the Federal Trade
Commission had begun investigations into the privacy practices of companies that
collect information on the Internet. We may become subject to a similar
investigation, or the Federal Trade Commission's regulatory and enforcement
efforts may adversely affect our ability to collect demographic and personal
information from users, which could adversely affect our marketing efforts.
WE COULD BE LIABLE FOR MISAPPROPRIATION OF OUR USERS' PERSONAL INFORMATION.
Unauthorized users could circumvent the measures we take to protect client
data, such as personal credit card information and bank account numbers for our
customers' checking accounts. To the extent that our activities involve the
storage and transmission of proprietary information, security breaches could
damage our reputation and expose us to a risk of loss or litigation and possible
liability. Any compromise of our security could harm our business.
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<PAGE>
IF THIRD PARTIES ACQUIRE RIGHTS TO USE SIMILAR DOMAIN NAMES, OUR BRAND MAY BE
DAMAGED AND WE MAY LOSE SALES.
Our domain names are an important aspect of our brand recognition. We cannot
practically acquire rights to all domain names that are similar to
WWW.ESSENTIAL.COM. If third parties obtain rights to a similar domain name,
these third parties may confuse our customers or cause our customers to place
orders with these third parties inadvertently, which could result in lost sales
for us and could damage our brand name.
BREACHES OF PRIVACY OR SECURITY AT ANY WEB SITE COULD HARM OUR BUSINESS.
Due in part to privacy and security concerns, many Internet users have been
reluctant to transmit confidential information over the Internet. Any
well-publicized compromise of privacy or security on the Internet could deter
more people from using the Internet to conduct transactions that involve
transmitting confidential information, such as a user's credit card information,
over the Internet.
IF WE ARE UNABLE TO PROTECT OUR INTELLECTUAL PROPERTY WE MAY LOSE A VALUABLE
ASSET OR INCUR COSTLY LITIGATION TO PROTECT OUR RIGHTS.
Our success and ability to compete depend upon our intellectual property,
including our propriety technology and confidential information. We rely on
patent, trademark, trade secret and copyright laws to protect our intellectual
property. Our initial application to register the ESSENTIAL mark has been denied
by the Patent and Trademark Office. Despite our efforts to protect our
intellectual property, a third party could copy or otherwise obtain our
proprietary information without authorization. Our means of protecting our
proprietary rights may not be adequate and our competitors may independently
develop similar technology, or duplicate our products or our other intellectual
property. We may have to resort to litigation to enforce our intellectual
property rights, to protect our trade secrets or know-how or to determine their
scope, validity or enforceability. Enforcing or defending our proprietary
technology is expensive and could cause a diversion of our resources. Our
protective measures may prove inadequate to protect our proprietary rights, and
any failure to enforce or protect our rights could cause us to lose a valuable
asset.
WE MAY BE SUBJECT TO INTELLECTUAL PROPERTY INFRINGEMENT CLAIMS THAT, WITH OR
WITHOUT MERIT, COULD BE COSTLY TO DEFEND OR SETTLE.
We may be subject to claims of infringement of other parties' proprietary
rights, or claims that our own intellectual property rights are invalid. There
has been a substantial amount of litigation in the Internet industry regarding
intellectual property rights. We expect that providers of electronic commerce
solutions will increasingly be subject to infringement claims as the number of
products and competitors in our industry segment grows and the functionality of
products in industry segments overlaps. It is possible that third parties may
claim that we infringe their intellectual property. Any infringement claims made
against us, with or without merit, could be time-consuming, result in costly
litigation, or cause product shipment delays or negative publicity. In addition,
if we were found to infringe a third party's proprietary rights, we could be
required to enter into royalty or licensing agreements and royalty or licensing
agreements, if required, may not be available on terms acceptable to us or at
all.
FUTURE ACQUISITIONS MAY BE DIFFICULT TO INTEGRATE, DISRUPT OUR BUSINESS,
DILUTE STOCKHOLDER VALUE OR DIVERT MANAGEMENT ATTENTION.
In the future, we may seek to acquire or invest in businesses, products or
technologies that we believe could complement or expand our business, augment
our market coverage, enhance our
12
<PAGE>
technical capabilities or otherwise offer growth opportunities. Acquisitions
could create risks for us, including:
- difficulties in assimilation of acquired personnel, operations,
technologies or products;
- unanticipated costs associated with acquisitions;
- diversion of management's attention from other business concerns;
- adverse effects on our existing business relationships with suppliers and
customers; and
- use of substantial portions of our available cash, including the proceeds
of this offering, to consummate the acquisitions.
In addition, if we consummate acquisitions through an exchange of our
securities, you could suffer significant dilution. Any future acquisitions, even
if successfully completed, may not generate any additional revenue or provide
any benefit to our business.
WE MAY NEED ADDITIONAL FUNDS, WHICH MAY NOT BE AVAILABLE ON FAVORABLE TERMS,
IF AT ALL.
We currently anticipate that our available cash resources combined with the
net proceeds from this offering will be sufficient to meet our anticipated
working capital and capital expenditure requirements for at least the next
twelve months. We may need to raise additional capital, however, to expand more
rapidly, to develop new technology and to enhance existing technology supporting
our Internet-based solution, to respond to competitive pressures, or to acquire
complementary services, businesses or technologies. If adequate funds are not
available or are not available on terms favorable to us, our business, results
of operations and financial condition could be harmed.
RISKS RELATED TO THIS OFFERING
IF THE PUBLIC PERCEPTION OF THE VALUE OF OUR COMMON STOCK IS LOWER THAN THE
INITIAL PUBLIC OFFERING PRICE, THE PRICE OF OUR COMMON STOCK AFTER THIS
OFFERING MAY BE LOWER THAN THE PRICE YOU PAY.
Prior to this offering, there has been no public market for our common
stock. We, together with the underwriters, will determine the initial public
offering price, and this price may not be the price at which the common stock
will trade after this offering. The price of our common stock that will prevail
in the market after this offering may be lower than the price you pay. After
this offering, an active trading market in our stock might not develop or
continue. We cannot assure you of the extent to which investor interest in our
company will lead to the development of an active trading market or how liquid
that market will become.
BECAUSE OF THE NATURE OF OUR BUSINESS, THE MARKET PRICE OF OUR COMMON STOCK
IS PARTICULARLY SUBJECT TO VOLATILITY AND COULD DROP UNEXPECTEDLY.
The stock market in general has recently experienced extreme price and
volume fluctuations. In addition, the market prices of Internet and other
technology companies have been extremely volatile and have experienced
fluctuations that have often been unrelated or disproportionate to the operating
performance of such companies. These broad market fluctuations could adversely
affect the market price of our common stock. The market price of the common
stock may fluctuate substantially due to a variety of factors, including:
- any actual or anticipated fluctuations in our financial condition and
operating results;
- public announcements concerning us or our competitors, or the Internet
industry;
- the introduction or market acceptance of new service offerings by us or
our competitors;
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<PAGE>
- changes in industry research analysts' earnings estimates;
- changes in accounting principles;
- sales of our common stock by existing stockholders; and
- the loss of any of our key personnel.
IF WE BECOME SUBJECT TO CLASS ACTION LITIGATION DUE TO STOCK PRICE
VOLATILITY, THE LITIGATION WILL DISTRACT OUR MANAGEMENT AND COULD RESULT IN
SUBSTANTIAL COSTS AND LARGE JUDGMENTS AGAINST US.
In the past, securities class action litigation has often been brought
against companies following periods of volatility in the market prices of their
securities. We may be the target of similar litigation in the future. Securities
litigation could result in substantial costs and divert our management's
attention and resources, which could cause serious harm to our business,
operating results and financial condition.
OUR EXECUTIVE OFFICERS, DIRECTORS AND MAJOR STOCKHOLDERS WILL RETAIN
SIGNIFICANT CONTROL OVER US AFTER THIS OFFERING, WHICH MAY LEAD TO CONFLICTS
WITH OTHER STOCKHOLDERS OVER CORPORATE GOVERNANCE MATTERS.
After this offering, executive officers, directors and holders of 5% or more
of our outstanding common stock will, in the aggregate, own approximately %
of our outstanding common stock. These stockholders would be able to
significantly influence all matters requiring approval by our stockholders,
including the election of directors and the approval of significant corporate
transactions. This concentration of ownership may also delay, deter or prevent a
change in our control and may make some transactions more difficult or
impossible to complete without the support of these stockholders.
OUR MANAGEMENT WILL RETAIN BROAD DISCRETION IN THE USE OF PROCEEDS FROM THIS
OFFERING AND MAY NOT OBTAIN A SIGNIFICANT RETURN ON THE USE OF THESE
PROCEEDS.
We have no specific plans for a significant portion of our net proceeds from
this offering. Consequently, our management has complete discretion as to how to
spend the proceeds from this offering. They may spend these proceeds in ways
with which our stockholders may not agree. Management's allocation of the
proceeds of this offering may not benefit our business and the investment of the
proceeds may not yield a favorable return.
SUBSTANTIAL FUTURE SALES OF OUR COMMON STOCK COULD CAUSE OUR STOCK PRICE TO
DECLINE.
Sales of a substantial number of shares of our common stock after this
offering could cause the market price of our common stock to decline by
potentially introducing a large number of sellers of our common stock into a
market in which our common stock price is already volatile. In addition, the
sale of these shares could impair our ability to raise capital through the sale
of additional equity securities. Based on shares outstanding as of March 15,
2000, we will have shares of our common stock outstanding upon
completion of the offering, or shares if the underwriters'
over-allotment option is exercised in full. Our directors, executive officers
and certain stockholders have executed lock-up agreements in which they have
agreed not to sell any shares of our common stock for a period of 180 days after
the date of this prospectus without the prior written approval of the
representatives of the underwriters. When these lock-up agreements expire, these
shares will become eligible for sale, in some cases subject only to the volume,
manner of sale and notice requirements of Rule 144 of the Securities Act of
1933.
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<PAGE>
PROVISIONS OF OUR GOVERNING DOCUMENTS AND OF DELAWARE LAW COULD INHIBIT OUR
ABILITY TO SELL OUR BUSINESS, EVEN IF DOING SO WOULD BE FAVORED BY
STOCKHOLDERS SUCH AS YOU.
Provisions of our certificate of incorporation and bylaws, as well as
Section 203 of the Delaware General Corporation Law, may discourage, delay or
prevent a change in control of our company that you as a stockholder may
consider favorable. These provisions include:
- authorizing the issuance of "blank check" preferred stock that could be
issued by our board of directors to increase the number of outstanding
shares and thwart a hostile takeover attempt;
- providing for a classified board of directors with staggered, three-year
terms;
- prohibiting cumulative voting in the election of directors, which will
allow a majority of stockholders to control the election of all directors;
and
- requiring super-majority voting to effect certain amendments to our
certificate of incorporation and bylaws.
YOU WILL EXPERIENCE IMMEDIATE AND SUBSTANTIAL DILUTION IN THE BOOK VALUE OF
YOUR INVESTMENT.
If you purchase shares of our common stock in this offering, you will
experience immediate and substantial dilution of approximately $ , based on
an assumed initial public offering price of $ . This dilution is due in
large part to the fact that our earlier investors paid substantially less than
the public offering price when they purchased their shares of common stock. You
will experience additional dilution upon the exercise of outstanding stock
options to purchase common stock.
SPECIAL NOTE REGARDING FORWARD-LOOKING STATEMENTS AND MARKET DATA
Some of the statements under "Prospectus Summary," "Risk Factors,"
"Management's Discussion and Analysis of Financial Condition and Results of
Operations," "Business" and elsewhere in this prospectus constitute
forward-looking statements. These statements relate to future events or other
future financial performance, and are identified by terminology such as "may,"
"will," "should," "expects," "scheduled," "plans," "intends," "anticipates,"
"believes," "estimates," "aims," "potential," or "continue" or the negative of
these terms or other comparable terminology. These statements are only
predictions. Actual events or results may differ materially. In evaluating these
statements, you should specifically consider various factors, including the
risks outlined under "Risk Factors." These factors may cause our actual results
to differ materially from any forward-looking statement.
This prospectus contains market data related to our business, the Internet
and the various markets for our services. These market data include projections
that are based on a number of assumptions. If these assumptions turn out to be
incorrect, actual results may differ from the projections based on these
assumptions. As a result, our markets may not grow at the rates projected by
these data, or at all. The failure of these markets to grow at these projected
rates may have a material adverse effect on our business, results of operations
and financial condition, and the market price of our common stock.
Although we believe that the expectations reflected in the forward-looking
statements are reasonable, we cannot assure you that our future results, levels
of activity, performance, or goals will be achieved. We undertake no obligation
to update any of the forward-looking statements after the date of this
prospectus to conform these statements to reflect the occurrence of
unanticipated events.
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<PAGE>
USE OF PROCEEDS
We estimate that the net proceeds we will receive from our sale of
shares of common stock will be $ ($ if the underwriters'
over-allotment option is exercised in full) after deducting the estimated
underwriting fees and estimated offering expenses payable by us and assuming an
initial public offering price of $ .
We expect to use the net proceeds from this offering for working capital and
other general corporate purposes. We have not identified specific uses for our
proceeds and management will have discretion over their use. Pending those uses,
we will invest the net proceeds from this offering in investment grade,
interest-bearing securities.
The principal purposes of this offering are:
- to increase our equity capital;
- to create a public market for our common stock;
- to facilitate future access by us to public equity markets;
- to provide increased visibility and credibility in our marketplace; and
- to enhance our ability to use our common stock as a means of attracting
and retaining key employees.
A portion of the net proceeds may be used for the acquisition of
complementary businesses or technologies. We are not currently a party to any
contracts, commitments or agreements with respect to any such acquisitions.
DIVIDEND POLICY
We have never declared or paid any cash dividends on our common stock. We
currently intend to retain any earnings to fund the development and expansion of
our business and do not anticipate paying cash dividends in the foreseeable
future. Our board of directors will decide whether to pay any future dividends
after taking into account various factors, including our financial condition,
operating results, current and anticipated cash needs and plans for expansion.
In addition, under our current credit facility we may not declare or pay any
cash dividends without written consent from our lender.
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<PAGE>
CAPITALIZATION
The following table describes our capitalization as of December 31, 1999:
- on an actual basis;
- on a pro forma basis to reflect our sale of 6,411,004 shares of Series C
redeemable convertible preferred stock in February and March 2000, the
issuance of a warrant to purchase 64,110 shares of Series C redeemable
convertible preferred stock in March 2000, the automatic conversion of all
of our outstanding shares of preferred stock into an aggregate of
18,404,581 shares of common stock upon completion of this offering and the
restatement and amendment of our certificate of incorporation to increase
our authorized capital stock upon completion of this offering; and
- on a pro forma as adjusted basis to also give effect to our sale of
shares of common stock in this offering at an assumed initial public
offering price of $ , after deducting the estimated underwriting fees
and the estimated offering expenses payable by us, and our receipt of the
estimated net proceeds.
You should read this table along with "Management's Discussion and Analysis
of Financial Condition and Results of Operations" and our financial statements
and related notes and the other financial information contained in this
prospectus.
<TABLE>
<CAPTION>
AS OF DECEMBER 31, 1999
----------------------------------
PRO FORMA
ACTUAL PRO FORMA AS ADJUSTED
(IN THOUSANDS, EXCEPT SHARE DATA)
<S> <C> <C> <C>
Capital lease obligations, net of current portion........... $ 161 $ 161 $
Redeemable convertible preferred stock:
Series A, $0.01 par value; 2,830,726 shares authorized,
issued and outstanding actual........................... 2,902 --
Series B, $0.01 par value; 6,606,867 shares authorized
actual; 6,332,125 shares issued and outstanding
actual.................................................. 12,441 --
Series C, $0.01 par value; no shares authorized actual.... -- --
Series B warrants outstanding............................. 327 --
Series C warrant outstanding.............................. -- --
Stockholders' equity (deficit):
Preferred stock, $0.01 par value; no shares authorized
actual and 5,000,000 shares authorized pro forma and pro
forma as adjusted; no shares issued and outstanding..... -- --
Common stock, $0.01 par value; 19,166,451 shares
authorized actual and 395,000,000 shares authorized pro
forma and pro forma as adjusted; 4,482,802 shares issued
and outstanding actual, 22,887,383 shares issued and
outstanding pro forma, and shares issued and
outstanding pro forma as adjusted....................... 45 229
Additional paid-in capital................................ 13,596 99,685
Common stock warrants outstanding......................... -- 646
Deferred stock-based compensation......................... (12,271) (12,271)
Accumulated deficit....................................... (14,159) (14,159)
------- -------
Total stockholders' equity (deficit).................... (12,789) 74,130
------- ------- -------
Total capitalization.................................. $ 3,042 $74,291 $
======= ======= =======
</TABLE>
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The table above excludes:
- 2,261,985 shares of common stock issuable upon the exercise of stock
options outstanding on December 31, 1999 at a weighted average exercise
price of $0.17 per share;
- 274,741 shares of Series B redeemable convertible preferred stock issuable
upon exercise of warrants outstanding on December 31, 1999 at an exercise
price of $1.91 per share, which warrants will be exercisable for
274,741 shares of common stock upon completion of this offering; and
- 64,110 shares of Series C redeemable convertible preferred stock issuable
upon exercise of a warrant outstanding on December 31, 1999 on a pro forma
and pro forma as adjusted basis at an exercise price of $11.70 per share,
which warrant will be exercisable for 64,110 shares of common stock upon
completion of this offering.
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DILUTION
Our pro forma net tangible book value as of December 31, 1999 was
$73.4 million, or $3.21 per share of common stock outstanding. Pro forma net
tangible book value per share represents the amount of total tangible assets
less total liabilities, divided by the pro forma shares of common stock
outstanding as of December 31, 1999, after giving effect to the sale in February
and March 2000 of 6,411,004 shares of Series C redeemable convertible preferred
stock and the conversion of all shares of preferred stock into an aggregate of
18,404,581 shares of common stock upon completion of this offering. After giving
effect to the issuance and sale of the shares of common stock offered in
this offering and after deducting the estimated underwriting fees and estimated
offering expenses payable by us, assuming an initial public offering price of
$ per share, our pro forma net tangible book value as of December 31, 1999
would have been $ million, or $ per share. This represents an
immediate increase in pro forma net tangible book value of $ per share to
existing stockholders and an immediate dilution of $ per share to new
investors. The following table illustrates this dilution:
<TABLE>
<S> <C> <C>
Assumed initial public offering price per share............. $
Pro forma net tangible book value per share as of December
31, 1999................................................ $3.21
Increase per share attributable to this offering..........
-----
Pro forma net tangible book value per share after this
offering....................................................
-----
Dilution per share to new investors......................... $
=====
</TABLE>
The following table summarizes, on a pro forma basis, as of December 31,
1999, the difference between the number of shares of common stock purchased from
us, the total consideration paid to us, and the average price per share paid by
existing stockholders and by new investors:
<TABLE>
<CAPTION>
SHARES PURCHASED TOTAL CONSIDERATION AVERAGE
--------------------- ---------------------- PRICE
NUMBER PERCENT AMOUNT PERCENT PER SHARE
<S> <C> <C> <C> <C> <C>
Existing stockholders.................... 22,887,383 % $89,829,171 % $3.92
New investors............................
---------- ------ ----------- ------
Total................................ 100.0% $ 100.0%
========== ====== =========== ======
</TABLE>
The discussion and the tables above assume no exercise of stock options or
warrants outstanding on December 31, 1999 and no issuance of shares granted or
reserved for future issuance under our equity plans. To the extent that any of
these options or warrants are exercised, there will be further dilution to new
investors.
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<PAGE>
SELECTED FINANCIAL DATA
(IN THOUSANDS, EXCEPT PER SHARE DATA)
The following selected financial data should be read in conjunction with our
financial statements, including the related notes, and with "Management's
Discussion and Analysis of Financial Condition and Results of Operations." The
data as of December 31, 1999 and 1998 and for each of the three years in the
period ended December 31, 1999 have been derived from our audited financial
statements and related notes contained in this prospectus. The balance sheet
data as of December 31, 1997 have been derived from our audited financial
statements not contained in this prospectus. The statement of operations data
for the year ended December 31, 1996 and the balance sheet data at December 31,
1996 have been derived from our unaudited financial statements which are not
contained in this prospectus. We were incorporated in October 1995. However, we
did not commence operations until 1996 and therefore there are no financial data
for 1995.
<TABLE>
<CAPTION>
YEAR ENDED DECEMBER 31,
-----------------------------------------
1996 1997 1998 1999
<S> <C> <C> <C> <C>
STATEMENT OF OPERATIONS DATA:
Revenue................................................... $ -- $ 45 $ 142 $ 527
------ ------ ------- --------
Operating expenses:
Cost of services sold................................... -- -- 162 421
Cost of customer acquisition............................ -- -- 4 1,591
Selling and marketing................................... 4 20 133 4,175
Technology development.................................. -- -- 72 2,314
General and administrative.............................. 9 64 338 3,615
Stock-based compensation................................ -- -- -- 1,324
------ ------ ------- --------
Total operating expenses.............................. 13 84 709 13,440
------ ------ ------- --------
Loss from operations...................................... (13) (39) (567) (12,913)
Interest and other expense, net........................... -- 2 17 41
------ ------ ------- --------
Net loss.................................................. (13) (41) (584) (12,954)
Preferred stock dividends and accretion................... -- -- -- 568
------ ------ ------- --------
Net loss applicable to common stockholders................ $ (13) $ (41) $ (584) $(13,522)
====== ====== ======= ========
Net loss per share:
Basic and diluted....................................... $ -- $(0.02) $ (0.14) $ (3.03)
Pro forma basic and diluted............................. $ (1.18)
Weighted average shares outstanding:
Basic and diluted....................................... -- 2,540 4,211 4,459
Pro forma basic and diluted............................. 10,990
</TABLE>
<TABLE>
<CAPTION>
AS OF DECEMBER 31,
-----------------------------------------
1996 1997 1998 1999
<S> <C> <C> <C> <C>
BALANCE SHEET DATA:
Cash and cash equivalents................................. $ -- $ 6 $ 14 $ 3,341
Working capital (deficit)................................. (3) (64) (635) 1,660
Total assets.............................................. 15 63 143 5,947
Redeemable convertible preferred stock.................... -- -- -- 15,342
Total stockholders' equity (deficit)...................... 1 (16) (569) (12,789)
</TABLE>
20
<PAGE>
MANAGEMENT'S DISCUSSION AND ANALYSIS OF
FINANCIAL CONDITION AND RESULTS OF OPERATIONS
YOU SHOULD READ THE FOLLOWING DISCUSSION AND ANALYSIS TOGETHER WITH OUR
FINANCIAL STATEMENTS, RELATED NOTES AND OTHER FINANCIAL INFORMATION APPEARING
ELSEWHERE IN THIS PROSPECTUS. IN ADDITION TO HISTORICAL INFORMATION, THE
FOLLOWING DISCUSSION AND OTHER PARTS OF THIS PROSPECTUS CONTAIN FORWARD-LOOKING
INFORMATION THAT INVOLVES RISKS AND UNCERTAINTIES. OUR ACTUAL RESULTS COULD
DIFFER MATERIALLY FROM THOSE ANTICIPATED BY SUCH FORWARD-LOOKING INFORMATION DUE
TO COMPETITIVE FACTORS AND OTHER FACTORS DISCUSSED UNDER "RISK FACTORS" AND
ELSEWHERE IN THIS PROSPECTUS.
OVERVIEW
We are a leading online communications and energy marketplace offering a
broad range of branded essential services to residential and small business
customers. The essential services we currently offer in selected areas include
long distance and local telephone services, Internet access, electricity and
home heating. We were incorporated in October 1995. However, we did not commence
any operations until 1996. From 1996 to June 1999, we were in a development
stage offering limited telephone service to customers in Massachusetts, while we
focused on developing our business plan and our systems and raising capital. In
April 1998, we began providing, on a test market basis, local and long distance
telephone service to customers in Massachusetts. In June 1999, we launched our
web site and have since expanded our service offerings and our geographic
presence. As of December 31, 1999, we offered multiple long distance services
and Internet access to customers in the 47 continental states and the District
of Columbia. We also offered electricity and home heating products in
Massachusetts.
REVENUE. We generally buy essential services at wholesale prices from our
service providers, aggregate them online and resell them to our customers at
retail prices. We enter into both reseller and agency agreements with our
service providers. In a reseller agreement, we have the ability to determine
pricing of the services, we retain credit risk with the customer and we
generally provide the first line of customer service support. Revenue from our
reseller agreements is recognized based upon the amount of services provided to
our customers with the corresponding cost of services recorded as an expense. In
an agency relationship, we generally receive a fee from the service provider for
referring a customer to the service provider. Revenue from our agency
relationships consists of the net fees received from the service provider.
Through December 31, 1999, substantially all of our revenue has been generated
through our reseller relationships. Revenue is recognized as the services are
delivered.
In 1999 and 1998, revenue was generated principally from the sale of
telecommunications services, including Internet access. Revenue increased
substantially in the fourth quarter of 1999 as a result of an increase in our
customer base and an increase in our sales and marketing efforts. Revenue in
1997 was attributable to a one-time sale of a voice mail system to a customer.
As of December 31, 1999 and 1998, we had approximately 10,500 and 200
customers, respectively, purchasing essential services from us.
COST OF SERVICES SOLD. Our cost of services sold consists principally of
the cost of services purchased from our service providers for sale to our
customers. As of December 31, 1999, we had agreements with 29 service providers.
Generally, our agreements with service providers do not require us to purchase a
minimum amount of services. In 1999, four service providers supplied services
which accounted for 88% of our total revenue.
COST OF CUSTOMER ACQUISITION. Cost of customer acquisition consists of
direct, one-time costs that we incur to acquire and provision customers. We
offer promotional programs whereby we provide monetary incentives to new
customers. Generally these programs require that the customers agree to purchase
our services for a period of six months. These agreements do not require the
customers to purchase a minimum amount of services. Accordingly, we expense the
related costs when customers
21
<PAGE>
agree to begin service. In addition, we are charged a set-up fee by some of our
vendors when we provision new customers.
SELLING AND MARKETING. Selling and marketing expenses consist primarily of
employee salaries and related expenses, marketing programs, and advertising. We
expense marketing expenses as incurred, since, to date, they have not met the
direct-response criteria required for capitalization. Advertising to date has
related primarily to building brand awareness with traditional media
advertising, such as radio, print and billboards.
TECHNOLOGY DEVELOPMENT. Technology development expenses consist of expenses
for web site development, maintenance and design and the costs associated with
developing and maintaining our systems and infrastructure including employee
salaries and related expenses, depreciation for computer systems and server
hosting costs.
GENERAL AND ADMINISTRATIVE. General and administrative expenses consist
primarily of employee salaries and related expenses for executive,
administrative and customer service personnel, as well as accounting, legal,
consulting, other professional services, provision for bad debt and credit card
fees.
STOCK-BASED COMPENSATION. In connection with our grant of stock options
during the year ended December 31, 1999, we recorded deferred compensation of
$13.6 million, of which $1.3 million was expensed in 1999 and $12.3 million
remained outstanding at December 31, 1999. During the quarter ending March 31,
2000, we expect to record an additional $680,000 in deferred stock-based
compensation which will be amortized over the option vesting period. Stock-based
compensation includes primarily the amortization of stock compensation charges
resulting from the granting of stock options to employees with exercise prices
that may be deemed for accounting purposes to be below the fair value of our
common stock on the date of grant. Options granted to consultants have been
valued using the Black-Scholes valuation model. These amounts are being
amortized over the vesting periods of the applicable option, which are generally
four years. Deferred compensation on the unvested options is included as a
component of stockholders' equity. A summary of the periods during which the
deferred compensation as of December 31, 1999 will be amortized as stock-based
compensation is as follows:
<TABLE>
<CAPTION>
YEAR AMOUNT IN MILLIONS
<S> <C>
2000.................................. $ 6.4
2001.................................. 3.4
2002.................................. 1.8
2003.................................. 0.7
</TABLE>
Since our inception in October 1995, we have incurred substantial losses,
and as of December 31, 1999, we had an accumulated deficit of $14.2 million.
These losses have resulted from a significant increase in costs incurred for
selling and marketing expenses, customer acquisition and technology development,
and employee payroll and related expenses. We intend to continue to incur
significant selling and marketing expenses, customer acquisition expenses,
technology development expenses, and general and administrative expenses. We
expect our operating losses to increase significantly for the foreseeable
future. In order to achieve profitability, we will need to increase our revenue
significantly. Therefore, we can not assure you that we will ever attain or
maintain profitability. Our expansion will also place significant demands on our
management and operational resources. To manage our rapid growth and increased
demands, we must improve existing, and implement new, operational and financial
systems, procedures and controls.
In view of the rapidly changing nature of our markets and our limited
operating history, we believe that period-to-period comparisons of our revenue
and other operating results are not necessarily
22
<PAGE>
meaningful and should not be relied upon as indications of future performance.
Our historical revenue growth rates are not necessarily sustainable or
indicative of our future growth.
RESULTS OF OPERATIONS
The following table sets forth selected financial data for the periods
indicated, expressed as a percentage of total revenue:
<TABLE>
<CAPTION>
YEAR ENDED DECEMBER 31,
------------------------------------
1997 1998 1999
<S> <C> <C> <C>
STATEMENT OF OPERATIONS DATA:
Revenue.......................................... 100% 100% 100%
------ ------ --------
Operating expenses:
Cost of services sold.......................... -- 114 80
Cost of customer acquisition................... -- 3 302
Selling and marketing.......................... 45 94 792
Technology development......................... -- 51 439
General and administrative..................... 142 239 686
Stock-based compensation....................... -- -- 251
------ ------ --------
Total operating expenses..................... 187 501 2,550
------ ------ --------
Loss from operations............................. (87) (401) (2,450)
Other income (expense), net...................... (4) (12) (8)
------ ------ --------
Net loss......................................... (91)% (413)% (2,458)%
====== ====== ========
</TABLE>
YEARS ENDED DECEMBER 31, 1999, 1998 AND 1997
REVENUE. Revenue increased 271% to $527,000 in 1999 from $142,000 in 1998
and increased 216% in 1998 from $45,000 in 1997. We began selling local and long
distance telephone services to a test market in Massachusetts during
April 1998. In June 1999 we launched our web site, expanded our service
offerings and commenced our marketing efforts. Approximately 69% of 1999 revenue
was recorded in the fourth quarter. Substantially all revenue in 1999 was
generated from our telecommunication services, including Internet access. Our
revenue in 1998 was from the sale of telephone services from April 1998 through
December 1998. Revenue in 1997 was derived from the one-time sale of a voice
mail system to a single customer. At December 31, 1999 we had approximately
10,500 customers, as compared to approximately 200 in 1998.
COST OF SERVICES SOLD. Cost of services sold was $421,000 in 1999 and
$162,000 in 1998. We began selling services in 1998. Accordingly, no cost of
services sold was recorded in periods prior to 1998. The cost of services sold
exceeded revenue in 1998 and during the first three quarters of 1999 due to two
factors. First, we incur certain minimum costs with our suppliers regardless of
the number of customers we are servicing. Second, until the third quarter of
1999, we experienced difficulties with our provisioning and billing systems that
resulted in some customers receiving services without being billed for them. The
increase in cost of services sold from 1998 to 1999 was a result of the increase
in the customer base during the third and fourth quarter of 1999 and the
addition of services to our product offering.
COST OF CUSTOMER ACQUISITION. Cost of customer acquisition was
$1.6 million in 1999 and $4,000 in 1998. The cost of customer acquisition in
1999 over 1998 was due to the launch of our customer acquisition program which
included payment of monetary incentives to new customers.
23
<PAGE>
SELLING AND MARKETING. Selling and marketing expenses were $4.2 million in
1999, $133,000 in 1998 and $20,000 in 1997. The increase in expenses related to
additional marketing personnel and an increase in advertising and promotional
expenses. In September 1999, we acquired the performance obligations for two
groups of Internet access customers from a non-affiliated Internet service
provider. We acquired these customers for $504,000 and are amortizing the
acquisition cost over a 24-month period which represents the estimated useful
life of the asset for accounting purposes.
TECHNOLOGY DEVELOPMENT. Technology development expenses were $2.3 million
in 1999 and $71,000 in 1998. We did not incur any technology development
expenses in 1997. The increase in technology development expenses was due to
staffing additions and investments in new and enhanced systems.
GENERAL AND ADMINISTRATIVE. General and administrative expenses were
$3.6 million in 1999, $338,000 in 1998 and $64,000 in 1997. The increase in 1999
was due primarily to costs associated with the commencement of commercial
operations, the expansion of our service offerings and the addition of a
customer service organization. The increase in general and administrative
expenses in 1998 compared to 1997 was due to additional staff and related
expenses associated with commencement of testing operations.
STOCK-BASED COMPENSATION. Stock-based compensation expense was
$1.3 million in 1999. Unearned compensation on the unvested options is deferred
and included as a component of stockholders' equity.
OTHER INCOME (EXPENSE), NET. Other income (expense), net consisted of
interest expense offset in part by interest and other income. Interest expense
increased to $253,000 in 1999 from $17,000 in 1998 and $2,000 in 1997. In 1999,
we recorded $110,000 of interest expense as a result of the conversion of
$615,000 of our convertible promissory notes into shares of our Series A
redeemable convertible preferred stock at a discount to the price per share paid
by institutional investors. In 1999, we granted warrants to our lender to
purchase 274,741 shares of our Series B redeemable convertible preferred stock
at an exercise price of $1.91 per share. We have valued these warrants at
$327,000 using the Black-Scholes option pricing model and have recorded the
value of the warrants as a component of deferred financing costs. These costs
are being amortized as interest expense over the life of the loan commitment.
During 1999, there was $94,000 of amortization of the deferred financing costs
included in interest expense. The remaining interest expense in 1999 related to
interest expense related to a capital lease.
In 1999, interest and other income was $212,000. In 1999, we invested the
proceeds from issuance of shares of our Series A and B redeemable convertible
preferred stock in short-term liquid investments until such time as the proceeds
were required for corporate purposes
INCOME TAXES. No provision for income taxes was recorded in 1999, 1998 or
1997 due to the net losses incurred during these periods. As of December 31,
1999, we had $12.6 million of state and federal net operating loss carryforwards
for tax reporting purposes available to offset future taxable income. These net
operating loss carryforwards expire at various dates through 2019, to the extent
that they are not used. We have not recognized any benefit from the future use
of loss carryforwards for these periods, or for any other periods since
inception due to the uncertainty of realizing the benefit of these losses. Use
of the net operating loss carryforwards may be limited in future years if there
is a significant change in our ownership.
QUARTERLY RESULTS OF OPERATIONS.
The following table sets forth our unaudited statement of operations data
for each of the four quarters in the year ended December 31, 1999. You should
read this information in conjunction with our financial statements and related
notes appearing elsewhere in this prospectus. We have prepared this unaudited
information on a basis consistent with our audited financial statements, and, in
our opinion, it reflects all normal recurring adjustments that we consider
necessary for a fair presentation
24
<PAGE>
of our operating results for the quarters presented. The operating results in
any quarter are not necessarily indicative of the results that may be expected
for any future period.
<TABLE>
<CAPTION>
QUARTER ENDED
-------------------------------------------
MARCH 31, JUNE 30, SEPT. 30, DEC. 31,
1999 1999 1999 1999
(IN THOUSANDS)
<S> <C> <C> <C> <C>
Revenue................................................. $27 $59 $79 $362
------ ------- ------- -------
Operating expenses:
Cost of services sold................................. 44 54 87 237
Cost of customer acquisition.......................... -- -- 20 1,571
Selling and marketing................................. 199 195 1,282 2,499
Technology development................................ 283 248 492 1,289
General and administrative............................ 132 756 1,443 1,358
Stock-based compensation.............................. -- 4 18 1,229
------ ------- ------- -------
Total operating expenses............................ 658 1,257 3,342 8,183
------ ------- ------- -------
Loss from operations.................................... (631) (1,198) (3,263) (7,821)
Other income (expense), net............................. (16) (78) 69 (13)
------ ------- ------- -------
Net loss................................................ $(647) $(1,276) $(3,194) $(7,834)
====== ======= ======= =======
</TABLE>
In evaluating the information above you should consider the following:
- Our operating revenue increased in the fourth quarter of 1999 primarily as
a result of an increase in the number of customers and service offerings.
- Our operating expenses increased in each quarter in 1999 primarily as a
result of the expansion of our operations.
- We expect operating expenses to continue to increase on a quarterly basis.
Our quarterly operating results have fluctuated significantly in the past
and may fluctuate in the future due to a variety of factors, including:
- the continued acceptance of online commerce;
- increased expenses, whether related to customer acquisitions, capital
expenditures, selling and marketing, technology development or general and
administration;
- most of our expenses are fixed in the short term and we may not be able to
quickly reduce spending if revenues are lower than we have projected;
- our ability to forecast our quarterly revenues and expenses accurately is
limited given our short operating history; and
- if revenues in a particular quarter do not meet projections, our net
losses in a given quarter would be greater than expected.
LIQUIDITY AND CAPITAL RESOURCES
We have financed our operations primarily through the sale of equity
securities and borrowings. Net proceeds from financing activities for the period
from inception to date included the following:
- $2.6 million through the issuance of our Series A redeemable convertible
preferred stock including the conversion of $615,000 of our convertible
notes, together with accrued interest, into Series A redeemable
convertible preferred stock;
- $12.0 million through the issuance of our Series B redeemable convertible
preferred stock;
25
<PAGE>
- $71.2 million through the issuance of our Series C redeemable convertible
preferred stock;
- $188,000 through a credit facility; and
- $249,000 through demand notes payable to an entity owned by our president
of which $24,000 was borrowed in 1997 and $225,000 was borrowed in 1998.
All amounts outstanding as of December 31, 1998 were repaid during 1999.
Upon the closing of this offering, all of our redeemable convertible
preferred stock will convert into 18,404,581 shares of common stock.
Cash used in operating activities was $10.0 million in 1999 and $252,000 in
1998. Net cash flows from operating activities in each period reflect increasing
net losses offset in part by increases in accounts payable and accrued expenses
and, in 1999, by amortization of deferred stock-based compensation.
Cash used in investing activities was $666,000 in 1999 and $81,000 in 1998.
Our investing activities include capital expenditures of $776,000 in 1999 and
$85,000 in 1998. These capital expenditures were incurred to acquire computer
hardware and software for our operations and our internal use.
In September 1999, we entered into an agreement with a financing company
that provides for a $4,000,000 subordinated loan and a $1,000,000 equipment
lease line of credit. The subordinated loan bears interest at 10% per annum and
is secured by substantially all of our assets. The subordinated loan provides
for borrowings in $250,000 increments over a 12-month period. The loan requires
payments of interest for the first six months followed by thirty equal
installments of principal and interest. As of December 31, 1999, we had $185,531
outstanding under the equipment lease line of credit.
We intend to continue to incur significant selling and marketing expenses,
technology development expenses, and general and administrative expenses
including expenses relating to the hiring of additional employees. In addition,
we expect to continue to incur significant operating losses for the foreseeable
future. At December 31, 1999, we had cash and cash equivalents of $3.3 million
and working capital of $1.7 million. We believe that our current cash and cash
equivalents (including the net proceeds from the sale of our Series C redeemable
convertible preferred stock of $71.2 million), together with cash generated from
operations and net proceeds from this offering will be sufficient to meet our
working capital and capital expenditure requirements for at least the next
12 months. However, there can be no assurance that we will not require
additional financing during this time frame or that such additional financing,
if needed, will be available on terms acceptable to us, if at all.
MARKET RISK
We do not currently use derivative financial instruments. We currently place
our marketable security investments in high-quality credit instruments,
primarily U.S. Government obligations and corporate obligations with contractual
maturities of less than one year. We do not expect any material loss from our
marketable security investments and therefore believe that our potential
interest rate exposure is not material.
RECENT ACCOUNTING PRONOUNCEMENTS
In December 1999, the SEC issued Staff Accounting Bulletin No. 101, "Revenue
Recognition." This bulletin, as amended, established guidelines for revenue
recognition and is effective for periods beginning after March 15, 2000. We do
not expect that the adoption of the guidance required by SAB No. 101 will have a
material impact on our financial condition or results of operations.
In June 1998, the Financial Standards Board issued Statement of Financial
Accounting Standards, No. 133 "Accounting for Derivative Instruments and Hedging
Activities." SFAS No. 133 establishes
26
<PAGE>
accounting and reporting standards for derivative instruments and hedging
activities. SFAS No. 133, as amended by SFAS No. 137, will be effective for our
financial reporting beginning in the first quarter of fiscal 2001. SFAS No. 133
will require us to recognize all derivatives as either assets or liabilities in
the statement of financial position and measure those instruments at fair value.
The accounting for gains and losses from changes in the fair value of a
particular derivative will depend on the intended use of the derivative. We do
not expect the adoption of SFAS No. 133 to have a material impact on our results
of operations or financial position.
27
<PAGE>
BUSINESS
THE FOLLOWING DESCRIPTION OF OUR BUSINESS SHOULD BE READ IN CONJUNCTION WITH
THE INFORMATION INCLUDED ELSEWHERE IN THE PROSPECTUS. THIS DESCRIPTION CONTAINS
FORWARD-LOOKING STATEMENTS THAT INVOLVE RISKS AND UNCERTAINTIES. OUR ACTUAL
RESULTS COULD DIFFER SIGNIFICANTLY FROM THE RESULTS DISCUSSED IN THE
FORWARD-LOOKING STATEMENTS AS A RESULT OF THE FACTORS SET FORTH IN "RISK
FACTORS" AND ELSEWHERE IN THIS PROSPECTUS.
OVERVIEW
We are a leading online communications and energy marketplace offering a
broad range of branded essential services to residential and small business
customers. We define essential services to be the recurring services necessary
to operate a residence or small business. The essential services we currently
offer in selected areas include telecommunications services, such as long
distance telephone service, local telephone service and Internet access, and
energy services, such as electricity and home heating products. We intend to
expand the geographic areas in which we offer these services and to offer
additional essential services such as wireless telecommunications, natural gas
and satellite television. We generally enter into contracts to buy essential
services from leading service providers at wholesale prices and resell these
services online to our customers at retail prices.
We simplify the selection, purchase and management of essential services for
our customers. We intend to offer our customers multiple branded service
offerings for each type of essential service. We provide a convenient online
method for our customers to pay the recurring costs of these services. We have
designed our online marketplace to enable suppliers of essential services to
increase revenues and brand awareness, reduce general and administrative costs
and enhance their online strategies. As of March 31, 2000 approximately 55,000
customers were purchasing services from us and we had signed agreements with 42
service providers.
INDUSTRY OVERVIEW
THE GROWTH OF THE INTERNET AND ELECTRONIC COMMERCE
The Internet has emerged as a significant global medium for communications,
information and commerce. IDC estimates that there were over 68 million U.S.
Internet users at the end of 1998 and projects the number of users to grow to
over 197 million by 2003. The Internet has created new opportunities for
conducting commerce by enabling users and enterprises to streamline complex
processes, lower costs and improve productivity. Businesses are also
increasingly using the Internet to enter new markets and meet the challenges of
increased competition. The Internet enables businesses to more cost-effectively
contact and communicate with potential and existing customers. Increased access
to the information provided by the Internet also enables businesses and
consumers to make better purchasing decisions since they can more easily compare
product and service offerings at online marketplaces. IDC estimates that U.S.
business-to-consumer electronic commerce is expected to grow from $13 billion in
1998 to over $118 billion in 2003.
THE TELECOMMUNICATIONS AND ENERGY MARKETS
The emergence of the Internet has coincided with a period of extensive
deregulation and restructuring of the large telecommunications and energy
markets by state and federal lawmakers. According to the Federal Communications
Commission, the telecommunications industry generated 1997 telephone services
revenues of approximately $78 billion from households in the United States. The
FCC estimates that the average annual U.S. household expenditure for telephone
services in 1997 was $809. According to the Department of Energy, the electric
power industry generated 1998 revenues of approximately $93 billion from
residential customers in the United States. Based on this estimate, the average
U.S. residential consumer spent approximately $860 per year on electricity in
1998.
28
<PAGE>
Deregulation of the telecommunications and energy markets is intended to
promote competition by opening these markets to new entrants and ultimately to
promote consumer choice. As a result of this restructuring and increasing
competition, service providers are increasingly seeking new marketing methods,
channels of distribution and other means of acquiring customers in order to
maximize the utilization of their infrastructure and increase revenues.
The deregulation and restructuring of the telecommunications market began in
1984 with the break-up of AT&T by the federal government. Since that time, long
distance telephone service has become an intensely competitive market dominated
by several companies, including AT&T, MCI and Sprint. In addition, Regional Bell
Operating Companies that can prove that their local markets are irreversibly
open to competition are allowed to offer long distance service to local
customers. While the growth of revenues for long distance services is relatively
modest, competition continues to increase as new providers enter the market. As
a result, service providers compete aggressively using pricing, service
offerings, strategic partnerships and other means.
As a result of the Federal Telecommunications Act of 1996, the market for
local telephone service is also emerging as a deregulated and competitive
market. Before the Telecommunications Act was passed, there was little
opportunity for new carriers to compete with the regulated monopolies in the
market for local telephone service. These monopolies mainly consisted of the
Regional Bell Operating Companies that were created following the break-up of
AT&T. The Telecommunications Act requires the Regional Bell Operating Companies
and other incumbent local telephone providers in each state to open their
networks to competition. This will allow competitors to resell services provided
over all or part of those networks, including the critical "last mile"
facilities that actually connect a customer's home or business to the network.
While the Regional Bell Operating Companies still dominate the market for local
telephone service, numerous new carriers, such as Winstar Communications, RCN
and MediaOne, as well as established long distance carriers, such as AT&T and
MCI, have entered the market to provide local telephone service. This is
creating confusion for consumers who are slowly becoming aware that multiple
local service providers exist in some markets.
Additionally, other telecommunications services, such as wireless telephone
and Internet access, have emerged as essential services. These unregulated
services are experiencing dramatic growth in usage and number of competitors.
Wireless telephone service is becoming more desirable to consumers as the reach
and capabilities of the technology and the choice of service providers continue
to expand. IDC projects that by 2003 the number of users of wireless telephone
services in the U.S. will grow to 186 million subscribers from 111 million in
1998. Additionally, Internet access is becoming an essential service for news,
shopping, entertainment and communications in an increasing number of
households. As a result, the demand for Internet access, as well as the number
of providers of such services, is increasing rapidly.
The federal deregulation of wholesale electricity and natural gas markets
has prompted a majority of the states to consider deregulating their local
retail markets for these services. Adoption and implementation of deregulation
of retail energy markets are taking place on a state-by-state basis. As a
result, this deregulation is proceeding more slowly than deregulation of
telecommunications market. Currently, a competitive market for electricity and
natural gas exists in only a few states. Ongoing deregulation efforts in
additional states is expected to result in an increase in the number of
competitive markets over the next several years. The home heating oil market
have multiple active service providers and are substantially deregulated, highly
competitive and fragmented.
THE OPPORTUNITY FOR AN ONLINE MARKETPLACE FOR ESSENTIAL SERVICES
As deregulation leads to increased competition and more complex essential
service offerings, customers and service providers face numerous challenges.
29
<PAGE>
Customers must:
- identify and locate essential service providers;
- research and compare service plans and prices;
- analyze usage data to optimize service selection; and
- manually pay multiple monthly bills.
Suppliers of essential services must:
- cost-effectively increase revenues and capacity utilization;
- increase brand awareness;
- reduce high costs associated with servicing and billing individual
customers; and
- develop and implement an online strategy.
We believe that these challenges, combined with the large and recurring
nature of the demand for essential services by residential and small business
customers, provide a significant opportunity for an online communications and
energy marketplace.
THE ESSENTIAL.COM SOLUTION
Our online communications and energy marketplace provides our customers with
convenience, choice, simplicity and value in selecting, managing and paying for
essential services. It also enables suppliers of essential services to increase
revenues and brand awareness and to enhance their online strategies while
reducing costs associated with acquiring, servicing and billing individual
customers.
BENEFITS TO OUR CUSTOMERS
CONVENIENCE. Our customers can choose, manage and pay for a selection of
essential services at a single web site. This reduces the time and effort
currently required to purchase such services through existing channels. We
provide access to essential service offerings and billing information 24 hours a
day, seven days a week from anywhere that a customer has Internet access. We are
able to provide our customers with one consolidated online bill for the
essential services we sell to them. Our customers are notified by e-mail when a
bill is available for review and payment. Customers may pay their bills
electronically by either credit card or bank account debit. If a customer takes
no action on the bill within a specified period of time, it is automatically
paid using the method selected by the customer.
We provide online, automated, web-based self-service capabilities. These
allow customers to choose and change services, features and options based on
self-directed research at their convenience 24 hours a day, seven days a week.
For example, a customer can switch to a different long distance service provider
or order 3-way calling online. Additionally, customers can make inquiries of us
and provide feedback to us through e-mail and telephone, and customers can
access a database of frequently asked questions at any time.
CHOICE. We intend to offer a choice of multiple service providers
representing a mix of price and service plans within each service offering. We
plan to select quality service providers offering branded services. We intend to
offer up to four brands within each essential service category at our online
marketplace. We also have the ability to e-mail customers to notify them that
new service offerings are available. We believe that providing a greater number
of offerings within each essential service category would create confusion for
our customers. Customers have the option of choosing individual services or
bundling identified service offerings and have the ongoing ability to change
these choices online. We also offer comparative data on additional service
offerings not available at our marketplace to assist our customers in evaluating
and selecting their services.
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SIMPLICITY. We simplify the process of selecting essential services.
Customers can enter either their telephone numbers or zip codes and review all
our service offerings currently available for their geographic location.
Detailed information, such as monthly fees, surcharges, service fees and rates,
is compared for each available service plan at our web site. By using
Comparilator, our proprietary comparison tool, customers can easily evaluate
different service plans by sorting by rates or monthly fees.
VALUE. We generally enter into contracts to buy essential services at
wholesale prices from leading service providers and resell these services at
retail prices online to our customers. By aggregating customer demand, we
believe that our model allows us to negotiate favorable pricing for most of our
services and to pass on a portion of these savings to our customers.
Our online marketplace encourages price competition among service providers
by facilitating direct comparisons between service providers and service plans.
Our proprietary tools allow customers to make comparisons during the selection
process and analyze and optimize their service plan selections on an on-going
basis. Our web site also provides reporting, graphing and accounting features
allowing customers to analyze their usage data.
BENEFITS TO OUR SERVICE PROVIDERS
INCREASED REVENUES AND CAPACITY UTILIZATION. Deregulation is creating a
more competitive market for service providers in which they are increasingly
seeking to maximize system utilization while reducing costs. We offer service
providers a distribution channel that enables them to increase revenues without
incurring direct customer acquisition costs. This results in greater utilization
by service providers of existing capacity.
INCREASED BRAND AWARENESS. Service providers are seeking to differentiate
themselves in increasingly competitive markets through branding. This is
particularly true for service providers that are new entrants in their markets
or participants in deregulating markets. Visitors to our web site, as well as
our customers, are exposed to brands of the service providers we select. Because
we offer a limited number of service offerings in each essential service
category, each service provider receives a high level of visibility in our
marketplace. In addition, our marketing and advertising refer to branded service
offerings, benefiting our service providers at no cost to them.
REDUCED GENERAL AND ADMINISTRATIVE COSTS. We enable service providers to
reduce their operating costs. We provide comprehensive support services to our
customers, including customer service and billing at no cost to our service
providers. We also assume the responsibility for collections and the related
credit risks.
ENHANCED INTERNET STRATEGY. By providing services through our online
marketplace, service providers gain an immediate e-commerce capability, expand
an existing capability or gain an Internet presence with a low up-front
investment. In addition, our service providers receive market data regarding
online customers' selection of their service offerings and plans.
STRATEGY
Our goal is to be the leading online marketplace for essential services for
residential and small business customers. Our strategy includes the following
key elements:
EXPAND GEOGRAPHIC COVERAGE AND SERVICE OFFERINGS
We intend to be the first online provider of a comprehensive suite of
essential services that are available nationally. Our strategy is to offer a
selection of services with a national reach and supplement these on a regional
basis. We have agreements in place with national service providers that permit
us to resell long distance service and Internet access in the 48 continental
states. We supplement
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these national service offerings with regional offerings, such as local
telephone service, home heating products and electricity in selected markets. We
are adding new service providers to increase our geographic coverage and
expanding the service offerings at our online market to include services, such
as natural gas, wireless telecommunications and satellite television.
ESTABLISH A NATIONAL BRAND
We intend to expand our marketing campaign to increase awareness of our
online communications and energy marketplace and drive traffic to our web site.
We intend to use online marketing, direct mail and selective national and
regional advertising to build strong brand awareness.
ESTABLISH PARTNERSHIPS AND STRATEGIC ALLIANCES
We have developed a successful web-based affiliate program and intend to
continue to expand this program to include additional web sites. We also intend
to establish strategic relationships with credit card and financial services
companies, as well as high-traffic web portals and merchants. We expect that
these relationships will provide us with significant marketing and customer
acquisition opportunities. In addition to our marketing programs, we intend to
continue to enter into strategic alliances with established service providers.
In these agreements we purchase a subscriber base from a service provider and
enter into a reseller agreement with the service provider to continue to offer
its services to these customers.
GENERATE MULTIPLE AND RECURRING REVENUE STREAMS
We intend to focus on offering essential services that generate recurring
monthly revenue streams. Essential services, such as telecommunications and
energy, are non-discretionary purchases that are not dependent on repeat
purchase decisions. These services generate monthly, fixed and usage-based
revenues. Customers typically use these services every day and we believe that
their use is less likely to be affected by negative changes in economic
conditions. Our multiple monthly customer contacts through bill notification,
payment and marketing e-mails allow us to notify customers of, and cross-sell,
new service offerings.
PROMOTE LONG-TERM CUSTOMER RELATIONSHIPS
Our goal is to establish and maintain long-term relationships with our
customers by becoming their primary source of essential services. We believe
this approach will enable us to enjoy the benefits of the recurring revenue
associated with the sale of essential services and to cross-sell additional
services to our customers. We intend to maximize customer retention by:
- providing a choice of service providers in each product category so
customers can choose to change service providers but remain our customers;
- providing a quality customer service experience;
- emphasizing the convenience of consolidating several essential services on
one bill, paid electronically; and
- continuing to implement our Teleguard program, which enables consumers to
be removed, free of charge, from over 1,000 telemarketing lists that are
used extensively by service providers.
CONTINUE INVESTMENT IN TECHNOLOGY
Our technology is a central component of our business operations. We intend
to continue to invest in technology to achieve seamless interfaces among us, our
customers and our suppliers. We also intend to invest in facilities that will
increase our capacity to support our growing business and maintain high
standards of reliability. We expect that development of new systems and
automation of our processes
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will further enhance our ability to provision our customers and provide an
efficient communications channel to them.
FOCUS ON RESIDENTIAL AND SMALL BUSINESS MARKETS
We intend to continue to focus on the residential and small business markets
where provisioning and billing of services are standardized, scalable and can
take advantage of the capabilities of the Internet. Larger commercial and
industrial organizations have higher installation, maintenance and service
requirements that are less scalable and require more extensive selling efforts
and a higher level of customer service and support. We can communicate quickly
and inexpensively by e-mail with our customers, which facilitates cross-selling
other essential services. We focus on specific sub-groups of our target
customers that we believe are particularly attractive, such as customers who are
relocating residences, businesses or offices.
SERVICE OFFERINGS
Our service offering strategy is to optimize the number of brands offered at
our online marketplace by balancing our customers' desires for convenience,
choice, simplicity and value with the advantages we offer service providers. Our
service offerings include choices ranging from economy selections to
higher-priced, valued-added services. We currently intend to select up to four
brands within each service category to offer at our online marketplace. We
believe that too many offerings create confusion for our customers.
In April 1998, we began to test our systems and to establish relationships
with service providers by offering local and long distance telephone service in
Massachusetts. In June 1999, we launched our web site and began offering
telecommunications services nationwide. Since that time we expanded our service
offerings to include energy products and additional telecommunications services.
We intend to continue to expand our service offerings to include broader
geographic coverage and additional services and service providers. As of
March 31, 2000, approximately 55,000 customers were purchasing services from us
and we had signed agreements with 42 service providers. We are not currently
offering services from all of such service providers.
Generally our existing agreements with service providers do not require us
to purchase a minimum amount of service. In certain cases, due to greater
regulatory licensing or compliance requirements or preferences of the service
providers, we do not purchase the services at wholesale prices and resell them,
but instead act as an agent for the service provider. In entering into these
agreements, we seek to obtain rights to use the brand names and logos of service
providers, in order to help us promote the providers' branded offerings at our
online marketplace.
TELECOMMUNICATIONS
We define telecommunications services to include long distance and local
telephone service, Internet access, other telecommunication services, such as
voice mail, personal 800 numbers and calling cards, and wireless communication
services.
LONG DISTANCE SERVICE. We have offered long distance service in
Massachusetts since our testing began in April 1998. We currently offer
interstate long distance service in the 48 continental states and the District
of Columbia. We provide this long distance service under resale agreements with
three national carriers, Cable & Wireless, MCI WorldCom and Qwest
Communications. Under the terms of these agreements, we buy long distance
service at wholesale prices and resell the service to our customers online.
These agreements also enable us to resell intrastate long distance services in
those states where we are licensed by the state public utility commission to
sell such services. We are currently permitted by 13 states to sell intra-state
long distance services and are pursuing approvals in the remaining continental
states where such services are available.
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LOCAL TELEPHONE SERVICE. We buy local telephone service at discounts from
the retail prices charged by the Regional Bell Operating Companies. We have been
reselling local telephone service in Massachusetts since our testing began in
April 1998. In the first quarter of 2000, we began offering local telephone
service in New York, New Jersey and Pennsylvania. We have agreements in place
with each Regional Bell Operating Company or are operating under published
tariffs to resell their services. These agreements and tariffs enable us to
resell local telephone service in 39 states and the District of Columbia,
subject to obtaining approval of the state utility commission. We have received
such approvals in 16 states and the District of Columbia and are currently
pursuing approval in the remaining 32 continental states.
INTERNET. We began reselling dial-up Internet access service in June 1999.
We currently offer this service through agreements with three service providers.
Two of our providers, InterNet Connect and ZipLink, are national service
providers with facilities in major cities across the country. Our third
provider, NetWay, is a regional service provider serving New England. We have
also signed an agreement with RCN under which we intend to resell RCN dial-up
Internet service.
We have also entered into an agreement with InternetConnect under which we
resell digital subscriber line, or DSL, service as offered by two national
service providers, Covad and NorthPoint. We resell DSL service where available,
currently 22 cities in 16 states. Additionally, we have signed a resale
agreement with Core Communications, which also enables us to resell DSL service.
OTHER TELECOMMUNICATION SERVICES. We presently offer enhanced
telecommunications products and services, such as calling cards, personal 800
numbers and voice mail. These products and services are available nationally
except in those states where state public utility commission approval may be
required to offer that service for sale. In those states, we seek regulatory
approval to offer such services at the same time we apply for authorization to
sell local telephone service. With the exception of voice mail, our long
distance service providers generally provide these services under the same
agreement governing the resale of long distance service. We offer voice mail as
a value added service to local telephone service. Voice mail is provided by the
Regional Bell Operating Company or an alternative service provider. We have also
entered into contracts with AccessLine, American Voice Mail, Linx and Metrocall
to provide voice mail in 32 states.
WIRELESS COMMUNICATIONS. We have signed an agency agreement for national
wireless telephone service with Omnipoint. We also have signed an agency
agreement with Sundial, an Internet-based agent for wireless telecommunications
and satellite TV service providers. We expect that these services will be made
available to our customers in the second half of 2000.
ENERGY
We began offering energy services in Massachusetts in June 1999. Currently,
these services include electricity, home heating oil and propane, as well as
home heating service plans. The services are sold to our customers under agency
relationships with the service provider. We provide electricity to residential
customers in Massachusetts under an agreement with AllEnergy, a wholly-owned
subsidiary of New England Electric System. We provide home heating products
through agreements with three Massachusetts-based fuel oil companies. We also
have an agreement with ServiceEdge, a subsidiary of Eastern Enterprises, under
which we offer their home heating service plan.
We expect to offer additional energy services in markets outside of
Massachusetts either under a resale or agency relationship. The timing of these
offerings is subject to market conditions and integration of our systems with
the service providers. We have in place a resale agreement with SmartEnergy.com
and an agency agreement with NYSEG Solutions, Inc., a subsidiary of Energy East.
These agreements provide for electric service in certain distribution systems
within New York State. In addition, we have reseller agreements with
Go-Green.com for electricity in California and with Exelon Energy, a division of
PECO Energy, for electricity in New Jersey and Pennsylvania. We have signed an
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agreement with Conectiv for resale of electricity and natural gas in Delaware,
Maryland, New Jersey and Pennsylvania.
We have agency agreements for natural gas with Shell Energy serving Georgia
and AGF Direct Gas Sales & Servicing serving Maryland, Virginia and the District
of Columbia. We also have agency agreements with Petroleum Heat and Power, which
provides home heating oil service from Virginia to Massachusetts, Rhoads Energy
Company, which provides heating oil and electricity service in south central
Pennsylvania, and Suburban Propane, which provides propane in 40 states. We also
have an agency agreement with Weatherwise, which sells weather insurance
products to protect customers against the effects of weather on their home
heating bills.
MARKETING
Our marketing strategy is to increase market awareness for our online
marketplace, promote our services and generate customer acquisition
opportunities. We have a comprehensive marketing plan that includes online
advertising, affiliate programs and other strategic relationships, promotions,
e-mail, direct mail and print, outdoor, radio and television advertising. We
also intend to conduct comprehensive public relations programs that include
establishing and maintaining relationships with key trade, business and consumer
publications, as well as industry analysts. A significant portion of our
customers received monetary incentives from us.
We have filed a patent application relating to a web-based system for
offering value-based incentives to individuals who are in the process of
purchasing goods and services on the web. For example, a consumer purchasing
books online may be offered an immediate cash discount on the books if an
essential service is purchased at our online marketplace. We are currently in
negotiations with web merchants who could use these incentives to cross-sell
their products and services and to acquire customers for us on a commission
basis.
Our Teleguard program enables consumers to be removed, free of charge, from
over 1,000 telemarketing lists. When consumers register to participate in this
program, they become members of essential.com and a Teleguard kit which includes
a description of our online marketplace is mailed to them. We intend for the
Teleguard program to create brand awareness and consumer goodwill. A consumer
becomes a member by providing a name, address, telephone number and e-mail
address. In addition to participating in our Teleguard program, consumers also
become members by joining a waiting list for services not yet available in their
geographic area. As of March 31, 2000, we had approximately 600,000 of these
members. These members are not currently purchasing essential services from us
and therefore are not customers. Through direct and e-mail marketing methods, we
seek to convert members to customers.
Through strategic marketing alliances with web merchants and portals we
believe that we will achieve significant exposure to prospective customers. We
have focused on performance-based relationships rather than cost-per-impression
advertising and these relationships are currently structured to compensate the
alliance partner through commissions paid for customer referrals. Our affiliate
marketing program is designed to achieve broad distribution of our marketing
materials through web merchants and content providers by encouraging the
affiliates to place our banners and offers on their web site. In addition to
these programs, we intend to establish relationships with affinity groups, such
as credit card and financial services providers.
OPERATIONS
Our infrastructure has been designed to provide secure data exchanges with
service providers and secure billing and reporting of customer service activity.
Our online marketplace requires that we address three points of contact with our
customers and service providers: provisioning, customer service and billing.
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PROVISIONING. Provisioning is the process of switching or adding an
essential service for a customer so that we can properly transfer and obtain
usage and billing information. Provisioning is a complex process that involves
multiple interactions with service providers' legacy systems. We currently use
software-based workflow engines to manage these interactions electronically. We
have automated the provisioning of several services in order to minimize the
requirement for human intervention.
CUSTOMER SERVICE. We handle customer inquiries with our own customer
service representatives and have recently supplemented our customer service
efforts with an outsourced customer service organization. Currently, a majority
of our customer service inquiries are made by e-mail with the remainder by
telephone. We attempt to answer simple inquiries with standardized electronic
responses, and when necessary route inquiries to the appropriate customer
service group for manual response. We utilize a customized, web browser-based
customer care application with scalable tiered architecture. This system gives
us the ability to create and automate detailed, complicated workflows that
streamline transactions with our customers.
BILLING. Service providers send usage information in a format different
from ours. We convert the data to our format and then our rating and billing
engine applies our service plan parameters. A consolidated invoice including all
payments, credits, charges and taxes is generated and is posted on our web site.
Customers who have e-mail are notified that they can review and pay their bills
online. We mail invoices to customers requesting hard-copy bills for an
additional monthly fee.
TECHNOLOGY
Our systems are designed to provide performance, scalability and
reliability. We build our systems on Microsoft's NT operating system. Critical
transactions are under the control of a Microsoft transaction server. Our
databases are built on Microsoft SQL Server 7, which is supported by a wide
range of database management tools from both Microsoft and many third parties.
All of our production servers are located in facilities at Exodus
Communications, Inc. in Waltham, Massachusetts. We currently operate two
independent installations at Exodus, in two different buildings, one for primary
production and one for final testing and verification. The second installation
also provides a production fail-over capability in the event of failure of the
primary production installation. We believe these two installations provide a
high degree of redundancy, which is expected to be enhanced by the real-time
interconnection of the disk storage arrays in the two sites. We anticipate that
we will add additional disaster recovery capabilities by installing a third
production-capable facility operated on our premises in Burlington.
For our physical data storage, we have chosen Symmetrix storage arrays
operated and managed by Storage Networks at the Exodus facility. These storage
arrays are expected to provide redundancy of critical components, such as disk
drives, power supplies, interface controllers, cables and wiring. Two
independent Symmetrix arrays in different buildings are expected to be
interconnected to provide real-time mirroring of all data, giving us at least
two consistent copies of all our databases.
Technology from F5 Communications is used to connect our web servers to the
Internet. All web functionality executes on two or more identical web servers
under real-time management. This provides monitoring of all web servers in
real-time and if any web server fails to perform as expected, it is
automatically removed from the system. This technology also provides automatic
routing of traffic to the web servers, balancing the load based on each server's
capacity to process requests.
All interactions with our customers are encrypted using 128 bit secure
socket layer encryption. This is backed by certificates issued by Verisign.
Primary security is provided by firewall technology from CheckPoint Software
Technologies. This firewall provides packet and protocol filtering to prevent
unauthorized and unexpected access to our systems. Protocol-breaks provide
additional security for the connection between our web servers and our other
internal systems.
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INTELLECTUAL PROPERTY
We regard our intellectual property as critical to our success. We rely on a
combination of patent, trademark and copyright law, and trade secret protection
to protect our proprietary rights. We pursue the protection of our intellectual
property in part through trademark and copyright registration. We have applied
to register the marks ESSENTIALS, ESSENTIAL and ETILITY, and we are pursuing
applications to register other marks. However, our initial application to
register the ESSENTIAL mark has been denied by the Patent and Trademark Office.
We consider the protection of our trademarks and service marks to be important
for maintenance of our brand identity and reputation. We cannot assure you that
any of these registrations or applications will not be successfully challenged
by others or invalidated through administrative process or litigation. Further,
if our trademark applications are not approved or granted due to the prior
issuance of trademarks to third parties or for other reasons, there can be no
assurance that we would be able to enter into arrangements with such third
parties on commercially reasonable terms allowing us to continue to use such
trademarks. We have applied for one U.S. patent directed to some aspects of our
commercial processes. It is possible that our patent application will be denied
or granted in a very limited manner such that it offers little or no basis for
us to deter competitors from employing similar technology or processes. Further,
effective patent, trademark, copyright, and trade secret protection may not be
available in every country in which we may offer our services.
A portion of the intellectual property used in our business is based on
licenses granted to us by third parties. We depend on the third party owners
from whom we license intellectual property and technology to protect those
rights, and therefore, cannot guarantee that the measures taken by these third
parties to protect their proprietary rights will be sufficient. In these
agreements, the licensors have generally agreed to defend, indemnify and hold us
harmless with respect to any claim by a third party that the licensed property
infringes any patent or other proprietary right. We cannot assure you that these
provisions will be adequate to protect us from infringement claims.
In addition, we seek to protect our proprietary rights through the use of
confidentiality agreements and other contractual arrangements with our
employees, consultants, service providers and others. We cannot assure you that
these agreements will provide adequate protection for our proprietary rights in
the event of any unauthorized use or disclosure, or that such proprietary
information will not otherwise become known, or be independently developed, by
competitors. We expect to be subject to claims in the ordinary course of our
business, including claims alleging that we have violated a patent or infringed
a copyright, trademark or other proprietary right belonging to a third party. We
cannot assure you that the steps we have taken to protect our proprietary rights
will be adequate or that third parties will not infringe or misappropriate our
proprietary rights. Any infringement claims, even if not meritorious, could
result in the expenditure of significant financial and managerial resources on
our part, which could materially adversely affect our business, results of
operations, and financial condition.
REGULATORY MATTERS
Our business focuses on communications and energy services that, for the
most part, were previously provided by vertically-integrated monopolies that
were highly regulated at the state and federal level. Local telephone, long
distance, electricity and natural gas have all been, at one time, provided by
regulated monopolies. Actions by state and federal lawmakers have led to
increasing deregulation and restructuring of the markets for these services.
STATUS OF DEREGULATION
LONG DISTANCE. The market for long distance services has been deregulated
since the break-up of AT&T in 1984.
LOCAL TELEPHONE SERVICE. The Federal Telecommunications Act of 1996 opened
up competition in the telecommunications industry. Before the Telecommunications
Act was passed, there was very little
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opportunity for new carriers to compete with the regulated monopolies, which
consist mainly of the Regional Bell Operating Companies that were created
following the break-up of AT&T in 1984. The Telecommunications Act requires the
Regional Bell Operating Companies and other incumbent local telephone providers
in each state to open their networks to competition, and to allow competitors to
resell all or part of those networks, including the critical "last mile"
facilities that actually connect a customer's home or business to the network.
The Telecommunications Act also allows Regional Bell Operating Companies that
can prove that their local markets are irreversibly open to competition to
provide long distance service to local customers. While the Federal
Communications Commission was given the responsibility of writing the
regulations that implemented the Telecommunications Act, state utility
commissions retain control over many aspects of local telephone service,
including the licensing of competitive suppliers and the setting of prices at
which incumbents must make certain elements of their networks available for
lease or resale.
ENERGY. The electric generation and natural gas markets are generally being
deregulated independent of each other and the process varies on a state-by-state
basis. In certain states larger commercial and industrial customers are able to
purchase energy from competitive service providers earlier than small business
and residential customers. We expect that the pace at which deregulation occurs
in a competitive environment will be driven by a number of factors. These
factors include the following:
- legislative and regulatory commission initiatives;
- the degree to which regulated service providers are permitted to recover
investments previously made in a regulated environment;
- wholesale energy prices and their relationship to transitional retail
prices offered by incumbent utility companies;
- the establishment of industry standards allowing for sharing of customer
data; and
- the presence of competitive energy suppliers to serve retail markets and
the multi-phased process adopted by many states.
As of February 1, 2000, 24 states had enacted legislation or issued
comprehensive regulatory orders allowing competition in the provision of
electric generation service. Twenty-one states and the District of Columbia had
taken similar action with respect to natural gas service. Competitive markets
for these energy services may not develop, however, for several years after a
state enacts legislation or issues regulatory orders. The precise timing depends
on the specific steps in a state's deregulation process and the market
conditions in that state.
STATUS OF STATE CERTIFICATIONS
In general, we must obtain a certificate from the state public utility
commission to provide competitive local telephone, natural gas, or electricity
in a particular state. Qualification to do business as a foreign corporation is
a prerequisite to filing for such certifications. Currently, we are qualified to
do business in the 48 continental states and the District of Columbia.
TELEPHONE. We have been approved to provide local and intrastate long
distance telephone service in Colorado, Florida, Maryland, Massachusetts,
Montana, New Jersey, New York, Ohio, Pennsylvania, Rhode Island, Washington and
Wisconsin. We have been approved to provide local telephone service in Delaware,
Texas, Vermont and the District of Columbia. We have been approved to provide
intrastate long distance telephone service in California. We have applications
for certification to provide local and intrastate long distance service pending
in the remaining continental states.
ELECTRICITY. We are approved to provide electricity aggregation services in
Connecticut, Massachusetts, New Hampshire and New Jersey and are licensed as a
competitive electricity supplier in
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New York and Pennsylvania. We have applications to become a competitive
electricity supplier pending in Arizona and Rhode Island. We will continue to
seek regulatory approval to provide electricity service in those states where we
believe that the regulatory and market conditions will allow for customer
choice.
NATURAL GAS. We are permitted to provide competitive natural gas services
in Connecticut, Massachusetts, New Jersey, New York, Pennsylvania and Rhode
Island. We have an application pending in Georgia. Some states currently do not
require certification of competitive suppliers, but rather allow local
distribution companies to establish the credit, operational and contractual
requirements for market entry. We are currently seeking to satisfy such local
distribution companies' requirements in Maryland, Delaware, the District of
Columbia, Ohio, Illinois and Indiana. We will continue to seek regulatory
approval to provide natural gas in those states where a license is required and
where we believe that the regulatory and market conditions will allow for
customer choice.
OTHER REGULATORY MATTERS
As a common carrier and/or energy supplier subject to various state and
federal regulatory requirements, we may need to obtain state regulatory approval
before issuing securities depending on the nature of our business operations in
various states. Any delay in obtaining, or failure to obtain, such approval
where required could adversely affect our flexibility in accessing capital
markets on the most advantageous terms possible. Any such delays could have a
material adverse effect on our business, results of operations and financial
condition.
Many of the essential services that we offer to our customers are or may be
subject to substantial regulation at either or both a federal and state level.
We must comply with such regulatory framework both as it currently exists and as
it will exist in the future. Regulations address or may address such matters as
customer acquisition, billing, collection and service termination, reporting of
service and financial data to regulatory authorities, maintenance of current
tariffs, and various disclosures to customers and prospective customers
regarding the nature of the services offered, conditions associated with the
customers' movement from one service provider to another, and in the case of
electricity, the sources of supplies of electricity. Existing and future
regulations may impact our ability to offer services and the prices we can
charge.
COMPETITION
We presently face online and offline competition from a number of companies,
including:
- service providers, including providers whose services we offer, such as
MCI WorldCom, Qwest, Bell Atlantic and AllEnergy, and providers whose
services we are not currently offering, such as AT&T and Sprint;
- agents who act on behalf of service providers in acquiring customers; and
- resellers of telecommunications and energy services.
The market for an online communications and energy marketplace is new and
rapidly evolving. Competition exists and is expected to increase significantly
in the future because barriers to entry online are relatively insubstantial. We
compete on a limited basis with Internet start-ups, which to date have offered a
limited selection of essential services in certain geographic locations. We
expect additional competition from these companies and other Internet start-ups
as they develop. We also expect competition from more established Internet
companies, such as portals and Internet service providers which may seek to
offer essential services.
We believe that the success of companies seeking to create an online
marketplace for selling communications, energy and other essential services will
depend on the following factors:
- participation in the online marketplace by a significant number of
customers;
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- quality and reliability of service offerings;
- price and value of service offerings;
- customer service;
- breadth and depth of service offerings; and
- ease of use and convenience of the marketplace.
Our success depends upon capturing and maintaining a significant share of
the residential and small business customers who select, manage and pay for
essential services online. In order to do this, we must continue to build on our
early entry into the essential services marketplace, continue to increase brand
awareness, expand the geographic scope of our services, establish additional
relationships with service providers and continually upgrade our technology and
customer service.
Many of our current and potential competitors in the essential services
markets have longer operating histories, greater name recognition, an
established network of potential customers and significantly greater financial,
technical and marketing resources than we do. These companies may be able to
undertake more extensive marketing campaigns for their solutions and adopt more
aggressive pricing policies in attracting potential customers. For these
reasons, our ability to compete is uncertain.
EMPLOYEES
As of March 15, 2000, we had 146 full-time employees, 39 of whom were in
technology development, 15 in sales and marketing, 76 in operations and customer
service and 16 in general and administration. Our employees are not represented
by any collective bargaining unit, and we have never experienced a work
stoppage. We believe our relations with our employees are good.
FACILITIES
Our headquarters are located in Burlington, Massachusetts, where we occupy
approximately 12,000 square feet of office space. We also lease approximately
5,000 square feet of office space in a second facility also located in
Burlington, Massachusetts. These leases expire in August 2000 and April 2000,
respectively. We believe that adequate space for our operations will be
available on commercially reasonable terms upon the expiration of our existing
Burlington leases.
We also lease approximately 1,915 square feet in Woburn, Massachusetts. This
space is leased to us under a five-year lease agreement terminating on
February 28, 2003.
LEGAL PROCEEDINGS
From time to time we have been and expect to continue to be subject to legal
proceedings and claims in the ordinary course of business. We currently are not
a party to any material legal proceeding.
40
<PAGE>
MANAGEMENT
DIRECTORS, EXECUTIVE OFFICERS AND KEY EMPLOYEES
Our directors, executive officers and key employees, and their ages as of
March 15, 2000, are set forth below:
<TABLE>
<CAPTION>
NAME AGE POSITION
<S> <C> <C>
Akhil Garland*......................... 35 Chairman, President and Chief Executive Officer
Ivar Wold*............................. 59 Vice President, Engineering and Chief Technology
Officer
Ronan Winter........................... 32 Vice President, Marketing and Strategic Alliances
David Wheeler*......................... 52 Vice President, Operations
Christopher Kallaher................... 39 Vice President, General Counsel
John Duffy............................. 36 Vice President, Business Development, Energy and
Telecom
Patrick Moran*......................... 25 Vice President, Secretary and Director
Basil G. Pallone*...................... 44 Director of Finance, Controller and Treasurer
Michael Kolowich(1)(2)................. 49 Director
William J. Meurer(1)................... 37 Director
Paul O'Brien(1)........................ 60 Director
Rob Soni(2)............................ 31 Director
Scott B. Ungerer(2).................... 41 Director
</TABLE>
- ------------------------
* Executive officer
(1) Member of the Audit Committee.
(2) Member of the Compensation Committee.
AKHIL GARLAND has been our President and Chairman since June 1997. Since
December 1999, Mr. Garland has been our Chief Executive Officer. In addition,
from November 1995 to April 2000 Mr. Garland served as President of Garland
Enterprises, Inc., an Internet music company. Mr. Garland managed MIS
departments for Community Care Systems, Inc., an international healthcare
company from 1985 to 1990, and for the Massachusetts College of Art in Boston,
Massachusetts from 1990 to 1992. Mr. Garland holds a B.A. in mathematical
sciences from Connecticut College.
IVAR WOLD has been our Vice President, Engineering and Chief Technology
Officer since August 1999. From October 1995 to August 1999, Mr. Wold was Senior
Vice President of Architecture and Engineering at Fidelity Investments, a mutual
fund company. Prior to that time, from April 1992 to October 1995, Mr. Wold was
the Director of Core Technology at Borland International, a computer technology
company, for its next generation C++ product. Mr. Wold holds a B.A. from
Southampton University.
RONAN WINTER has been our Vice President, Marketing and Strategic Alliances
since November 1999. From September 1997 to October 1999, Mr. Winter was
Director, Business Development for Lycos, Inc., an Internet portal. Prior to
that, from August 1996 to September 1997, Mr. Winter was the Manager, Business
Development at iChat, an Internet communications company, and from March 1992 to
August 1996, Mr. Winter was the Manager, Business Development at Stream
International, a computer software and services company. Mr. Winter holds a B.A.
from Trinity College, Dublin.
DAVID WHEELER has been our Vice President, Operations since November 1999.
From October 1989 to August 1998, Mr. Wheeler was the General Manager of Sky
Subscriber Services, Ltd., a customer management company and a division of Sky
Broadcasting, a United Kingdom-based satellite television broadcaster.
41
<PAGE>
CHRISTOPHER KALLAHER has been our Vice President, General Counsel since
February 2000. From January 1999 to January 2000, Mr. Kallaher was an associate
at the law firm of Mintz, Levin, Cohn, Glovsky and Popeo, P.C. Prior to that,
from August 1997 to December 1998, Mr. Kallaher held the office of senior
counsel at the Massachusetts Department of Telecommunications and Energy, the
telecommunications and energy regulatory body in the Commonwealth of
Massachusetts. Prior to that, from December 1996 to July 1997, Mr. Kallaher was
the senior consultant for the Energy Research Group, an energy consulting firm.
Prior to that, from June 1988 through December 1996, Mr. Kallaher was an
associate at the Milwaukee office of the law firm Quarles & Brady LLP.
Mr. Kallaher holds a B.S. in civil engineering from Stanford University and a
J.D. from University of Wisconsin-Madison.
JOHN DUFFY has been our Vice President, Business Development, Energy and
Telecom since February 2000. Prior to that, Mr. Duffy held the office of Vice
President, Business Development--Telecommunications Markets since joining
essential in June 1999. From July 1995 to June 1999, Mr. Duffy was the Vice
President of Operations at Metromedia International Telecommunications, an
international telecommunications company. Prior to that, from July 1989 to
July 1995, Mr. Duffy was the Director of Carrier Relations at Metrocall, Inc., a
wireless messaging company. Mr. Duffy holds a B.A. in economics from LaSalle
University.
PATRICK MORAN incorporated essential.com in 1995 and served as our President
from October 1995 to June 1997, our Vice President, Operations from June 1997 to
November 1999, our Vice President from April 2000 to the present, and our
Secretary from December 1999 to the present. Mr. Moran has also served as one of
our directors since November 1995. In addition, from December 1995 to
June 1997, Mr. Moran was the President of Metro Marketing Direct, Inc., a media
buying company, which he incorporated while he was in college. Metro Marketing
Direct, Inc. was liquidated under the federal bankruptcy laws in
September 1997. Mr. Moran holds a B.S. in communications from Emerson College.
BASIL G. PALLONE has been our Director of Finance and Controller since
June 1999 and has been our Treasurer since December 1999. From November 1998 to
June 1999, Mr. Pallone was an independent consultant. Prior to that, from
June 1997 to October 1998, Mr. Pallone was the Chief Financial Officer at
EnergyVision, LLC, a marketer of energy and energy services, that was acquired
by Williams Energy Services, an energy company, in 1998. Prior to that, from
July 1993 to December 1996, Mr. Pallone was employed by EUA Cogenex Corporation,
an energy services company, most recently holding the title of Executive Vice
President. Mr. Pallone holds an A.B. in economics from Boston College and an
M.B.A. in finance from Babson College.
MICHAEL KOLOWICH has been one of our directors since December 1999 and a
member of our advisory board since July 1999. Since February 1998, Mr. Kolowich
has been the Vice Chairman and Director at NewsEdge Corporation, an Internet
content company. Prior to that, from September 1996 to February 1998,
Mr. Kolowich was the President, Chairman and Chief Executive Officer at
Individual, Inc., an Internet content company. Prior to that, from December 1994
to July 1996, Mr. Kolowich was the President of AT&T New Media Services, a
telecommunications services company. Prior to that, from April 1988 to
December 1994, Mr. Kolowich was employed by Ziff-Davis Publishing Company,
initially as founding publisher of PC/COMPUTING magazine and subsequently as
founder and president of Ziff Davis Interactive, which is now known as ZDNet.
Mr. Kolowich is a director of NewsEdge Corporation and SmarterKids.com, Inc.
Mr. Kolowich holds an A.B. in engineering and applied physics from Harvard
College and an M.B.A. from the Harvard Graduate School of Business.
WILLIAM J. MEURER has a been one of our directors since December 1999. Since
January 2000, Mr. Meurer has been a General Partner of Brand Equity Ventures, a
venture capital firm. From 1998 to January 2000, Mr. Meurer was a Vice President
at Brand Equity Ventures. Prior to that, from 1990 to 1998, Mr. Meurer was
employed by The Boston Consulting Group, a consulting firm, most recently
42
<PAGE>
as a manager. Mr. Meurer holds an A.B. from Dartmouth College and an M.B.A. from
the Harvard Graduate School of Business.
PAUL O'BRIEN has been one of our directors since December 1999. Since
January 1995, Mr. O'Brien has been the President of The O'Brien Group, Inc., a
consulting and investing company. Mr. O'Brien is a director of Cambridge
Neuroscience, Inc., MangoSoft, Inc., NetOptix, Corp., Renaissance
Worldwide, Inc. and View Tech, Inc. Prior to that, Mr. O'Brien was employed by
New England Telephone and Telegraph Company, most recently as Chairman of the
Board from 1993 to December 1994 and as President and Chief Executive Officer
from 1988 to 1993. Mr. O'Brien holds a BSEE from Manhattan College and an M.B.A.
from New York University.
ROB SONI has been one of our directors since April 1999. Since 1994,
Mr. Soni has worked at Bessemer Venture Partners, a venture capital firm, and
currently holds the title of Managing General Partner. Mr. Soni holds an A.B. in
social studies from Harvard College.
SCOTT B. UNGERER has been one of our directors since March 1999. Since 1996,
Mr. Ungerer has been a Managing Director at EnerTech Capital, a venture capital
firm, of which he is the co-founder. Prior to that, from January 1995 to
August 1996, Mr. Ungerer was the President and Chief Operating Officer of
Atlantic Energy Enterprises, Inc., an energy services company. Mr. Ungerer holds
a B.S. in mechanical engineering from Princeton University.
BOARD COMPOSITION
Following this offering, our board of directors will be divided into three
staggered classes, each of whose members will serve for a three-year term. The
board will consist of two class I directors (Messrs. Moran and Ungerer), two
class II directors (Messrs. Kolowich and Soni) and three class III directors
(Messrs. Garland, Meurer and O'Brien). At each annual meeting of stockholders,
one class of directors will be elected to serve for a three-year term to succeed
the directors of the same class whose terms are then expiring. The terms of the
class I directors, class II directors and class III directors will expire upon
the election and qualification of successor directors at the annual meeting of
stockholders to be held during calendar years 2001, 2002 and 2003, respectively.
Each officer serves at the discretion of the board of directors and holds
office until his or her successor is elected and qualified or until his or her
earlier resignation or removal.
There are no family relationships among any of our directors or executive
officers.
BOARD COMMITTEES
The board of directors has a compensation committee composed of
Messrs. Kolowich, Soni and Ungerer, which reviews and approves the salaries and
incentive compensation of our executive officers. Our compensation committee
administers our equity incentive plans, including any grants of equity
incentives to our employees.
The board of directors also has an audit committee composed of Messrs.
Kolowich, Meurer and O'Brien. The audit committee is governed by a charter which
requires that each member of the committee be independent. The charter also
identifies the roles and responsibilities of the committee, which include:
- oversight of the audit process performed by our independent auditors;
- review of the scope and results of the audit process;
- oversight of the integrity and accuracy of our financial reporting, both
internal and external; and
- review of our annual and interim financial statements.
43
<PAGE>
DIRECTOR COMPENSATION
We do not currently compensate directors for attending meetings of either
the board of directors or committees of the board of directors. Directors are
reimbursed for reasonable expenses incurred in attending board meetings. We have
made grants of stock options to certain directors in the past. In June 1999, in
connection with Mr. Kolowich's services as a member of our advisory board,
Mr. Kolowich was granted a non-qualified stock option to purchase 10,000 shares
of common stock under our equity incentive plan at an exercise price of $0.05
per share. In December 1999, in connection with his election to our board of
directors, Mr. Kolowich was granted a non-qualified stock option under our
equity incentive plan to purchase 125,725 shares of common stock at an exercise
price of $0.20 per share. In December 1999, Mr. O'Brien was granted a
non-qualified stock option under our equity incentive plan to purchase 125,725
shares of common stock at an exercise price of $0.20 per share. All option
grants were made at the discretion of the board of directors.
In addition, our 2000 Non-Employee Director Stock Option Plan will become
effective upon the completion of this offering. The plan provides for the grant
of stock options to purchase a maximum of 250,000 shares of our common stock.
COMPENSATION COMMITTEE INTERLOCKS AND INSIDER PARTICIPATION
The members of our compensation committee are Messrs. Kolowich, Soni and
Ungerer. No executive officer has served as a director or member of the
compensation committee, or other committee serving an equivalent function, of
any entity whose executive officers served as a member of the compensation
committee of our board of directors. Prior to the formation of the compensation
committee, the full board of directors made all decisions regarding executive
officer compensation and the granting of stock options.
EXECUTIVE COMPENSATION
The following table presents the total compensation paid or accrued in 1999
for our chief executive officers and our other most highly compensated executive
officers who were serving as executive officers on December 31, 1999 and whose
total annual salary and bonuses exceeded $100,000 in 1999. We refer to all of
these officers collectively as our named executive officers.
<TABLE>
<CAPTION>
LONG-TERM
ANNUAL COMPENSATION COMPENSATION AWARDS
------------------- ----------------------------------------
SALARY BONUS RESTRICTED SECURITIES
STOCK UNDERLYING ALL OTHER
NAME AND PRINCIPAL POSITION AWARDS OPTIONS (#) COMPENSATION
<S> <C> <C> <C> <C> <C>
Akhil Garland(1)..................... $132,800 -- -- -- $34,625
Chairman, President and Chief
Executive Officer
Ivar Wold............................ 112,500 $150,000 -- 575,000 --
Vice President, Engineering and
Chief Technical Officer
Patrick Moran........................ 111,400 40,000 -- -- 14,874
Vice President and Secretary
Ilene H. Lang(2)..................... 24,400 -- -- -- 33,333
Former Chief Executive Officer
</TABLE>
- ------------------------
(1) Mr. Garland became Chief Executive Officer in December 1999.
(2) Ms. Lang served as Chief Executive Officer from October 1998 to March 1999.
44
<PAGE>
OPTION GRANTS IN LAST FISCAL YEAR
The following table sets forth information as to stock options granted to
each of our named executive officers during the year ended December 31, 1999.
The exercise price per share of each option grant was equal to the fair market
value of the common stock on the grant date, as determined by the board of
directors.
<TABLE>
<CAPTION>
INDIVIDUAL GRANTS POTENTIAL REALIZABLE
------------------------------------------------------- VALUE AT ASSUMED
PERCENT ANNUAL RATES OF
NUMBER OF OF TOTAL STOCK PRICE
SECURITIES OPTIONS APPRECIATION FOR
UNDERLYING GRANTED TO EXERCISE OR OPTION TERM(2)
OPTIONS EMPLOYEES IN BASE PRICE EXPIRATION ---------------------
NAME GRANTED (#) FISCAL YEAR(1) PER SHARE DATE 5% 10%
<S> <C> <C> <C> <C> <C> <C>
Akhil Garland....................... -- -- -- -- -- --
Ivar Wold........................... 575,000 23.09% $0.20 10/5/09 $72,322 $183,280
Patrick Moran....................... -- -- -- -- -- --
Ilene H. Lang....................... -- -- -- -- -- --
</TABLE>
- ------------------------
(1) The percentage of total options granted to employees in the last fiscal year
is based on options to purchase an aggregate of 2,490,625 shares.
(2) Amounts that may be realized upon exercise of the options immediately before
the expiration of their term, assuming the specified compound rates of
appreciation (5% and 10%) on the market value of the common stock on the
date of option grant over the term of the options. These numbers are
calculated based on rules promulgated by the SEC and do not reflect our
estimate of future stock price growth. Actual gains, if any, on stock option
exercises and common stock holdings are dependent on the timing of exercise
and the future performance of the common stock. There can be no assurance
that the rates of appreciation assumed in this table can be achieved or that
the amounts reflected will be received by the individuals.
FISCAL YEAR-END OPTION VALUES
The following table sets forth information with respect to unexercised
options held as of December 31, 1999 by each of our named executive officers.
AGGREGATE OPTION EXERCISES IN FISCAL 1999 AND FISCAL YEAR-END OPTION VALUES
<TABLE>
<CAPTION>
NUMBER OF
SECURITIES UNDERLYING VALUE OF UNEXERCISED
UNEXERCISED OPTIONS IN-THE-MONEY OPTIONS
SHARES AT FISCAL YEAR-END (#) AT FISCAL YEAR-END ($)(1)
ACQUIRED ON VALUE --------------------------- ---------------------------
NAME EXERCISE (#) REALIZED ($) EXERCISABLE UNEXERCISABLE EXERCISABLE UNEXERCISABLE
<S> <C> <C> <C> <C> <C> <C>
Akhil Garland................... -- -- -- -- -- --
Ivar Wold....................... -- -- 35,937 539,063 -- --
Patrick Moran................... -- -- -- -- -- --
Ilene H. Lang................... -- -- -- -- -- --
</TABLE>
- ------------------------
(1) Calculated by determining the difference between the exercise price and the
deemed fair market value of $0.20 per share of the securities underlying the
options as of December 31, 1999.
45
<PAGE>
EQUITY PLANS
AMENDED AND RESTATED 1998 STOCK OPTION AND INCENTIVE PLAN
Our board of directors and stockholders adopted the 1998 stock option and
incentive plan in December 1998, and our board of directors and stockholders
amended the 1998 plan in March and July 1999 and in February 2000. Our board of
directors further amended our 1998 plan subject to stockholder approval in
April 2000. An aggregate of 7,300,000 shares of common stock may be issued under
the 1998 plan. The 1998 plan provides for the grant of stock-based awards to
employees, officers and directors of, and consultants or advisors to, essential
and its subsidiaries. Under the 1998 plan, we may grant options that are
intended to qualify as incentive stock options within the meaning of the
Internal Revenue Code, options not intended to qualify as incentive stock
options, restricted stock and other stock-based awards. Incentive stock options
may be granted only to our employees. No employee may receive an award for more
than 672,160 shares in any calendar year.
Under our 1998 plan, our board of directors may administer the 1998 plan or
our board of directors may delegate its authority under the 1998 plan to a
committee of the board of directors. Under the 1998 plan, the board of
directors, or the committee, has the authority to select the persons to whom
awards are granted and to determine the terms of each award, including the
number of shares of common stock subject to the award. Payment of the exercise
price of an award may be made by means of:
- a check payable to us;
- delivery of an irrevocable and unconditional undertaking by a broker to
deliver to us sufficient funds to pay the exercise price;
- delivery of shares of our common stock;
- delivery of a promissory note payable to us;
- any other method approved by the board of directors, or the committee; or
- by a combination of any of these methods.
Unless otherwise permitted by the board of directors, or the committee, awards
are not assignable or transferable except by will or the laws of descent and
distribution, and, during the participant's lifetime, may be exercised only by
the participant.
The board of directors, or the committee, may, in its sole discretion,
amend, modify or terminate any award granted or made under the 1998 plan, so
long as the amendment, modification or termination would not materially and
adversely affect the participant. The board of directors (or the committee) may
also, in its sole discretion, accelerate or extend the date or dates on which
all or any particular option or options granted under the 1998 plan may be
exercised. All awards granted under the 1998 plan will accelerate by a period of
one year upon an acquisition of essential.
2000 NON-EMPLOYEE DIRECTOR STOCK OPTION PLAN
The 2000 non-employee director stock option plan was adopted by the board of
directors in April 2000 subject to stockholder approval. The director plan will
take effect upon completion of this offering. The director plan provides for the
grant of options to our non-employee directors of up to a maximum of 250,000
shares of our common stock .
The director plan is administered by the board of directors or a committee
appointed by the board of directors. In the event the board of directors does
not appoint such a committee, then the board shall have all power and authority
to administer the director plan. Under the director plan, each of our current
directors who is not also one of our employees or officers shall be
automatically granted on the
46
<PAGE>
effective date of this offering, without any further action, an option to
purchase 10,000 shares of our common stock, and each new non-employee director
who joins the board of directors thereafter would automatically be granted an
option to purchase 20,000 shares of our common stock upon election. Provided
that the director continues to serve as a member of our board of directors,
one-fourth of the shares included in these grants will become exercisable on the
first, second, third and fourth anniversaries of the dates of the grant. In
addition, each non-employee director who is serving on the board of directors on
the last day of February and the last day of August during the term of the plan
will be automatically granted an option to purchase 1,250 shares of our common
stock. Provided that the director continues to serve as a member of the board of
directors, one-twelfth of the shares included in each grant will become
exercisable on the last day of each month over the year after the date of the
grant. All options granted under the director plan will have an exercise price
equal to the fair market value of the common stock on the date of grant. The
term of each option will be for ten years from the date of grant. Options may
not be assigned or transferred except by will or by the laws of descent and
distribution and are exercisable to the extent vested only while the optionee is
serving as a director or within 90 days after the optionee ceases to serve as a
director, except that if a director dies or becomes disabled while he or she is
serving as a director, the option is immediately and automatically accelerated
and becomes fully vested and all unexercised options are exercisable until the
scheduled expiration date of the option. All options granted under the director
plan accelerate in full on an acquisition of our company. No options have been
granted to date under the director plan.
2000 EMPLOYEE STOCK PURCHASE PLAN
The 2000 employee stock purchase plan was adopted by the board of directors
in April 2000 subject to stockholder approval. The purchase plan will take
effect upon completion of this offering. The purchase plan provides for the
issuance of a maximum of 250,000 shares of common stock. The purchase plan may
be administered by the board of directors or a committee appointed by the board
of directors. All employees whose customary employment is for more than
20 hours per week and for more than five months in any calendar year are
eligible to participate in the purchase plan. Outside directors and employees
who would own 5% or more of the total combined voting power or value of our
stock immediately after the grant may not participate in the purchase plan.
To participate in the purchase plan, an employee must authorize us to deduct
an amount not less than one percent nor more than ten percent of a participant's
total cash compensation from his or her pay during each six-month payment
period. The first payment period will commence on the effective date of this
offering and end on August 31, 2000. Thereafter, the payment periods will
commence on the first day of September and March and end on the last day of the
following February and August, respectively, each year. In no case shall an
employee be entitled to purchase more than 500 shares in any one payment period.
The exercise price for the option granted in each payment period is 85% of the
lesser of the average market price of the common stock on the first or last
business day of the payment period, in either event rounded up to the nearest
cent. If an employee is not a participant on the last day of the payment period,
such employee is not entitled to exercise his or her option, and the amount of
his or her accumulated payroll deductions will be refunded, without interest.
Options granted under the purchase plan may not be transferred or assigned.
An employee's rights under the purchase plan terminate upon his or her voluntary
withdrawal from the plan at any time or upon termination or employment. No
options or shares have been granted to date under the purchase plan.
EMPLOYMENT AGREEMENTS
We entered into an employment agreement with Ilene H. Lang on July 28, 1998.
Under the employment agreement, Ms. Lang was entitled to an annual salary of
$200,000, commencing September 1, 1998. Ms. Lang purchased 1,039,609 shares of
our common stock on October 1, 1998,
47
<PAGE>
subject to a stock restriction agreement. Ms. Lang ceased to be an employee of
our company on March 17, 1999, and we exercised our right under the stock
restriction agreement to repurchase 779,707 shares of the common stock we had
previously sold to Ms. Lang.
LIMITATION OF LIABILITY AND INDEMNIFICATION OF OFFICERS AND DIRECTORS
Our fifth amended and restated certificate of incorporation provides that
our directors and officers will be indemnified by us to the fullest extent
permitted by Delaware law, as it now exists or may in the future be amended,
against all expenses and liabilities reasonably incurred in connection with
their service for us or on our behalf. In addition, our fifth amended and
restated certificate of incorporation provides that our directors will not be
personally liable for monetary damages to us for breaches of their fiduciary
duty as directors, unless they:
- violated their duty of loyalty to us or our stockholders;
- acted or failed to act in bad faith;
- knowingly or intentionally violated the law;
- authorized illegal dividends or redemptions; or
- derived an improper personal benefit from their action as directors.
We have insurance that insures our directors and officers against certain
losses and us against our obligations to indemnify our directors and officers.
48
<PAGE>
RELATED-PARTY TRANSACTIONS
LOANS BY AFFILIATE
On May 15, 1998, AAD Services, Inc., an entity affiliated with Akhil
Garland, our Chairman, President and Chief Executive Officer, loaned us $124,142
at a stated rate of interest of ten percent per annum. On December 5, 1998, this
loan was assigned by AAD Services, Inc. to Garland Enterprises, Inc., an entity
affiliated with Akhil Garland. On June 30, 1998, and December 15, 1998, Garland
Enterprises, Inc. loaned us $114,200 and $10,218, respectively, at a stated rate
of interest of ten percent per annum. After the sale of shares of our Series B
redeemable convertible preferred stock on July 29, 1999, we repaid each of these
loans in full.
SALE OF CONVERTIBLE PROMISSORY NOTES
In January 1999, we sold an aggregate of $710,000 of promissory notes. These
notes were convertible into either:
- shares of our capital stock sold by us in our first financing completed on
or before June 30, 1999; or
- a new series of our preferred stock if we were not able to complete a
financing on or before June 30, 1999.
Ilene H. Lang, then our chief executive officer, purchased a note for $25,000,
and Michael Kolowich, one of our board members, purchase a note for $50,000. The
notes held by Ms. Lang and Mr. Kolowich, as well as the accrued interest on the
notes, were converted into shares of our Series A redeemable convertible
preferred stock in May and June 1999, respectively.
SALE OF SERIES A REDEEMABLE CONVERTIBLE PREFERRED STOCK
Between March and June 1999 we sold an aggregate of 2,096,410 shares of our
Series A redeemable convertible preferred stock (convertible into
4,192,820 shares of our common stock upon completion of this offering) to
various investors at a purchase price of $1.00 per share. Investors owning five
percent or more of our shares who purchased shares in that transaction included:
<TABLE>
<CAPTION>
NUMBER OF SHARES OF SERIES A
REDEEMABLE
INVESTOR CONVERTIBLE PREFERRED STOCK PURCHASED
<S> <C>
Bessec Venture Partners IV L.P................ 401,854
Bessemer Venture Partners IV L.P.............. 646,351
EnerTech Capital Partners, L.P................ 1,048,205
</TABLE>
In connection with the sales of our Series A redeemable convertible
preferred stock, holders of an aggregate principal amount of $615,000 of our
convertible promissory notes described above elected to convert their promissory
notes into shares of our Series A redeemable convertible preferred stock and the
holders of an aggregate principal amount of $95,000 of our convertible
promissory notes described above elected to have their notes redeemed by us.
Pursuant to the terms of the convertible promissory notes, we issued the
734,316 shares of Series A redeemable convertible preferred stock (convertible
into 1,468,632 shares of our common stock upon completion of this offering) at
85% of the per share price, or $0.85 per share, in exchange for the principal
and accrued interest on the notes at the time of surrender.
49
<PAGE>
SALE OF SERIES B REDEEMABLE CONVERTIBLE PREFERRED STOCK
Between July and September 1999 we sold an aggregate of 6,332,125 shares of
our Series B redeemable convertible preferred stock to various investors at a
purchase price of $1.91 per share. Investors owning five percent or more of our
shares who purchased shares in that transaction included:
<TABLE>
<CAPTION>
NUMBER OF SHARES OF SERIES B
REDEEMABLE
INVESTOR CONVERTIBLE PREFERRED STOCK PURCHASED
<S> <C>
Bessec Venture Partners IV L.P................ 732,642
Bessemer Venture Partners IV L.P.............. 1,098,964
Brand Equity Ventures I, L.P.................. 2,224,093
EnerTech Capital Partners, L.P................ 1,831,606
</TABLE>
SALE OF SERIES C REDEEMABLE CONVERTIBLE PREFERRED STOCK
In February and March 2000 we sold an aggregate of 6,411,004 shares of our
Series C redeemable convertible preferred stock to various investors at a
purchase price of $11.70 per share. Investors owning five percent or more of our
shares who purchased shares in that transaction and the number of shares each
purchased included:
<TABLE>
<CAPTION>
NUMBER OF SHARES OF SERIES C
REDEEMABLE
INVESTOR CONVERTIBLE PREFERRED STOCK PURCHASED
<S> <C>
Bessec Venture Partners IV L.P................ 170,960
Bessemer Venture Partners IV L.P.............. 256,441
Brand Equity Ventures I, L.P.................. 462,448
EnerTech Capital Partners II, L.P............. 427,401
</TABLE>
INDEMNIFICATION
We intend to enter into indemnification agreements with each of our
directors and officers. These indemnification agreements will require us to
indemnify our directors and officers to the fullest extent permitted by Delaware
law. See "Management--Limitation of Liability and Indemnification" for
additional information regarding provisions in our charter documents requiring
us to indemnify our officers and directors.
CONFLICT OF INTEREST POLICY
We believe that all transactions with our directors, officers and principal
stockholders described above were made on terms no less favorable to us than
could have been obtained from unaffiliated third parties. A majority of the
disinterested outside directors on our board of directors approves all
transactions between us and our officers, directors, principal stockholders and
their affiliates. Any similar transactions will continue to be on the terms no
less favorable to us than we could have obtained from unaffiliated third
parties.
50
<PAGE>
PRINCIPAL STOCKHOLDERS
The following table sets forth information regarding the beneficial
ownership of our common stock as of March 15, 2000 by:
- each person or entity who is known by us to beneficially own more than 5%
of our common stock;
- each of our directors and named executive officers; and
- all of our directors and executive officers as a group.
Except as indicated below, none of these entities has a relationship with us
or, to our knowledge, any of the underwriters or their respective affiliates.
Unless otherwise indicated, the address of each person or entity named in the
table is c/o essential.com, inc., Three Burlington Woods Drive, Fourth Floor,
Burlington, Massachusetts 01803-4543, and each person or entity has sole voting
power and investment power, or shares such power with his or her spouse, with
respect to all shares of capital stock listed as owned by such person or entity.
The number and percentage of shares beneficially owned is determined in
accordance with the rules of the SEC, and is not necessarily indicative of
beneficial ownership for any other purpose. Under these rules, beneficial
ownership includes any shares as to which a person has sole or shared voting
power or investment power and also any shares of common stock underlying options
or warrants that are exercisable by that person within 60 days of April 30,
2000. However, these shares underlying options or warrants are not treated as
outstanding for the purpose of computing the percentage ownership of any other
person or entity. Unless otherwise indicated in the footnotes, each person has
sole voting and investment power, or shares such powers with his or her spouse,
with respect to the shares shown as beneficially owned. Percentage of beneficial
ownership prior to the offering is based on 22,887,383 shares of common stock
outstanding as of March 15, 2000 and assumes the conversion of all outstanding
shares of our convertible preferred stock into shares of common stock.
Percentage of beneficial ownership after the offering assumes shares of
common stock to be outstanding after completion of this offering and no exercise
of the underwriters' over-allotment option to purchase up to an aggregate of
additional shares.
<TABLE>
<CAPTION>
PERCENTAGE OF
NUMBER OWNERSHIP
OF SHARES ---------------------
BENEFICIALLY BEFORE AFTER THE
NAME OF BENEFICIAL OWNER OWNED OFFERING OFFERING
<S> <C> <C> <C>
5% STOCKHOLDERS:
Bessemer Venture Partners (1)............................. 4,363,995 19.1%
Brand Equity Ventures (2)................................. 2,691,398 11.8
EnerTech Capital Partners (3)............................. 4,363,996 19.1
DIRECTORS AND EXECUTIVE OFFICERS:
Akhil Garland (4)......................................... 3,037,192 13.3
Ilene H. Lang............................................. 319,628 1.4
Michael Kolowich (5)...................................... 135,954 *
William J. Meurer (6)..................................... 2,691,398 11.8
Patrick Moran............................................. 507,732 2.2
Paul O'Brien (5).......................................... 15,714 *
Rob Soni (7).............................................. 4,363,995 19.1
Scott B. Ungerer (8)...................................... 4,363,996 19.1
Ivar Wold (9)............................................. 107,811 *
All executive officers and directors as a group (9
persons) (10)........................................... 15,543,420 67.5
</TABLE>
51
<PAGE>
- ------------------------
* Indicates less than 1%.
(1) Includes 2,653,330 shares held by Bessemer Venture Partners IV L.P. and
1,710,665 shares held by Bessec Ventures IV L.P. The respective general
partners of the general partners of these funds, including Mr. Soni,
exercise sole voting and investment power with respect to the shares owned
by each of these entities. Each of these persons disclaims beneficial
ownership of such shares except to the extent of his proportionate pecuniary
interest therein. The address for Bessemer Venture Partners is 1400 Old
Country Road, Suite 407, Westbury, New York 11590.
(2) Includes 2,691,398 shares held by Brand Equity Ventures I, L.P. The
respective general partners of the general partner of this fund exercise
sole voting and investment power with respect to the shares owned by this
fund. Each of these persons disclaims beneficial ownership of such shares
except to the extent of his proportionate pecuniary interest therein. The
address for Brand Equity Ventures is Three Pickwick Plaza, 26 Perry Ridge
Road, Greenwich, Connecticut 06830.
(3) Includes 3,936,595 shares held by EnerTech Capital Partners L.P. and 427,401
shares held by EnerTech Capital Partners II, L.P. The respective general
partners of the general partner, of these funds, including Mr. Ungerer,
exercise sole voting and investment power with respect to the shares owned
by each of these entities. Each of these persons disclaims beneficial
ownership of such shares except to the extent of his proportionate pecuniary
interest therein. The address for EnerTech Capital Partners is 700 The
Safeguard Building, 435 Devon Park Drive, Wayne, Pennsylvania 19087-1945.
(4) Includes 1,518,596 shares held by each of Garland Family Trust f/b/o Amy E.
Garland and Garland Family Trust f/b/o Jason N. Garland. Mr. Garland is the
sole trustee of these trusts and exercises sole voting and investment power
with respect to the shares owned by each of these entities. Mr. Garland
disclaims any beneficial ownership of the shares held by the trusts.
(5) Includes 15,714 shares of common stock exercisable within 60 days of
April 30, 2000.
(6) Includes 2,691,398 shares held by Brand Equity Ventures I L.P. Mr. Meurer
disclaims beneficial ownership of such shares except to the extent of his
proportionate pecuniary interest therein. The address for Brand Equity
Ventures is Three Pickwick Plaza, Greenwich, Connecticut 08630.
(7) Includes 2,653,330 shares held by Bessemer Venture Partners IV L.P. and
1,710,665 shares held by Bessec Ventures IV L.P. Mr. Soni disclaims
beneficial ownership of such shares except to the extent of his
proportionate pecuniary interest therein. The address for Bessemer Venture
Partners is 1400 Old Country Road, Suite 407, Westbury, New York 11590.
(8) Includes 3,936,595 shares held by EnerTech Capital Partners L.P. and 427,401
shares held by EnerTech Capital Partners II L.P. Mr. Ungerer disclaims
beneficial ownership of such shares except to the extent of his
proportionate pecuniary interest therein. The address for EnerTech Capital
Partners is 700 The Safeguard Building, 435 Devon Park Drive, Wayne,
Pennsylvania 19087-1945.
(9) Includes 107,811 shares of common stock exercisable within 60 days of
April 30, 2000.
(10) See footnotes 4 through 9 above.
52
<PAGE>
DESCRIPTION OF CAPITAL STOCK
GENERAL
After this offering, our authorized capital stock will consist of
395,000,000 shares of common stock, $0.01 par value per share, and 5,000,000
shares of preferred stock, $0.01 par value per share. As of March 15, 2000,
there were outstanding (1) 4,482,802 shares of common stock held by 13
stockholders of record, (2) 15,573,855 shares of convertible preferred stock,
convertible into 18,404,581 shares of common stock, held by 77 stockholders of
record and (3) options to purchase an aggregate of 2,323,785 shares of common
stock.
The following summary of provisions of our securities, our certificate of
incorporation and our by-laws is not intended to be complete and is qualified by
reference to the provisions of applicable law and to our certificate of
incorporation and by-laws included as exhibits to the registration statement of
which this prospectus is a part. See "Where You Can Find More Information."
COMMON STOCK
As of March 15, 2000 there were 4,482,802 shares of common stock outstanding
held by 13 stockholders of record. Based upon the number of shares outstanding
as of that date and giving effect to the issuance of the shares of common
stock offered by us in this offering and the conversion of the outstanding
shares of convertible preferred stock, there will be shares of common
stock outstanding upon the closing of this offering. In addition, as of
March 15, 2000, there were outstanding stock options to purchase 2,323,785
shares of common stock.
Holders of common stock are entitled to one vote for each share held on all
matters submitted to a vote of stockholders and do not have cumulative voting
rights. Directors are elected by a plurality of the votes of the shares present
in person or by proxy at the meeting and entitled to vote in such election.
Holders of common stock are entitled to receive ratably such dividends, if any,
as may be declared by the board of directors out of funds legally available
therefor, after provision has been made for any preferential dividend rights of
outstanding preferred stock. Upon our liquidation, dissolution or winding up,
the holders of common stock are entitled to receive ratably the net assets
available after the payment of all of our debts and other liabilities, and after
the satisfaction of the rights of any outstanding preferred stock. Holders of
the common stock have no preemptive, subscription, redemption or conversion
rights, nor are they entitled to the benefit of any sinking fund. The
outstanding shares of common stock are, and the shares offered by us in this
offering will be, when issued and paid for, validly issued, fully paid and
non-assessable. The rights, powers, preferences and privileges of holders of
common stock are subordinate to, and may be adversely affected by, the rights of
the holders of shares of any series of preferred stock which we may designate
and issue in the future.
PREFERRED STOCK
Upon the closing of this offering, all outstanding shares of convertible
preferred stock will automatically convert into an aggregate of 18,404,581
shares of common stock. Thereafter, the board of directors generally will be
authorized, without further stockholder approval, to issue from time to time up
to an aggregate of 5,000,000 shares of preferred stock, in one or more series.
Each series of preferred stock will have such number of shares, designations,
preferences, voting powers, qualifications and special or relative rights or
privileges as determined by the board of directors, which may include, among
others, dividend rights, voting rights, redemption and sinking fund provisions,
liquidation preferences, conversion rights and preemptive rights.
Our stockholders have granted the board of directors authority to issue the
preferred stock and to determine the rights and preferences of the preferred
stock in order to eliminate delays associated with
53
<PAGE>
a stockholder vote on specific issuances. The rights of the holders of common
stock will be subordinate to the rights of holders of any preferred stock issued
in the future. The issuance of preferred stock, while providing desirable
flexibility in connection with possible acquisitions and other corporate
purposes, could adversely affect the voting power or other rights of the holders
of common stock, and could make it more difficult for a third party to acquire,
or discourage a third party from attempting to acquire, a majority of our
outstanding voting stock. We have no present plans to issue any shares of this
preferred stock.
ANTI-TAKEOVER EFFECTS OF PROVISIONS OF DELAWARE LAW AND OUR CERTIFICATE OF
INCORPORATION AND BY-LAWS
Upon completion of this offering, the provisions of section 203 of the
Delaware General Corporation Law will prohibit us from engaging in a "business
combination" with an "interested stockholder" for a period of three years after
the date of the transaction in which the person became an interested
stockholder, unless the business combination is approved in a prescribed manner.
A "business combination" includes mergers, asset sales and other transactions
resulting in a financial benefit to the interested stockholder. An "interested
stockholder" is generally defined as a person who, together with affiliates and
associates, owns, or within three years did own, 15% or more of the
corporation's voting stock.
Our fifth amended and restated certificate of incorporation provides for the
division of the board of directors into three classes, as nearly equal in size
as possible, with staggered three-year terms. In addition, our fifth amended and
restated certificate of incorporation provides that directors may be removed
with cause by the affirmative vote of the holders of a majority of the shares of
our capital stock entitled to vote or without cause only by the affirmative vote
of the holders of 75% of the shares of our capital stock entitled to vote. Under
our fifth amended and restated certificate of incorporation, any vacancy on the
board of directors, however occurring, including a vacancy resulting from an
enlargement of the board, may only be filled by vote of a majority of the
directors then in office. The classification of the board of directors and the
limitations on the removal of directors and filling of vacancies could make it
more difficult for a third party to acquire or discourage a third party from
acquiring control of us by increasing the time required for the stockholders to
change the composition of the board of directors. For example, in general, at
least two annual meetings of the stockholders will be necessary for stockholders
to effect a change in a majority of the members of the board of directors.
Our fifth amended and restated certificate of incorporation also provides
that, after the effective date of the registration statement of which this
prospectus is a part, any action required or permitted to be taken by our
stockholders at an annual meeting or special meeting of stockholders may only be
taken if it is properly brought before the meeting and may not be taken by
written consent in lieu of a meeting. Our third amended and restated by-laws
provide that special meetings of the stockholders may only be called by the
board of directors, the chairman of the board of directors, the chief executive
officer or the president. Our third amended and restated by-laws further provide
that in order for any matter to be considered "properly brought" before a
meeting, a stockholder must comply with requirements regarding advance notice to
us. The foregoing provisions could have the effect of delaying until the next
stockholders' meeting actions that are favored by the holders of a majority of
our outstanding voting securities. These provisions may also discourage a third
party from making a tender offer for our common stock, because, even if it
acquired a majority of our outstanding voting securities, the third party would
only be able to take action as a stockholder, such as electing new directors or
approving a merger, at a duly called stockholders' meeting, and not by written
consent.
The Delaware General Corporation Law provides generally that the affirmative
vote of a majority of the shares entitled to vote on any matter is required to
amend a corporation's certificate of incorporation or by-laws, unless a
corporation's certificate of incorporation or by-laws, as the case may be,
requires a greater percentage. Our fifth amended and restated certificate of
incorporation requires the affirmative vote of the holders of at least 75% of
the shares of our capital stock that are issued and
54
<PAGE>
outstanding and entitled to vote to amend or repeal any of the foregoing
provisions of the fifth amended and restated certificate of incorporation. Our
third amended and restated by-laws may generally be amended or repealed by a
majority vote of the board of directors and may also be amended or repealed by
the affirmative vote of the holders of at least 75% of the shares of our capital
stock that are issued and outstanding and entitled to vote. The 75% stockholder
vote would be in addition to any separate class vote that might in the future be
required in accordance with the terms of any series of preferred stock that
might be outstanding at the time any such amendments are submitted to
stockholders.
TRANSFER AGENT AND REGISTRAR
The transfer agent and registrar for the common stock is American Stock
Transfer & Trust Company.
55
<PAGE>
SHARES ELIGIBLE FOR FUTURE SALE
Prior to this offering, there has not been any public market for our common
stock, and we make no prediction as to the effect, if any, that market sales of
shares of common stock or the availability of shares of common stock for sale
will have on the market price of the common stock prevailing from time to time.
Nevertheless, sales of substantial amounts of common stock in the public market,
or the perception that such sales could occur, could adversely affect the market
price of the common stock and could impair our future ability to raise capital
through the sale of equity securities. See "Risk Factors."
Upon the closing of this offering, we will have an aggregate of shares
of common stock outstanding, assuming no exercise of the underwriters'
over-allotment option and no exercise of outstanding options. Of the outstanding
shares, the shares sold in this offering will be freely tradable, except
that any shares purchased by "affiliates," as that term is defined in Rule 144
under the Securities Act, may only be sold in compliance with the limitations
described below. The remaining 22,887,383 shares of common stock will be deemed
"restricted securities" as defined in Rule 144.
SALES OF RESTRICTED SHARES
Restricted securities may be sold in the public market only if registered or
if they qualify for an exemption from registration under Rule 144, including
Rule 144(k), or Rule 701 promulgated under the Securities Act, which rules are
summarized below. Subject to the lock-up agreements described below and the
provisions of Rule 144, including Rule 144(k), and Rule 701, shares will be
available for sale in the public market as follows:
<TABLE>
<CAPTION>
NUMBER OF SHARES DATE
<C> <S>
119,228 Immediately after the date of this prospectus
119,228 After 90 days from the date of this prospectus
(Rules 144 and 701)
12,797,809 After 180 days from the date of this prospectus (subject, in
some cases, to volume limitations)
</TABLE>
In general, under Rule 144, as currently in effect, beginning 90 days after
the date of this prospectus, a person, or persons whose shares are aggregated,
who has beneficially owned shares for at least one year is entitled to sell
within any three-month period beginning 90 days after the date of this
prospectus a number of shares that does not exceed the greater of:
- 1% of the number of shares of common stock then outstanding, which will
equal approximately shares immediately after this offering; or
- the average weekly trading volume of the common stock on the Nasdaq
National Market during the four calendar weeks preceding the sale.
Sales under Rule 144 are also subject to manner of sale requirements, and
depending on the amount sold, the filing of a Form 144 with respect to the sale.
Under Rule 144(k), a person, or persons whose shares are aggregated, is
entitled to sell his or her shares without regard to the limitations described
above if:
- the person has not been an affiliate of ours, such as an officer, director
or holder of 10% or more of our shares, at any time during the 90 days
immediately preceding the sale; and
- the person has beneficially owned his or her shares for at least two
years.
Persons deemed to be affiliates must always sell pursuant to Rule 144, even
after the applicable holding periods have been satisfied.
56
<PAGE>
We are unable to estimate the number of shares that will be sold under
Rule 144, because this will depend on the market price for our common stock, the
personal circumstances of the sellers and other factors. Prior to this offering,
there has been no public market for the common stock, and there can be no
assurance that a significant public market for the common stock will develop or
be sustained after the offering. Any future sale of substantial amounts of the
common stock in the open market may adversely affect the market price of the
common stock offered hereby.
LOCK-UP AGREEMENTS
We, our directors, executive officers and certain stockholders who hold
22,766,446 shares in the aggregate have agreed that they will not offer, sell or
agree to sell, directly or indirectly, or otherwise dispose of any shares of
common stock or any securities convertible into or exercisable or exchangeable
for common stock, without the prior written consent of Donaldson, Lufkin &
Jenrette Securities Corporation for a period of 180 days from the date of this
prospectus. Donaldson, Lufkin & Jenrette Securities Corporation has agreed not
to grant any such consent without the prior written approval of Merrill Lynch,
Pierce, Fenner & Smith Incorporated. We may issue, and grant options to
purchase, shares of our common stock under our amended and restated 1998 stock
option and incentive plan, our 2000 non-employee director stock option plan and
the 2000 employee stock purchase plan. In addition, we may issue shares of
common stock in connection with any acquisition of another company if the terms
of issuance provide that such common stock shall not be resold prior to the
expiration of the 180-day period referenced above.
OPTIONS
Any natural persons who are either one of our employees or consultants and
who purchased his or her shares pursuant to a written compensatory plan or
contract is entitled to rely on the resale provisions of Rule 701, which permits
nonaffiliates to sell their Rule 701 shares without having to comply with the
public information, holding period, volume limitation or notice provisions of
Rule 144. Rule 701 permits affiliates to sell their Rule 701 shares without
having to comply with the Rule 144 holding period restrictions, in each case
commencing 90 days after the date of this prospectus. However, all shares held
upon exercise of stock options are subject to the 180 day lock-up agreements
described above.
We intend to file one or more registration statements on Form S-8 under the
Securities Act to register all shares of common stock subject to outstanding
stock options and common stock issued or issuable under our stock plans. We
expect to file the registration statement covering shares offered pursuant to
the amended and restated 1998 stock option and incentive plan, the 2000
non-employee director stock option plan and the 2000 employee stock purchase
plan within 180 days after the date of this prospectus, permitting the resale of
such shares by nonaffiliates in the public market without restriction under the
Securities Act.
WARRANTS
As of March 15, 2000 we had outstanding warrants exercisable for a total of
274,741 shares of our Series B redeemable convertible preferred stock and for a
total of 64,110 shares of our Series C redeemable convertible preferred stock.
All of these warrants are currently exercisable for the total number of shares
covered by each such warrant. All of these warrants will be exercisable for
shares of our common stock subsequent to completion of the offering.
REGISTRATION RIGHTS
Upon the expiration of the contractual lock-up period with the underwriters,
some of our stockholders will be entitled to require us to register under the
Securities Act up to a total of
57
<PAGE>
18,679,322 shares of outstanding common stock under the terms of an investor
rights agreement. The investor rights agreement provides that if we propose to
register in a public offering any of our securities under the Securities Act at
any time or times, the stockholders having registration rights will generally be
entitled to include shares of common stock held by them in such registration.
Some of these stockholders also have the right to require us, on no more than
two occasions, to prepare and file a registration statement under the Securities
Act registering the shares of common stock held by them. We are generally
required to bear the expenses of these registrations, except underwriting fees.
These rights terminate with respect to each such stockholder at the time such
stockholder may sell all of their shares of our stock under Rule 144 of the
Securities Act in any three month period.
58
<PAGE>
UNDERWRITING
Subject to the terms and conditions contained in an underwriting agreement
dated , 2000, the underwriters named below, who are
represented by Donaldson, Lufkin & Jenrette Securities Corporation, Merrill
Lynch, Pierce, Fenner & Smith Incorporated, PaineWebber Incorporated and
E*OFFERING Corp., have severally agreed to purchase from us the number of shares
of common stock set forth opposite their names below:
<TABLE>
<CAPTION>
NUMBER
UNDERWRITERS: OF SHARES
<S> <C>
Donaldson, Lufkin & Jenrette Securities Corporation.........
Merrill Lynch, Pierce, Fenner & Smith
Incorporated......................................
PaineWebber Incorporated....................................
E*OFFERING Corp.............................................
-------
Total............................................
=======
</TABLE>
The underwriting agreement provides that the obligations of the underwriters
to purchase and accept delivery of the shares of common stock offered by this
prospectus are subject to approval by their counsel of legal matters concerning
the offering and to conditions that we must satisfy. The underwriters are
obligated to purchase and accept delivery of all of the shares of common stock
offered by us pursuant to this prospectus, other than those shares covered by
the over-allotment option described below, if any are purchased.
The underwriters initially propose to offer the shares of common stock in
part directly to the public at the initial public offering price set forth on
the cover page of this prospectus and in part to dealers, including the
underwriters, at that price less a concession not in excess of $ per share.
The underwriters may allow, and such dealers may re-allow, to other dealers a
concession not in excess of $ per share. After the initial offering of the
common stock, the public offering price and other selling terms may be changed
by the representatives at any time without notice. The underwriters do not
intend to confirm sales to any accounts over which they exercise discretionary
authority.
E*OFFERING Corp., one of the underwriters, will allocate for distribution by
E*TRADE Securities, Inc. a portion of the shares that E*OFFERING is underwriting
in this offering. Copies of the prospectus in electronic format will be made
available on Internet web sites maintained by E*OFFERING Corp. and E*TRADE
Securities, Inc. Customers of E*TRADE Securities, Inc. who complete and pass an
online eligibility profile may place conditional offers to purchase shares in
this offering through E*TRADE's Internet web site.
We have granted to the underwriters an option, exercisable for 30 days after
the date of this prospectus, to purchase, from time to time, in whole or in
part, up to an aggregate of additional shares of common stock at the
initial public offering price less underwriting fees. The underwriters may
exercise the option solely to cover over-allotments, if any, made in connection
with the offering. If the underwriters exercise the option, each underwriter
will become obligated, subject to conditions contained in the underwriting
agreement, to purchase approximately the same percentage of these additional
shares as the number of shares to be purchased by each of them bears to the
total number of shares of common stock offered in this offering.
59
<PAGE>
The following table contains information about the underwriting fees that
the underwriters will receive in this offering:
<TABLE>
<CAPTION>
TOTAL IF TOTAL IF
OVER-ALLOTMENT OVER-ALLOTMENT
OPTION IS OPTION IS
PER SHARE NOT EXERCISED EXERCISED IN FULL
<S> <C> <C> <C>
Underwriting fees payable by essential.com.............
</TABLE>
We have agreed to indemnify the underwriters against liabilities which may
arise in connection with the offering, including liabilities under the
Securities Act of 1933, or to contribute to payments that the underwriters may
be required to make.
We, our executive officers and directors and certain of our stockholders and
option holders are subject to agreements providing that, with certain limited
exceptions, we will not:
- offer, pledge, sell, contract to sell, sell any option or contract to
purchase, purchase any option or contract to sell, grant any option, right
or warrant to purchase, or otherwise transfer or dispose of, directly or
indirectly, any shares of common stock or any securities convertible into
or exercisable or exchangeable for common stock; or
- enter into any swap or other arrangement that transfers all or a portion
of the economic consequences associated with the ownership of any common
stock or any securities convertible into or exercisable for common stock,
regardless of whether any of the transactions described above is to be
settled by delivery of any common stock or any securities convertible into
or exercisable or exchangeable for common stock, in cash or otherwise for
a period of 180-days after the date of this prospectus.
See "Shares Eligible for Future Sale--Lock-Up Agreements."
In addition, during such 180-day period, we have also agreed not to file any
registration statement with respect to the registration of any shares of common
stock or any securities convertible into or exercisable or exchangeable for
common stock, except for registration statements on Form S-8 registering the
shares of common stock pursuant to our existing stock plans, without the prior
written consent of Donaldson, Lufkin & Jenrette Securities Corporation and
Merrill Lynch, Pierce, Fenner & Smith Incorporated.
Prior to the offering, there has been no established trading market for our
common stock. The initial public offering price of the shares of common stock
offered by this prospectus will be determined by negotiation among us and the
underwriters. The factors to be considered in determining the initial public
offering price include:
- the history of and the prospects for the industry in which we compete;
- our past and present operations;
- our historical results of operations;
- our prospects for future financial performance;
- recent market prices of securities of generally comparable companies; and
- the general condition of the securities markets at the time of the
offering.
At our request, the underwriters have reserved for sale, at the initial
public offering price, up to 10% of the shares offered by this prospectus for
sale to some of our directors, officers, employees, dealers, business associates
and related persons. If these persons purchase reserved shares, this will
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<PAGE>
reduce the number of shares available for sale to the general public. Any
reserved shares that are not orally confirmed for purchase within one day of the
pricing of the offering will be offered by the underwriters to the general
public on the same terms as the other shares offered by this prospectus.
Other than in the United States, no action has been taken by us or the
underwriters that would permit a public offering of the shares of common stock
offered in any jurisdiction where action for that purpose is required. The
shares of common stock offered may not be offered or sold, directly or
indirectly, nor may this prospectus or any other offering material or
advertisements in connection with the offer and sale of any such shares of
common stock be distributed or published in any jurisdiction, except under
circumstances that will result in compliance with the applicable rules and
regulations of such jurisdiction. Persons into whose possession this prospectus
comes are advised to inform themselves about and observe any restrictions
relating to the offering and the distribution of this prospectus. This
prospectus does not constitute an offer to sell or a solicitation of an offer to
buy any shares of common stock offered in any jurisdiction in which such an
offer or a solicitation is unlawful.
In connection with the offering, the underwriters may engage in transactions
that stabilize, maintain or otherwise affect the price of the common stock.
Specifically, the underwriters may over-allot the offering, creating a syndicate
short position. The underwriters may bid for and stabilize the price of the
common stock. In addition, the underwriting syndicate may reclaim selling
concessions from syndicate members and selected dealers if they repurchase
previously distributed common stock in syndicate covering transactions, in
stabilizing transactions or otherwise. These activities may stabilize or
maintain the market price of the common stock above independent market levels.
The underwriters are not required to engage in these activities and may end any
of these activities at any time.
SECURITIES ACQUIRED BY DLJ AND AFFILIATES
Donaldson, Lufkin & Jenrette Securities Corporation, one of the
representatives of the underwriters, acted as placement agent in connection with
the sales of our Series C redeemable convertible preferred stock in February and
March 2000. As compensation for its services, we paid DLJ approximately
$3.6 million and we issued DLJ a warrant to purchase an aggregate of 64,110
shares of our Series C redeemable convertible preferred stock at a price of
$11.70 per share. In addition, employees and investment funds affiliated with
DLJ acquired in the private placement an aggregate of 105,601 shares of
Series C redeemable convertible preferred stock, at a purchase price of $11.70
per share, for an aggregate purchase price of $1,235,384. These purchases were
made on the same terms given to other purchasers in the private placement. Under
the rules of the National Association of Securities Dealers, Inc., the warrant
we issued to DLJ and the purchases of Series C redeemable convertible preferred
stock by employees and funds affiliated with DLJ may be deemed to result in
underwriting compensation in connection with this offering.
61
<PAGE>
LEGAL MATTERS
The validity of the shares of common stock we are offering will be passed
upon for us by Testa, Hurwitz & Thibeault, LLP, Boston, Massachusetts. Hale and
Dorr LLP, Boston, Massachusetts, will pass upon legal matters in connection with
this offering for the underwriters. Attorneys at Testa, Hurwitz & Thibeault, LLP
own 68,274 shares of our common stock.
EXPERTS
The financial statements included in this prospectus and elsewhere in the
registration statement have been audited by Arthur Andersen LLP, independent
public accountants, as indicated in their report with respect thereto, and are
included herein in reliance upon the authority of said firm as experts in giving
said reports.
WHERE YOU CAN FIND MORE INFORMATION
We have filed with the SEC a registration statement on Form S-1. This
prospectus, which constitutes a part of the registration statement, does not
contain all of the information included in the registration statement. Certain
information is omitted, and you should refer to the registration statement and
its exhibits for additional information. Wherever we make references in this
prospectus to any of our contracts, agreements or other documents, the
references are not necessarily complete. You should refer to the exhibits
attached to the registration statement for copies of the actual contracts,
agreements or other documents. You may review a copy of the registration
statement, including exhibits, at the SEC's public reference room at Judiciary
Plaza, 450 Fifth Street, N.W., Washington, D.C. 20549 or Seven World Trade
Center, 13(th) Floor, New York, New York 10048 or Citicorp Center, 500 West
Madison Street, Suite 1400, Chicago, Illinois 60661. Please call the SEC at
1-800-SEC-0330 for further information on the operation of the public reference
rooms.
We will also file annual, quarterly and current reports, proxy statements
and other information with the SEC. You may read and copy any reports,
statements or other information on file at the public reference rooms. You can
also request copies of these documents, for a copying fee, by writing to the
SEC.
Our SEC filings and the registration statement can also be reviewed by
accessing the SEC's Internet site at HTTP://WWW.SEC.GOV, which contains reports,
proxy and information statements and other information regarding registrants
that file electronically with the SEC.
62
<PAGE>
ESSENTIAL.COM, INC.
INDEX TO FINANCIAL STATEMENTS
<TABLE>
<CAPTION>
PAGE
<S> <C>
Report of Independent Public Accountants.................... F-2
Balance Sheets.............................................. F-3
Statements of Operations.................................... F-4
Statements of Redeemable Convertible Preferred Stock and
Stockholders' Equity (Deficit)............................ F-5
Statements of Cash Flows.................................... F-6
Notes to Financial Statements............................... F-7
</TABLE>
F-1
<PAGE>
REPORT OF INDEPENDENT PUBLIC ACCOUNTANTS
To essential.com, inc.:
We have audited the accompanying balance sheets of essential.com, inc. (a
Delaware corporation) as of December 31, 1998 and 1999 and the related
statements of operations, redeemable convertible preferred stock and
stockholders' equity (deficit) and cash flows for each of the three years in the
period ended December 31, 1999. These financial statements are the
responsibility of the Company's management. Our responsibility is to express an
opinion on the financial statements based on our audits.
We conducted our audits in accordance with auditing standards generally
accepted in the United States. Those standards require that we plan and perform
the audit to obtain reasonable assurance about whether the financial statements
are free of material misstatement. An audit includes examining, on a test basis,
evidence supporting the amounts and disclosures in the financial statements. An
audit also includes assessing the accounting principles used and significant
estimates made by management, as well as evaluating the overall financial
statement presentation. We believe that our audits provide a reasonable basis
for our opinion.
In our opinion, the financial statements referred to above present fairly,
in all material respects, the financial position of essential.com, inc. as of
December 31, 1998 and 1999 and the results of its operations and its cash flows
for each of the three years in the period ended December 31, 1999 in conformity
with accounting principles generally accepted in the United States.
/s/ Arthur Andersen LLP
Boston, Massachusetts
March 7, 2000 (except with respect
to the matters discussed in Notes 1
and 16 as to which the date is April 6, 2000)
F-2
<PAGE>
ESSENTIAL.COM, INC.
BALANCE SHEETS
<TABLE>
<CAPTION>
AS OF DECEMBER 31,
---------------------------------------
1998 1999 1999
ACTUAL PRO FORMA
(UNAUDITED)
<S> <C> <C> <C>
ASSETS
Current assets:
Cash and cash equivalents................................. $ 14,119 $ 3,341,033 $ 74,590,805
Accounts receivable, less allowance for doubtful accounts
of approximately $26,000 and $40,000 in 1998 and 1999,
respectively............................................ 21,117 274,937 274,937
Prepaid expenses and other current assets................. 1,543 949,055 949,055
--------- ------------ ------------
Total current assets.................................. 36,779 4,565,025 75,814,797
Property and equipment, at cost:
Computer and office equipment............................. 115,060 830,769 830,769
Furniture, fixtures and automobiles....................... 19,237 32,296 32,296
--------- ------------ ------------
134,297 863,065 863,065
Less--accumulated depreciation............................ 37,828 263,320 263,320
--------- ------------ ------------
96,469 599,745 599,745
Intangible assets, net of accumulated amortization of
$74,000 in 1999........................................... -- 430,247 430,247
Other assets................................................ 9,580 70,463 70,463
Deferred financing costs.................................... -- 281,299 281,299
--------- ------------ ------------
$ 142,828 $ 5,946,779 $ 77,196,551
========= ============ ============
LIABILITIES, REDEEMABLE CONVERTIBLE PREFERRED STOCK
AND STOCKHOLDERS' EQUITY (DEFICIT)
Current liabilities:
Notes payable to a related party.......................... $ 248,560 $ -- $ --
Convertible notes payable................................. 20,000 -- --
Current portion of deferred payments...................... 33,702 210,590 210,590
Current portion of capital lease obligation............... -- 24,512 24,512
Accounts payable.......................................... 207,679 1,516,746 1,516,746
Accrued expenses.......................................... 161,567 1,153,475 1,153,475
--------- ------------ ------------
Total current liabilities............................. 671,508 2,905,323 2,905,323
Deferred payments, net of current portion................... 40,154 -- --
Capital lease obligation, net of current portion............ -- 161,019 161,019
Commitments and contingencies (Note 12)
Redeemable convertible preferred stock:
Series A redeemable convertible preferred stock, $0.01 par
value--
Authorized--2,830,726 shares in 1999, no shares pro
forma
Issued and outstanding--2,830,726 shares in 1999, no
shares pro forma, stated at redemption value, net of
unaccreted expenses..................................... -- 2,901,705 --
Series B redeemable convertible preferred stock, $0.01 par
value--
Authorized--6,606,867 shares in 1999, no shares pro
forma
Issued and outstanding--6,332,125 shares in 1999, no
shares pro forma, stated at redemption value, net of
unaccreted expenses..................................... -- 12,440,781 --
Series B preferred stock warrants outstanding............. -- 327,065 --
Series C redeemable convertible preferred stock, $0.01 par
value--
Authorized--none
Issued and outstanding--none............................ -- -- --
Series C preferred stock warrants outstanding............. -- -- --
Stockholders' equity (deficit):
Preferred stock, $0.01 par value--
Authorized--none actual and 5,000,000 pro forma
Issued and outstanding--none.......................... -- -- --
Common stock, $0.01 par value--
Authorized--19,166,451 shares actual and 395,000,000 pro
forma
Issued and outstanding--5,233,897, 4,482,802 and
22,887,383 shares in 1998, 1999 and pro forma,
respectively............................................ 52,339 44,828 228,874
Additional paid-in capital................................ 16,408 13,596,154 99,684,908
Common stock warrants outstanding......................... -- -- 646,523
Deferred stock-based compensation......................... -- (12,270,730) (12,270,730)
Accumulated deficit....................................... (637,581) (14,159,366) (14,159,366)
--------- ------------ ------------
Total stockholders' equity (deficit).................. (568,834) (12,789,114) 74,130,209
--------- ------------ ------------
$ 142,828 $ 5,946,779 $ 77,196,551
========= ============ ============
</TABLE>
THE ACCOMPANYING NOTES ARE AN INTEGRAL PART OF THESE FINANCIAL STATEMENTS.
F-3
<PAGE>
ESSENTIAL.COM, INC.
STATEMENTS OF OPERATIONS
<TABLE>
<CAPTION>
YEAR ENDED DECEMBER 31,
-------------------------------------
1997 1998 1999
<S> <C> <C> <C>
Revenue................................................. $ 44,719 $ 141,549 $ 526,985
---------- --------- ------------
Operating expenses(1):
Cost of services sold................................. -- 161,549 421,451
Cost of customer acquisition.......................... -- 4,142 1,591,413
Selling and marketing................................. 20,126 133,045 4,174,513
Technology development................................ -- 71,459 2,313,347
General and administrative............................ 63,610 338,299 3,615,203
Stock-based compensation.............................. -- -- 1,324,463
---------- --------- ------------
Total operating expenses.......................... 83,736 708,494 13,440,390
---------- --------- ------------
Loss from operations.................................... (39,017) (566,945) (12,913,405)
Other income............................................ -- -- 40,969
Interest income......................................... -- -- 170,766
Interest expense........................................ (1,561) (17,336) (252,626)
---------- --------- ------------
Net loss.......................................... (40,578) (584,281) (12,954,296)
Preferred stock dividends and accretion................. -- -- 567,489
---------- --------- ------------
Net loss applicable to common stockholders........ $ (40,578) $(584,281) $(13,521,785)
========== ========= ============
Basic and diluted net loss per common share............. $ (0.02) $ (0.14) $ (3.03)
========== ========= ============
Shares used in computing basic and diluted net loss per
common share.......................................... 2,540,144 4,210,783 4,459,087
========== ========= ============
Pro forma basic and diluted net loss per common share... $ (1.18)
============
Pro forma shares used in computing basic and diluted net
loss per common share................................. 10,989,716
============
- ------------------------
(1) THE FOLLOWING SUMMARIZES THE ALLOCATION OF
STOCK-BASED COMPENSATION AMONG EXPENSE CATEGORIES:
Selling and marketing............................... $ 151,087
Technology development.............................. 748,487
General and administrative.......................... 424,889
------------
Total stock-based compensation.................... $ 1,324,463
============
</TABLE>
THE ACCOMPANYING NOTES ARE AN INTEGRAL PART OF THESE FINANCIAL STATEMENTS.
F-4
<PAGE>
ESSENTIAL.COM, INC.
STATEMENTS OF REDEEMABLE CONVERTIBLE PREFERRED STOCK AND STOCKHOLDERS' EQUITY
(DEFICIT)
FOR THE YEARS ENDED DECEMBER 31, 1997, 1998 AND 1999
<TABLE>
SERIES A REDEEMABLE SERIES B REDEEMABLE SERIES C REDEEMABLE
CONVERTIBLE CONVERTIBLE SERIES B CONVERTIBLE
PREFERRED STOCK PREFERRED STOCK PREFERRED PREFERRED STOCK
------------------------ ------------------------- STOCK -------------------------
NUMBER NUMBER WARRANTS NUMBER
OF SHARES AMOUNT OF SHARES AMOUNT OUTSTANDING OF SHARES AMOUNT
<S> <C> <C> <C> <C> <C> <C> <C>
Balance, December 31, 1996
(unaudited)..................... -- $ -- -- $ -- $ -- -- $ --
Issuance of common stock for
services...................... -- -- -- -- -- -- --
Net loss...................... -- -- -- -- -- -- --
---------- ----------- ---------- ------------ -------- ---------- ------------
Balance, December 31, 1997...... -- -- -- -- -- -- --
Issuance of common stock...... -- -- -- -- -- -- --
Net loss...................... -- -- -- -- -- -- --
---------- ----------- ---------- ------------ -------- ---------- ------------
Balance, December 31, 1998...... -- -- -- -- -- -- --
Exercise of common stock
options....................... -- -- -- -- -- -- --
Repurchase of common stock.... -- -- -- -- -- -- --
Deferred stock-based
compensation.................. -- -- -- -- -- -- --
Amortization of deferred
stock-based compensation...... -- -- -- -- -- -- --
Issuance of Series A
redeemable convertible
preferred stock, net of
issuance costs of $98,697..... 2,096,410 1,997,713 -- -- -- -- --
Conversion of notes payable to
Series A preferred stock...... 734,316 734,316 -- -- -- -- --
Issuance of Series B
redeemable convertible
preferred stock, net of
issuance costs of $57,032..... -- -- 6,332,125 12,042,968 -- -- --
Accretion of redeemable
convertible preferred stock to
redemption value.............. -- 169,676 -- 397,813 -- -- --
Warrants granted in connection
with subordinated loan........ -- -- -- -- 327,065 -- --
Net loss...................... -- -- -- -- -- -- --
---------- ----------- ---------- ------------ -------- ---------- ------------
Balance, December 31, 1999...... 2,830,726 2,901,705 6,332,125 12,440,781 327,065 -- --
Issuance of Series C
redeemable convertible
preferred stock and related
warrant, net of issuance costs
of $3,750,000 (unaudited)..... -- -- -- -- -- 6,411,004 70,930,314
Conversion of convertible
preferred stock into common
stock and preferred stock
warrants into common stock
warrants (unaudited).......... (2,830,726) (2,901,705) (6,332,125) (12,440,781) (327,065) (6,411,004) (70,930,314)
---------- ----------- ---------- ------------ -------- ---------- ------------
Pro forma balance,
December 31, 1999 (unaudited)... -- $ -- -- $ -- $ -- -- $ --
========== =========== ========== ============ ======== ========== ============
<S> <C> <C> <C> <C> <C> <C> <C>
SERIES C
PREFERRED COMMON STOCK COMMON
STOCK ---------------------- ADDITIONAL STOCK DEFERRED
WARRANT NUMBER $0.01 PAR PAID-IN WARRANTS STOCK-BASED ACCUMULATED
OUTSTANDING OF SHARES VALUE CAPITAL OUTSTANDING COMPENSATION DEFICIT
Balance, December 31, 1996
(unaudited)..................... $ -- -- $ -- $ 13,729 $ -- $ -- $ (12,722)
Issuance of common stock for
services...................... -- 4,194,288 41,943 (18,706) -- -- --
Net loss...................... -- -- -- -- -- -- (40,578)
-------- ---------- -------- ------------ --------- ------------ ------------
Balance, December 31, 1997...... -- 4,194,288 41,943 (4,977) -- -- (53,300)
Issuance of common stock...... -- 1,039,609 10,396 21,385 -- -- --
Net loss...................... -- -- -- -- -- -- (584,281)
-------- ---------- -------- ------------ --------- ------------ ------------
Balance, December 31, 1998...... -- 5,233,897 52,339 16,408 -- -- (637,581)
Exercise of common stock
options....................... -- 28,612 286 592 -- -- --
Repurchase of common stock.... -- (779,707) (7,797) (16,039) -- -- --
Deferred stock-based
compensation.................. -- -- -- 13,595,193 -- (13,595,193) --
Amortization of deferred
stock-based compensation...... -- -- -- -- -- 1,324,463 --
Issuance of Series A
redeemable convertible
preferred stock, net of
issuance costs of $98,697..... -- -- -- -- -- -- --
Conversion of notes payable to
Series A preferred stock...... -- -- -- -- -- -- --
Issuance of Series B
redeemable convertible
preferred stock, net of
issuance costs of $57,032..... -- -- -- -- -- -- --
Accretion of redeemable
convertible preferred stock to
redemption value.............. -- -- -- -- -- -- (567,489)
Warrants granted in connection
with subordinated loan........ -- -- -- -- -- -- --
Net loss...................... -- -- -- -- -- -- (12,954,296)
-------- ---------- -------- ------------ --------- ------------ ------------
Balance, December 31, 1999...... -- 4,482,802 44,828 13,596,154 -- (12,270,730) (14,159,366)
Issuance of Series C
redeemable convertible
preferred stock and related
warrant, net of issuance costs
of $3,750,000 (unaudited)..... 319,458 -- -- -- -- -- --
Conversion of convertible
preferred stock into common
stock and preferred stock
warrants into common stock
warrants (unaudited).......... (319,458) 18,404,581 184,046 86,088,754 646,523 -- --
-------- ---------- -------- ------------ --------- ------------ ------------
Pro forma balance,
December 31, 1999 (unaudited)... $ -- 22,887,383 $228,874 $ 99,684,908 $ 646,523 $(12,270,730) $(14,159,366)
======== ========== ======== ============ ========= ============ ============
<S> <C>
TOTAL
STOCKHOLDERS'
EQUITY
(DEFICIT)
Balance, December 31, 1996
(unaudited)..................... $ 1,007
Issuance of common stock for
services...................... 23,237
Net loss...................... (40,578)
------------
Balance, December 31, 1997...... (16,334)
Issuance of common stock...... 31,781
Net loss...................... (584,281)
------------
Balance, December 31, 1998...... (568,834)
Exercise of common stock
options....................... 878
Repurchase of common stock.... (23,836)
Deferred stock-based
compensation.................. --
Amortization of deferred
stock-based compensation...... 1,324,463
Issuance of Series A
redeemable convertible
preferred stock, net of
issuance costs of $98,697..... --
Conversion of notes payable to
Series A preferred stock...... --
Issuance of Series B
redeemable convertible
preferred stock, net of
issuance costs of $57,032..... --
Accretion of redeemable
convertible preferred stock to
redemption value.............. (567,489)
Warrants granted in connection
with subordinated loan........ --
Net loss...................... (12,954,296)
------------
Balance, December 31, 1999...... (12,789,114)
Issuance of Series C
redeemable convertible
preferred stock and related
warrant, net of issuance costs
of $3,750,000 (unaudited)..... --
Conversion of convertible
preferred stock into common
stock and preferred stock
warrants into common stock
warrants (unaudited).......... 86,919,323
------------
Pro forma balance,
December 31, 1999 (unaudited)... $ 74,130,209
============
</TABLE>
THE ACCOMPANYING NOTES ARE AN INTEGRAL PART OF THESE FINANCIAL STATEMENTS.
F-5
<PAGE>
ESSENTIAL.COM, INC.
STATEMENTS OF CASH FLOWS
<TABLE>
<CAPTION>
YEAR ENDED DECEMBER 31,
-----------------------------------
1997 1998 1999
<S> <C> <C> <C>
Cash flows from operating activities:
Net loss.................................................. $(40,578) $(584,281) $(12,954,296)
Adjustments to reconcile net loss to net cash provided by
(used in) operating activities--
Amortization of deferred financing costs................ -- -- 93,766
Interest expense related to the beneficial conversion of
the convertible notes................................. -- -- 110,150
Interest expense converted into Series A preferred
stock................................................. -- -- 9,166
Depreciation and amortization........................... 5,258 31,807 356,911
Amortization of deferred stock-based compensation....... -- -- 1,324,463
Common stock issued in exchange for services............ 23,237 -- --
(Gain) loss from disposal of assets..................... -- (651) 7,335
Changes in current assets and liabilities--
Accounts receivable................................... -- (21,117) (253,820)
Prepaid expenses and other current assets............. (1,050) (493) (947,512)
Accounts payable...................................... 35,959 169,607 1,309,067
Accrued expenses...................................... 8,053 153,004 991,908
-------- --------- ------------
Net cash provided by (used in) operating
activities........................................ 30,879 (252,124) (9,952,862)
-------- --------- ------------
Cash flows from investing activities:
Purchases of property and equipment....................... (41,984) (84,609) (776,059)
Proceeds from sale of equipment........................... -- 8,184 170,917
Increase in other assets.................................. (5,425) (4,155) (60,883)
-------- --------- ------------
Net cash used in investing activities............... (47,409) (80,580) (666,025)
-------- --------- ------------
Cash flows from financing activities:
Proceeds from (payments on) notes payable to a related
party................................................... 23,800 224,760 (248,560)
Repurchase of common stock................................ -- -- (23,836)
Proceeds from advances on and issuance of convertible
notes payable........................................... -- 20,000 690,000
Deferred financing costs.................................. -- -- (48,000)
(Payments on) proceeds from deferred payments............. (1,932) 64,715 (367,627)
Payments on capital lease obligation...................... -- -- (2,735)
Net proceeds from issuance of redeemable convertible
preferred stock......................................... -- -- 14,040,681
Repayment of convertible notes payable.................... -- -- (95,000)
Proceeds from issuance of common stock.................... -- 31,781 878
-------- --------- ------------
Net cash provided by financing activities........... 21,868 341,256 13,945,801
-------- --------- ------------
Net increase in cash and cash equivalents........... 5,338 8,552 3,326,914
Cash and cash equivalents, beginning of period.............. 229 5,567 14,119
-------- --------- ------------
Cash and cash equivalents, end of period.................... $ 5,567 $ 14,119 $ 3,341,033
======== ========= ============
Supplemental disclosure of cash flow information:
Cash paid for interest.................................... $ 1,561 $ 289 $ 266,157
======== ========= ============
Supplemental disclosure of noncash information:
Accretion of preferred stock dividends.................... $ -- $ -- $ 567,489
======== ========= ============
Conversion of notes payable and accrued interest to
preferred stock......................................... $ -- $ -- $ 624,166
======== ========= ============
Acquisition of customer lists............................. $ -- $ -- $ 504,361
======== ========= ============
Warrants issued in connection with subordinated loan...... $ -- $ -- $ 327,065
======== ========= ============
Acquisition of equipment under capital lease obligation... $ -- $ -- $ 188,266
======== ========= ============
</TABLE>
THE ACCOMPANYING NOTES ARE AN INTEGRAL PART OF THESE FINANCIAL STATEMENTS.
F-6
<PAGE>
ESSENTIAL.COM, INC.
NOTES TO FINANCIAL STATEMENTS
DECEMBER 31, 1999
(1) ORGANIZATION
essential.com, inc. (the Company) is a leading online communications and
energy marketplace offering a broad range of branded essential services to
residential and small business customers. The Company defines essential services
to be the recurring services necessary to operate a residence or small business.
The Company launched its web site in June 1999.
The Company incurred substantial losses and negative cash flows from
operations in 1998 and 1999. For the year ended December 31, 1999, the Company
incurred a loss from operations of approximately $13,000,000 and negative cash
flows from operations of approximately $10,000,000. As of December 31, 1999, the
Company had an accumulated deficit of approximately $14,200,000. Management
expects operating losses and negative cash flows from operations to continue for
the foreseeable future and anticipates that losses will increase significantly
from historical levels because of additional costs and expenses related to brand
development, marketing and other promotional activities, continued development
of the Company's web site and information technology infrastructure and
expansion of product offerings. If working capital decreased significantly,
certain of these costs could be reduced. Failure to generate sufficient
revenues, raise additional capital or reduce certain discretionary spending
could have a material adverse effect on the Company's results of operations and
financial condition. During February and March 2000, the Company completed a
private equity financing with gross proceeds of approximately $75,000,000 (see
Note 10). Management believes that proceeds from this financing, availability
under the subordinated loan agreement and cash generated from operating
activities will be sufficient for the Company to continue as a going concern
through 2000.
On April 6, 2000, the Company's board of directors authorized the Company to
file a registration statement with the SEC for the purpose of the initial public
offering of the Company's common stock. Upon the completion of the offering, if
requirements set forth in the Certificate of Incorporation are met, all of the
Company's outstanding preferred stock will be converted into shares of common
stock and all such outstanding shares of preferred stock will be cancelled and
retired.
(2) SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES
The accompanying financial statements reflect the application of certain
significant accounting policies, as described below and elsewhere in the
accompanying notes to financial statements.
USE OF ESTIMATES IN THE PREPARATION OF FINANCIAL STATEMENTS
The preparation of financial statements in conformity with generally
accepted accounting principles requires management to make estimates and
assumptions that affect the reported amounts of assets and liabilities and
disclosure of contingent assets and liabilities at the date of the financial
statements and the reported amounts of revenues and expenses during the
reporting period. Actual results could differ from those estimates.
UNAUDITED PRO FORMA PRESENTATION
The unaudited pro forma balance sheet and statements of redeemable
convertible preferred stock and stockholders' equity as of December 31, 1999
reflect (i) the sale of 6,411,004 shares of Series C redeemable convertible
preferred stock in February and March 2000 and the receipt of approximately
$71,250,000 of net proceeds and the issuance of a warrant to purchase 64,110
shares of Series C
F-7
<PAGE>
ESSENTIAL.COM, INC.
NOTES TO FINANCIAL STATEMENTS--(CONTINUED)
DECEMBER 31, 1999
(2) SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES (CONTINUED)
redeemable convertible preferred stock, valued at $319,458 (see Note 10) and
(ii) the automatic conversion of all outstanding redeemable convertible
preferred stock into an aggregate of 18,404,581 shares of common stock and the
conversion of all preferred stock warrants to common stock warrants, which will
occur upon the closing of the Company's proposed initial public offering.
UNAUDITED PRO FORMA BASIC AND DILUTED NET LOSS PER SHARE
Unaudited pro forma basic and diluted net loss per share for the year ended
December 31, 1999 is computed by dividing net loss by the weighted average
number of outstanding common shares during the period including the assumed
conversion of all redeemable convertible preferred stock into common stock,
which will occur immediately prior to the closing of the initial public offering
as if such conversion occurred at the date of original issuance. Common stock
equivalents, such as stock options and warrants, are excluded from the
calculation as their effect is antidilutive.
The following table sets forth the computation of pro forma basic and
diluted net loss per share for the year ended December 31, 1999:
<TABLE>
<S> <C>
Net loss attributable to common shareholders................ $(13,521,785)
Preferred stock dividends and accretion..................... 567,489
------------
Net loss.................................................... $(12,954,296)
============
Pro forma--
Weighted average shares outstanding....................... 4,459,087
Weighted average number of shares assumed upon conversion
of redeemable convertible common stock.................. 6,530,629
------------
Shares used in computing pro forma basic and diluted net
loss per share.......................................... 10,989,716
============
Pro forma basic and diluted net loss per share............ $ (1.18)
============
</TABLE>
CASH EQUIVALENTS
The Company considers all time deposits and short-term investments with
original maturities of 90 days or less to be cash equivalents. At December 31,
1999, the Company's cash equivalents are comprised of money market mutual funds
and are stated at cost, which approximates market value.
REVENUE RECOGNITION
The Company generates revenue through the sale of telecommunications and
energy services. Revenue to date has been generated principally through the sale
of telecommunications services and Internet access to residences and small
businesses. The Company enters into both reseller and agency agreements with
service providers. In a reseller agreement, the Company has the ability to
determine pricing of the services, retains credit risk with the customer and
generally provides the first line of customer service support. Revenue from
reseller agreements is recognized based upon the amount of services provided to
the customers with the corresponding cost of services recorded as an expense. In
an agency relationship, the Company generally receives a fee from the service
provider for providing a customer to the provider's services. Revenue from the
agency relationships consists of the net fees
F-8
<PAGE>
ESSENTIAL.COM, INC.
NOTES TO FINANCIAL STATEMENTS--(CONTINUED)
DECEMBER 31, 1999
(2) SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES (CONTINUED)
received from the service provider. Through December 31, 1999, substantially all
of the Company's revenue has been generated through reseller relationships.
Revenue is recognized as the services are delivered. The Company has not
provided for a sales reserve in the periods presented. All credits to customers
have been recorded in the periods in which they were incurred as they have not
been material to date.
COST OF CUSTOMER ACQUISITION
The Company has run several programs directed at obtaining new customers.
Certain programs result in the customer receiving an immediate financial benefit
in exchange for becoming a customer of the Company for a period of generally six
months. No minimum purchase commitments are required from the customer and,
accordingly, the Company expenses the related costs when the customer agrees to
begin service. In addition, the Company is charged a set-up fee by some of its
vendors when it provisions a new customer.
SELLING AND MARKETING EXPENSE
Selling and marketing expense includes advertising and promotional
expenditures. Advertising expenditures are expensed as incurred, as they do not
meet the direct-response criteria required for capitalization. Advertising to
date has related primarily to building brand awareness, including traditional
media advertising such as radio, print and billboards and promotions and have
been expensed as incurred. Total advertising and promotion costs for the year
ended December 31, 1999 was approximately $2,372,000. The Company did not incur
any advertising and promotion costs in 1997 and 1998.
TECHNOLOGY DEVELOPMENT EXPENSE
Technology development expense includes payroll and related expenses for web
site development, design and information technology and related infrastructure.
The Company evaluates whether certain of its web site development costs should
be capitalized in accordance with Statement of Position No. 98-1. To date, all
technology development costs have been expensed as incurred, as a result of the
cost not qualifying for capitalization or the anticipated life of the asset
being less than one year.
FAIR VALUE OF FINANCIAL INSTRUMENTS
The Company's financial instruments consist mainly of cash, cash
equivalents, accounts receivable and accounts payable. The carrying amounts of
the Company's financial instruments approximate their fair values.
CONCENTRATION OF CREDIT RISK AND LIMITED SUPPLIERS
Statement of Financial Accounting Standards (SFAS) No. 105, DISCLOSURE OF
INFORMATION ABOUT FINANCIAL INSTRUMENTS WITH OFF-BALANCE-SHEET RISK AND
FINANCIAL INSTRUMENTS WITH CONCENTRATIONS OF CREDIT RISK, requires disclosure of
any significant off-balance-sheet and credit risk concentrations. Financial
instruments that subject the Company to credit risk consist primarily of
accounts receivable; however, risk is limited to customers to whom the Company
makes significant sales. The Company maintains an allowance for potential credit
losses, but historically has not experienced any significant losses related to
individual customers or groups of customers in any particular industry or
geographic area. There are
F-9
<PAGE>
ESSENTIAL.COM, INC.
NOTES TO FINANCIAL STATEMENTS--(CONTINUED)
DECEMBER 31, 1999
(2) SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES (CONTINUED)
no customers representing greater than 10% of total revenues during 1998 or
1999. One customer represented 100% of the revenue in 1997. At December 31,
1998, one customer represents greater than 10% of accounts receivable. No
customers represent greater than 10% of accounts receivable at December 31,
1999.
Certain services provided by the Company are procured from a single source.
The decision by a supplier to cancel a contract with the Company could interrupt
the Company's delivery of services and thereby adversely affect the Company's
revenues and operating results. During 1999, 88% of revenue was derived from the
sale of services provided by four suppliers.
PROPERTY AND EQUIPMENT
Property and equipment is recorded at cost. The Company provides for
depreciation and amortization using the straight-line method over the estimated
useful lives, as follows:
<TABLE>
<CAPTION>
ESTIMATED
ASSET CLASSIFICATION USEFUL LIFE
<S> <C>
Computer and office equipment............................... 3-5 years
Furniture, fixtures and automobiles......................... 5 years
</TABLE>
As of December 31, 1999, there was $188,266 included in computer and office
equipment that was acquired under a capital lease. As of December 31, 1998,
there was no equipment acquired under a capital lease.
COMPREHENSIVE LOSS
Comprehensive loss includes net loss as well as other changes in
stockholders' equity (deficit), except stockholder investments and
distributions. The Company's comprehensive loss is equal to net loss for the
periods presented.
LONG-LIVED ASSETS
The Company evaluates the possible impairment of long-lived assets at each
reporting period based on the estimated undiscounted projected cash flows of the
related assets. The cash flow estimates contain management's best estimates,
using appropriate and customary assumptions and projections at the time. To
date, the Company does not believe that an impairment exists.
DEFERRED FINANCING COSTS
Deferred financing costs represent the expenses incurred in obtaining the
subordinated loan discussed in Note 8 and include warrants valued at $327,065.
These costs are being amortized over the life of the related loan commitment.
NET LOSS PER SHARE
Basic net loss per share is computed by dividing the net loss applicable to
common stockholders for the period by the weighted average number of common
shares outstanding during the period. Diluted net loss per share is computed by
dividing the net loss applicable to common stockholders for the period by the
weighted average number of common shares and potential common stock outstanding
F-10
<PAGE>
ESSENTIAL.COM, INC.
NOTES TO FINANCIAL STATEMENTS--(CONTINUED)
DECEMBER 31, 1999
(2) SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES (CONTINUED)
during the period, if dilutive. Potential common stock is comprised of the
incremental common shares issuable upon the exercise of stock options. Shares of
common stock issuable upon the conversion of the Company's redeemable
convertible preferred stock have been excluded. In accordance with SEC Staff
Accounting Bulletin No. 98, EARNINGS PER SHARE IN AN INITIAL PUBLIC OFFERING,
the Company has determined that there were no nominal issuances of the Company's
stock prior to the Company's initial public offering.
Options to purchase 523,390 and 2,261,985 shares of common stock at a
weighted average exercise price of $0.03 and $0.17 per share, respectively, have
not been included in the computation of diluted net loss per share for the years
ended December 31, 1998 and 1999, respectively, as their effects would have been
antidilutive. There were no options outstanding during the year ended
December 31, 1997.
STOCK-BASED COMPENSATION
The Company records stock-based compensation issued to employees using the
intrinsic value method, and stock-based compensation issued to nonemployees
using the fair value method. Stock-based compensation is recognized on options
issued to employees if the option exercise price is less than the market price
of the underlying stock on the date of grant.
DISCLOSURES ABOUT SEGMENTS OF AN ENTERPRISE
SFAS No. 131, DISCLOSURES ABOUT SEGMENTS OF AN ENTERPRISE AND RELATED
INFORMATION, establishes standards for reporting information regarding operating
segments and establishes standards for related disclosures about products and
services and geographic areas. Operating segments are identified as components
of an enterprise about which separate discrete financial information is
available for evaluation by the chief operating decision maker, or
decision-making group, in making decisions how to allocate resources and assess
performance. The Company views its operations and manages its business as
operating segments that are defined by the Company's product offerings. To date,
principally all of the Company's operations have been related to its
telecommunications services.
RECENTLY ISSUED ACCOUNTING PRONOUNCEMENTS
In June 1998, the Financial Accounting Standards Board (FASB) issued SFAS
No. 133, ACCOUNTING FOR DERIVATIVES AND HEDGING ACTIVITIES. SFAS No. 133
establishes accounting and reporting standards for derivative instruments and
hedging activities. SFAS No. 133, as amended by SFAS No. 137, will be effective
for the Company's financial reporting beginning in the first quarter of 2001.
SFAS No. 133 will require the Company to recognize all derivatives as either
assets or liabilities in the statement of financial position and measure those
instruments at fair value. The accounting for gains and losses from changes in
the fair value of a particular derivative will depend on the intended use of the
derivative. The Company does not expect the adoption of SFAS No. 133 to have a
material impact on the results of its operations or financial position.
In December 1999, the SEC issued Staff Accounting Bulletin No. 101, REVENUE
RECOGNITION. This bulletin established guidelines for revenue recognition and is
effective for periods beginning after March 15, 2000. The Company does not
expect that the adoption of this guidance will have a material impact on its
financial condition or results of operations.
F-11
<PAGE>
ESSENTIAL.COM, INC.
NOTES TO FINANCIAL STATEMENTS--(CONTINUED)
DECEMBER 31, 1999
(3) INCOME TAXES
The Company accounts for income taxes in accordance with SFAS No. 109,
ACCOUNTING FOR INCOME TAXES. Under the liability method specified by SFAS
No. 109, a deferred tax asset or liability is determined based on the difference
between the financial statement and tax bases of assets and liabilities, as
measured by currently enacted tax rates. The Company has incurred losses during
all periods presented. Accordingly, no provision for income taxes has been
recorded.
As of December 31, 1999, the Company had net operating loss carryforwards
available to offset future taxable income, if any, of approximately $12,600,000.
The Internal Revenue Code contains provisions that limit the use of loss and tax
credit carryforwards in the event of certain changes in the ownership, as
defined. These carryforwards expire through 2019 and are subject to review and
possible adjustment by the Internal Revenue Service.
The Company has recorded a full valuation allowance against its deferred
asset due to the uncertainty surrounding the timing of the realization of these
tax benefits, as the realization of these benefits is dependent on generating
sufficient taxable income in the future.
The components of the deferred tax asset are as follows:
<TABLE>
<CAPTION>
DECEMBER 31,
-----------------------
1998 1999
<S> <C> <C>
Net operating loss carryforwards..................... $ 230,088 $ 5,059,622
Depreciation......................................... 531 8,586
Accrued expenses and other........................... 8,590 96,434
Allowance for doubtful accounts...................... 6,291 16,052
--------- -----------
Total deferred tax asset....................... 245,500 5,180,694
Valuation allowance.................................. (245,500) (5,180,694)
--------- -----------
Net deferred tax asset......................... $ -- $ --
========= ===========
</TABLE>
A reconciliation of the federal statutory rate to the Company's effective
tax rate is as follows:
<TABLE>
<CAPTION>
DECEMBER 31,
--------------------------------------
1997 1998 1999
<S> <C> <C> <C>
Federal statutory rate........................... (34.0)% (34.0)% (34.0)%
Change in tax resulting from--
State tax provision, net of federal benefit.... (6.0) (6.0) (6.0)
Increase in valuation allowance................ 40.0 40.0 40.0
----- ----- -----
Effective tax rate............................... --% --% --%
===== ===== =====
</TABLE>
(4) INTANGIBLE ASSETS
During 1999, the Company acquired the performance obligations for Internet
access services related to three customer lists for a total of $504,361. Under
the terms of the agreements, the Company is required to pay for the customer
lists in monthly installments through January 2000. At December 31, 1999, there
was $145,962 still payable under these agreements, which is included in deferred
payments on the accompanying balance sheet. The Company has recorded the value
of these
F-12
<PAGE>
ESSENTIAL.COM, INC.
NOTES TO FINANCIAL STATEMENTS--(CONTINUED)
DECEMBER 31, 1999
(4) INTANGIBLE ASSETS (CONTINUED)
customer lists as an intangible asset and is amortizing them over a 24 month
period, the estimated useful life of the asset.
(5) DEFERRED PAYMENTS
During 1998 and 1999, the Company acquired certain equipment under deferred
payment arrangements. These arrangements require monthly installment payments of
$13,390 through May 2000 and had $64,628 outstanding at December 31, 1999. At
December 31, 1998 and 1999, the deferred payment balance was $73,856 and
$210,590, respectively, including $145,962 payable in connection with the
acquisition of customer lists (see Note 4).
(6) NOTES PAYABLE TO A RELATED PARTY
At December 31, 1998, the Company had a demand note payable to a related
party totaling $248,560, of which $23,800 and $224,760 were borrowed in 1997 and
1998, respectively. Interest accrued at 10% and totaled $17,297 and $16,992
during the years ended December 31, 1998 and 1999, respectively, and is included
in interest expense in the accompanying statement of operations. Borrowings were
secured by substantially all assets of the Company. This demand note was repaid
in August 1999.
(7) CONVERTIBLE PROMISSORY NOTES
In January 1999, the Company issued an aggregate of $710,000 of Convertible
Promissory Notes (the Notes) that accrued interest at a rate of 5% per annum.
The Notes were convertible at the option of the noteholder, upon the Company
receiving additional financing of at least $3,000,000 on or before June 30,
1999. The conversion price of the Notes was equal to 85% of the per share price
of the subsequent financing. In May and June 1999, the Company converted
$615,000 of these Notes plus accrued interest into 734,316 shares of Series A
redeemable convertible preferred stock. The remaining $95,000 plus accrued
interest was repaid. In December 1998, the Company received an advance of
$20,000 towards the purchase of the Notes. In connection with the conversion of
the Notes, the Company recorded $110,150 of interest expense related to the
discounted conversion rate.
(8) SUBORDINATED LOAN
On September 24, 1999, the Company entered into an agreement with a
financing company that provides for a $4,000,000 subordinated loan and a
$1,000,000 equipment lease line of credit. The subordinated loan bears interest
at 10% per annum and is secured by substantially all of the assets of the
Company. The subordinated loan provides for borrowings in $250,000 increments
over a 12-month period. The loan requires payments of interest for the first six
months followed by 30 equal installments of principal and interest. As of
December 31, 1999, the Company had $185,531 outstanding under the equipment
lease line of credit (see Note 12).
In connection with this financing, the Company issued warrants to the
financing company for the purchase of 274,741 shares of Series B redeemable
convertible preferred stock at an exercise price of $1.91 per share, subject to
certain defined adjustments. The warrants expire in seven years or three years
from the effective date of the Company's initial public offering, whichever is
earlier. The Company has valued the warrants, using the Black-Scholes option
pricing model, at $327,065 and has recorded the value of the warrants as a
deferred financing cost, which is being amortized as interest
F-13
<PAGE>
ESSENTIAL.COM, INC.
NOTES TO FINANCIAL STATEMENTS--(CONTINUED)
DECEMBER 31, 1999
(8) SUBORDINATED LOAN (CONTINUED)
expense over the life of the commitment. Upon completion of the Company's
proposed initial public offering, the Series B warrants will convert into common
stock warrants.
(9) STOCKHOLDERS' DEFICIT
COMMON STOCK
As of December 31, 1999, the Company is authorized to issue 19,166,451
shares of common stock. During 1997, the Company issued 4,194,288 shares of
common stock to the Company's founders. During 1998, the Company issued
1,039,609 shares of restricted stock to an officer of the Company at $0.03 per
share through the issuance of a promissory note for $31,781. This promissory
note was paid in November 1998. On March 17, 1999, the Company repurchased and
returned to authorized status 779,707 shares of this restricted common stock for
$23,836.
STOCK SPLITS AND DIVIDENDS
In October 1998, the Company was reorganized as a Delaware corporation. In
connection with this reorganization, the Company exchanged 10,000 shares of
common stock for every share of common stock outstanding. In March 1999, the
Company issued a stock dividend of 0.79 share for every one share of common
stock that was issued and outstanding at that date. Additionally, in July 1999,
the Company effected a stock split of 2 shares for every one share of the
Company's outstanding common stock. The above transactions have been reflected
retroactively for all periods presented in the accompanying financial
statements.
(10) REDEEMABLE CONVERTIBLE PREFERRED STOCK
During March 1999 through June 1999, the Company issued 2,830,726 shares of
Series A redeemable convertible preferred stock (Series A Preferred Stock),
$0.01 par value per share, resulting in gross proceeds of approximately
$2,096,000 and the conversion of $615,000 of notes payable (see Note 7). During
July 1999 through September 1999, the Company sold 6,332,125 shares of Series B
redeemable convertible preferred stock (Series B Preferred Stock), $0.01 par
value per share, resulting in gross proceeds to the Company of approximately
$12,100,000.
In February and March 2000, the Company sold 6,411,004 shares of Series C
redeemable convertible preferred stock (Series C Preferred Stock), $0.01 par
value per share, resulting in gross proceeds to the Company of approximately
$75,000,000 and offering costs of approximately $3,750,000. In connection with
this financing, the Company granted a warrant to the placement agent for the
purchase of 64,110 shares of Series C Preferred Stock at an exercise price of
$11.70 per share. The Company has valued this warrant, using the Black-Scholes
option pricing model, at approximately $319,000 and will record this value as an
issuance cost and reflect it as a warrant outstanding. Upon completion of the
Company's proposed initial public offering, the Series C warrant will convert
into a common stock warrant.
The rights and preferences of the Series A, B and C Preferred Stock are as
follows:
VOTING
Each share of Series A, B and C Preferred Stock is entitled to voting rights
equivalent to the number of shares of common stock into which each share can be
converted.
F-14
<PAGE>
ESSENTIAL.COM, INC.
NOTES TO FINANCIAL STATEMENTS--(CONTINUED)
DECEMBER 31, 1999
(10) REDEEMABLE CONVERTIBLE PREFERRED STOCK (CONTINUED)
CONVERSION
Each share of Series A, B and C Preferred Stock is convertible at the option
of the stockholder into two, one and one shares, respectively, of common stock,
subject to certain antidilutive adjustments. Conversion is automatic upon the
closing of a public offering of the Company's common stock at a price per share
of not less than $2.50 per share for Series A Preferred Stock (adjusted for any
stock dividend or stock splits) and aggregate gross proceeds of not less than
$15,000,000. Series B and C Preferred Stock will be automatically converted upon
(i) the closing of a public offering of the common stock with gross proceeds of
at least $20,000,000 and a minimum pre-money valuation of $100,000,000 with
respect to Series B Preferred Stock and $437,500,000 with respect to Series C
Preferred Stock or (ii) the election of the holders of 60% of the then
outstanding shares of Series B and C Preferred Stock.
LIQUIDATION
In the event of a liquidation, dissolution or winding up of the Company, the
holders of the Series A, B and C Preferred Stock are entitled to $1.00, $1.91
and $11.70 per share, respectively, plus all accrued but unpaid dividends. In
addition, after payment of the liquidation preference described in the preceding
sentence, the Series A Preferred Stock is entitled to participate on an
as-converted basis with the common stock in the remaining assets of the Company,
provided that in no event shall a holder of Series A Preferred Stock be entitled
to receive more than three times the liquidation preference for each share of
Series A Preferred Stock.
DIVIDEND
The Series A, B and C Preferred Stock each earn cumulative dividends of 8%
annually. Dividends are payable in the event of a redemption of the shares, a
liquidation of the Company, as defined, or at the discretion of the Board of
Directors. Additionally, the preferred stockholders are entitled to receive
dividends at the same rate as paid to the common stockholders.
REDEMPTION
The holders of at least a majority of the Series A, B and C Preferred Stock,
voting as a single class, can demand that the Company redeem its shares for the
original purchase price plus any accrued and unpaid dividends thereon.
Redemption may be demanded by the holders of the Preferred Stock at any time
after July 31, 2004 and will be paid in three equal annual installments.
(11) STOCK OPTION PLAN
In December 1998, the Company established the 1998 Stock Option and
Incentive Plan (the 1998 Plan), which provides for the grant of incentive stock
options and nonqualified stock options to purchase up to 6,819,698 shares of the
Company's common stock. The Board of Directors has the authority to select the
employees and nonemployees to whom options are granted and determine the terms
of each option, including (i) the number of shares of common stock subject to
the option, (ii) the date on which the option becomes exercisable and (iii) the
option exercise price. Options granted under the 1998 Plan generally vest over
four years.
F-15
<PAGE>
ESSENTIAL.COM, INC.
NOTES TO FINANCIAL STATEMENTS--(Continued)
DECEMBER 31, 1999
(11) STOCK OPTION PLAN (CONTINUED)
The following is a summary of the stock option activity for the years ended
December 31, 1998 and 1999:
<TABLE>
<CAPTION>
WEIGHTED
NUMBER OF EXERCISE PRICE AVERAGE
SHARES PER SHARE EXERCISE PRICE
<S> <C> <C> <C>
Granted in 1998.......................................... 523,390 $ 0.03 $ 0.03
--------- ----------- ------
Outstanding, December 31, 1998......................... 523,390 0.03 0.03
Granted.................................................. 2,490,625 0.03-0.20 0.16
Exercised................................................ (28,612) (0.03) (0.03)
Terminated............................................... (723,418) (0.03-0.20) (0.04)
--------- ----------- ------
Outstanding, December 31, 1999......................... 2,261,985 $ 0.03-0.20 $ 0.17
========= =========== ======
Exercisable, December 31, 1999......................... 94,162 $ 0.03-0.20 $ 0.17
========= =========== ======
Exercisable, December 31, 1998......................... 5,111 $ 0.03 $ 0.03
========= =========== ======
</TABLE>
Information regarding options outstanding as of December 31, 1999 is as
follows:
<TABLE>
<CAPTION>
OPTIONS OUTSTANDING OPTIONS EXERCISABLE
----------------------------------- --------------------
WEIGHTED
AVERAGE WEIGHTED WEIGHTED
REMAINING AVERAGE AVERAGE
NUMBER OF CONTRACTUAL EXERCISE NUMBER OF EXERCISE
EXERCISE PRICE SHARES LIFE (YEARS) PRICE SHARES PRICE
<S> <C> <C> <C> <C> <C>
$0.03-0.05................. 373,124 9.4 $0.05 16,347 $0.03
$0.19-0.20................. 1,888,861 9.8 0.20 77,815 0.20
--------- ------
2,261,985 94,162
========= ======
</TABLE>
As of December 31, 1999, options to purchase 4,529,101 shares of common
stock are available for future grant under the 1998 Plan.
In connection with certain stock option grants to employees during the year
ended December 31, 1999, the Company recorded deferred stock-based compensation
of $11,263,533, which represents the aggregate difference between the exercise
price of the option grants and the fair market value of the common stock as
determined for accounting purposes. In addition, in connection with certain
stock option grants to consultants during the year ended December 31, 1999, the
Company recorded deferred stock-based compensation of $2,331,660, which
represents the value of such options as calculated using the Black-Scholes
option pricing model. The deferred stock-based compensation will be recognized
as an expense over the vesting period of the underlying stock options. The
Company recorded stock-based compensation expense of $1,324,463 in the year
ended December 31, 1999 related to these options.
In February and March 2000, the Company granted 81,800 common stock options
at a weighted average exercise price of $6.97 per share. As a result, the
Company will record additional deferred stock-based compensation of
approximately $680,235 related to these options.
The Company has computed the pro forma disclosures required under SFAS
No. 123, ACCOUNTING FOR STOCK-BASED COMPENSATION, for employee stock options
granted during 1998 and 1999 using the
F-16
<PAGE>
ESSENTIAL.COM, INC.
NOTES TO FINANCIAL STATEMENTS--(CONTINUED)
DECEMBER 31, 1999
(11) STOCK OPTION PLAN (CONTINUED)
Black-Scholes option pricing model prescribed by SFAS No. 123. The assumptions
used and related information are as follows:
<TABLE>
<CAPTION>
YEARS ENDED DECEMBER 31,
-------------------------------
1998 1999
<S> <C> <C>
Risk free interest rates.................................... 5.72%--6.38% 4.65%
Expected dividend yield..................................... -- --
Volatility factor........................................... -- --
Expected life............................................... 7 years 7 years
Weighted average fair value of options granted.............. $0.06 $0.01
Weighted average remaining contractual life of outstanding
options................................................... 9.7 years 9.2 years
</TABLE>
The total charge to operations under SFAS No. 123 for options vesting during
the years ended December 31, 1998 and 1999 and would have been approximately
$215 and $5,728, respectively. The effect of applying SFAS No. 123 would have
been as follows:
<TABLE>
<CAPTION>
YEARS ENDED DECEMBER 31,
------------------------
1998 1999
<S> <C> <C>
Net loss--
As reported....................................... $(584,281) $(12,954,296)
Pro forma......................................... (584,496) (12,960,024)
Basic and diluted net loss per common share--
As reported....................................... (0.14) (3.03)
Pro forma......................................... (0.14) (3.03)
</TABLE>
Because additional option grants are expected to be made in future periods,
the above pro forma disclosures may not be representative of pro forma effects
on results for future periods.
(12) COMMITMENTS AND CONTINGENCIES
LEASES
The Company has operating lease agreements for its facilities and certain
equipment, which expire at various dates through 2003. The Company has a capital
lease obligation for computer and office
F-17
<PAGE>
ESSENTIAL.COM, INC.
NOTES TO FINANCIAL STATEMENTS--(CONTINUED)
DECEMBER 31, 1999
(12) COMMITMENTS AND CONTINGENCIES (CONTINUED)
equipment which expires in 2003 and has an interest rate of 10% per annum. The
future minimum lease payments under these leases at December 31, 1999 are as
follows:
<TABLE>
<CAPTION>
OPERATING CAPITAL
LEASES LEASE
<S> <C> <C>
2000.................................................... $212,000 $ 42,252
2001.................................................... 38,000 77,658
2002.................................................... 31,000 77,658
2003.................................................... 4,000 25,885
-------- --------
Total future minimum payments......................... $285,000 223,453
========
Less--Amount representing interest...................... 37,922
--------
Present value of minimum lease payment................ 185,531
Less--Current portion................................... 24,512
--------
Long-term portion of capital lease obligations........ $161,019
========
</TABLE>
Rent expense for the years ended December 31, 1997, 1998 and 1999 was
approximately $3,000, $28,000 and $152,000, respectively.
LITIGATION
From time to time the Company has been and expects to continue to be subject
to legal proceedings and claims in the ordinary course of business. The Company
is not currently a party to any material legal proceeding.
(13) ACCRUED EXPENSES
Accrued expenses in the accompanying balance sheets consist of the
following:
<TABLE>
<CAPTION>
DECEMBER 31,
---------------------
1998 1999
<S> <C> <C>
Professional fees..................................... $ 7,500 $ 129,336
Payroll and related costs............................. 129,356 254,766
Other................................................. 24,711 769,373
-------- ----------
$161,567 $1,153,475
======== ==========
</TABLE>
F-18
<PAGE>
ESSENTIAL.COM, INC.
NOTES TO FINANCIAL STATEMENTS--(CONTINUED)
DECEMBER 31, 1999
(14) VALUATION AND QUALIFYING ACCOUNTS
ALLOWANCE FOR DOUBTFUL ACCOUNTS
<TABLE>
<CAPTION>
BALANCE AT ADDITION
BEGINNING OF CHARGED TO BALANCE AT
PERIOD EXPENSE DEDUCTIONS END OF PERIOD
<S> <C> <C> <C> <C>
Year ended December 31, 1997.................... $ -- $ -- $ -- $ --
======= ======= ======== =======
Year ended December 31, 1998.................... $ -- $26,206 $ -- $26,206
======= ======= ======== =======
Year ended December 31, 1999.................... $26,206 $37,652 $(23,996) $39,862
======= ======= ======== =======
</TABLE>
(15) RELATED PARTY TRANSACTIONS
As part of the Series A redeemable convertible preferred stock financing in
May and June, 1999, an attorney at the Company's legal counsel purchased 29,863
shares of Series A redeemable convertible preferred stock.
As part of the Series C redeemable convertible preferred stock financing in
February and March, 2000 attorneys at the Company's legal counsel purchased a
total of 17,096 shares of Series C redeemable convertible preferred stock.
(16) SUBSEQUENT EVENTS
In April 2000, effective upon completion of the initial public offering of
the Company's common stock and subject to stockholder approval, the Company
approved an Employee Stock Purchase Plan. The plan is designed to allow
employees to purchase shares of common stock, at biannual intervals, through
periodic payroll deductions. A total of 250,000 shares of common stock is
available for issuance under the plan. The board may at any time amend, modify
or terminate the plan. The plan will terminate no later than April 6, 2010.
In April 2000, effective upon completion of the initial public offering of
the Company's common stock and subject to stockholder approval, the Company
approved a Non-Employee Director Stock Option Plan. A total of 250,000 shares of
common stock is available for issuance under the plan. The board may at any time
amend, modify or terminate the plan. The plan will terminate no later than
April 6, 2010.
In April 2000, effective upon completion of the initial public offering of
the Company's common stock and subject to stockholder approval, the number of
shares of common stock available for issuance under the Amended and Restated
1998 Stock Option and Incentive Plan was increased by 480,302 shares of common
stock.
In April 2000, the Company's Board of Directors approved an amendment of the
Company's certificate of incorporation subject to stockholder approval, to be
filed upon completion of the Company's initial public offering, to provide for
an authorized capital stock of 400,000,000 shares, consisting of 395,000,000
shares of common stock and 5,000,000 shares of undesignated preferred stock.
F-19
<PAGE>
ESSENTIAL.COM, INC.
"MEET THE MANAGEMENT" PRESENTATION
Prospective investors will be able to log on to a web site maintained by
E*OFFERING Corp. at www.eoffering.com, where a prospectus is available for
review. Within designated sections of the prospectus, including the table of
contents of the prospectus, an embedded hyperlink will provide access to the
"Meet the Management" Presentation. This presentation highlights selected
information contained elsewhere in the prospectus. This presentation does not
contain all of the information that you should consider before investing in our
common stock. You should read the entire prospectus carefully, including the
"Risk Factors" and our financial statements and notes to those financial
statements, before making an investment decision.
Visual 1: Disclaimer
Imagery: Border and Company logo.
Visual Text: The "Meet the Management" Presentation is part of our
prospectus. This presentation highlights selected information contained
elsewhere in this prospectus. This presentation does not contain all of the
information that you should consider before investing in our common stock. You
should read the entire prospectus carefully, including the "Risk Factors" and
our financial statements and notes to those financial statements, before making
an investment decision.
Script: (Akhil Garland) The "Meet the Management" Presentation is part of
our prospectus. This presentation highlights selected information contained
elsewhere in this prospectus. This presentation does not contain all of the
information that you should consider before investing in our common stock. You
should read the entire prospectus carefully, including the "Risk Factors" and
our financial statements and notes to those financial statements, before making
an investment decision.
Visual 2: Introduction
Script: (Akhil Garland) Welcome to the "Meet the Management" Presentation
for essential.com. I'm Akhil Garland, Chairman, President and Chief Executive
Officer. I would like to introduce you to Basil Pallone, our Director of Finance
and Controller. We would like to talk to you about essential.com, a leading
online communications and energy marketplace offering a broad range of branded
essential services to residential and small business customers.
Visual 3: Industry Background
Imagery: Border and Company logo. Two boxes positioned on the left half of
the page have arrows pointing from left to right towards an essential.com logo.
Visual Text: Title: Industry Background. Box at top left hand of the page
has caption: "The growth of the Internet and electronic commerce," Box at lower
left hand of the page has caption: "Extensive deregulation and restructuring of
communications and energy markets".
Script: (Akhil Garland) (see "Business--Industry Overview"). The Internet
has emerged as a significant global medium for communications, information and
commerce. IDC estimates that there were over 68 million U.S. Internet users at
the end of 1998 and projects the number of users to grow to over 197 million by
2003. The emergence of the Internet has coincided with a period of extensive
deregulation and restructuring of the large telecommunications and energy
markets by state and federal lawmakers. Deregulation of the telecommunications
and energy markets is intended to promote competition by opening these markets
to new entrants and ultimately to promote consumer choice. As a result of this
restructuring and increasing competition, service providers are increasingly
seeking new marketing methods, channels of distribution and other means of
acquiring customers in order to maximize the utilization of their infrastructure
and increase revenues. We believe that these industry characteristics provide a
significant opportunity for an online communications and energy marketplace.
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Visual 4: essential.com Solution
Imagery: Border and Company logo. essential.com logo in center of page with
two boxes connecting below with the headings "Benefits to our Customers" and
"Benefits to Our Service Providers".
Visual Text: Title: essential.com Solution. (Under "Benefits to Our
Customers" list as bullets: "Convenience" "Choice" "Simplicity" and "Value".
Under "Benefits to our Service Providers" list as bullets: "Increased revenues
and capacity utilization" "Increase brand awareness" "Reduced general and
administrative costs" and "Enhanced Internet strategy")
Script: (Akhil Garland) (see "Business--The essential.com Solution") Our
online communications and energy marketplace provides our customers with
convenience, choice, simplicity and value in selecting, managing and paying for
essential services. Our customers can choose, manage and pay for a selection of
essential services at a single web site. This reduces the time and effort
currently required to purchase such services through existing channels. We
provide access to essential service offerings and billing information 24 hours a
day, seven days a week from anywhere that a customer has Internet access. We are
able to provide our customers with one consolidated online bill for the
essential services we sell to them. Customers may pay their bills electronically
by either credit card or bank account debit.
In addition, we provide online, automated web-based self-service
capabilities. These allow customers to choose and change services, features and
options based on self-directed research. For example, a customer can switch to a
different long distance service provider or order 3-way calling online.
We intend to offer a choice of multiple service providers representing a mix
of price and service plans within each service offering. We plan to select
quality service providers offering branded services. We intend to offer up to
four brands within each essential service category at our online marketplace. We
also have the ability to e-mail customers to notify them that the new service
offerings are available. We believe that providing a greater number of offerings
within each essential service category would create confusion for our customers.
We also offer comparative data on additional service offerings not available at
our marketplace to assist our customers in evaluating and selecting their
services. Customers have the option of choosing individual services or bundling
identified service offerings and have the ongoing ability to change these
choices online.
We simplify the process of selecting essential services. Customers can enter
either their telephone numbers or zip codes and review all our service offerings
currently available for their geographic location. Detailed information, such as
monthly fees, surcharges, service fees and rates, is compared for each available
service plan at our web site. By using Comparilator, our proprietary comparison
tool, customers can easily evaluate different service plans by sorting by rates
or monthly fees.
We generally enter into contracts to buy essential services at wholesale
prices from leading service providers and resell these services at retail prices
online to our customers. By aggregating customer demand, we believe that our
model allows us to negotiate favorable pricing for most of our services and to
pass on a portion of these savings to our customers. Our proprietary tools allow
customers to make comparisons during the selection process and analyze and
optimize their service plan selections on an on-going basis.
In addition, our marketplace enables suppliers of essential services to
increase revenues and brand awareness and to enhance their online strategies
while reducing costs associated with acquiring, servicing and billing individual
customers. Deregulation is creating a more competitive market for service
providers in which they are increasingly seeking to maximize system utilization
while reducing costs. We offer service providers a distribution channel that
enables them to increase revenues without
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incurring direct customer acquisition costs. This results in greater utilization
by service providers of existing capacity.
Service providers are seeking to differentiate themselves in increasingly
competitive markets through branding. This is particularly true for service
providers that are new entrants in their markets or participants in deregulating
markets. Visitors to our web site, as well as our customers, are exposed to
brands of the service providers we select. In addition, our marketing and
advertising refer to branded service offerings, benefiting our service providers
at no cost to them.
We enable service providers to reduce their operating costs. We provide
comprehensive support services to our customers, including customer service,
support and billing at no cost to our service providers. We also assume the
responsibility for collections and the related credit risks.
By providing services through our online marketplace, service providers gain
an immediate e-commerce capability, expand an existing capability or gain an
Internet presence with a low up-front investment. In addition, our service
providers receive market data regarding online customers' selection of their
service offerings and plans.
Visual 5: essential.com Strategy
Imagery: Border and Company logo. Circles filled with text heading will be
connected to the logo as spokes.
Visual Text: Title: essential.com Strategy. Inside circled spokes: "Expand
Geographic Coverage and Service Offerings" "Establish a National Brand"
"Establish Partnerships and Strategic Alliances" "Generate Multiple and
Recurring Revenue Streams" "Promote Long-Term Customer Relationships" "Continue
Investment in Technology" and "Focus on Residential and Small Business Markets."
Script: (Akhil Garland) (see "Business--Strategy"): We intend to be the
first online provider of a comprehensive suite of essential services that are
available nationally. Our strategy is to offer a selection of services with a
national reach and supplement these on a regional basis. We have agreements in
place with national service providers that permit us to resell long distance
service and Internet access in the 48 continental states. We supplement these
national service offerings with regional offerings, such as local telephone
service, home heating products and electricity in selected markets. We are
adding new service providers to increase our geographic coverage and expanding
the service offerings at our online market to include services, such as natural
gas, wireless telecommunications and satellite television.
We intend to expand our marketing campaign to increase awareness of our
online communications and energy marketplace and drive traffic to our web site.
We intend to use online marketing, direct mail and selective national and
regional advertising to build strong brand awareness.
We have developed a successful web-based affiliate program and intend to
continue to expand this program to include additional web sites. We also intend
to establish strategic relationships with credit card and financial services
companies, as well as high-traffic web portals and merchants. We expect that
these relationships will provide us with significant marketing and customer
acquisition opportunities. In addition to our marketing programs, we intend to
continue to enter into strategic alliances with established service providers.
We intend to focus on offering essential services that generate recurring
monthly revenue streams. Essential services, such as telecommunications and
energy, are non-discretionary purchases that are not dependent on repeat
purchase decisions. These services generate monthly, fixed and usage-based
revenues. Customers typically use these services every day and we believe that
their use is less likely to be affected by negative changes in economic
conditions. Our multiple monthly customer contacts through bill notification,
payment and marketing e-mails allow us to notify customers of, and cross-sell,
new service offerings.
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Our goal is to establish and maintain long-term relationships with our
customers by becoming their primary source of essential services. We believe
this approach will enable us to enjoy the benefits of the recurring revenue
associated with the sale of essential services and to cross-sell additional
services to our customers. We intend to maximize customer retention by:
providing a choice of service providers in each product category so customers
can choose to change service providers but remain our customers; providing a
quality customer service experience; emphasizing the convenience of
consolidating several essential services on one bill, paid electronically; and
continuing to implement our Teleguard program, which enables consumers to be
removed, free of charge, from over 1,000 telemarketing lists that are used
extensively by service providers.
Our technology is a central component of our business operations. We intend
to continue to invest in technology to achieve seamless interfaces among us, our
customers and our suppliers. We also intend to invest in facilities that will
increase our capacity to support our growing business and maintain high
standards of reliability. We expect that development of new systems and
automation of our processes will further enhance our ability to provision our
customers and provide an efficient communications channel to them.
We intend to continue to focus on the residential and small business markets
where provisioning and billing of services are standardized, scalable and can
take advantage of the capabilities of the Internet. Larger commercial and
industrial organizations have higher installation, maintenance and service
requirements that are less scalable and require more extensive selling efforts
and a higher level of customer service and support. We can communicate quickly
and inexpensively by e-mail with our customers, which facilitates cross-selling
other essential services. We focus on specific sub-groups of our target
customers that we believe are particularly attractive, such as customers who are
relocating residences, businesses or offices.
Visual 6: Service Offerings
Script: (Akhil Garland) (see "Business--Service Offerings"): Our service
offering strategy is to optimize the number of brands offered at our online
marketplace by balancing our customers' desire for convenience, choice,
simplicity and value with the advantages we offer service providers. Our service
offerings include choices ranging from economy selections to higher-priced,
valued-added services. We currently intend to select up to four brands within
each service category to offer at our online marketplace. We believe that too
many offerings create confusion for our customers.
Generally our existing agreements with service providers do not require us
to purchase a minimum amount of service. In certain cases, due to greater
regulatory licensing or compliance requirements or preferences of the service
providers, we do not purchase the services at wholesale prices and resell them
but instead act as an agent for the service provider. In entering into these
agreements we seek to obtain rights to use the brand names and logos of service
providers in order to help us promote the providers' branded offerings at our
online marketplace.
Visual 7: Competition
Imagery: Border and Company logo. Three arrows on the left are pointing
towards the right.
Visual Text: Title: "Competition" Subheading reads: "Online and offline
competition we face includes": Adjacent to the arrows is the text: "Service
Providers" "Agents who act on behalf of service providers" and "Internet-based
providers."
Script: (Akhil Garland) (see "Business--Competition"): The market for an
online communications and energy marketplace is new and rapidly evolving. We
presently face online and offline competition from a number of companies,
including: service providers, including providers whose services we offer, such
as MCI WorldCom, Qwest, Bell Atlantic and AllEnergy, and providers
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whose services we are not currently offering, such as AT&T and Sprint; agents
who act on behalf of service providers in acquiring customers; and resellers of
telecommunications and energy services.
We believe that the success of companies seeking to create an online
marketplace for selling communications, energy and other essential services will
depend on the following factors: participation in the online marketplace by a
significant number of customers; quality and reliability of service offerings;
price and value of service offerings; customer service; breadth and depth of
service offerings; and ease of use and convenience of the marketplace.
And with that, I will turn it over to Basil Pallone for an overview of our
financial results. Basil. ..
Visual 8: Financial Summary
Imagery: (See "Selected Financial Data") Statement of Operations.
Visual Text: Title: "Financial Summary."
Script: (Basil Pallone) (See "Management's Discussion and Analysis of
Financial Condition and Results of Operations--Overview" and see "Risk
Factors--Risks Related to Our Operations"): We were incorporated in
October 1995. However, we did not commence any operations until 1996. From 1996
to June 1999, we were in a development stage offering limited telephone service
to customers in Massachusetts, while we focused on developing our business plan
and our systems and raising capital. In April 1998, we began providing, on a
test market basis, local and long distance telephone service to customers in
Massachusetts. In June 1999, we launched our web site and have since expanded
our service offerings and our geographic presence. As of December 31, 1999, we
offered multiple long distance services and Internet access to customers in the
47 continental states and the District of Columbia. We also offered electricity
and home heating products in Massachusetts.
We generally buy essential services at wholesale prices from our service
providers, aggregate them online and resell them to our customers at retail
prices. We enter into both reseller and agency agreements with our service
providers. In a reseller agreement, we have the ability to determine pricing of
the services, we retain credit risk with the customer and we generally provide
the first line of customer service support. Revenue from our reseller agreements
is recognized based upon the amount of services provided to our customers with
the corresponding cost of services recorded as an expense. In an agency
relationship, we generally receive a fee from the service provider for referring
a customer to the service provider. Revenue from our agency relationships
consists of the net fees received from the service provider. Through
December 31, 1999, substantially all of our revenue has been generated through
our reseller relationships. Revenue is recognized as the services are delivered.
Revenue increased 271% to $527,000 in 1999 from $142,000 in 1998 and
increased 216% in 1998 from $45,000 in 1997. We began selling local and long
distance telephone services to a test market In Massachusetts during
April 1998. In June 1999 we launched our web site, expanded our service
offerings and commenced our marketing efforts. Approximately 69% of 1999 revenue
was recorded in the fourth quarter. Substantially all revenue in 1999 was
generated from our telecommunication services, including Internet access. Our
revenue in 1998 was from the sale of telephone services from April 1998 through
December 1998. Revenue in 1997 was derived from the one-time sale of a voice
mail system to a single customer. At December 31, 1999 we had approximately
10,500 customers, as compared to approximately 200 in 1998.
Cost of services sold was $421,000 in 1999 and $162,000 in 1998. We began
selling services in 1998. Accordingly, no cost of services sold was recorded in
periods prior to 1998. The cost of services sold exceeded revenue in 1998 and
during the first three quarters of 1999 due to two factors. First, we incur
certain minimum costs with our suppliers regardless of the number of customers
we are servicing. Second, until the third quarter of 1999, we experienced
difficulties with our provisioning and billing systems that resulted in some
customers receiving services without being billed for them. The increase
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in cost of services sold from 1998 to 1999 was a result of the increase in the
customer base during the third and fourth quarter of 1999 and the addition of
services to our product offering.
Cost of customer acquisition was $1.6 million in 1999 and $4,000 in 1998.
The cost of customer acquisition in 1999 over 1998 was due to the launch of our
customer acquisition program which included payment of monetary incentives to
new customers.
Selling and marketing expenses were $4.2 million in 1999, $133,000 in 1998
and $20,000 in 1997. The increase in expenses related to added marketing
personnel and an increase in advertising and promotional expenses. In
September 1999, we acquired the performance obligations for two groups of
Internet access customers from a non-affiliated Internet service provider. We
acquired these customers for $504,000 and are amortizing the acquisition cost
over a 24-month period which represents the useful life of the asset for
accounting purposes.
Technology development expenses were $2.3 million in 1999 and $71,000 in
1998. We did not incur any technology development expenses in 1997. The increase
in technology development expenses was due to staffing additions and investments
in new and enhanced systems.
General and administrative expenses were $3.6 million in 1999, $338,000 in
1998 and $64,000 in 1997. The increase in 1999 was due primarily to costs
associated with the commencement of commercial operations, the expansion of our
service offerings and the addition of a customer service organization. The
increase in general and administrative expenses in 1998 compared to 1997 was due
to additional staff and related expenses associated with commencement of testing
operations.
Stock-based compensation expense was $1.3 million in 1999. Unearned
compensation on the unvested options is deferred and included as a component of
stockholders' equity.
In 1999, interest and other income was $212,000. In 1999, we invested the
proceeds from issuance of shares of our Series A and B redeemable convertible
preferred stock in short-term liquid investments until such time as the proceeds
were required for corporate purposes.
Interest expense increased to $253,000 in 1999 from $17,000 in 1998 and
$2,000 in 1997. In 1999, we recorded $110,000 of interest expense as a result of
the conversion of $615,000 of our convertible promissory notes into shares of
our Series A redeemable convertible preferred stock at a discount to the price
per share paid by institutional investors. In 1999, we granted warrants to our
lender to purchase 274,741 shares of our Series B redeemable convertible
preferred stock at an exercise price of $1.91 per share. We have valued these
warrants at $327,000 using the Black-Scholes option pricing model and have
recorded the value of the warrants as a component of deferred financing costs.
These costs are being amortized as interest expense over the life of the loan
commitment. During 1999, there was $94,000 of amortization of the deferred
financing costs included in interest expense. The remaining interest expense in
1999 related to interest expense related to a capital lease.
No provision for income taxes was recorded in 1999, 1998 or 1997 due to the
net losses incurred during these periods. As of December 31, 1999, we had
$12.6 million of state and federal net operating loss carryforwards for tax
reporting purposes available to offset future taxable income. These net
operating loss carryforwards expire at various dates through 2019, to the extent
that they are not used. We have not recognized any benefit from the future use
of loss carryforwards for these periods, or for any other periods since
inception due to the uncertainty of realizing the benefit of these losses. Use
of the net operating loss carryforwards may be limited in future years if there
is a significant change in our ownership.
We incurred substantial net losses and negative cash flows from operations
in 1998 and 1999. For the year ended December 31, 1999, our net loss applicable
to common stockholders was $13.5 million. As of December 31, 1999, our
accumulated deficit was $14.2 million. We cannot be certain when we will become
profitable, if at all.
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Akhil...
Visual 9: End of Presentation
Script: (Akhil Garland): We hope that this presentation was helpful in
understanding the business model of essential.com and the strategy that our
management team intends to execute. We encourage you to refer back to the
prospectus for additional support and disclosure as well as to take a look at
the "Risk Factors" in detail. Again, thank you for your interest in
essential.com.
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, 2000
[LOGO]
SHARES OF COMMON STOCK
---------------------
P R O S P E C T U S
---------------------
DONALDSON, LUFKIN & JENRETTE
MERRILL LYNCH & CO.
PAINEWEBBER INCORPORATED
E*OFFERING
- ------------------------------------------------------------
We have not authorized any dealer, sales person or other person to give you
written information other than this prospectus or to make representations as to
matters not stated in this prospectus. You must not rely on unauthorized
information. This prospectus is not an offer to sell these securities or our
solicitation of your offer to buy the securities in any jurisdiction where that
would not be permitted or legal. Neither the delivery of this prospectus nor any
sales made hereunder after the date of this prospectus shall create an
implication that the information contained herein or that the affairs of
essential.com have not changed since the date hereof.
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
Until , 2000 (25 days after the date of this prospectus), all dealers
that effect transactions in these shares of common stock may be required to
deliver a prospectus. This is in addition to the dealer's obligation to deliver
a prospectus when acting as an underwriter and with respect to its unsold
allotments or subscriptions.
- --------------------------------------------------------------------------------
<PAGE>
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 13. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.
The following table sets forth the various expenses, all of which will be
borne by us, in connection with the sale and distribution of the securities
being registered, other than the underwriting fees. All amounts shown are
estimates except for the SEC registration fee and the NASD filing fee.
<TABLE>
<S> <C>
SEC registration fee........................................ $ 22,770
NASD filing fee............................................. 9,125
Nasdaq National Market listing fee.......................... 95,000
Blue Sky fees and expenses, including legal fees............ 10,000
Printing and engraving expenses............................. 250,000
Legal fees and expenses..................................... 525,000
Accounting fees and expenses................................ 250,000
Transfer agent and registrar fees and expenses.............. 6,500
Miscellaneous............................................... 81,605
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Total..................................................... $1,250,000
==========
</TABLE>
ITEM 14. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
The Delaware General Corporation Law and our charter provide for
indemnification of directors and officers for liabilities and expenses that they
may incur in such capacities. In general, directors and officers are indemnified
with respect to actions taken in good faith in a manner reasonably believed to
be in, or not opposed to, our best interests, and with respect to any criminal
action or proceeding, actions that the indemnitee had no reasonable cause to
believe were unlawful. Reference is made to our corporate charter filed as
Exhibit 3.01 to this registration statement.
The underwriting agreement provides that the underwriters are obligated,
under certain circumstances, to indemnify our directors, officers and
controlling persons against certain liabilities, including liabilities under the
Securities Act. Reference is made to the form of underwriting agreement filed as
Exhibit 1.01 to this registration statement.
We currently have insurance that insures our directors and officers against
certain losses and that insures us against our obligations to indemnity our
directors and officers.
The effect of these provisions would be to permit indemnification by us for,
among other liabilities, liabilities arising out of the Securities Act.
ITEM 15. RECENT SALES OF UNREGISTERED SECURITIES.
STOCK SPLITS
On November 4, 1998, in connection with the migratory merger of our
predecessor Massachusetts corporation, Wholesale Telecom & Electric Corporation,
with and into our current Delaware corporation, each one share of common stock
of the predecessor Massachusetts corporation was exchanged for ten thousand
shares of our current Delaware corporation.
On March 26, 1999, we effected a 1.79-for-one stock split of our common
stock in the form of a dividend of 0.79 shares of common stock for each share of
our common stock outstanding and held of record by a stockholder on March 26,
1999. In connection with such stock split, we issued to our stockholders of
record as of March 26, 1999 an aggregate of 984,595 shares of common stock.
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On July 30, 1999, we effected a two-for-one stock split of our common stock
in the form of a dividend of one share of common stock for each share of our
common stock outstanding and held of record by a stockholder on July 30, 1999.
In connection with such stock split, we issued to our stockholders of record as
of July 30, 1999 an aggregate of 2,241,401 shares of common stock.
CERTAIN SALES OF SECURITIES
Set forth in chronological order is information regarding shares of common
stock issued and options granted by the registrant since March 15, 1997. Further
included is the consideration, if any, we received for such shares, warrants and
options and information relating to the section of the Securities Act, or rules
of the SEC, under which exemption from registration was claimed.
The securities issued in the foregoing transactions were either (1) offered
and sold in reliance upon exemptions from Securities Act registration set forth
in Section 4(2) of the Securities Act, or any regulations promulgated
thereunder, relating to sales by an issuer not involving any public offering, or
(2) in the case of certain options to purchase shares of common stock and shares
of common stock issued upon the exercise of such options, such offers and sales
were made in reliance upon an exemption from registration either under
Section 4(2) of the Securities Act or under Rule 701 of the Securities Act. No
underwriters were involved in the foregoing sales of securities.
(a) Issuances of Capital Stock
On June 5, 1997, our predecessor, a Massachusetts corporation, issued and
sold 1,828,278 shares of our common stock to each of the Garland Family Trust
f/b/o Jason N. Garland and the Garland Family Trust f/b/o Amy E. Garland in
exchange for services previously provided to us by Mr. Garland.
On October 1, 1998, our predecessor, a Massachusetts corporation, issued and
sold 1,039,609 shares of our common stock to Ilene H. Lang in exchange for an
aggregate purchase price of $31,781.
On November 3, 1998, the registrant effected a migratory merger in which its
predecessor, Wholesale Telecom & Electric Corporation, a Massachusetts
corporation, merged with and into essential.com, inc., a Delaware corporation,
which was then known as etility.com, inc. In connection with this migratory
merger, on October 30, 1998, the registrant issued and sold 100 shares of common
stock to its predecessor for an aggregate purchase price of $100.00. The
registrant canceled such 100 shares on November 4, 1998. Also in connection with
such migratory merger, the registrant re-issued 5,233,896 shares of common stock
in exchange for all of the outstanding shares of stock of the registrant's
predecessor.
In January 1999, we issued and sold an aggregate of $710,000 of promissory
notes convertible upon the satisfaction of certain conditions into capital stock
of the registrant.
On March 26, 1999, we repurchased from Ms. Lang an aggregate of 779,707
shares of our common stock for a purchase price of $23,836.
On March 29, 1999, we issued and sold 500,000 shares of our Series A
preferred stock to EnerTech Capital Partners, L.P. in a private financing for an
aggregate purchase price of $500,000.
On April 16, 1999, we issued and sold an aggregate of 1,500,000 shares of
our Series A preferred stock to EnerTech Capital Partners, L.P., Bessec Ventures
IV L.P. and Bessemer Venture Partners IV L.P. in a private financing for an
aggregate purchase price of $1,500,000.
In May and June 1999, an aggregate of $615,000 of the $710,000 principal
amount of convertible promissory notes previously sold by us in January 1999
were converted at the election of the holders thereof into shares of our
Series A preferred stock at a conversion price of $0.85 per share in exchange
for the principal and accrued interest on the notes at the time of surrender
such that we issued 734,316 shares of our Series A preferred stock to these
former noteholders. Concurrently, we sold an aggregate
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of 96,410 shares of our Series A preferred stock to EnerTech Capital Partners,
L.P., Bessemer Venture Partners IV L.P. and Bessec Ventures IV L.P. for an
aggregate purchase price of $96,410.
On July 30, 1999, we issued and sold to Brand Equity Ventures I, L.P.,
EnerTech Capital Partners, L.P., Bessemer Venture Capital Partners IV L.P.,
Bessemer Venture Partners IV L.P., Gas Research Institute, and Zafa II, LLC an
aggregate of 4,762,177 shares of our Series B convertible preferred stock in a
private financing for an aggregate purchase price of $9,100,001.
On August 25, 1999, we issued and sold to EnerTech Capital Partners, L.P.
1,308,290 shares of our Series B convertible preferred stock in a private
financing for a purchase price of $2,500,000.
On September 24, 1999, we issued and sold to Comdisco, Inc. 261,658 shares
of our Series B convertible preferred stock in a private financing for a
purchase price of $500,000. Concurrent with this purchase we entered into a
subordinated loan and security agreement with Comdisco, Inc. and issued to
Comdisco, Inc. warrants to purchase up to an aggregate of 274,741 shares of our
Series B convertible preferred stock.
On February 8, February 18, and March 7, 2000, we issued and sold to venture
capital funds and other accredited investors an aggregate of 6,411,004 shares of
our Series C convertible preferred stock in a private financing for a purchase
price of $74,999,772. In connection with these sales and the services performed
by Donaldson, Lufkin & Jenrette Securities Corporation as placement agent, we
issued to Donaldson, Lufkin & Jenrette Securities Corporation warrants to
purchase an aggregate of 64,110 shares of our Series C convertible preferred
shares.
(b) Certain Grants and Exercises of Stock Options.
On December 4, 1998, we issued to employees options to purchase an aggregate
of 523,390 shares of common stock at an exercise price of $0.03 per share. As of
March 15, 2000, options to purchase 65,424 were outstanding, 20,440 of which
were exercisable as of such date.
On February 10, 1999, we issued to an employee an option to purchase an
aggregate of 32,264 shares of common stock at an exercise price of $0.03 per
share. As of March 15, 2000, this option was not outstanding.
In April 1999, options to purchase an aggregate of 28,612 shares of our
common stock were exercised at a price of $0.03 per share for an aggregate
purchase price of $878.
On May 19, 1999, we issued to employees options to purchase an aggregate of
338,500 shares of common stock at an exercise price of $0.05 per share. As of
March 15, 2000, options to purchase 77,700 were outstanding, none of which was
exercisable as of such date.
On June 28, 1999, we issued to employees and consultants options to purchase
an aggregate of 221,000 shares of common stock at an exercise price of $0.05 per
share. As of March 15, 2000, options to purchase 210,000 were outstanding, none
of which was exercisable as of such date.
On July 29, 1999, we issued to employees options to purchase an aggregate of
61,400 shares of common stock at an exercise price of $0.19 per share. As of
March 15, 2000, options to purchase 52,400 were outstanding, none of which was
exercisable as of such date.
On August 26, 1999, we issued to employees options to purchase an aggregate
of 28,000 shares of common stock at an exercise price of $0.20 per share. As of
March 15, 2000, options to purchase 28,000 were outstanding, none of which was
exercisable as of such date.
On September 7, 1999, we issued to consultants options to purchase an
aggregate of 177,511 shares of common stock at an exercise price of $0.20 per
share. As of March 15, 2000, options to purchase 177,511 were outstanding,
83,754 of which were exercisable as of such date.
II-3
<PAGE>
On October 5, 1999, we issued to employees options to purchase an aggregate
of 664,500 shares of common stock at an exercise price of $0.20 per share. As of
March 15, 2000, options to purchase 663,500 were outstanding, 71,874 of which
were exercisable as of such date.
On November 4, 1999, we issued to employees options to purchase an aggregate
of 652,000 shares of common stock at an exercise price of $0.20 per share. As of
March 15, 2000, options to purchase 652,000 were outstanding, 11,937 of which
were exercisable as of such date.
On December 16, 1999, we issued to employees and non-employee directors
options to purchase an aggregate of 315,450 shares of common stock at an
exercise price of $0.20 per share. As of March 15, 2000, options to purchase
315,450 were outstanding, 15,714 of which were exercisable as of such date.
On February 1, 2000, we issued to employees options to purchase an aggregate
of 40,000 shares of common stock at an exercise price of $6.50 per share. As of
March 15, 2000, options to purchase 40,000 were outstanding, none of which was
exercisable as of such date.
On March 7, 2000, we issued to employees options to purchase an aggregate of
41,800 shares of common stock at an exercise price of $7.50 per share. As of
March 15, 2000, options to purchase 41,800 were outstanding, none of which was
exercisable as of such date.
ITEM 16. EXHIBITS AND FINANCIAL STATEMENT SCHEDULES.
(A) EXHIBITS:
<TABLE>
<CAPTION>
EXHIBIT NO. EXHIBIT
<C> <S>
1.01* Form of Underwriting Agreement
3.01 Third Amended and Restated Certificate of Incorporation of
the registrant
3.02 Form of Fourth Amended and Restated Certificate of
Incorporation of the registrant
3.03 Form of Fifth Amended and Restated Certificate of
Incorporation of the registrant
3.04 Second Amended and Restated By-laws of the registrant
3.05 Form of Third Amended and Restated By-laws of the registrant
4.01 Second Amended and Restated Investor Rights Agreement, dated
as of February 8, 2000, by and among the registrant and the
other parties set forth on the signature pages thereto
4.02* Specimen certificate representing the Common Stock
5.01* Opinion of Testa, Hurwitz & Thibeault, LLP
10.01 Amended and Restated 1998 Stock Option and Incentive Plan
10.02 Form of 2000 Employee Stock Purchase Plan
10.03 Form of 2000 Non-Employee Director Stock Option Plan
10.04 Resale agreement, dated as of August 6, 1999, by and between
the registrant and Bell Atlantic--Washington, D.C., Inc.
10.05 Resale agreement, dated as of August 6, 1999, by and between
the registrant and Bell Atlantic--Maryland, Inc.
10.06 Resale agreement, dated as of August 6, 1999, by and between
the registrant and Bell Atlantic--Delaware, Inc.
</TABLE>
II-4
<PAGE>
<TABLE>
<CAPTION>
EXHIBIT NO. EXHIBIT
<C> <S>
10.07 Resale agreement, dated as of August 6, 1999, by and between
the registrant and Bell Atlantic--Pennsylvania, Inc.
10.08 Resale agreement, dated as of August 6, 1999, by and between
the registrant and Bell Atlantic--New Jersey, Inc.
10.09 Resale agreement, dated as of August 6, 1999, by and between
the registrant and Bell Atlantic--Virginia, Inc.
10.10 Resale agreement, dated as of August 17, 1999, by and
between the registrant and New England Telephone and
Telegraph Company d/b/a Bell Atlantic--Rhode Island
10.11 Resale agreement, dated as of August 6, 1999, by and between
the registrant and Bell Atlantic--West Virginia, Inc.
10.12 Resale agreement dated as of August 17, 1999, by and between
the registrant and New England Telephone and Telegraph
Company d/b/a Bell Atlantic--Vermont
10.13 Resale agreement, dated as of August 17, 1999, by and
between the registrant and New England Telephone and
Telegraph Company d/b/a Bell Atlantic--New Hampshire
10.14 Resale agreement, dated as of August 17, 1999, by and
between the registrant and New England Telephone and
Telegraph Company d/b/a Bell Atlantic--Maine
10.15 Resale agreement, dated as of February 23, 1998, by and
between the registrant and New England Telephone and
Telegraph Company d/b/a Bell Atlantic--Massachusetts
10.16 Amendment, dated as of June 1999, by and between the
registrant and the other parties set forth on the signature
pages thereto, amending those certain Bell Atlantic resale
agreements referenced therein
10.17 Resale agreement, dated as of November 15, 1999, by and
between the registrant and Bell South Telecommunications,
Inc.
10.18 Resale agreement, dated as of February 25, 2000, by and
among Illinois Bell Telephone, Indiana Bell Telephone
Incorporated, Michigan Bell Telephone, Nevada Bell Telephone
Co., The Ohio Bell Telephone Co., Pacific Bell Telephone
Co., The Southern New England Telephone Co., Southwestern
Bell Telephone Co., and Wisconsin Bell, Inc., d/b/a
Ameritech Wisconsin
10.19 Resale agreement, dated as of September 27, 1999, by and
between the registrant and Southwestern Bell Telephone
Company
10.20 Resale agreement (Minnesota), undated, by and between the
registrant and U S West Communications, Inc.
10.21 Resale agreement (Oregon), dated as of November 19, 1999, by
and between the registrant and U S West Communications, Inc.
10.22 Resale agreement (Washington), dated as of November 19,
1999, by and between the registrant and U S West
Communications, Inc.
10.23 Resale agreement (Arizona), dated as of January 28, 2000, by
and between the registrant and U S West Communications, Inc.
10.24 Resale agreement (New Mexico), dated as of February 25,
2000, by and between the registrant and U S West
Communications, Inc.
</TABLE>
II-5
<PAGE>
<TABLE>
<CAPTION>
EXHIBIT NO. EXHIBIT
<C> <S>
10.25 Resale agreement (Wyoming), dated as of February 25, 2000,
by and between the registrant and U S West Communications,
Inc.
10.26 Resale agreement (Iowa), dated as of February 25, 2000, by
and between the registrant and U S West Communications, Inc.
10.27 Resale agreement (Utah), dated as of February 25, 2000, by
and between the registrant and U S West Communications, Inc.
10.28 Resale agreement (North Dakota), dated as of February 25,
2000, by and between the registrant and U S West
Communications, Inc.
10.29 Resale agreement (Idaho), dated as of February 25, 2000, by
and between the registrant and U S West Communications, Inc.
10.30 Commercial Lease Agreement, dated as of May 1, 1998, by and
between the registrant and Cummings Properties Management,
Inc.
10.31 Amendment, dated as of December 23, 1998, by and between the
registrant and Cummings Properties Management, Inc. to that
certain Commercial Lease Agreement, dated as of May 1, 1998,
by and between the registrant and Cummings Property
Management, Inc.
10.32 Consent, dated as of February 19, 1999, by and among the
registrant, Xenergy, Inc. and Three Burlington Woods LLC to
sublease
10.33 Agreement, dated as of February 15, 1999, by and between the
registrant and Xenergy, Inc. to sublease.
10.34 Subordinated Loan and Security Agreement, dated as of
September 24, 1999, by and between the registrant and
Comdisco, Inc.
10.35 Master lease agreement, dated as of September 24, 1999, by
and between the registrant and Comdisco, Inc.
10.36 Indemnity Agreement dated as of October 20, 1999 by and
between the registrant and Donaldson, Lufkin & Jenrette
Securities Corporation
23.01* Consent of Testa, Hurwitz & Thibeault, LLP (included in
Exhibit 5.01)
23.02 Consent of Arthur Andersen LLP
24.01 Power of Attorney (see page II-8)
27.01 Financial Data Schedule
</TABLE>
- ------------------------
* To be filed by amendment.
(B) FINANCIAL STATEMENT SCHEDULES:
All schedules for which provision is made in the applicable accounting
regulations of the SEC are not required under the related instructions or are
inapplicable, and therefore have been omitted.
ITEM 17. UNDERTAKINGS.
Insofar as indemnification for liabilities arising under the Securities Act
may be permitted to directors, officers and controlling persons of the
registrant pursuant to the provisions described in Item 14 above or otherwise,
the registrant has been advised that in the opinion of the SEC such
indemnification is against public policy as expressed in the Securities Act and
is, therefore, unenforceable. In the event that a claim for indemnification
against such liabilities (other than the
II-6
<PAGE>
payment by the registrant of expenses incurred or paid by a director, officer or
controlling person of the registrant in the successful defense of any action,
suit or proceeding) is asserted by such director, officer or controlling person
in connection with the securities being registered, the registrant will, unless
in the opinion of its counsel the matter has been settled by controlling
precedent, submit to a court of appropriate jurisdiction the question whether
such indemnification by it is against public policy as expressed in the
Securities Act and will be governed by the final adjudication of such issue.
The undersigned registrant hereby undertakes to provide to the underwriters
at the closing specified in the underwriting agreement, certificates in such
denominations and registered in such names as required by the underwriters to
permit prompt delivery to each purchaser.
The undersigned registrant hereby undertakes that:
(1) For purposes of determining any liability under the Securities Act,
the information omitted form the form of prospectus filed as part of this
registration statement in reliance upon Rule 430A and contained in a form of
prospectus filed by the registrant pursuant to Rule 424(b)(1) or (4) or
497(h) under the Securities Act shall be deemed to be part of this
registration statement as of the time it was declared effective.
(2) For the purpose of determining any liability under the Securities
Act, each post-effective amendment that contains a form of prospectus shall
be deemed to be a new registration statement relating to the securities
offered therein, and the offering of such securities at that time shall be
deemed to be the initial BONA FIDE offering thereof.
II-7
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the registrant
has duly caused this registration statement to be signed on its behalf by the
undersigned, thereunto duly authorized, in Boston, Massachusetts on April 10,
2000.
<TABLE>
<S> <C> <C>
essential.com, inc.
By: /s/ AKHIL GARLAND
-----------------------------------------
Akhil Garland
PRESIDENT, CHIEF EXECUTIVE OFFICER AND
CHAIRMAN
</TABLE>
POWER OF ATTORNEY AND SIGNATURES
We, the undersigned officers and directors of essential.com, inc., hereby
severally constitute and appoint Akhil Garland and Basil Pallone, and each of
them singly, our true and lawful attorneys with full power to them, and each of
them singly, to sign for us and in our names in the capacities indicated below,
the registration statement on Form S-1 filed herewith and any and all
pre-effective and post-effective amendments to said registration statement, and
any subsequent registration statement for the same offering which may be filed
under Rule 462(b), and generally to do all such things in our names and on our
behalf in our capacities as officers and directors to enable
essential.com, inc. to comply with the provisions of the Securities Act of 1933,
as amended, and all requirements of the SEC, hereby ratifying and confirming our
signatures as they may be signed by our said attorneys, or any of them, to said
registration statement and any and all amendments thereto or to any subsequent
registration statement for the same offering which may be filed under
Rule 462(b).
Pursuant to the requirements of the Securities Act, this registration
statement has been signed by the following persons in the capacities and on the
dates indicated.
<TABLE>
<CAPTION>
SIGNATURE TITLE(S) DATE
<C> <S> <C>
President, Chief Executive
/s/ AKHIL GARLAND Officer, Chairman and
- ------------------------------------------- Director April 10, 2000
Akhil Garland (principal executive officer)
Director of Finance, Treasurer
/s/ BASIL PALLONE and Controller (principal
- ------------------------------------------- financial and accounting April 10, 2000
Basil Pallone officer)
/s/ MICHAEL KOLOWICH Director
- ------------------------------------------- April 10, 2000
Michael Kolowich
/s/ WILLIAM J. MEURER Director
- ------------------------------------------- April 10, 2000
William J. Meurer
/s/ PATRICK MORAN Director and Secretary
- ------------------------------------------- April 10, 2000
Patrick Moran
/s/ PAUL O'BRIEN Director
- ------------------------------------------- April 10, 2000
Paul O'Brien
</TABLE>
II-8
<PAGE>
<TABLE>
<CAPTION>
SIGNATURE TITLE(S) DATE
<C> <S> <C>
/s/ ROB SONI Director
- ------------------------------------------- April 10, 2000
Rob Soni
/s/ SCOTT UNGERER Director
- ------------------------------------------- April 10, 2000
Scott Ungerer
</TABLE>
II-9
<PAGE>
EXHIBIT INDEX
<TABLE>
<CAPTION>
EXHIBIT NO. EXHIBIT
<C> <S>
1.01* Form of Underwriting Agreement
3.01 Third Amended and Restated Certificate of Incorporation of
the registrant
3.02 Form of Fourth Amended and Restated Certificate of
Incorporation of the registrant
3.03 Form of Fifth Amended and Restated Certificate of
Incorporation of the registrant
3.04 Second Amended and Restated By-laws of the registrant
3.05 Form of Third Amended and Restated By-laws of the registrant
4.01 Second Amended and Restated Investor Rights Agreement, dated
as of February 8, 2000, by and among the registrant and the
other parties set forth on the signature pages thereto
4.02* Specimen certificate representing the Common Stock
5.01* Opinion of Testa, Hurwitz & Thibeault, LLP
10.01 Amended and Restated 1998 Stock Option and Incentive Plan
10.02 Form of 2000 Employee Stock Purchase Plan
10.03 Form of 2000 Non-Employee Director Stock Option Plan
10.04 Resale agreement, dated as of August 6, 1999, by and between
the registrant and Bell Atlantic--Washington, D.C., Inc.
10.05 Resale agreement, dated as of August 6, 1999, by and between
the registrant and Bell Atlantic--Maryland, Inc.
10.06 Resale agreement, dated as of August 6, 1999, by and between
the registrant and Bell Atlantic--Delaware, Inc.
10.07 Resale agreement, dated as of August 6, 1999, by and between
the registrant and Bell Atlantic--Pennsylvania, Inc.
10.08 Resale agreement, dated as of August 6, 1999, by and between
the registrant and Bell Atlantic--New Jersey, Inc.
10.09 Resale agreement, dated as of August 6, 1999, by and between
the registrant and Bell Atlantic--Virginia, Inc.
10.10 Resale agreement, dated as of August 17, 1999, by and
between the registrant and New England Telephone and
Telegraph Company d/b/a Bell Atlantic--Rhode Island
10.11 Resale agreement, dated as of August 6, 1999, by and between
the registrant and Bell Atlantic--West Virginia, Inc.
10.12 Resale agreement dated as of August 17, 1999, by and between
the registrant and New England Telephone and Telegraph
Company d/b/a Bell Atlantic--Vermont
10.13 Resale agreement, dated as of August 17, 1999, by and
between the registrant and New England Telephone and
Telegraph Company d/b/a Bell Atlantic--New Hampshire
10.14 Resale agreement, dated as of August 17, 1999, by and
between the registrant and New England Telephone and
Telegraph Company d/b/a Bell Atlantic--Maine
10.15 Resale agreement, dated as of February 23, 1998, by and
between the registrant and New England Telephone and
Telegraph Company d/b/a Bell Atlantic--Massachusetts
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
EXHIBIT NO. EXHIBIT
<C> <S>
10.16 Amendment, dated as of June 1999, by and between the
registrant and the other parties set forth on the signature
pages thereto, amending those certain Bell Atlantic resale
agreements referenced therein
10.17 Resale agreement, dated as of November 15, 1999, by and
between the registrant and Bell South Telecommunications,
Inc.
10.18 Resale agreement, dated as of February 25, 2000, by and
among Illinois Bell Telephone, Indiana Bell Telephone
Incorporated, Michigan Bell Telephone, Nevada Bell Telephone
Co., The Ohio Bell Telephone Co., Pacific Bell Telephone
Co., The Southern New England Telephone Co., Southwestern
Bell Telephone Co., and Wisconsin Bell, Inc., d/b/a
Ameritech Wisconsin
10.19 Resale agreement, dated as of September 27, 1999, by and
between the registrant and Southwestern Bell Telephone
Company
10.20 Resale agreement (Minnesota), undated, by and between the
registrant and U S West Communications, Inc.
10.21 Resale agreement (Oregon), dated as of November 19, 1999, by
and between the registrant and U S West Communications, Inc.
10.22 Resale agreement (Washington), dated as of November 19,
1999, by and between the registrant and U S West
Communications, Inc.
10.23 Resale agreement (Arizona), dated as of January 28, 2000, by
and between the registrant and U S West Communications, Inc.
10.24 Resale agreement (New Mexico), dated as of February 25,
2000, by and between the registrant and U S West
Communications, Inc.
10.25 Resale agreement (Wyoming), dated as of February 25, 2000,
by and between the registrant and U S West Communications,
Inc.
10.26 Resale agreement (Iowa), dated as of February 25, 2000, by
and between the registrant and U S West Communications, Inc.
10.27 Resale agreement (Utah), dated as of February 25, 2000, by
and between the registrant and U S West Communications, Inc.
10.28 Resale agreement (North Dakota), dated as of February 25,
2000, by and between the registrant and U S West
Communications, Inc.
10.29 Resale agreement (Idaho), dated as of February 25, 2000, by
and between the registrant and U S West Communications, Inc.
10.30 Commercial Lease Agreement, dated as of May 1, 1998, by and
between the registrant and Cummings Properties Management,
Inc.
10.31 Amendment, dated as of December 23, 1998, by and between the
registrant and Cummings Properties Management, Inc. to that
certain Commercial Lease Agreement, dated as of May 1, 1998,
by and between the registrant and Cummings Property
Management, Inc.
10.32 Consent, dated as of February 19, 1999, by and among the
registrant, Xenergy, Inc. and Three Burlington Woods LLC to
sublease
10.33 Agreement, dated as of February 15, 1999, by and between the
registrant and Xenergy, Inc. to sublease.
10.34 Subordinated Loan and Security Agreement, dated as of
September 24, 1999, by and between the registrant and
Comdisco, Inc.
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
EXHIBIT NO. EXHIBIT
<C> <S>
10.35 Master lease agreement, dated as of September 24, 1999, by
and between the registrant and Comdisco, Inc.
10.36 Indemnity Agreement dated as of October 20, 1999 by and
between the registrant and Donaldson, Lufkin & Jenrette
Securities Corporation
23.01* Consent of Testa, Hurwitz & Thibeault, LLP (included in
Exhibit 5.01)
23.02 Consent of Arthur Andersen LLP
24.01 Power of Attorney (see page II-8)
27.01 Financial Data Schedule
</TABLE>
- ------------------------
* To be filed by amendment.
<PAGE>
PAGE 1
STATE OF DELAWARE
OFFICE OF THE SECRETARY OF STATE
I, EDWARD J. FREEL, SECRETARY OF STATE OF THE STATE OF DELAWARE, DO HEREBY
CERTIFY THE ATTACHED IS A TRUE AND CORRECT COPY OF THE RESTATED CERTIFICATE OF
"ESSENTIAL.COM, INC.", FILED IN THIS OFFICE ON THE EIGHTH DAY OF FEBRUARY A.D.
2000, AT 1 O'CLOCK P.M.
A FILED, COPY OF THIS CERTIFICATE HAS BEEN FORWARDED TO THE NEW CASTLE
COUNTY RECORDER OF DEEDS.
[SEAL] /s/ Edward J. Freel
--------------------------------------------
EDWARD J. FREEL, SECRETARY OF STATE
AUTHENTICATION: 0244849
DATE: 02-08-00
<PAGE>
THIRD AMENDED AND RESTATED
CERTIFICATE OF INCORPORATION
OF
essential.com, inc.
******
essential.com, inc. (the "Corporation"), a corporation organized and existing
under the laws of the State of Delaware, hereby certifies as follows:
1. The name of the Corporation is essential.com, inc. The Corporation
was incorporated under the name etility.com, inc. by means of filing the
Corporation's original Certificate of Incorporation with the Secretary of State
of the State of Delaware on October 30, 1998. The Corporation's name was changed
to essential.com, inc. by means of filing that certain Amended and Restated
Certificate of Incorporation of the Corporation with the Secretary of State of
the State of Delaware on March 29, 1999.
2. Pursuant to Sections 242 and 245 of the General Corporation Law of
the State of Delaware, this Third Amended and Restated Certificate of
Incorporation restates and amends the provisions of the Corporation's Second
Amended and Restated Certificate of Incorporation.
3. The terms and provisions of this Third Amended and Restated
Certificate of Incorporation have been fully approved by written consent of the
required number of shares of outstanding stock of the Corporation pursuant to
Subsection 228(a) of the General Corporation Law of the State of Delaware and
written notice pursuant to Subsection 228(d) of the General Corporation Law of
the State of Delaware has been or will be given to those stockholders whose
written consent has not been obtained.
4. The text of the Third Amended and Restated Certificate of
Incorporation reads in its entirety as follows:
FIRST. The name of the corporation is essential.com, inc. (the
"Corporation").
<PAGE>
SECOND. The address of the registered office of the Corporation in the
State of Delaware is 1209 Orange Street, in the City of Wilmington, New Castle
County, Delaware 19801. The name of its registered agent at such address is The
Corporation Trust Company.
THIRD. The nature of the business or purposes to be conducted or
promoted by the Corporation is to engage in any lawful act or activity for which
corporations may be organized under the General Corporation Law of the State of
Delaware.
FOURTH. The total number of shares of all classes of capital stock
which the Corporation shall have authority to issue is 45,930,066 shares,
consisting of 30,017,340 shares of Common Stock with a par value of One Cent
($.01) per share (the "Common Stock"), 2,830,726 shares of a Series A
Convertible Preferred Stock with a par value of One Cent ($.01) per share
(the "Series A Stock"), 6,606,866 shares of a Series B Convertible Preferred
Stock with a par value of One Cent ($.01) per share (the "Series B Stock"),
and 6,475,134 shares of a Series C Convertible Preferred Stock with a par
value of One Cent ($.01) per share (the "Series C Stock" and, collectively
with the Series A Stock and the Series B Stock, the "Preferred Stock").
A description of the respective classes of stock and a statement of
the designations, preferences, voting powers, relative, participating, optional
or other special rights and privileges and the qualifications, limitations and
restrictions of the Series A Stock, Series B Stock, Series C Stock and Common
Stock are as follows:
A. PREFERRED STOCK
1. DIVIDEND RIGHTS.
(a) The holders of shares of Preferred Stock shall
be entitled to receive cumulative dividends, out of the assets of the
Corporation which are by law available therefor, in an annual amount per share
equal to 8% of, (i) in the case of the Series A Stock, the Series A Original
Purchase Price (as hereinafter defined), (ii) in the case of the Series B
Stock, the Series B Original Purchase Price (as hereinafter defined), and
(iii) in the case of the Series C Stock, the Series C Original Purchase Price
(as hereinafter defined). Dividends shall accrue on each share cumulatively
2
<PAGE>
on a daily basis whether or not such dividends have been declared and whether or
not there are profits, surplus or other funds then legally available for the
payment of dividends. Any accumulation of dividends on the Preferred Stock shall
not bear interest. The dividends shall be paid when and if declared by the Board
of Directors out of assets of the Corporation which are available therefor
semi-annually on June 30th and December 31st, in each year, in cash.
(b) Subject to Article FOURTH(A)(1)(c) and Article
FOURTH(A)(4)(f) hereof, the holders of shares of Preferred Stock shall be
entitled to receive, out of the assets of the Corporation which are by law
available therefor, dividends at the same rate as dividends are paid with
respect to the Common Stock (treating each share of Preferred Stock as being
equal to the number of shares of Common Stock (including fractions of a share)
into which each share of Preferred Stock is then convertible).
(c) Unless full dividends on the Preferred Stock for
all past dividend periods and the then current dividend period shall have been
paid or declared and a sum sufficient for the payment thereof set apart, (i) no
dividend whatsoever (other than a dividend payable solely in Common Stock) shall
be paid or declared, and no distribution shall be made, on the Common Stock or
any other series of preferred stock and (ii) no shares of Common Stock or any
other series of preferred stock shall be purchased, redeemed or acquired by the
Corporation and no funds shall be paid into or set aside or made available for a
sinking fund for the purchase, redemption or acquisition thereof; PROVIDED,
HOWEVER, that this restriction shall not apply to the repurchase of shares of
Common Stock held by employees, officers, consultants or outside directors of
the Corporation pursuant to agreements under which the Corporation has the
option to repurchase such shares at cost upon the occurrence of specified
events.
2. LIQUIDATION, DISSOLUTION AND WINDING UP.
(a) Upon any liquidation, dissolution or winding up of the
Corporation, whether voluntary or involuntary, the holders of the shares of
Preferred Stock shall be paid (i) in the case of Series A Stock, an amount equal
to $1.00 per share (the "Series A Original Purchase Price") (which amount shall
be subject to equitable adjustment whenever
3
<PAGE>
there shall occur a stock split, combination, reclassification or other similar
event involving the Series A Stock), and (ii) in the case of Series B Stock, an
amount equal to $1.910891 per share (the "Series B Original Purchase Price")
(which amount shall be subject to equitable adjustment whenever there shall
occur a stock split, combination, reclassification or other similar event
involving the Series B Stock), and (iii) in the case of the Series C Stock, an
amount equal to $11.6986 per share (the "Series C Original Purchase Price")
(which amount shall be subject to equitable adjustment whenever there shall
occur a stock split, combinations, reclassification or other similar event
involving the Series C Stock) plus, in the case of each share of Preferred
Stock, an amount equal to dividends accrued but unpaid thereon, computed to the
date payment thereof is made available, before any payment shall be made to the
holders of any stock ranking on liquidation junior to the Preferred Stock, such
amount payable with respect to one share of Preferred Stock being sometimes
referred to as the "Liquidation Preference Payment" and with respect to all
shares of Preferred Stock being sometimes referred to as the "Liquidation
Preference Payments." In lieu of receiving accrued but unpaid dividends as part
of the Liquidation Preference Payments, upon liquidation, dissolution, or
winding up of the Corporation (other than a Merger Event (as hereinafter
defined)), a holder of shares of Preferred Stock shall be entitled to receive as
part of the Liquidation Preference Payments, at such holder's option and in
addition to the Series A Original Purchase Price, the Series B Original Purchase
Price or the Series C Original Purchase Price, as applicable, additional shares
of Series A Stock, Series B Stock or Series C Stock, as applicable, in an amount
determined in accordance with the following formula: (A divided by B), where A
equals the aggregate sum of accrued but unpaid dividends payable on the
applicable holder's shares of Series A Stock, Series B Stock or Series C Stock,
as applicable, and B equals the fair market value of the Common Stock. For
purposes of this subsection (a), the fair market value of the Common Stock shall
be the last closing price quoted by Nasdaq National Market (or such other
exchange or quotation system on which the Common Stock is then traded) on the
last business day preceding the date of distribution or, if there is no such
sale, then at the average of the
4
<PAGE>
bid and offer prices quoted in such market for such date or, in the event the
Common Stock is not then publicly traded, the value of such shares shall be
determined in good faith by the Board of Directors and the holders of a majority
of the Common Stock held by the holders of Preferred Stock (treating each share
of Preferred Stock as being equal to the number of shares of Common Stock
(including fractions of a share) into which each share of Preferred Stock is
then convertible). If upon any liquidation, dissolution, or winding up of the
Corporation, the assets to be distributed to the holders of the Preferred Stock
shall be insufficient to permit payment to such stockholders of the full
preferential amounts aforesaid, then all of the assets of the Corporation
available for distribution to holders of the Preferred Stock shall be
distributed to such holders of the Preferred Stock pro rata, so that each holder
of Preferred Stock receives that portion of the assets available for
distribution as the number of shares of Common Stock held by such holder
(treating each share of Preferred Stock as being equal to the number of shares
of Common Stock (including fractions of a share) into which each share of
Preferred Stock is then convertible but excluding those shares of Common Stock
directly held by such Preferred Stock holder) bears to the total aggregate
number of shares of Common Stock held by the holders of Preferred Stock
(treating each share of Preferred Stock as being equal to the number of shares
of Common Stock (including fractions of a share) into which each share of
Preferred Stock is then convertible but excluding those shares of Common Stock
directly held by such Preferred Stock holder). For purposes hereof, the Common
Stock shall rank on liquidation junior to the Preferred Stock.
(b) Upon any liquidation, dissolution or winding up of the
Corporation, immediately after the holders of Preferred Stock shall have been
paid in full the Liquidation Preference Payments or funds necessary for such
Liquidation Preference Payments shall have been set aside by the Corporation in
trust for the account of holders of the Preferred Stock so as to be available
for such Liquidation Preference Payments, the holders of the Series A Stock and
Common Stock shall share ratably in all remaining assets of the Corporation
based on the number of shares of Common Stock then outstanding (treating each
share of Series A
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Stock as being equal to the number of shares of Common Stock (including
fractions of a share) into which each share of Series A Stock is then
convertible); PROVIDED, HOWEVER, that in no event shall a holder of Series A
Stock be entitled to receive more than three (3) times the Liquidation
Preference Payment for each share of Series A Stock held by such holder. The
remaining assets of the Corporation legally available for distribution to its
stockholders shall be distributed among the holders of the Common Stock in
accordance with the terms set forth herein.
(c) Written notice of such liquidation, dissolution or
winding up, stating a payment date and the place where said payments shall be
made, shall be given by mail, postage prepaid, or by telecopy or courier to
non-U.S. residents, not less than 20 days prior to the payment date stated
therein, to the holders of record of Preferred Stock, such notice to be
addressed to each such holder at its address as shown by the records of the
Corporation. The (x) consolidation or merger of the Corporation into or with
any other entity or entities which results in the exchange of outstanding
shares of the Corporation for securities or other consideration issued or
paid or caused to be issued or paid by any such entity or affiliate thereof
(except a consolidation or merger into a wholly-owned subsidiary or merger in
which the Corporation is the surviving Corporation and the holders of the
Corporation's voting stock outstanding immediately prior to the transaction
constitute holders of a majority of the voting stock outstanding immediately
following the transaction), (y) the sale or transfer by the Corporation of
all or substantially all its assets, or (z) the sale or transfer by the
Corporation's stockholders of more than 50% in voting power of the
Corporation's capital stock (other than a sale or transfer of the Preferred
Stock or shares of Common Stock issued upon conversion of the Preferred
Stock), shall be deemed to be a liquidation, dissolution or winding up of the
Corporation within the meaning of the provisions of this Article FOURTH(A)(2)
(each, a "Merger Event").
Whenever the distributions provided for in this Article
FOURTH(A)(2) shall be payable in property other than cash, the value of such
distributions shall be the fair market
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value of such property as determined in good faith by the Board of Directors of
the Corporation.
3. RESTRICTIONS.
(a) Except where the vote or written consent of the holders of
a greater number of shares of the Corporation is required by law, and in
addition to any other vote required by law or this Certificate of Incorporation,
without the written consent of the holders of at least a majority in interest of
the then outstanding shares of Series A Stock given in writing or by vote at a
meeting, consenting or voting (as the case may be) separately as a class, the
Corporation will not:
(1) Consent to any liquidation, dissolution or
winding up of the Corporation or a Merger Event;
(2) Amend, alter or repeal any provision of this
Certificate of Incorporation or the bylaws of the Corporation;
(3) Create or authorize the creation of any
additional class or series of shares of stock unless the same ranks
junior to the Series A Stock as to dividends and the distribution of
assets on the liquidation, dissolution or winding up of the
Corporation, or increase the authorized amount of Series A Stock or
increase the authorized amount of any additional class or series of
shares of stock unless the same ranks junior to the Series A Stock as
to dividends and the distribution of assets on the liquidation,
dissolution or winding up of the Corporation, or create or authorize
any obligation or security convertible into shares of Series A Stock or
into shares of any other class or series of stock unless the same
ranks junior to the Series A Stock as to dividends and the
distribution of assets on the liquidation, dissolution or winding up of
the Corporation, whether any such creation, authorization or increase
shall be by means of amendment to the certificate of incorporation or
by merger, consolidation or otherwise;
(4) In any manner alter or change the designations or
the
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powers, preferences or rights, privileges or the restrictions of the
shares of Series A Stock;
(5) Purchase or redeem, or set aside any sums for
the purchase or redemption of, or pay any dividend or make any
distribution on, any shares of stock, other than (i) the Series A
Stock, (ii) the Series B Stock, (iii) the Series C Stock, (iv) shares
of Common Stock held by employees, officers, consultants or outside
directors pursuant to agreements under which the Corporation has the
option to repurchase such shares at cost upon the occurrence of
specified events, or (v) dividends or other distributions payable on
the Common Stock solely in the form of additional shares of Common
Stock;
(6) Increase the number of shares of Common Stock
available for issuance under the Corporation's Amended and Restated
1998 Stock Option and Incentive Plan, or such other plan or agreement
pursuant to which the Corporation issues options or other rights to
purchase shares of Common Stock to its employees, officers, consultants
and outside directors, to more than 6,819,698 shares plus such number
of shares which are repurchased from such persons pursuant to
contractual rights held by the Corporation and at repurchase prices not
exceeding the respective original purchase prices therefor (all
appropriately adjusted to reflect the occurrence of any event described
in Article FOURTH(A)(4)(f) hereof) (the "Employee Shares");
(7) Incur any indebtedness for borrowed money
(whether by loan or the issuance and sale of debt securities) or for
the deferred purchase of property or services (other than trade
payables incurred in the ordinary course of business) in excess of
$500,000; or
(8) Materially change the primary business of the
Corporation as it is presently conducted or proposed to be conducted on
the date of the initial issuance of the Series A Stock.
(b) Except where the vote or written consent of the holders of
a
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greater number of shares of the Corporation is required by law, and in addition
to any other vote required by law or this Certificate of Incorporation, without
the written consent of the holders of at least sixty percent (60%) of the then
outstanding shares of Series B Stock given in writing or by vote at a meeting,
consenting or voting (as the case may be) separately as a class, the Corporation
will not:
(1) Consent to any liquidation, dissolution or
winding up of the Corporation or a Merger Event;
(2) Amend, after or repeal any provision of this
Certificate of Incorporation or the By-Laws of the Corporation;
(3) Create or authorize the creation of any
additional class or series of shares of stock unless the same ranks
junior to the Series B Stock as to dividends and the distribution of
assets on the liquidation, dissolution or winding up of the
Corporation, or increase the authorized amount of Series B Stock or
increase the authorized amount of any additional class or series of
shares of stock unless the same ranks junior to the Series B Stock as
to dividends and the distribution of assets on the liquidation,
dissolution or winding up of the Corporation, or create or authorize
any obligation or security convertible into shares of Series B Stock or
into shares of any other class or series of stock unless the same
ranks junior to the Series B Stock as to dividends and the distribution
of assets on the liquidation, dissolution or winding up of the
Corporation, whether any such creation, authorization or increase shall
be by means of amendment to the certificate of incorporation or by
merger, consolidation or otherwise;
(4) In any manner alter or change the designations or
the powers, preferences or rights, privileges or the restrictions of
the shares of Series B Stock;
(5) Purchase or redeem, or set aside any sums for the
purchase or redemption of, or pay any dividend or make any distribution
on, any shares
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of stock, other than (i) the Series A Stock, (ii) the Series B Stock,
(iii) the Series C Stock, (iv) shares of Common Stock held by
employees, officers, consultants or outside directors pursuant to
agreements under which the Corporation has the option to repurchase
such shares at cost upon the occurrence of specified events, or (v)
dividends or other distributions payable on the Common Stock solely in
the form of additional shares of Common Stock;
(6) Increase the number of Employee Shares;
(7) Incur any indebtedness for borrowed money
(whether by loan or the issuance and sale of debt securities) or for
the deferred purchase of property or services (other than trade
payables incurred in the ordinary course of business) in excess of
$500,000; or
(8) Materially change the primary business of the
Corporation as it is presently conducted or proposed to be conducted on
the date of the initial issuance of the Series B Stock.
(c) Except where the vote or written consent of the holders
of a greater number of shares of the Corporation is required by law, and in
addition to any other vote required by law or this Certificate of
Incorporation, without the written consent of the holders of at least sixty
percent (60%) of the then outstanding shares of Series C Stock given in
writing or by vote at a meeting, consenting or voting (as the case may be)
separately as a class, the Corporation will not:
(1) Consent to any liquidation, dissolution or
winding up of the Corporation or a Merger Event;
(2) Amend, alter or repeal any provision of this
Certificate of Incorporation or the By-Laws of the Corporation;
(3) Create or authorize the creation of any
additional class or series of shares of stock unless the same ranks
junior to the Series C Stock as to dividends and the distribution of
assets on the liquidation, dissolution or winding up of
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the Corporation, or increase the authorized amount of Series C Stock or
increase the authorized amount of any additional class or series of
shares of stock unless the same ranks junior to the Series C Stock as
to dividends and the distribution of assets on the liquidation,
dissolution or winding up of the Corporation, or create or authorize
any obligation or security convertible into shares of Series C Stock or
into shares of any other class or series of stock unless the same ranks
junior to the Series C Stock as to dividends and the distribution of
assets on the liquidation, dissolution or winding up of the
Corporation, whether any such creation, authorization or increase shall
be by means of amendment to the certificate of incorporation or by
merger, consolidation or otherwise;
(4) In any manner alter or change the designations or
the powers, preferences or rights, privileges or the restrictions of
the shares of Series C Stock;
(5) Purchase or redeem, or set aside any sums for
the purchase or redemption of, or pay any dividend or make any
distribution on, any shares of stock, other than (i) the Series A
Stock, (ii) the Series B Stock, (iii) the Series C Stock, (iv) shares
of Common Stock held by employees, officers, consultants or outside
directors pursuant to agreements under which the Corporation has the
option to repurchase such shares at cost upon the occurrence of
specified events, or (v) dividends or other distributions payable on
the Common Stock solely in the form of additional shares of Common
Stock;
(6) Increase the number of Employee Shares;
(7) Incur any indebtedness for borrowed money
(whether by loan or the issuance and sale of debt securities) or for
the deferred purchase of property or services (other than trade
payables incurred in the ordinary course of business) in excess of
$500,000; or
(8) Materially change the primary business of the
Corporation
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<PAGE>
as it is presently conducted or proposed to be conducted on the date of
the initial issuance of the Series C Stock.
4. CONVERSION. The holders of shares of Preferred Stock shall have the
following conversion rights:
(a) (1) RIGHT TO CONVERT. Subject to the terms and
conditions of this Article FOURTH(A)(4), the holder of any share or
shares of Preferred Stock shall have the right (the "Conversion Right"),
at its option, to convert any such shares of Preferred Stock (except
that upon any liquidation or Merger Event of the Corporation the right
of conversion shall terminate upon the consummation of such liquidation
or Merger Event) into such number of fully paid and nonassessable shares
of Common Stock as is obtained by (i) multiplying the number of shares
of Preferred Stock so to be converted by the Series A Original Purchase
Price, Series B Original Purchase Price or Series C Original Purchase
Price, as applicable, and (ii) dividing the result by the conversion
price equal to the Series A Original Purchase Price, Series B Original
Purchase Price or Series C Original Purchase Price, as applicable, or in
case an adjustment of either such price has taken place pursuant to the
further provisions of this Article FOURTH(A)(4), then by the conversion
price as last adjusted and in effect at the date any share or shares of
Preferred Stock are surrendered for conversion (each such price, or such
price as last adjusted, being referred to as the "Conversion Price"). On
the date this Certificate of Incorporation becomes effective, the
Conversion Price shall be $0.50 for the Series A Stock, $1.910891 for
the Series B Stock and $11.6986 for the Series C Stock. Such rights of
conversion shall be exercised by the holder thereof by giving written
notice that the holder elects to convert a stated number of shares of
Preferred Stock into Common Stock and by surrender of a certificate or
certificates for the shares so to be converted to the Corporation at its
principal office (or such other office or agency of the Corporation as
the Corporation may designate by notice in writing to the holders of the
Preferred Stock) at any time during its usual
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<PAGE>
business hours on the date set forth in such notice, together with a
statement of the name or names (with address) in which the certificate or
certificates for shares of Common Stock shall be issued.
(2) AUTOMATIC CONVERSION. (i) Each share of Series A Stock shall
automatically be converted into shares of Common Stock at the Conversion
Price then in effect for the Series A Stock immediately upon the
consummation of the Corporation's sale of its Common Stock in a bona
fide, firm commitment underwriting pursuant to a registration statement
on Form S-1 (or a successor form) under the Securities Act of 1933, as
amended (the "Securities Act"), which results in aggregate gross cash
proceeds to the Corporation before underwriting discounts and commissions
and other expenses related to the offering of not less than $15,000,000
and a per share offering price of at least $2.50 per share before
underwriting discounts and commissions (as adjusted for any stock splits,
stock dividends, or stock combinations, and on a fully diluted basis).
(ii) Each share of Series B Stock shall automatically be
converted into shares of Common Stock at the Conversion Price then in
effect for the Series B Stock immediately upon (A) the consummation of
the Corporation's sale of its Common Stock in a bona fide, firm
commitment underwriting pursuant to a registration statement on Form S-1
(or a successor form) under the Securities Act, which results in aggregate
gross cash proceeds to the Corporation before underwriting discounts and
commissions and other expenses related to the offering of not less than
$20,000,000 and has a pre-money valuation of not less than $100,000,000
or (B) the election of the holders of at least 60% of the then outstanding
shares of Series B Stock.
(iii) Each share of Series C Stock shall automatically be
converted into shares of Common Stock at the Conversion Price then in
effect for the Series C Stock immediately upon (A) the consummation of
the Corporation's sale of its Common Stock in a bona fide, firm
commitment underwriting pursuant to a registration
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statement on Form S-1 (or a successor form) under the Securities Act,
which results in aggregate gross cash proceeds to the Corporation before
underwriting discounts and commissions and other expenses related to the
offering of not less than $20,000,000 and has a pre-money valuation of
not less than one hundred twenty-five percent (125%) of the sum of X and
Y where X is $275,000,000 and Y is the aggregate proceeds to the
Corporation from its sale of shares of the Series C Stock or (B) the
election of the holders of at least 60% of the then outstanding shares
of Series C Stock.
(b) ISSUANCE OF CERTIFICATES; TIME CONVERSION EFFECTED. Promptly
after the receipt of the written notice referred to in Article
FOURTH(A)(4)(a)(1) and surrender of the certificate or certificates for the
share or shares of Preferred Stock to be converted, but in no event later
than five (5) business days thereafter, the Corporation shall issue and
deliver, or cause to be issued and delivered, to the holder, registered in
such name or names as such holder may direct, a certificate or certificates
for the number of whole shares of Common Stock issuable upon the conversion
of such share or shares of Preferred Stock. To the extent permitted by law,
such conversion shall be deemed to have been effected and the applicable
Conversion Price shall be determined as of the close of business on the date
on which such written notice shall have been received by the Corporation and
the certificate or certificates for such share or shares shall have been
surrendered as aforesaid (the "Conversion Date"), and at such time the rights
of the holder of such share or shares of Preferred Stock shall cease, and the
person or persons in whose name or names any certificate or certificates for
shares of Common Stock shall be issuable upon such conversion shall be deemed
to have become the holder or holders or record of the shares represented
thereby.
(c) FRACTIONAL SHARES; PARTIAL CONVERSION. No fractional shares
shall be issued upon conversion of Preferred Stock into Common Stock and no
payment or adjustment shall be made upon any conversion on account of any
cash dividends on the Common Stock issued upon such conversion. In case the
number of shares of Preferred Stock represented by the certificate or
certificates surrendered pursuant to Article FOURTH(A)(4)(a)
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<PAGE>
exceeds the number of shares converted, the Corporation shall, upon such
conversion, execute and deliver to the holder, at the expense of the
Corporation, a new certificate or certificates for the number of shares of
Preferred Stock represented by the certificate or certificates surrendered
which are not to be converted. If any fractional share of Common Stock would,
except for the provisions of the first sentence of this Article
FOURTH(A)(4)(c), be delivered upon such conversion, the Corporation, in lieu
of delivering such fractional share, shall pay to the holder surrendering the
Preferred Stock for conversion an amount in cash equal to the current market
price of such fractional share as determined in reference to the closing
price of the Corporation's Common Stock on the Nasdaq National Market (or
such other exchange or quotation system on which the Common Stock is then
traded) on the Conversion Date or, if there is no such sale, then at the
average of the bid and offer prices quoted in such market for such date or,
in the event the Common Stock is not publicly traded, the value of such
fractional shares shall be determined in good faith by the Board of Directors
on the Conversion Date, and based upon the aggregate number of shares of
Preferred Stock surrendered by any one holder for conversion into Common
Stock.
(d) ADJUSTMENT OF CONVERSION PRICE UPON ISSUANCE OF COMMON STOCK.
Except as provided in Article FOURTH(A)(4)(e) and (f), if and whenever the
Corporation shall issue or sell, or is, in accordance with Article
FOURTH(A)(4)(d)(1) through (7), deemed to have been issued or sold, any
shares of Common Stock for a consideration per share less than the applicable
Conversion Price in effect immediately prior to the time of such issue or
sale (such number being appropriately adjusted to reflect the occurrence of
any event described in Article FOURTH(A)(4)(f)), then, forthwith upon such
issue or sale, the applicable Conversion Price shall be reduced to the price
determined by multiplying the applicable Conversion Price by a fraction, the
numerator of which shall be the sum of the number of shares of Common Stock
outstanding immediately prior to such issue (calculated on a fully-diluted
basis, assuming the exercise of all outstanding options and warrants, and the
conversion of all outstanding convertible securities) plus the number of
shares of Common Stock which
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<PAGE>
the aggregate consideration received by the Corporation for the total number
of additional shares of Common Stock so issued would purchase at the
applicable Conversion Price, and the denominator of which shall be the sum of
the number of shares of Common Stock outstanding immediately prior to such
issue (calculated on a fully-diluted basis, assuming the exercise of all
outstanding options and warrants, and the conversion of all outstanding
convertible securities) plus the number of such additional shares of Common
Stock so issued, provided that, the applicable Conversion Price shall not be
so reduced at such time if the amount of such reduction would be an amount
less than $0.01, but any such amount shall be carried forward and reduction
with respect thereto made at the time of and together with any subsequent
reduction which, together with such amount and any other amount or amounts so
carried forward, shall aggregate $0.01 or more. The provisions of this
Article FOURTH(A)(4)(d) may be waived in any instance, without a meeting,
prospectively or retroactively, by the holders of the Series A Preferred
Stock, the Series B Preferred Stock and/or the Series C Preferred Stock, as
applicable, by obtaining the approval of the holders of the Series A
Preferred Stock, the Series B Preferred Stock and/or the Series C Preferred
Stock, as applicable, in the manner prescribed by Article FOURTH(A)(3) hereof.
For purposes of this Article FOURTH(A)(4)(d), the following
subparagraphs (1) to (7) shall also be applicable:
(1) ISSUANCE OF RIGHTS OR OPTIONS. Except for the
Employee Shares, in case at any time the Corporation shall in any manner
grant (whether directly or by assumption in a merger or otherwise) any
warrants or other rights to subscribe for or to purchase, or any options
for the purchase of, Common Stock or any stock or security convertible
into or exchangeable for Common Stock (such warrants, rights or options
being called "Options" and such convertible or exchangeable stock or
securities being called "Convertible Securities") whether or not such
Options or the right to convert or exchange any such Convertible
Securities are immediately exercisable, and the price per share for which
Common Stock is issuable upon the exercise of such
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Options or upon the conversion or exchange of such Convertible
Securities (determined by dividing (i) the total amount, if any, received
or receivable by the Corporation as consideration for the granting of
such Options, plus the minimum aggregate amount of additional
consideration payable to the Corporation upon the exercise of all such
Options, plus, in the case of such Options which relate to Convertible
Securities, the minimum aggregate amount of additional consideration, if
any, payable upon the issue or sale of such Convertible Securities and
upon the conversion or exchange thereof, by (ii) the total maximum number
of shares of Common Stock issuable upon the exercise of such Options or
upon the conversion or exchange of all such Convertible Securities
issuable upon the exercise of such Options) shall be less than the
applicable Conversion Price in effect immediately prior to the time of
the granting of such Options, then the total maximum number of shares of
Common Stock issuable upon the exercise of such Options or upon
conversion or exchange of the total maximum amount of such Convertible
Securities issuable upon the exercise of such Options shall be deemed to
have been issued for such price per share as of the date of granting of
such Options or the issuance of such Convertible Securities and
thereafter shall be deemed to be outstanding. Except as otherwise
provided in Article FOURTH(A)(4)(d)(3), no adjustment of the applicable
Conversion Price shall be made upon the actual issue of such Common
Stock or of such Convertible Securities upon exercise of such Options or
upon the actual issue of such Common Stock upon conversion or exchange
of such Convertible Securities.
(2) ISSUANCE OF CONVERTIBLE SECURITIES. Except for the
Employee Shares, in case at any time the Corporation shall in any manner
issue (whether directly or by assumption in a merger or otherwise) or
sell any Convertible Securities, whether or not the rights to exchange or
convert any such Convertible Securities are immediately exercisable, and
the price per share for which Common Stock is issuable upon such
conversion or exchange (determined by dividing (i) the total
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<PAGE>
amount received or receivable by the Corporation as consideration for
the issue or sale of such Convertible Securities, plus the minimum
aggregate amount of additional consideration, if any, payable to the
Corporation upon the conversion or exchange thereof, by (ii) the total
maximum number of shares of Common Stock issuable upon the conversion
or exchange of all such Convertible Securities) shall be less than the
applicable Conversion Price in effect immediately prior to the time of
such issue or sale, then the total maximum number of shares of Common
Stock issuable upon conversion or exchange of all such Convertible
Securities shall be deemed to have been issued for such price per share
as of the date of the issue or sale of such Convertible Securities and
thereafter shall be deemed to be outstanding, provided that (A) except
as otherwise provided in Article FOURTH(A)(4)(d)(3), no adjustment of the
applicable Conversion Price shall be made upon the actual issue of such
Common Stock upon conversion or exchange of such Convertible Securities
and (B) if any such issue or sale of such Convertible Securities is made
upon exercise of any Options to purchase any such Convertible Securities
for which adjustments of the applicable Conversion Price have been or are
to be made pursuant to other provisions of this Article FOURTH(A)(4)(d),
no further adjustment of the applicable Conversion Price shall be made by
reason of such issue or sale.
(3) CHANGES IN OPTION PRICE OR CONVERSION RATE. Upon the
happening of any of the following events, namely, if the purchase price
provided for in any Option referred to in Article FOURTH(A)(4)(d)(1), the
additional consideration, if any, payable upon the conversion or exchange
of any Convertible Securities referred to in Article FOURTH(A)(4)(d)(1)
or (d)(2) are convertible into or exchangeable for Common Stock shall
change at any time (including, but not limited to, changes under or by
reason of provisions designed to protect against dilution), the
Conversion Price in effect at the time of such event shall forthwith be
readjusted to the
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Conversion Price which would have been in effect at such time had such
Options or Convertible Securities still outstanding provided for such
changed purchase price, additional consideration or conversion rate, as
the case may be, at the time initially granted, issued or sold, but only
if as a result of such adjustment the Conversion Price then in effect
hereunder is thereby reduced; and on the expiration of any such Option
or the termination of any such right to convert or exchange such
Convertible Securities, the Conversion Price then in effect hereunder
shall forthwith be increased to the Conversion Price which would have
been in effect in effect at the time of such expiration or termination
had such Option or Convertible Securities, to the extent outstanding
immediately prior to such expiration or termination, never been issued.
(4) STOCK DIVIDENDS. In case the Corporation shall
declare a dividend or make any other distribution upon any stock of the
Corporation payable in Common Stock (except for the issue of stock
dividends or distributions upon the outstanding Common Stock for which
adjustment is made pursuant to Article FOURTH(A)(4)(f)), Options or
Convertible Securities, any Common Stock, Options or Convertible
Securities, as the case may be, issuable in payment of such dividend or
distribution shall be deemed to have been issued or sold without
consideration and the Conversion Price then in effect shall be
appropriately decreased so that the number of shares of Common Stock
issuable upon conversion of each share of Preferred Stock shall be
increased in proportion to such increase in the aggregate number of
shares of Common Stock outstanding.
(5) CONSIDERATION FOR STOCK. In case any shares of Common
Stock, Options or Convertible Securities shall be issued or sold for
cash, the consideration received therefor shall be deemed to be the
amount received by the Corporation therefor, without deduction therefrom
of any expenses incurred or any underwriting commissions or concessions
paid or allowed by the Corporation in connection therewith. In case any
shares of Common Stock, Options or Convertible
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Securities shall be issued or sold for a consideration other than cash,
the amount of the consideration other than cash received by the
Coporation shall be deemed to be the fair value of such consideration as
determined in good faith by the Board of Directors of the Corporation,
without deduction of any expenses incurred or any underwriting
commissions or concessions paid or allowed by the Corporation in
connection therewith. In case any Options shall be issued in connection
with the issued and sale of other securities of the Corporation, together
comprising one integral transaction in which no specific consideration is
allocated to such Options by the parties thereto, such Options shall be
deemed to have been issued for such consideration as determined in good
faith by the Board of Directors of the Corporation.
(6) RECORD DATE. In case the Corporation shall take a
record of the holders of its Common Stock for the purpose of entitling
them (i) to receive a dividend or other distribution payable in Common
Stock, Options or Convertible Securities or (ii) to subscribe for or
purchase Common Stock, Options or Convertible Securities, then such
record date shall be deemed to be the date of the issue or sale of the
shares of Common Stock deemed to have been issued or sold upon the
declaration of such dividends or the making of such other distribution
or the date of the granting of such right of subscription or purchase,
as the case may be.
(7) TREASURY SHARES. The number of shares of Common Stock
outstanding at any given time shall not include shares owned or held by or
for the account of the Corporation, and the disposition of any such shares
shall be considered an issue or sale of Common Stock for the purpose of this
Article FOURTH(A)(4)(d).
(e) CERTAIN ISSUES OF COMMON STOCK EXCEPTED. Anything herein to
the contrary notwithstanding, the Corporation shall not be required to make
any adjustment of the Conversion Price in the case of the issuance of (i)
shares of Common Stock issuable upon conversion of the Preferred Stock and
(ii) the Employee Shares.
(f) SUBDIVISION OR COMBINATION OF COMMON STOCK. In case the
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Corporation shall at any time subdivide (by any stock split, stock dividend,
reclassification or otherwise) its outstanding shares of Common Stock into a
greater number of shares, the Conversion Price in effect immediately prior to
such subdivision shall be proportionately reduced, and, conversely, in case
the outstanding shares of Common Stock shall be combined into a smaller
number of shares, the Conversion Price in effect immediately prior to such
combination shall be proportionately increased.
(g) REORGANIZATION OR RECLASSIFICATION. If any capital
reorganization, reclassification, recapitalization, consolidation, merger,
sale of all or substantially all of the Corporation's assets or other similar
transaction (any such transaction being referred to herein as an "Organic
Change") shall be effected in such a way that holders of Common Stock shall
be entitled to receive (either directly or upon subsequent liquidation)
stock, securities or assets with respect to or in exchange for Common Stock,
then, as a condition of such Organic Change, lawful and adequate provisions
shall be made whereby each holder of a share or shares of Preferred Stock
shall thereupon have the right to receive, upon the basis and upon the terms
and conditions specified herein and in lieu of or in addition to, as the case
may be, the shares of Common Stock immediately theretofore receivable upon
the conversion of such share or shares of Preferred Stock, such shares of
stock, securities or assets as may be issued or payable with respect to or in
exchange for a number of outstanding shares of such Common Stock equal to the
number of shares of such Common Stock immediately theretofore receivable upon
such conversion had such Organic Change not taken place, and in any case of a
reorganization or reclassification only appropriate provisions shall be made
with respect to the rights and interests of such holder to the end that the
provisions hereof (including, without limitation, provisions for adjustments
of the applicable Conversion Price) shall thereafter be applicable, as nearly
as may be, in relation to any shares of stock, securities or assets
thereafter deliverable upon the exercise of such conversion rights.
(h) NOTICE OF ADJUSTMENT. Upon any adjustment of the
Conversion Price, then and in each such case the Corporation shall give
written notice thereof, by first
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class mail, postage prepaid, or by facsimile transmission to non-U.S.
residents, addressed to each holder of shares of Series A Stock. Series B
Stock and/or Series C Stock, as applicable, at the address of such holder as
shown on the books of the Corporation, which notice shall state the
Conversion Price resulting from such adjustment, setting forth in reasonable
detail the method upon which such calculation is based.
(i) OTHER NOTICES. In case at any time:
(1) the Corporation shall declare any dividend upon its
Common Stock payable in cash or stock or make any other distribution to
the holders of its Common Stock (other than dividends of Common Stock on
the outstanding shares of Common Stock in the nature of a stock split
covered by the provisions of Article FOURTH(A)(4)(f) hereof);
(2) the Corporation shall offer for subscription PRO RATA to
the holders of its Common Stock any additional shares of stock of any
class or other rights;
(3) there shall be any capital reorganization or
reclassification of the capital stock of the Corporation (other than
reclassification of the Common Stock in the nature of a stock split
covered by the provisions of Article FOURTH(A)(4)(f) hereof), or a Merger
Event; or
(4) there shall be a voluntary or involuntary dissolution,
liquidation or winding up of the Corporation;
then, in any one or more of said cases, the Corporation shall give, by first
class mail, postage prepaid, or by facsimile transmission to non-U.S.
residents, addressed to each holder of any shares of Preferred Stock at the
address of such holder as shown on the books of the Corporation, (a) at least
20 days' prior written notice of the date on which the books of the
Corporation shall close or a record shall be taken for such dividend,
distribution or subscription rights or for determining rights to vote in
respect of any such reorganization, reclassification, Merger Event,
dissolution, liquidation or winding up and (b) in the case of any such
reorganization, reclassification, Merger Event, dissolution, liquidation or
winding up, at
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least 20 days' prior written notice of the date when the same shall take
place. Such notice in accordance with the foregoing clause (a) shall also
specify, in the case of any such dividend, distribution or subscription
rights, the date on which the holders of Common Stock shall be entitled
thereto and such notice in accordance with the foregoing clause (b) shall
also specify the date on which the holders of Common Stock shall be entitled
to exchange their Common Stock for securities or other property deliverable
upon such reorganization, reclassification, Merger Event, dissolution,
liquidation or winding up, as the case may be.
(j) STOCK TO BE RESERVED. The Corporation will at all times
reserve and keep available out of its authorized Common Stock, solely for the
purpose of issuance upon the conversion of Preferred Stock as herein
provided, such number of shares of Common Stock as shall then be issuable
upon the conversion of all outstanding shares of Preferred Stock. The
Corporation covenants that all shares of Common Stock which shall be so
issued shall be duly and validly issued and fully paid and nonassessable and
free from all taxes, liens and charges with respect to the issue thereof,
and, without limiting the generality of the foregoing, the Corporation
covenants that it will from time to time take all such action as may be
requisite to assure that the par value per share of the Common Stock is at
all times equal to or less than the lowest applicable Conversion Price in
effect at the time. The Corporation will take all such action as may be
necessary to assure that all such shares of Common Stock may be so issued
without violation of any applicable law or regulation, or of any requirement
of any national securities exchange upon which the Common Stock may be listed.
(k) NO REISSUANCE OF PREFERRED STOCK. Shares of Preferred Stock
which are converted into shares of Common Stock as provided herein shall not
be reissued.
(l) ISSUE TAX. The issuance of certificates for shares of Common
Stock upon conversion of Preferred Stock shall be made without charge to the
holders thereof for any issuance tax in respect thereof, provided that the
Corporation shall not be required to pay any tax which may be payable in
respect of any transfer involved in the issuance and delivery of any
certificate in a name other than that of the holder of the Preferred Stock
which
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is being converted.
(m) CLOSING OF BOOKS. The Corporation will at no time close its
transfer books against the transfer of any shares of Preferred Stock or of
any shares of Common Stock issued or issuable upon the conversion of any
shares of Preferred Stock in any manner which interferes with the timely
conversion of such Preferred Stock, except as may otherwise be required to
comply with applicable securities laws.
6. REDEMPTION.
(a) At any time after July 31, 2004, upon the election of at least
a majority in interest of the then outstanding shares of Series A Stock,
Series B Stock, and Series C Stock voting together as a single class, out of
any assets of the Corporation which are are by law available therefor, the
holders of Series A Stock, the Series B Stock and the Series C Stock shall
have the right to require the Corporation to repurchase (i) shares of the
Series A Stock at the Series A Original Purchase Price plus any accrued but
unpaid dividends per share (the "Series A Redemption Price") (ii) shares of
the Series B Stock at the Series B Original Purchase Price plus any accrued
but unpaid dividends per share (the Series B Redemption Price") and (iii)
shares of the Series C Stock at the Series C Original Purchase Price pus any
accrued but unpaid dividends per share (the "Series C Redemption Price") by
delivering a written notice to the Corporation (a "Preferred Stock Redemption
Election").
(b) Within ten (10) days after receipt of the Preferred Stock
Redemption Election, the Corporation shall notify promptly all holders of
shares of the Preferred Stock in writing (the "Preferred Stock Redemption
Notice") of the delivery of the Preferred Stock Redemption Election and of
the Series A Redemption Price, the Series B Redemption Price and the Series C
Redemption Price. The holders of shares of Preferred Stock may elect to sell
to the Corporation all or a portion of their shares of Preferred Stock by
delivering written notice to the Corporation within thirty (30) days after
delivery of the Preferred Stock Redemption Notice. The Corporation shall
purchase, and all such electing holders of Preferred Stock sell, in three (3)
equal annual installments, the portion of such
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<PAGE>
shares of Preferred Stock which the holders hereof have elected to sell to
the Corporation pursuant to this Article FOURTH(A)(6), at times and places
mutually agreeable to the Corporation and the holders of the Preferred Stock
(the "Preferred Stock Redemption Closings"). The first of such Preferred
Stock Redemption Closings shall take place within sixty (60) days after
delivery of the Preferred Stock Redemption Election. The subsequent Preferred
Stock Redemption Closings shall take place on the first and second
anniversaries, respectively, of the date of the initial Preferred Stock
Redemption Closing. In the event the date specified for a Preferred Stock
Redemption Closing is a Saturday, Sunday or holiday, such Preferred Stock
Redemption Closing shall take place on the immediately succeeding business
day. The Corporation shall notify all holders of Preferred Stock of the date
and place of each Preferred Stock Redemption Closing at least thirty (30)
days prior to such Preferred Stock Redemption Closing.
(c) At each Preferred Stock Redemption Closing, the
holders of Preferred Stock shall deliver to the Corporation certificates
representing one-third of the shares of Preferred Stock which they have
elected to sell to the Corporation; and the Corporation shall deliver to each
such holder the Series Redemption Price, the Series B Redemption Price
and/or the Series C Redemption Price, as applicable for each share of
Preferred Stock to be sold to the Corporation (by cashier's or certified
check or by wire transfer of immediately available funds to an account
designated by such holder) at the Preferred Stock Redemption Closing,
together with a new certificate or certificates for the number of shares of
Preferred Stock represented by the certificate or certificates surrendered
which are not to be redeemed at such Preferred Stock Redemption Closing. If,
at the time of a Preferred Stock Redemption Closing, the funds of the
Corporation legally available for redemption of shares of Preferred Stock at
a Preferred Stock Redemption Closing are insufficient to redeem that number
of outstanding shares of Preferred Stock for which the holders thereof have
elected to be redeemed by the Corporation pursuant to the terms hereof and
that were to have been redeemed by the Corporation at such Preferred Stock
Redemption Closing, the holders of such
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<PAGE>
shares of Preferred Stock shall share ratably in any funds legally available
for redemption of such shares according to the respective amounts which would
be payable with respect to the full number of shares owned by them and that
would have been redeemed by the Corporation at such Preferred Stock
Redemption Closing were the Corporation to have sufficient funds therefor.
The shares of Preferred Stock not redeemed shall remain outstanding and
entitled to all rights and preferences provided herein. At any time
thereafter when additional funds of the Corporation are legally available for
the redemption of such shares of Preferred Stock, such funds will be used, at
the end of the next succeeding fiscal quarter, to redeem the balance of such
shares for which the holders thereof have elected to be redeemed by the
Corporation pursuant to the terms hereof, or such portion thereof for which
funds are then legally available, on the basis set forth above.
7. VOTING RIGHTS.
(a) Except as otherwise required by law or this
Certificate of Incorporation (including, without limitation, Article
FOURTH(B)(2)(b) hereof), each holder of Preferred Stock shall be entitled to
the number of votes equal to the number of whole shares of Common Stock into
which the shares of Preferred Stock held by such holder are convertible (as
adjusted from time to time pursuant to Article FOURTH(A)(4)(d) hereof) on all
matters submitted to a vote of the stockholders of the Corporation. Except as
provided by law and by the provisions of this Certificate of Incorporation,
the holders of Preferred Stock shall vote together with the holders of the
Common Stock as a single class on all matters submitted to a vote of the
stockholders of the Corporation including, without limitation, actions
amending the Certificate of Incorporation of the Corporation to increase the
authorized number of shares of Common Stock.
(b) The holders of record of the shares of Preferred
Stock, exclusively and as a separate class, shall be entitled to elect three
(3) directors of the Corporation. Such nominees shall be elected pursuant to
the terms and conditions set forth in that certain Third Amended and Restated
Stockholders' Agreement (the "Stockholders'
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Agreement") dated on or about February 4, 2000 among the Corporation and the
Stockholders (as defined therein). At any meeting held for the purpose of
electing directors, the presence in person or by proxy of the holders of a
majority of the shares of Preferred Stock then outstanding shall constitute a
quorum of the Preferred Stock for the purpose of electing directors by
holders of the Preferred Stock. A vacancy in any directorship filled by the
holders of the Preferred Stock shall be filled pursuant to the terms and
conditions set forth in the Stockholders' Agreement.
B. COMMON STOCK
1. RELATIVE RIGHTS OF PREFERRED STOCK AND COMMON STOCK. All
preferences, voting powers, relative, participating, optional or other
special rights and privileges, and qualifications, limitations, or
restrictions of the Common Stock are expressly made subject and subordinate
to those that may be fixed with respect to any shares of the Preferred Stock.
2. VOTING RIGHTS.
(a) Except as otherwise required by law or this
Certificate of Incorporation, each holder of Common Stock shall have one vote
in respect of each share of stock held by him of record on the books of the
Corporation on all matters submitted to a vote of stockholders of the
Corporation.
(b) The holders of record of the shares of Common Stock,
exclusively and as a separate class, shall be entitled to elect two (2)
directors of the Corporation. Such nominees shall be elected pursuant to the
terms and conditions set forth in the Stockholders' Agreement. At any meeting
held for the purpose of electing directors, the presence in person or by
proxy of the holders of a majority of the shares of Common Stock then
outstanding shall constitute a quorum of the Common Stock for the purpose of
electing directors by holders of the Common Stock. A vacancy in any
directorship filled by the holders of the Common Stock shall be filled only
by vote or written consent in lieu of a meeting of the holders of the Common
Stock.
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<PAGE>
3. DIVIDENDS. Subject to the preferential rights of the Preferred
Stock, and Article FOURTH(A)(1)(b), the holders of shares of Common Stock
shall be entitled to receive, when and if declared by the Board of Directors,
out of the assets of the Corporation which are by law available therefor,
dividends payable either in cash, in property or in shares of capital stock.
4. DISSOLUTION, LIQUIDATION OR WINDING UP. In the event of any
dissolution, liquidation or winding up of the affairs of the Corporation,
after distribution in full of the preferential amounts to be distributed to
the holders of shares of the Preferred Stock pursuant to Article
FOURTH(A)(2)(a) hereof, holders of Common Stock shall be entitled, unless
otherwise provided by law or this Certificate of Incorporation, including,
without limitation, Article FOURTH(A)(2)(b) hereof, to receive all of the
remaining assets of the Corporation of whatever kind available for
distribution to stockholders ratably in proportion to the number of shares of
Common Stock held by them respectively.
FIFTH. The Corporation is to have perpetual existence.
SIXTH. In furtherance and not in limitation of the powers conferred by
the laws of the State of Delaware:
(a) The Board of Directors of the Corporation is expressly
authorized to adopt, amend or repeal the By-Laws of the Corporation.
(b) Elections of directors need not be by written ballot
unless the By-Laws of the Corporation shall so provide.
(c) The books of the Corporation may be kept as such place
within or without the State of Delaware as the By-Laws of the Corporation may
provide or as may be designated from time to time by the Board of Directors
of the Corporation.
SEVENTH. The Corporation eliminates the personal liability of each
member of its Board of Directors to the Corporation or its stockholders for
monetary damages for breach of fiduciary duty as a director, provided,
however, that, to the extent provided by applicable law, the foregoing shall
not eliminate the liability of a director (i) for any breach of such
director's duty of loyalty to the Corporation or its stockholders, (ii) for
acts or omissions not in good
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<PAGE>
faith or which involve intentional misconduct or a knowing violation of law,
(iii) under Section 174 of Title 8 of the Delaware Code, or (iv) for any
transaction from which such director derived an improper personal benefit.
If the Delaware General Corporation Law is amended in the future to
authorize corporate action further eliminating or limiting the personal
liability of directors, then the liability of a director of the Corporation
shall be eliminated or limited to the fullest extent permitted by the
Delaware General Corporation Law, as so amended from time to time.
Any repeal or modification of this Article SEVENTH shall not
increase the personal liability of any director of this Corporation for any
act or occurrence taking place prior to such repeal or modification, or
otherwise adversely affect any right or protection of a director of the
Corporation existing at the time of such repeal or modification.
EIGHTH. The Corporation reserves the right to amend or repeal any
provision contained in this Certificate of Incorporation, in the manner now
or hereafter prescribed by statute, and all rights conferred upon a
stockholder herein are granted subject to this reservation.
NINTH. Whenever a compromise or arrangement is proposed between this
Corporation and its creditors or any class of them and/or between this
Corporation and its stockholders or any class of them, any court of equitable
jurisdiction within the State of Delaware may, on the application in a
summary way of this Corporation or of any creditor or stockholder thereof or
on the application of any receiver or receivers appointed for this
Corporation under the provisions of Section 291 of Title 8 of the Delaware
Code or on the application of trustees in dissolution or of any receiver or
receivers appointed for this Corporation under the provisions of Section 279
of Title 8 of the Delaware Code, order a meeting of the creditors or class of
creditors, and/or of the stockholders or class of stockholders of this
Corporation, as the case may be, to be summoned in such manner as the said
court directs. If a majority in number representing three-fourths in value of
the creditors or class of creditors, and/or of the stockholders or class of
stockholders of this Corporation, as the case may be, agree to any compromise
or arrangement and to any reorganization of this Corporation as consequence of
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<PAGE>
such compromise or arrangement, the said compromise or arrangement and the
said reorganization shall, if sanctioned by the court to which the said
application has been made, be binding on all the creditors or class of
creditors, and/or on all the stockholders or class of stockholders, of this
Corporation, as the case may be, and also on this Corporation.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
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<PAGE>
IN WITNESS WHEREOF, essential.com inc., has caused this Third
Amended and Restated Certificate of Incorporation to be executed by its
President and attested to by its Secretary on this 4TH day of February, 2000.
ESSENTIAL.COM, INC.
By: /s/ Akhil Garland
--------------------------------
Akhil Garland, President
Attest:
By: /s/ Patrick J. Moran
-------------------------------------
Patrick J. Moran, Secretary
<PAGE>
EXHIBIT 3.02
FOURTH AMENDED AND RESTATED CERTIFICATE OF INCORPORATION
OF
essential.com, inc.
(INCORPORATED OCTOBER 30, 1998)
* * * * * *
I, Akhil Garland, President of essential.com, inc. (the "Corporation"), a
corporation organized and existing under and by virtue of the General
Corporation Law of the State of Delaware, do hereby certify that the Certificate
of Incorporation of essential.com, inc. , as amended, originally incorporated
under the name, etility.com, inc., has been further amended, and restated as
amended, in accordance with provisions of Sections 242 and 245 of the General
Corporation Law of the State of Delaware, and, as amended and restated, is set
forth in its entirety as follows:
FIRST. The name of the Corporation is essential.com, inc.
SECOND. The address of the registered office of the Corporation in the
State of Delaware is 1209 Orange Street, Wilmington, County of New Castle,
Delaware 19801. The name of its registered agent at such address is The
Corporation Trust Company.
THIRD. The nature of the business or purposes to be conducted or promoted
is to engage in any lawful act or activity for which corporations may be
organized under the General Corporation Law of the State of Delaware.
FOURTH. The total number of shares of all classes of capital stock which
the Corporation shall have authority to issue is 400,000,000 shares, consisting
of 379,087,274 shares of Common Stock with a par value of $.01 per share (the
"Common Stock") and 20,912,726 shares of preferred stock with a par value of
$.01 per share of which 5,000,000 are undesignated (the "Undesignated Preferred
Stock"), Two Million Eight Hundred Thirty Thousand Seven Hundred Twenty Six
(2,830,726) shares are designated as Series A Convertible Preferred Stock (the
"Series A Stock"), Six Million Six Hundred Six Thousand Eight Hundred Sixty-Six
(6,606,866) shares are designated as Series B Convertible Preferred Stock (the
"Series B Stock") and Six Million Four Hundred Seventy-Five Thousand One Hundred
Thirty Four (6,475,134) shares are designated as Series C Convertible Preferred
Stock (the "Series C Stock," which together with the Series A Stock and Series B
Stock is referred to collectively as the "Preferred Stock").
A description of the respective classes of stock and a statement of the
designations, powers, preferences and rights, and the qualifications,
limitations and restrictions of the Undesignated Preferred Stock, the Preferred
Stock and Common Stock are as follows:
<PAGE>
-2-
A. COMMON STOCK
1. GENERAL. All shares of Common Stock will be identical and will entitle
the holders thereof to the same rights, powers and privileges. The rights,
powers and privileges of the holders of the Common Stock are subject to and
qualified by the rights of holders of the Preferred Stock.
2. DIVIDENDS. Dividends may be declared and paid on the Common Stock from
funds lawfully available therefor as and when determined by the Board of
Directors and subject to any preferential dividend rights of any then
outstanding Preferred Stock.
3. DISSOLUTION, LIQUIDATION OR WINDING UP. In the event of any dissolution,
liquidation or winding up of the affairs of the Corporation, whether voluntary
or involuntary, each issued and outstanding share of Common Stock shall entitle
the holder thereof to receive an equal portion of the net assets of the
Corporation available for distribution to the holders of Common Stock, subject
to any preferential rights of any then outstanding Preferred Stock.
4. VOTING RIGHTS. Except as otherwise required by law or this Fourth
Amended and Restated Certificate of Incorporation, each holder of Common Stock
shall have one vote in respect of each share of stock held of record by such
holder on the books of the Corporation for the election of directors and on all
matters submitted to a vote of stockholders of the Corporation. Except as
otherwise required by law or provided herein, holders of Common Stock shall vote
together with holders of the Preferred Stock as a single class, subject to any
special or preferential voting rights of any then outstanding Preferred Stock.
There shall be no cumulative voting.
B. UNDESIGNATED PREFERRED STOCK
The Undesignated Preferred Stock may be issued in one or more series at
such time or times and for such consideration or considerations as the Board of
Directors of the Corporation may determine. Each series shall be so designated
as to distinguish the shares thereof from the shares of all other series and
classes. Except as otherwise provided in this Fourth Amended and Restated
Certificate of Incorporation, different series of Undesignated Preferred Stock
shall not be construed to constitute different classes of shares for the purpose
of voting by classes.
The Board of Directors is expressly authorized to provide for the
issuance of all or any shares of the Undesignated Preferred Stock in one or more
series, each with such designations, preferences, voting powers (or special,
preferential or no voting powers), relative, participating, optional or other
special rights and privileges and such qualifications, limitations or
restrictions thereof as shall be stated in the resolution or resolutions adopted
by the Board of Directors to create such series, and a certificate of said
resolution or resolutions (a "Certificate of Designation") shall be filed in
accordance with the General Corporation Law of the State of Delaware. The
authority of the Board of Directors with respect to each such series shall
include, without limitation of the foregoing, the right to provide that the
shares of each such series may
<PAGE>
-3-
be: (i) subject to redemption at such time or times and at such price or prices;
(ii) entitled to receive dividends (which may be cumulative or non-cumulative)
at such rates, on such conditions, and at such times, and payable in preference
to, or in such relation to, the dividends payable on any other class or classes
or any other series; (iii) entitled to such rights upon the dissolution of, or
upon any distribution of the assets of, the Corporation; (iv) convertible into,
or exchangeable for, shares of any other class or classes of stock, or of any
other series of the same or any other class or classes of stock of the
Corporation at such price or prices or at such rates of exchange and with such
adjustments, if any; (v) entitled to the benefit of such limitations, if any, on
the issuance of additional shares of such series or shares of any other series
of Undesignated Preferred Stock; or (vi) entitled to such other preferences,
powers, qualifications, rights and privileges, all as the Board of Directors may
deem advisable and as are not inconsistent with law and the provisions of this
Fourth Amended and Restated Certificate of Incorporation.
C. PREFERRED STOCK
A description of the respective classes of stock and a statement of the
designations, preferences, voting powers, relative, participating, optional or
other special rights and privileges and the qualifications, limitations and
restrictions of the Preferred Stock are as follows:
1. DIVIDEND RIGHTS.
(a) The holders of shares of Preferred Stock shall be entitled to
receive cumulative dividends, out of the assets of the Corporation which are by
law available therefor, in an annual amount per share equal to 8% of, (i) in the
case of the Series A Stock, the Series A Original Purchase Price (as hereinafter
defined), (ii) in the case of the Series B Stock, the Series B Original Purchase
Price (as hereinafter defined), and (iii) in the case of the Series C Stock, the
Series C Original Purchase Price (as hereinafter defined). Dividends shall
accrue on each share cumulatively on a daily basis whether or not such dividends
have been declared and whether or not there are profits, surplus or other funds
then legally available for the payment of dividends. Any accumulation of
dividends on the Preferred Stock shall not bear interest. The dividends shall be
paid when and if declared by the Board of Directors out of assets of the
Corporation which are available therefor semi-annually on June 30th and December
31st, in each year, in cash.
(b) Subject to Article FOURTH(C)(1)(c) and Article
FOURTH(C)(4)(f) hereof, the holders of shares of Preferred Stock shall be
entitled to receive, out of the assets of the Corporation which are by law
available therefor, dividends at the same rate as dividends are paid with
respect to the Common Stock (treating each share of Preferred Stock as being
equal to the number of shares of Common Stock (including fractions of a share)
into which each share of Preferred Stock is then convertible).
(c) Unless full dividends on the Preferred Stock for all past
dividend periods and the then current dividend period shall have been paid or
declared and a sum sufficient for the payment thereof set apart, (i) no dividend
whatsoever (other than a dividend payable solely in Common Stock) shall be paid
or declared, and no distribution shall be made, on the Common Stock or any other
series of preferred stock and (ii) no shares of Common Stock or any other series
<PAGE>
-4-
of preferred stock shall be purchased, redeemed or acquired by the Corporation
and no funds shall be paid into or set aside or made available for a sinking
fund for the purchase, redemption or acquisition thereof; PROVIDED, HOWEVER,
that this restriction shall not apply to the repurchase of shares of Common
Stock held by employees, officers, consultants or outside directors of the
Corporation pursuant to agreements under which the Corporation has the option to
repurchase such shares at cost upon the occurrence of specified events.
2. LIQUIDATION, DISSOLUTION AND WINDING UP.
(a) Upon any liquidation, dissolution or winding up of the
Corporation, whether voluntary or involuntary, the holders of the shares of
Preferred Stock shall be paid (i) in the case of Series A Stock, an amount equal
to $1.00 per share (the "Series A Original Purchase Price") (which amount shall
be subject to equitable adjustment whenever there shall occur a stock split,
combination, reclassification or other similar event involving the Series A
Stock), and (ii) in the case of Series B Stock, an amount equal to $1.910891 per
share (the "Series B Original Purchase Price") (which amount shall be subject to
equitable adjustment whenever there shall occur a stock split, combination,
reclassification or other similar event involving the Series B Stock), and (iii)
in the case of the Series C Stock, an amount equal to $11.6986 per share (the
"Series C Original Purchase Price") (which amount shall be subject to equitable
adjustment whenever there shall occur a stock split, combinations,
reclassification or other similar event involving the Series C Stock) plus, in
the case of each share of Preferred Stock, an amount equal to dividends accrued
but unpaid thereon, computed to the date payment thereof is made available,
before any payment shall be made to the holders of any stock ranking on
liquidation junior to the Preferred Stock, such amount payable with respect to
one share of Preferred Stock being sometimes referred to as the "Liquidation
Preference Payment" and with respect to all shares of Preferred Stock being
sometimes referred to as the "Liquidation Preference Payments." In lieu of
receiving accrued but unpaid dividends as part of the Liquidation Preference
Payments, upon liquidation, dissolution, or winding up of the Corporation (other
than a Merger Event (as hereinafter defined)), a holder of shares of Preferred
Stock shall be entitled to receive as part of the Liquidation Preference
Payments, at such holder's option and in addition to the Series A Original
Purchase Price, the Series B Original Purchase Price or the Series C Original
Purchase Price, as applicable, additional shares of Series A Stock, Series B
Stock or Series C Stock, as applicable, in an amount determined in accordance
with the following formula: (A divided by B), where A equals the aggregate sum
of accrued but unpaid dividends payable on the applicable holder's shares of
Series A Stock, Series B Stock or Series C Stock, as applicable, and B equals
the fair market value of the Common Stock. For purposes of this subsection (a),
the fair market value of the Common Stock shall be the last closing price quoted
by Nasdaq National Market (or such other exchange or quotation system on which
the Common Stock is then traded) on the last business day preceding the date of
distribution or, if there is no such sale, then at the average of the bid and
offer prices quoted in such market for such date or, in the event the Common
Stock is not then publicly traded, the value of such shares shall be determined
in good faith by the Board of Directors and the holders of a majority of the
Common Stock held by the holders of Preferred Stock (treating each share of
Preferred Stock as being equal to the number of shares of Common Stock
(including fractions of a share) into which each share of Preferred Stock is
then convertible). If upon any liquidation, dissolution, or winding up of the
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Corporation, the assets to be distributed to the holders of the Preferred Stock
shall be insufficient to permit payment to such stockholders of the full
preferential amounts aforesaid, then all of the assets of the Corporation
available for distribution to holders of the Preferred Stock shall be
distributed to such holders of the Preferred Stock pro rata, so that each holder
of Preferred Stock receives that portion of the assets available for
distribution as the number of shares of Common Stock held by such holder
(treating each share of Preferred Stock as being equal to the number of shares
of Common Stock (including fractions of a share) into which each share of
Preferred Stock is then convertible but excluding those shares of Common Stock
directly held by such Preferred Stock holder) bears to the total aggregate
number of shares of Common Stock held by the holders of Preferred Stock
(treating each share of Preferred Stock as being equal to the number of shares
of Common Stock (including fractions of a share) into which each share of
Preferred Stock is then convertible but excluding those shares of Common Stock
directly held by such Preferred Stock holder). For purposes hereof, the Common
Stock shall rank on liquidation junior to the Preferred Stock.
(b) Upon any liquidation, dissolution or winding up of the
Corporation, immediately after the holders of Preferred Stock shall have been
paid in full the Liquidation Preference Payments or funds necessary for such
Liquidation Preference Payments shall have been set aside by the Corporation in
trust for the account of holders of the Preferred Stock so as to be available
for such Liquidation Preference Payments, the holders of the Series A Stock and
Common Stock shall share ratably in all remaining assets of the Corporation
based on the number of shares of Common Stock then outstanding (treating each
share of Series A Stock as being equal to the number of shares of Common Stock
(including fractions of a share) into which each share of Series A Stock is then
convertible); PROVIDED, HOWEVER, that in no event shall a holder of Series A
Stock be entitled to receive more than three (3) times the Liquidation
Preference Payment for each share of Series A Stock held by such holder. The
remaining assets of the Corporation legally available for distribution to its
stockholders shall be distributed among the holders of the Common Stock in
accordance with the terms set forth herein.
(c) Written notice of such liquidation, dissolution or winding
up, stating a payment date and the place where said payments shall be made,
shall be given by mail, postage prepaid, or by telecopy or courier to non-U.S.
residents, not less than 20 days prior to the payment date stated therein, to
the holders of record of Preferred Stock, such notice to be addressed to each
such holder at its address as shown by the records of the Corporation. The (x)
consolidation or merger of the Corporation into or with any other entity or
entities which results in the exchange of outstanding shares of the Corporation
for securities or other consideration issued or paid or caused to be issued or
paid by any such entity or affiliate thereof (except a consolidation or merger
into a wholly-owned subsidiary or merger in which the Corporation is the
surviving Corporation and the holders of the Corporation's voting stock
outstanding immediately prior to the transaction constitute holders of a
majority of the voting stock outstanding immediately following the transaction),
(y) the sale or transfer by the Corporation of all or substantially all its
assets, or (z) the sale or transfer by the Corporation's stockholders of more
than 50% in voting power of the Corporation's capital stock (other than a sale
or transfer of the Preferred Stock or shares of Common Stock issued upon
conversion of the Preferred Stock), shall be deemed to be a liquidation,
dissolution or winding up of the
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Corporation within the meaning of the provisions of this Article FOURTH(C)(2)
(each, a "Merger Event").
Whenever the distributions provided for in this Article
FOURTH(C)(2) shall be payable in property other than cash, the value of such
distributions shall be the fair market value of such property as determined in
good faith by the Board of Directors of the Corporation.
3. RESTRICTIONS.
(a) Except where the vote or written consent of the holders of a
greater number of shares of the Corporation is required by law, and in addition
to any other vote required by law or this Certificate of Incorporation, without
the written consent of the holders of at least a majority in interest of the
then outstanding shares of Series A Stock given in writing or by vote at a
meeting, consenting or voting (as the case may be) separately as a class, the
Corporation will not:
(1) Consent to any liquidation, dissolution or winding up of
the Corporation or a Merger Event;
(2) Amend, alter or repeal any provision of this Certificate
of Incorporation or the bylaws of the Corporation;
(3) Create or authorize the creation of any additional class
or series of shares of stock unless the same ranks junior to the Series A
Stock as to dividends and the distribution of assets on the liquidation,
dissolution or winding up of the Corporation, or increase the authorized
amount of Series A Stock or increase the authorized amount of any
additional class or series of shares of stock unless the same ranks junior
to the Series A Stock as to dividends and the distribution of assets on the
liquidation, dissolution or winding up of the Corporation, or create or
authorize any obligation or security convertible into shares of Series A
Stock or into shares of any other class or series of stock unless the same
ranks junior to the Series A Stock as to dividends and the distribution of
assets on the liquidation, dissolution or winding up of the Corporation,
whether any such creation, authorization or increase shall be by means of
amendment to the certificate of incorporation or by merger, consolidation
or otherwise;
(4) In any manner alter or change the designations or the
powers, preferences or rights, privileges or the restrictions of the shares
of Series A Stock;
(5) Purchase or redeem, or set aside any sums for the
purchase or redemption of, or pay any dividend or make any distribution on,
any shares of stock, other than (i) the Series A Stock, (ii) the Series B
Stock, (iii) the Series C Stock, (iv) shares of Common Stock held by
employees, officers, consultants or outside directors pursuant to
agreements under which the Corporation has the option to repurchase such
shares at cost upon the occurrence of specified events, or (v) dividends or
other
<PAGE>
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distributions payable on the Common Stock solely in the form of additional
shares of Common Stock;
(6) Increase the number of shares of Common Stock available
for issuance under the Corporation's Amended and Restated 1998 Stock Option
and Incentive Plan, the Corporation's 2000 Non-Employee Director Stock
Option Plan, the Corporation's Employee Stock Purchase Plan, or such other
plan or agreement pursuant to which the Corporation issues options or other
rights to purchase shares of Common Stock to its employees, officers,
consultants and outside directors, to more than 7,519,698 shares plus such
number of shares which are repurchased from such persons pursuant to
contractual rights held by the Corporation and at repurchase prices not
exceeding the respective original purchase prices therefor (all
appropriately adjusted to reflect the occurrence of any event described in
Article FOURTH(C)(4)(f) hereof) (the "Employee Shares");
(7) Incur any indebtedness for borrowed money (whether by
loan or the issuance and sale of debt securities) or for the deferred
purchase of property or services (other than trade payables incurred in the
ordinary course of business) in excess of $500,000; or
(8) Materially change the primary business of the
Corporation as it is presently conducted or proposed to be conducted on the
date of the initial issuance of the Series A Stock.
(b) Except where the vote or written consent of the holders
of a greater number of shares of the Corporation is required by law, and in
addition to any other vote required by law or this Certificate of
Incorporation, without the written consent of the holders of at least sixty
percent (60%) of the then outstanding shares of Series B Stock given in
writing or by vote at a meeting, consenting or voting (as the case may be)
separately as a class, the Corporation will not:
(1) Consent to any liquidation, dissolution or winding up of
the Corporation or a Merger Event;
(2) Amend, alter or repeal any provision of this Certificate
of Incorporation or the By-Laws of the Corporation;
(3) Create or authorize the creation of any additional class
or series of shares of stock unless the same ranks junior to the Series B
Stock as to dividends and the distribution of assets on the liquidation,
dissolution or winding up of the Corporation, or increase the authorized
amount of Series B Stock or increase the authorized amount of any
additional class or series of shares of stock unless the same ranks junior
to the Series B Stock as to dividends and the distribution of assets on the
liquidation, dissolution or winding up of the Corporation, or create or
authorize any obligation or security convertible into shares of Series B
Stock or into shares of any other
<PAGE>
-8-
class or series of stock unless the same ranks junior to the Series B Stock
as to dividends and the distribution of assets on the liquidation,
dissolution or winding up of the Corporation, whether any such creation,
authorization or increase shall be by means of amendment to the certificate
of incorporation or by merger, consolidation or otherwise;
(4) In any manner alter or change the designations or the
powers, preferences or rights, privileges or the restrictions of the shares
of Series B Stock;
(5) Purchase or redeem, or set aside any sums for the
purchase or redemption of, or pay any dividend or make any distribution on,
any shares of stock, other than (i) the Series A Stock, (ii) the Series B
Stock, (iii) the Series C Stock, (iv) shares of Common Stock held by
employees, officers, consultants or outside directors pursuant to
agreements under which the Corporation has the option to repurchase such
shares at cost upon the occurrence of specified events, or (v) dividends or
other distributions payable on the Common Stock solely in the form of
additional shares of Common Stock;
(6) Increase the number of Employee Shares;
(7) Incur any indebtedness for borrowed money (whether by
loan or the issuance and sale of debt securities) or for the deferred
purchase of property or services (other than trade payables incurred in the
ordinary course of business) in excess of $500,000; or
(8) Materially change the primary business of the
Corporation as it is presently conducted or proposed to be conducted on the
date of the initial issuance of the Series B Stock.
(c) Except where the vote or written consent of the holders
of a greater number of shares of the Corporation is required by law, and in
addition to any other vote required by law or this Certificate of
Incorporation, without the written consent of the holders of at least sixty
percent (60%) of the then outstanding shares of Series C Stock given in
writing or by vote at a meeting, consenting or voting (as the case may be)
separately as a class, the Corporation will not:
(1) Consent to any liquidation, dissolution or winding up of
the Corporation or a Merger Event;
(2) Amend, alter or repeal any provision of this Certificate
of Incorporation or the By-Laws of the Corporation;
(3) Create or authorize the creation of any additional class
or series of shares of stock unless the same ranks junior to the Series C
Stock as to dividends and the distribution of assets on the liquidation,
dissolution or winding up of the Corporation, or increase the authorized
amount of Series C Stock or increase the authorized amount of any
additional class or series of shares of stock unless the same ranks junior
to the Series C Stock as to dividends and the distribution of assets on the
liquidation, dissolution or winding up of the
<PAGE>
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Corporation, or create or authorize any obligation or security convertible
into shares of Series C Stock or into shares of any other class or series
of stock unless the same ranks junior to the Series C Stock as to dividends
and the distribution of assets on the liquidation, dissolution or winding
up of the Corporation, whether any such creation, authorization or increase
shall be by means of amendment to the certificate of incorporation or by
merger, consolidation or otherwise;
(4) In any manner alter or change the designations or the
powers, preferences or rights, privileges or the restrictions of the shares
of Series C Stock;
(5) Purchase or redeem, or set aside any sums for the
purchase or redemption of, or pay any dividend or make any distribution on,
any shares of stock, other than (i) the Series A Stock, (ii) the Series B
Stock, (iii) the Series C Stock, (iv) shares of Common Stock held by
employees, officers, consultants or outside directors pursuant to
agreements under which the Corporation has the option to repurchase such
shares at cost upon the occurrence of specified events, or (v) dividends or
other distributions payable on the Common Stock solely in the form of
additional shares of Common Stock;
(6) Increase the number of Employee Shares;
(7) Incur any indebtedness for borrowed money (whether by
loan or the issuance and sale of debt securities) or for the deferred
purchase of property or services (other than trade payables incurred in the
ordinary course of business) in excess of $500,000; or
(8) Materially change the primary business of the
Corporation as it is presently conducted or proposed to be conducted on the
date of the initial issuance of the Series C Stock.
4. CONVERSION. The holders of shares of Preferred Stock
shall have the following conversion rights:
(a) (1) RIGHT TO CONVERT. Subject to the terms and
conditions of this Article FOURTH(C)(4), the holder of any share or shares
of Preferred Stock shall have the right (the "Conversion Right"), at its
option, to convert any such shares of Preferred Stock (except that upon any
liquidation or Merger Event of the Corporation the right of conversion
shall terminate upon the consummation of such liquidation or Merger Event)
into such number of fully paid and nonassessable shares of Common Stock as
is obtained by (i) multiplying the number of shares of Preferred Stock so
to be converted by the Series A Original Purchase Price, Series B Original
Purchase Price or Series C
<PAGE>
-10-
Original Purchase Price, as applicable, and (ii) dividing the result by the
conversion price equal to the Series A Original Purchase Price, Series B
Original Purchase Price or Series C Original Purchase Price, as applicable,
or in case an adjustment of either such price has taken place pursuant to
the further provisions of this Article FOURTH(C)(4), then by the conversion
price as last adjusted and in effect at the date any share or shares of
Preferred Stock are surrendered for conversion (each such price, or such
price as last adjusted, being referred to as the "Conversion Price"). On
the date this Certificate of Incorporation becomes effective, the
Conversion Price shall be $0.50 for the Series A Stock, $1.910891 for the
Series B Stock and $11.6986 for the Series C Stock. Such rights of
conversion shall be exercised by the holder thereof by giving written
notice that the holder elects to convert a stated number of shares of
Preferred Stock into Common Stock and by surrender of a certificate or
certificates for the shares so to be converted to the Corporation at its
principal office (or such other office or agency of the Corporation as the
Corporation may designate by notice in writing to the holders of the
Preferred Stock) at any time during its usual business hours on the date
set forth in such notice, together with a statement of the name or names
(with address) in which the certificate or certificates for shares of
Common Stock shall be issued.
(2) AUTOMATIC CONVERSION. (i) Each share of Series A Stock
shall automatically be converted into shares of Common Stock at the
Conversion Price then in effect for the Series A Stock immediately upon the
consummation of the Corporation's sale of its Common Stock in a bona fide,
firm commitment underwriting pursuant to a registration statement on Form
S-1 (or a successor form) under the Securities Act of 1933, as amended (the
"Securities Act"), which results in aggregate gross cash proceeds to the
Corporation before underwriting discounts and commissions and other
expenses related to the offering of not less than $15,000,000 and a per
share offering price of at least $2.50 per share before underwriting
discounts and commissions (as adjusted for any stock splits, stock
dividends, or stock combinations, and on a fully diluted basis).
(ii) Each share of Series B Stock shall automatically be
converted into shares of Common Stock at the Conversion Price then in
effect for the Series B Stock immediately upon (A) the consummation of the
Corporation's sale of its Common Stock in a bona fide, firm commitment
underwriting pursuant to a registration statement on Form S-1 (or a
successor form) under the Securities Act, which results in aggregate gross
cash proceeds to the Corporation before underwriting discounts and
commissions and other expenses related to the offering of not less than
$20,000,000 and has a pre-money valuation of not less than $100,000,000 or
(B) the election of the holders of at least 60% of the then outstanding
shares of Series B Stock.
(iii) Each share of Series C Stock shall automatically be
converted into shares of Common Stock at the Conversion Price then in
effect for the Series C Stock immediately upon (A) the consummation of the
Corporation's sale of its Common Stock in a bona fide, firm commitment
underwriting pursuant to a registration statement on Form S-1 (or a
successor form) under the Securities Act, which results in
<PAGE>
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aggregate gross cash proceeds to the Corporation before underwriting
discounts and commissions and other expenses related to the offering of not
less than $20,000,000 and has a pre-money valuation of not less than one
hundred twenty-five percent (125%) of the sum of X and Y where X is
$275,000,000 and Y is the aggregate proceeds to the Corporation from its
sale of shares of the Series C Stock or (B) the election of the holders of
at least 60% of the then outstanding shares of Series C Stock.
(b) ISSUANCE OF CERTIFICATES; TIME CONVERSION EFFECTED. Promptly
after the receipt of the written notice referred to in Article
FOURTH(C)(4)(a)(1) and surrender of the certificate or certificates for the
share or shares of Preferred Stock to be converted, but in no event later than
five (5) business days thereafter, the Corporation shall issue and deliver, or
cause to be issued and delivered, to the holder, registered in such name or
names as such holder may direct, a certificate or certificates for the number of
whole shares of Common Stock issuable upon the conversion of such share or
shares of Preferred Stock. To the extent permitted by law, such conversion shall
be deemed to have been effected and the applicable Conversion Price shall be
determined as of the close of business on the date on which such written notice
shall have been received by the Corporation and the certificate or certificates
for such share or shares shall have been surrendered as aforesaid (the
"Conversion Date"), and at such time the rights of the holder of such share or
shares of Preferred Stock shall cease, and the person or persons in whose name
or names any certificate or certificates for shares of Common Stock shall be
issuable upon such conversion shall be deemed to have become the holder or
holders of record of the shares represented thereby.
(c) FRACTIONAL SHARES; PARTIAL CONVERSION. No fractional shares
shall be issued upon conversion of Preferred Stock into Common Stock and no
payment or adjustment shall be made upon any conversion on account of any cash
dividends on the Common Stock issued upon such conversion. In case the number of
shares of Preferred Stock represented by the certificate or certificates
surrendered pursuant to Article FOURTH(C)(4)(a) exceeds the number of shares
converted, the Corporation shall, upon such conversion, execute and deliver to
the holder, at the expense of the Corporation, a new certificate or certificates
for the number of shares of Preferred Stock represented by the certificate or
certificates surrendered which are not to be converted. If any fractional share
of Common Stock would, except for the provisions of the first sentence of this
Article FOURTH(C)(4)(c), be delivered upon such conversion, the Corporation, in
lieu of delivering such fractional share, shall pay to the holder surrendering
the Preferred Stock for conversion an amount in cash equal to the current market
price of such fractional share as determined in reference to the closing price
of the Corporation's Common Stock on the Nasdaq National Market (or such other
exchange or quotation system on which the Common Stock is then traded) on the
Conversion Date or, if there is no such sale, then at the average of the bid and
offer prices quoted in such market for such date or, in the event the Common
Stock is not publicly traded, the value of such fractional shares shall be
determined in good faith by the Board of Directors on the Conversion Date, and
based upon the aggregate number of shares of Preferred Stock surrendered by any
one holder for conversion into Common Stock.
(d) ADJUSTMENT OF CONVERSION PRICE UPON ISSUANCE OF COMMON STOCK.
<PAGE>
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Except as provided in Article FOURTH(C)(4)(e) and (f), if and whenever the
Corporation shall issue or sell, or is, in accordance with Article
FOURTH(C)(4)(d)(1) through (7), deemed to have been issued or sold, any shares
of Common Stock for a consideration per share less than the applicable
Conversion Price in effect immediately prior to the time of such issue or sale
(such number being appropriately adjusted to reflect the occurrence of any event
described in Article FOURTH(C)(4)(f)), then, forthwith upon such issue or sale,
the applicable Conversion Price shall be reduced to the price determined by
multiplying the applicable Conversion Price by a fraction, the numerator of
which shall be the sum of the number of shares of Common Stock outstanding
immediately prior to such issue (calculated on a fully-diluted basis, assuming
the exercise of all outstanding options and warrants, and the conversion of all
outstanding convertible securities) plus the number of shares of Common Stock
which the aggregate consideration received by the Corporation for the total
number of additional shares of Common Stock so issued would purchase at the
applicable Conversion Price, and the denominator of which shall be the sum of
the number of shares of Common Stock outstanding immediately prior to such issue
(calculated on a fully-diluted basis, assuming the exercise of all outstanding
options and warrants, and the conversion of all outstanding convertible
securities) plus the number of such additional shares of Common Stock so issued,
provided that, the applicable Conversion Price shall not be so reduced at such
time if the amount of such reduction would be an amount less than $0.01, but any
such amount shall be carried forward and reduction with respect thereto made at
the time of and together with any subsequent reduction which, together with such
amount and any other amount or amounts so carried forward, shall aggregate $0.01
or more. The provisions of this Article FOURTH(C)(4)(d) may be waived in any
instance, without a meeting, prospectively or retroactively, by the holders of
the Series A Preferred Stock, the Series B Preferred Stock and/or the Series C
Preferred Stock, as applicable, by obtaining the approval of the holders of the
Series A Preferred Stock, the Series B Preferred Stock and/or the Series C
Preferred Stock, as applicable, in the manner prescribed by Article FOURTH(C)(3)
hereof.
For purposes of this Article FOURTH(C)(4)(d), the following
subparagraphs (1) to (7) shall also be applicable:
(1) ISSUANCE OF RIGHTS OR OPTIONS. Except for the Employee
Shares, in case at any time the Corporation shall in any manner grant
(whether directly or by assumption in a merger or otherwise) any warrants
or other rights to subscribe for or to purchase, or any options for the
purchase of, Common Stock or any stock or security convertible into or
exchangeable for Common Stock (such warrants, rights or options being
called "Options" and such convertible or exchangeable stock or securities
being called "Convertible Securities") whether or not such Options or the
right to convert or exchange any such Convertible Securities are
immediately exercisable, and the price per share for which Common Stock is
issuable upon the exercise of such Options or upon the conversion or
exchange of such Convertible Securities (determined by dividing (i) the
total amount, if any, received or receivable by the Corporation as
consideration for the granting of such Options, plus the minimum aggregate
amount of additional consideration payable to the Corporation upon the
exercise of all such Options, plus, in the case of such Options which
relate to Convertible Securities, the minimum aggregate amount of
additional consideration, if any, payable upon the issue or sale of such
Convertible
<PAGE>
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Securities and upon the conversion or exchange thereof, by (ii) the total
maximum number of shares of Common Stock issuable upon the exercise of such
Options or upon the conversion or exchange of all such Convertible
Securities issuable upon the exercise of such Options) shall be less than
the applicable Conversion Price in effect immediately prior to the time of
the granting of such Options, then the total maximum number of shares of
Common Stock issuable upon the exercise of such Options or upon conversion
or exchange of the total maximum amount of such Convertible Securities
issuable upon the exercise of such Options shall be deemed to have been
issued for such price per share as of the date of granting of such Options
or the issuance of such Convertible Securities and thereafter shall be
deemed to be outstanding. Except as otherwise provided in Article
FOURTH(C)(4)(d)(3), no adjustment of the applicable Conversion Price shall
be made upon the actual issue of such Common Stock or of such Convertible
Securities upon exercise of such Options or upon the actual issue of such
Common Stock upon conversion or exchange of such Convertible Securities.
(2) ISSUANCE OF CONVERTIBLE SECURITIES. Except for the
Employee Shares, in case at any time the Corporation shall in any manner
issue (whether directly or by assumption in a merger or otherwise) or sell
any Convertible Securities, whether or not the rights to exchange or
convert any such Convertible Securities are immediately exercisable, and
the price per share for which Common Stock is issuable upon such conversion
or exchange (determined by dividing (i) the total amount received or
receivable by the Corporation as consideration for the issue or sale of
such Convertible Securities, plus the minimum aggregate amount of
additional consideration, if any, payable to the Corporation upon the
conversion or exchange thereof, by (ii) the total maximum number of shares
of Common Stock issuable upon the conversion or exchange of all such
Convertible Securities) shall be less than the applicable Conversion Price
in effect immediately prior to the time of such issue or sale, then the
total maximum number of shares of Common Stock issuable upon conversion or
exchange of all such Convertible Securities shall be deemed to have been
issued for such price per share as of the date of the issue or sale of such
Convertible Securities and thereafter shall be deemed to be outstanding,
provided that (A) except as otherwise provided in Article
FOURTH(C)(4)(d)(3), no adjustment of the applicable Conversion Price shall
be made upon the actual issue of such Common Stock upon conversion or
exchange of such Convertible Securities and (B) if any such issue or sale
of such Convertible Securities is made upon exercise of any Options to
purchase any such Convertible Securities for which adjustments of the
applicable Conversion Price have been or are to be made pursuant to other
provisions of this Article FOURTH(C)(4)(d), no further adjustment of the
applicable Conversion Price shall be made by reason of such issue or sale.
(3) CHANGE IN OPTION PRICE OR CONVERSION RATE. Upon the
happening of any of the following events, namely, if the purchase price
provided for in any Option referred to in Article FOURTH(C)(4)(d)(1), the
additional consideration, if any, payable upon the conversion or exchange
of any Convertible Securities referred to in Article FOURTH(C)(4)(d)(1) or
(d)(2), or the rate at which Convertible Securities referred to in Article
FOURTH(C)(4)(d)(1) or (d)(2) are convertible into or exchangeable
<PAGE>
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for Common Stock shall change at any time (including, but not limited to,
changes under or by reason of provisions designed to protect against
dilution), the Conversion Price in effect at the time of such event shall
forthwith be readjusted to the Conversion Price which would have been in
effect at such time had such Options or Convertible Securities still
outstanding provided for such changed purchase price, additional
consideration or conversion rate, as the case may be, at the time initially
granted, issued or sold, but only if as a result of such adjustment the
Conversion Price then in effect hereunder is thereby reduced; and on the
expiration of any such Option or the termination of any such right to
convert or exchange such Convertible Securities, the Conversion Price then
in effect hereunder shall forthwith be increased to the Conversion Price
which would have been in effect at the time of such expiration or
termination had such Option or Convertible Securities, to the extent
outstanding immediately prior to such expiration or termination, never been
issued.
(4) STOCK DIVIDENDS. In case the Corporation shall declare a
dividend or make any other distribution upon any stock of the Corporation
payable in Common Stock (except for the issue of stock dividends or
distributions upon the outstanding Common Stock for which adjustment is
made pursuant to Article FOURTH(C)(4)(f)), Options or Convertible
Securities, any Common Stock, Options or Convertible Securities, as the
case may be, issuable in payment of such dividend or distribution shall be
deemed to have been issued or sold without consideration and the Conversion
Price then in effect shall be appropriately decreased so that the number of
shares of Common Stock issuable upon conversion of each share of Preferred
Stock shall be increased in proportion to such increase in the aggregate
number of shares of Common Stock outstanding.
(5) CONSIDERATION FOR STOCK. In case any shares of Common
Stock, Options or Convertible Securities shall be issued or sold for cash,
the consideration received therefor shall be deemed to be the amount
received by the Corporation therefor, without deduction therefrom of any
expenses incurred or any underwriting commissions or concessions paid or
allowed by the Corporation in connection therewith. In case any shares of
Common Stock, Options or Convertible Securities shall be issued or sold for
a consideration other than cash, the amount of the consideration other than
cash received by the Corporation shall be deemed to be the fair value of
such consideration as determined in good faith by the Board of Directors of
the Corporation, without deduction of any expenses incurred or any
underwriting commissions or concessions paid or allowed by the Corporation
in connection therewith. In case any Options shall be issued in connection
with the issue and sale of other securities of the Corporation, together
comprising one integral transaction in which no specific consideration is
allocated to such Options by the parties thereto, such Options shall be
deemed to have been issued for such consideration as determined in good
faith by the Board of Directors of the Corporation.
(6) RECORD DATE. In case the Corporation shall take a record
of the holders of its Common Stock for the purpose of entitling them (i) to
receive a
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dividend or other distribution payable in Common Stock, Options or
Convertible Securities or (ii) to subscribe for or purchase Common Stock,
Options or Convertible Securities, then such record date shall be deemed to
be the date of the issue or sale of the shares of Common Stock deemed to
have been issued or sold upon the declaration of such dividend or the
making of such other distribution or the date of the granting of such right
of subscription or purchase, as the case may be.
(7) TREASURY SHARES. The number of shares of Common Stock
outstanding at any given time shall not include shares owned or held by or
for the account of the Corporation, and the disposition of any such shares
shall be considered an issue or sale of Common Stock for the purpose of
this Article FOURTH(C)(4)(d).
(e) CERTAIN ISSUES OF COMMON STOCK EXCEPTED. Anything herein to
the contrary notwithstanding, the Corporation shall not be required to make any
adjustment of the Conversion Price in the case of the issuance of (i) shares of
Common Stock issuable upon conversion of the Preferred Stock and (ii) the
Employee Shares.
(f) SUBDIVISION OR COMBINATION OF COMMON STOCK. In case the
Corporation shall at any time subdivide (by any stock split, stock dividend,
reclassification or otherwise) its outstanding shares of Common Stock into a
greater number of shares, the Conversion Price in effect immediately prior to
such subdivision shall be proportionately reduced, and, conversely, in case the
outstanding shares of Common Stock shall be combined into a smaller number of
shares, the Conversion Price in effect immediately prior to such combination
shall be proportionately increased.
(g) REORGANIZATION OR RECLASSIFICATION. If any capital
reorganization, reclassification, recapitalization, consolidation, merger, sale
of all or substantially all of the Corporation's assets or other similar
transaction (any such transaction being referred to herein as an "Organic
Change") shall be effected in such a way that holders of Common Stock shall be
entitled to receive (either directly or upon subsequent liquidation) stock,
securities or assets with respect to or in exchange for Common Stock, then, as a
condition of such Organic Change, lawful and adequate provisions shall be made
whereby each holder of a share or shares of Preferred Stock shall thereupon have
the right to receive, upon the basis and upon the terms and conditions specified
herein and in lieu of or in addition to, as the case may be, the shares of
Common Stock immediately theretofore receivable upon the conversion of such
share or shares of Preferred Stock, such shares of stock, securities or assets
as may be issued or payable with respect to or in exchange for a number of
outstanding shares of such Common Stock equal to the number of shares of such
Common Stock immediately theretofore receivable upon such conversion had such
Organic Change not taken place, and in any case of a reorganization or
reclassification only appropriate provisions shall be made with respect to the
rights and interests of such holder to the end that the provisions hereof
(including, without limitation, provisions for adjustments of the applicable
Conversion Price) shall thereafter be applicable, as nearly as may be, in
relation to any shares of stock, securities or assets thereafter deliverable
upon the exercise of such conversion rights.
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(h) NOTICE OF ADJUSTMENT. Upon any adjustment of the Conversion
Price, then and in each such case the Corporation shall give written notice
thereof, by first class mail, postage prepaid, or by facsimile transmission to
non-U.S. residents, addressed to each holder of shares of Series A Stock, Series
B Stock and/or Series C Stock, as applicable, at the address of such holder as
shown on the books of the Corporation, which notice shall state the Conversion
Price resulting from such adjustment, setting forth in reasonable detail the
method upon which such calculation is based.
(i) OTHER NOTICES. In case at any time:
(1) the Corporation shall declare any dividend upon its
Common Stock payable in cash or stock or make any other distribution to the
holders of its Common Stock (other than dividends of Common Stock on the
outstanding shares of Common Stock in the nature of a stock split covered
by the provisions of Article FOURTH(C)(4)(f) hereof);
(2) the Corporation shall offer for subscription PRO RATA to
the holders of its Common Stock any additional shares of stock of any class
or other rights;
(3) there shall be any capital reorganization or
reclassification of the capital stock of the Corporation (other than
reclassification of the Common Stock in the nature of a stock split covered
by the provisions of Article FOURTH(C)(4)(f) hereof), or a Merger Event; or
(4) there shall be a voluntary or involuntary dissolution,
liquidation or winding up of the Corporation;
then, in any one or more of said cases, the Corporation shall give, by first
class mail, postage prepaid, or by facsimile transmission to non-U.S. residents,
addressed to each holder of any shares of Preferred Stock at the address of such
holder as shown on the books of the Corporation, (a) at least 20 days' prior
written notice of the date on which the books of the Corporation shall close or
a record shall be taken for such dividend, distribution or subscription rights
or for determining rights to vote in respect of any such reorganization,
reclassification, Merger Event, dissolution, liquidation or winding up and (b)
in the case of any such reorganization, reclassification, Merger Event,
dissolution, liquidation or winding up, at least 20 days' prior written notice
of the date when the same shall take place. Such notice in accordance with the
foregoing clause (a) shall also specify, in the case of any such dividend,
distribution or subscription rights, the date on which the holders of Common
Stock shall be entitled thereto and such notice in accordance with the foregoing
clause (b) shall also specify the date on which the holders of Common Stock
shall be entitled to exchange their Common Stock for securities or other
property deliverable upon such reorganization, reclassification, Merger Event,
dissolution, liquidation or winding up, as the case may be.
(j) STOCK TO BE RESERVED. The Corporation will at all times
reserve and keep available out of its authorized Common Stock, solely for the
purpose of issuance upon
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the conversion of Preferred Stock as herein provided, such number of shares of
Common Stock as shall then be issuable upon the conversion of all outstanding
shares of Preferred Stock. The Corporation covenants that all shares of Common
Stock which shall be so issued shall be duly and validly issued and fully paid
and nonassessable and free from all taxes, liens and charges with respect to the
issue thereof, and, without limiting the generality of the foregoing, the
Corporation covenants that it will from time to time take all such action as may
be requisite to assure that the par value per share of the Common Stock is at
all times equal to or less than the lowest applicable Conversion Price in effect
at the time. The Corporation will take all such action as may be necessary to
assure that all such shares of Common Stock may be so issued without violation
of any applicable law or regulation, or of any requirement of any national
securities exchange upon which the Common Stock may be listed.
(k) NO REISSUANCE OF PREFERRED STOCK. Shares of Preferred Stock
which are converted into shares of Common Stock as provided herein shall not be
reissued.
(l) ISSUE TAX. The issuance of certificates for shares of Common
Stock upon conversion of Preferred Stock shall be made without charge to the
holders thereof for any issuance tax in respect thereof, provided that the
Corporation shall not be required to pay any tax which may be payable in respect
of any transfer involved in the issuance and delivery of any certificate in a
name other than that of the holder of the Preferred Stock which is being
converted.
(m) CLOSING OF BOOKS. The Corporation will at no time close its
transfer books against the transfer of any shares of Preferred Stock or of any
shares of Common Stock issued or issuable upon the conversion of any shares of
Preferred Stock in any manner which interferes with the timely conversion of
such Preferred Stock, except as may otherwise be required to comply with
applicable securities laws.
6. REDEMPTION.
(a) At any time after July 31, 2004, upon the election of at
least a majority in interest of the then outstanding shares of Series A Stock,
Series B Stock and Series C Stock voting together as a single class, out of any
assets of the Corporation which are by law available therefor, the holders of
Series A Stock, the Series B Stock and the Series C Stock shall have the right
to require the Corporation to repurchase (i) shares of the Series A Stock at the
Series A Original Purchase Price plus any accrued but unpaid dividends per share
(the "Series A Redemption Price") (ii) shares of the Series B Stock at the
Series B Original Purchase Price plus any accrued but unpaid dividends per share
(the Series B Redemption Price") and (iii) shares of the Series C Stock at the
Series C Original Purchase Price pus any accrued but unpaid dividends per share
(the "Series C Redemption Price") by delivering a written notice to the
Corporation (a "Preferred Stock Redemption Election").
(b) Within ten (10) days after receipt of the Preferred Stock
Redemption Election, the Corporation shall notify promptly all holders of shares
of the Preferred Stock in writing (the "Preferred Stock Redemption Notice") of
the delivery of the Preferred
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Stock Redemption Election and of the Series A Redemption Price, the Series B
Redemption Price and the Series C Redemption Price. The holders of shares of
Preferred Stock may elect to sell to the Corporation all or a portion of their
shares of Preferred Stock by delivering written notice to the Corporation within
thirty (30) days after delivery of the Preferred Stock Redemption Notice. The
Corporation shall purchase, and all such electing holders of Preferred Stock
sell, in three (3) equal annual installments, the portion of such shares of
Preferred Stock which the holders thereof have elected to sell to the
Corporation pursuant to this Article FOURTH(C)(6), at times and places mutually
agreeable to the Corporation and the holders of the Preferred Stock (the
"Preferred Stock Redemption Closings"). The first of such Preferred Stock
Redemption Closings shall take place within sixty (60) days after delivery of
the Preferred Stock Redemption Election. The subsequent Preferred Stock
Redemption Closings shall take place on the first and second anniversaries,
respectively, of the date of the initial Preferred Stock Redemption Closing. In
the event the date specified for a Preferred Stock Redemption Closing is a
Saturday, Sunday or holiday, such Preferred Stock Redemption Closing shall take
place on the immediately succeeding business day. The Corporation shall notify
all holders of Preferred Stock of the date and place of each Preferred Stock
Redemption Closing at least thirty (30) days prior to such Preferred Stock
Redemption Closing.
(c) At each Preferred Stock Redemption Closing, the holders of
Preferred Stock shall deliver to the Corporation certificates representing
one-third of the shares of Preferred Stock which they have elected to sell to
the Corporation; and the Corporation shall deliver to each such holder the
Series A Redemption Price, the Series B Redemption Price and/or the Series C
Redemption Price, as applicable for each share of Preferred Stock to be sold to
the Corporation (by cashier's or certified check or by wire transfer of
immediately available funds to an account designated by such holder) at the
Preferred Stock Redemption Closing, together with a new certificate or
certificates for the number of shares of Preferred Stock represented by the
certificate or certificates surrendered which are not to be redeemed at such
Preferred Stock Redemption Closing. If, at the time of a Preferred Stock
Redemption Closing, the funds of the Corporation legally available for
redemption of shares of Preferred Stock at a Preferred Stock Redemption Closing
are insufficient to redeem that number of outstanding shares of Preferred Stock
for which the holders thereof have elected to be redeemed by the Corporation
pursuant to the terms hereof and that were to have been redeemed by the
Corporation at such Preferred Stock Redemption Closing, the holders of such
shares of Preferred Stock shall share ratably in any funds legally available for
redemption of such shares according to the respective amounts which would be
payable with respect to the full number of shares owned by them and that would
have been redeemed by the Corporation at such Preferred Stock Redemption Closing
were the Corporation to have sufficient funds therefor. The shares of Preferred
Stock not redeemed shall remain outstanding and entitled to all rights and
preferences provided herein. At any time thereafter when additional funds of the
Corporation are legally available for the redemption of such shares of Preferred
Stock, such funds will be used, at the end of the next succeeding fiscal
quarter, to redeem the balance of such shares for which the holders thereof have
elected to be redeemed by the Corporation pursuant to the terms hereof, or such
portion thereof for which funds are then legally available, on the basis set
forth above.
7. VOTING RIGHTS.
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(a) Except as otherwise required by law or this Certificate of
Incorporation (including, without limitation, Article FOURTH(A)(4) hereof), each
holder of Preferred Stock shall be entitled to the number of votes equal to the
number of whole shares of Common Stock into which the shares of Preferred Stock
held by such holder are convertible (as adjusted from time to time pursuant to
Article FOURTH(C)(4)(d) hereof) on all matters submitted to a vote of the
stockholders of the Corporation. Except as provided by law and by the provisions
of this Certificate of Incorporation, the holders of Preferred Stock shall vote
together with the holders of the Common Stock as a single class on all matters
submitted to a vote of the stockholders of the Corporation including, without
limitation, actions amending the Certificate of Incorporation of the Corporation
to increase the authorized number of shares of Common Stock.
(b) The holders of record of the shares of Preferred Stock,
exclusively and as a separate class, shall be entitled to elect three (3)
directors of the Corporation. Such nominees shall be elected pursuant to the
terms and conditions set forth in that certain Third Amended and Restated
Stockholders' Agreement (the "Stockholders' Agreement") dated as of February 8,
2000 among the Corporation and the Stockholders (as defined therein). At any
meeting held for the purpose of electing directors, the presence in person or by
proxy of the holders of a majority of the shares of Preferred Stock then
outstanding shall constitute a quorum of the Preferred Stock for the purpose of
electing directors by holders of the Preferred Stock. A vacancy in any
directorship filled by the holders of the Preferred Stock shall be filled
pursuant to the terms and conditions set forth in the Stockholders' Agreement.
FIFTH. The Corporation is to have perpetual existence.
SIXTH. The following provisions are included for the management of the
business and the conduct of the affairs of the Corporation, and for further
definition, limitation and regulation of the powers of the Corporation and of
its Board of Directors and stockholders:
1. The business and affairs of the Corporation shall be managed
by or under the direction of the Board of Directors of the Corporation.
2. The Board of Directors of the Corporation is expressly
authorized to adopt, amend or repeal the By-laws of the Corporation, subject to
any limitation thereof contained in the By-laws. The stockholders shall also
have the power to adopt, amend or repeal the By-laws of the Corporation;
PROVIDED, HOWEVER, that, in addition to any vote of the holders of any class or
series of stock of the Corporation required by law or by this Amended and
Restated Certificate of Incorporation, the affirmative vote of the holders of at
least seventy-five percent (75%) of the voting power of all of the then
outstanding shares of the capital stock of the Corporation entitled to vote
generally in the election of directors, voting together as a single class, shall
be required to adopt, amend or repeal any provision of the By-laws of the
Corporation.
3. Stockholders of the Corporation may not take any action by
written consent in lieu of a meeting.
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4. Special meetings of stockholders may be called at any time
only by the Chief Executive Officer, President, the Chairman of the Board of
Directors (if any) or a majority of the Board of Directors. Business transacted
at any special meeting of stockholders shall be limited to matters relating to
the purpose or purposes stated in the notice of meeting.
5. The books of the Corporation may be kept at such place within
or without the State of Delaware as the By-laws of the Corporation may provide
or as may be designated from time to time by the Board of Directors of the
Corporation.
SEVENTH.
1. NUMBER OF DIRECTORS. The number of directors which shall constitute the
whole Board of Directors shall be determined by resolution of a majority of the
Board of Directors, but in no event shall the number of directors be less than
three. The number of directors may be decreased at any time and from time to
time by a majority of the directors then in office, but only to eliminate
vacancies existing by reason of the death, resignation, removal or expiration of
the term of one or more directors. The directors shall be elected at the annual
meeting of stockholders by such stockholders as have the right to vote on such
election. Directors need not be stockholders of the Corporation.
2. CLASSES OF DIRECTORS. The Board of Directors shall be and is divided
into three classes: Class I, Class II and Class III. No one class shall have
more than one director more than any other class.
3. ELECTION OF DIRECTORS. Elections of directors need not be by written
ballot except as and to the extent provided in the By-laws of the Corporation.
4. TERMS OF OFFICE. Each director shall serve for a term ending on the date
of the third annual meeting following the annual meeting at which such director
was elected; provided, however, that each initial director in Class I shall
serve for a term ending on the date of the annual meeting next following the end
of the Corporation's fiscal year ending December 31, 2000; each initial director
in Class II shall serve for a term ending on the date of the annual meeting next
following the end of the Corporation's fiscal year ending December 31, 2001; and
each initial director in Class III shall serve for a term ending on the date of
the annual meeting next following the end of the Corporation's fiscal year
ending December 31, 2002.
5. ALLOCATION OF DIRECTORS AMONG CLASSES IN THE EVENT OF INCREASES OR
DECREASES IN THE NUMBER OF DIRECTORS. In the event of any increase or decrease
in the authorized number of directors, (i) each director then serving as such
shall nevertheless continue as director of the class of which he or she is a
member until the expiration of such director's current term or his or her prior
death, removal or resignation and (ii) the newly created or eliminated
directorships resulting from such increase or decrease shall be apportioned by
the Board of Directors among the three classes of directors so as to ensure that
no one class has more than one director more than any other class. To the extent
possible, consistent with the foregoing rule, any newly
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created directorships shall be added to those classes whose terms of office are
to expire at the earliest dates following such allocation. No decrease in the
number of directors constituting the whole Board of Directors shall shorten the
term of an incumbent Director.
6. TENURE. Notwithstanding any provisions to the contrary contained herein,
each director shall hold office until his or her successor is elected and
qualified, or until his or her earlier death, resignation or removal.
7. VACANCIES. Unless and until filled by the stockholders, any vacancy in
the Board of Directors, however occurring, including a vacancy resulting from an
enlargement of the Board of Directors, may be filled only by vote of a majority
of the directors then in office, even if less than a quorum, or by a sole
remaining director. A director elected to fill a vacancy shall be elected for
the unexpired term of his or her predecessor in office, if applicable, and a
director chosen to fill a position resulting from an increase in the number of
directors shall hold office until the next election of the class for which such
director shall have been chosen and until his or her successor is elected and
qualified, or until his or her earlier death, resignation or removal.
8. QUORUM. A majority of the total number of the whole Board of Directors
shall constitute a quorum at all meetings of the Board of Directors. In the
event one or more of the directors shall be disqualified to vote at any meeting,
then the required quorum shall be reduced by one for each such director so
disqualified; provided, however, that in no case shall less than one-third (1/3)
of the number so fixed constitute a quorum. In the absence of a quorum at any
such meeting, a majority of the directors present may adjourn the meeting from
time to time without further notice other than announcement at the meeting,
until a quorum shall be present.
9. ACTION AT MEETING. At any meeting of the Board of Directors at which a
quorum is present, the vote of a majority of those present shall be sufficient
to take any action, unless a different vote is specified by law or the
Corporation's By-laws.
10. REMOVAL. Any one or more or all of the directors may be removed (i)
with cause only by the holders of at least a majority of the shares then
entitled to vote at an election of directors or (ii) without cause only by the
holders of at least seventy-five percent (75%) of the shares then entitled to
vote at an election of directors.
11. STOCKHOLDER NOMINATIONS AND INTRODUCTION OF BUSINESS, ETC. Advance
notice of stockholder nominations for election of directors and other business
to be brought by stockholders before a meeting of stockholders shall be given in
the manner provided in the By-laws of the Corporation.
12. RIGHTS OF PREFERRED STOCK. The provisions of this Article are subject
to the rights of the holders of any series of Preferred Stock from time to time
outstanding.
EIGHTH. No director (including any advisory director) of the Corporation
shall be personally liable to the Corporation or its stockholders for monetary
damages for breach of fiduciary duty as a director notwithstanding any provision
of law imposing such liability;
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provided, however, that, to the extent provided by applicable law, this
provision shall not eliminate the liability of a director (i) for any breach of
the director's duty of loyalty to the Corporation or its stockholders, (ii) for
acts or omissions not in good faith or which involve intentional misconduct or a
knowing violation of law, (iii) under Section 174 of the General Corporation Law
of the State of Delaware, or (iv) for any transaction from which the director
derived an improper personal benefit. No amendment to or repeal of this
provision shall apply to or have any effect on the liability or alleged
liability of any director for or with respect to any acts or omissions of such
director occurring prior to such amendment or repeal.
NINTH. The Board of Directors of the Corporation, when evaluating any offer
of another party (a) to make a tender or exchange offer for any equity security
of the Corporation or (b) to effect a business combination, shall, in connection
with the exercise of its judgment in determining what is in the best interests
of the Corporation as whole, be authorized to give due consideration to any such
factors as the Board of Directors determines to be relevant, including, without
limitation:
(i) the interests of the Corporation's stockholders, including the
possibility that these interests might be best served by the continued
independence of the Corporation;
(ii) whether the proposed transaction might violate federal or state
laws;
(iii) not only the consideration being offered in the proposed
transaction, in relation to the then current market price for the
outstanding capital stock of the Corporation, but also to the market price
for the capital stock of the Corporation over a period of years, the
estimated price that might be achieved in a negotiated sale of the
Corporation as a whole or in part or through orderly liquidation, the
premiums over market price for the securities of other corporations in
similar transactions, current political, economic and other factors bearing
on securities prices and the Corporation's financial condition and future
prospects; and
(iv) the social, legal and economic effects upon employees, suppliers,
customers, creditors and others having similar relationships with the
Corporation, upon the communities in which the Corporation conducts its
business and upon the economy of the state, region and nation.
In connection with any such evaluation, the Board of Directors is authorized to
conduct such investigations and engage in such legal proceedings as the Board of
Directors may determine.
TENTH.
1. ACTIONS, SUITS AND PROCEEDINGS OTHER THAN BY OR IN THE RIGHT OF THE
CORPORATION. The Corporation shall indemnify each person who was or is a party
or is threatened to be made a party to any threatened, pending or completed
action, suit or proceeding, whether civil, criminal, administrative or
investigative (other than an action by or in the right of the Corporation), by
reason of the fact that he is or was, or has agreed to become, a director or
officer of the Corporation, or is or was serving, or has agreed to serve, at the
request of the
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Corporation, as a director, officer or trustee of, or in a similar capacity
with, another corporation, partnership, joint venture, trust or other enterprise
(including any employee benefit plan) (all such persons being referred to
hereafter as an "Indemnitee"), or by reason of any action alleged to have been
taken or omitted in such capacity, against all expenses (including attorneys'
fees), judgments, fines and amounts paid in settlement actually and reasonably
incurred by him or on his behalf in connection with such action, suit or
proceeding and any appeal therefrom, if he acted in good faith and in a manner
he reasonably believed to be in, or not opposed to, the best interests of the
Corporation, and, with respect to any criminal action or proceeding, had no
reasonable cause to believe his conduct was unlawful. The termination of any
action, suit or proceeding by judgment, order, settlement, conviction or upon a
plea of NOLO CONTENDERE or its equivalent, shall not, of itself, create a
presumption that the person did not act in good faith and in a manner which he
reasonably believed to be in, or not opposed to, the best interests of the
Corporation, and, with respect to any criminal action or proceeding, had
reasonable cause to believe that his conduct was unlawful. Notwithstanding
anything to the contrary in this Article, except as set forth in Section 6
below, the Corporation shall not indemnify an Indemnitee seeking indemnification
in connection with a proceeding (or part thereof) initiated by the Indemnitee
unless the initiation thereof was approved by the Board of Directors of the
Corporation.
2. ACTIONS OR SUITS BY OR IN THE RIGHT OF THE CORPORATION. The Corporation
shall indemnify any Indemnitee who was or is a party or is threatened to be made
a party to any threatened, pending or completed action or suit by or in the
right of the Corporation to procure a judgment in its favor by reason of the
fact that he is or was, or has agreed to become, a director or officer of the
Corporation, or is or was serving, or has agreed to serve, at the request of the
Corporation, as a director, officer or trustee of, or in a similar capacity
with, another corporation, partnership, joint venture, trust or other enterprise
(including any employee benefit plan), or by reason of any action alleged to
have been taken or omitted in such capacity, against all expenses (including
attorneys' fees) and amounts paid in settlement actually and reasonably incurred
by him or on his behalf in connection with such action, suit or proceeding and
any appeal therefrom, if he acted in good faith and in a manner he reasonably
believed to be in, or not opposed to, the best interests of the Corporation,
except that no indemnification shall be made in respect of any claim, issue or
matter as to which such person shall have been adjudged to be liable to the
Corporation unless and only to the extent that the Court of Chancery of Delaware
or the court in which such action or suit was brought shall determine upon
application that, despite the adjudication of such liability but in view of all
the circumstances of the case, such person is fairly and reasonably entitled to
indemnity for such expenses (including attorneys' fees) which the Court of
Chancery of Delaware or such other court shall deem proper.
3. INDEMNIFICATION FOR EXPENSES OF SUCCESSFUL PARTY. Notwithstanding the
other provisions of this Article, to the extent that an Indemnitee has been
successful, on the merits or otherwise, in defense of any action, suit or
proceeding referred to in Sections 1 and 2 of this Article, or in defense of any
claim, issue or matter therein, or on appeal from any such action, suit or
proceeding, he shall be indemnified against all expenses (including attorneys'
fees) actually and reasonably incurred by him or on his behalf in connection
therewith. Without limiting the foregoing, if any action, suit or proceeding is
disposed of, on the merits or otherwise (including a disposition without
prejudice), without (i) the disposition being adverse to the
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Indemnitee, (ii) an adjudication that the Indemnitee was liable to the
Corporation, (iii) a plea of guilty or NOLO CONTENDERE by the Indemnitee, (iv)
an adjudication that the Indemnitee did not act in good faith and in a manner he
reasonably believed to be in or not opposed to the best interests of the
Corporation, and (v) with respect to any criminal proceeding, an adjudication
that the Indemnitee had reasonable cause to believe his conduct was unlawful,
the Indemnitee shall be considered for the purpose hereof to have been wholly
successful with respect thereto.
4. NOTIFICATION AND DEFENSE OF CLAIM. As a condition precedent to his right
to be indemnified, the Indemnitee must notify the Corporation in writing as soon
as practicable of any action, suit, proceeding or investigation involving him
for which indemnity will or could be sought. With respect to any action, suit,
proceeding or investigation of which the Corporation is so notified, the
Corporation will be entitled to participate therein at its own expense and/or to
assume the defense thereof at its own expense, with legal counsel reasonably
acceptable to the Indemnitee. After notice from the Corporation to the
Indemnitee of its election so to assume such defense, the Corporation shall not
be liable to the Indemnitee for any legal or other expenses subsequently
incurred by the Indemnitee in connection with such claim, other than as provided
below in this Section 4. The Indemnitee shall have the right to employ his own
counsel in connection with such claim, but the fees and expenses of such counsel
incurred after notice from the Corporation of its assumption of the defense
thereof shall be at the expense of the Indemnitee unless (i) the employment of
counsel by the Indemnitee has been authorized by the Corporation, (ii) counsel
to the Indemnitee shall have reasonably concluded that there may be a conflict
of interest or position on any significant issue between the Corporation and the
Indemnitee in the conduct of the defense of such action or (iii) the Corporation
shall not in fact have employed counsel to assume the defense of such action, in
each of which cases the fees and expenses of counsel for the Indemnitee shall be
at the expense of the Corporation, except as otherwise expressly provided by
this Article. The Corporation shall not be entitled, without the consent of the
Indemnitee, to assume the defense of any claim brought by or in the right of the
Corporation or as to which counsel for the Indemnitee shall have reasonably made
the conclusion provided for in clause (ii) above.
5. ADVANCE OF EXPENSES. Subject to the provisions of Section 6 below, in
the event that the Corporation does not assume the defense pursuant to Section 4
of this Article of any action, suit, proceeding or investigation of which the
Corporation receives notice under this Article, any expenses (including
attorneys' fees) incurred by an Indemnitee in defending a civil or criminal
action, suit, proceeding or investigation or any appeal therefrom shall be paid
by the Corporation in advance of the final disposition of such matter, PROVIDED,
HOWEVER, that the payment of such expenses incurred by an Indemnitee in advance
of the final disposition of such matter shall be made only upon receipt of an
undertaking by or on behalf of the Indemnitee to repay all amounts so advanced
in the event that it shall ultimately be determined that the Indemnitee is not
entitled to be indemnified by the Corporation as authorized in this Article.
Such undertaking may be accepted without reference to the financial ability of
such person to make such repayment.
6. PROCEDURE FOR INDEMNIFICATION. In order to obtain indemnification or
advancement of expenses pursuant to Section 1, 2, 3 or 5 of this Article, the
Indemnitee shall
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submit to the Corporation a written request, including in such request such
documentation and information as is reasonably available to the Indemnitee and
is reasonably necessary to determine whether and to what extent the Indemnitee
is entitled to indemnification or advancement of expenses. Any such
indemnification or advancement of expenses shall be made promptly, and in any
event within 60 days after receipt by the Corporation of the written request of
the Indemnitee, unless with respect to requests under Section 1, 2 or 5 the
Corporation determines, by clear and convincing evidence, within such 60-day
period that the Indemnitee did not meet the applicable standard of conduct set
forth in Section 1 or 2, as the case may be. Such determination shall be made in
each instance by (a) a majority vote of the directors of the Corporation who are
not at that time parties to the action, suit or proceeding in question
("disinterested directors"), even though less than a quorum, (b) by a committee
of disinterested directors designated by a majority vote of disinterested
directors, even though less than a quorum, (c) if there are no such
disinterested directors, or if such disinterested directors so direct, by
independent legal counsel (who may be regular legal counsel to the corporation)
in a written opinion, (d) a majority vote of a quorum of the outstanding shares
of stock of all classes entitled to vote for directors, voting as a single
class, which quorum shall consist of stockholders who are not at that time
parties to the action, suit or proceeding in question, or (e) a court of
competent jurisdiction.
7. REMEDIES. The right to indemnification or advances as granted by this
Article shall be enforceable by the Indemnitee in any court of competent
jurisdiction if the Corporation denies such request, in whole or in part, or if
no disposition thereof is made within the 60-day period referred to above in
Section 6. Unless otherwise provided by law, the burden of proving that the
Indemnitee is not entitled to indemnification or advancement of expenses under
this Article shall be on the Corporation. Neither the failure of the Corporation
to have made a determination prior to the commencement of such action that
indemnification is proper in the circumstances because the Indemnitee has met
the applicable standard of conduct, nor an actual determination by the
Corporation pursuant to Section 6 that the Indemnitee has not met such
applicable standard of conduct, shall be a defense to the action or create a
presumption that the Indemnitee has not met the applicable standard of conduct.
The Indemnitee's expenses (including attorneys' fees) incurred in connection
with successfully establishing his right to indemnification, in whole or in
part, in any such proceeding shall also be indemnified by the Corporation.
8. SUBSEQUENT AMENDMENT. No amendment, termination or repeal of this
Article or of the relevant provisions of the General Corporation Law of the
State of Delaware or any other applicable laws shall affect or diminish in any
way the rights of any Indemnitee to indemnification under the provisions hereof
with respect to any action, suit, proceeding or investigation arising out of or
relating to any actions, transactions or facts occurring prior to the final
adoption of such amendment, termination or repeal.
9. OTHER RIGHTS. The indemnification and advancement of expenses provided
by this Article shall not be deemed exclusive of any other rights to which an
Indemnitee seeking indemnification or advancement of expenses may be entitled
under any law (common or statutory), agreement or vote of stockholders or
disinterested directors or otherwise, both as to
<PAGE>
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action in his official capacity and as to action in any other capacity while
holding office for the Corporation, and shall continue as to an Indemnitee who
has ceased to be a director or officer, and shall inure to the benefit of the
estate, heirs, executors and administrators of the Indemnitee. Nothing contained
in this Article shall be deemed to prohibit, and the Corporation is specifically
authorized to enter into, agreements with officers and directors providing
indemnification rights and procedures different from those set forth in this
Article. In addition, the Corporation may, to the extent authorized from time to
time by its Board of Directors, grant indemnification rights to other employees
or agents of the Corporation or other persons serving the Corporation and such
rights may be equivalent to, or greater or less than, those set forth in this
Article.
10. PARTIAL INDEMNIFICATION. If an Indemnitee is entitled under any
provision of this Article to indemnification by the Corporation for some or a
portion of the expenses (including attorneys' fees), judgments, fines or amounts
paid in settlement actually and reasonably incurred by him or on his behalf in
connection with any action, suit, proceeding or investigation and any appeal
therefrom but not, however, for the total amount thereof, the Corporation shall
nevertheless indemnify the Indemnitee for the portion of such expenses
(including attorneys' fees), judgments, fines or amounts paid in settlement to
which the Indemnitee is entitled.
11. INSURANCE. The Corporation may purchase and maintain insurance, at its
expense, to protect itself and any director, officer, employee or agent of the
Corporation or another corporation, partnership, joint venture, trust or other
enterprise (including any employee benefit plan) against any expense, liability
or loss incurred by him in any such capacity, or arising out of his status as
such, whether or not the Corporation would have the power to indemnify such
person against such expense, liability or loss under the General Corporation Law
of the State of Delaware.
12. MERGER OR CONSOLIDATION. If the Corporation is merged into or
consolidated with another corporation and the Corporation is not the surviving
corporation, the surviving corporation shall assume the obligations of the
Corporation under this Article with respect to any action, suit, proceeding or
investigation arising out of or relating to any actions, transactions or facts
occurring prior to the date of such merger or consolidation.
13. SAVINGS CLAUSE. If this Article or any portion hereof shall be
invalidated on any ground by any court of competent jurisdiction, then the
Corporation shall nevertheless indemnify each Indemnitee as to any expenses
(including attorneys' fees), judgments, fines and amounts paid in settlement in
connection with any action, suit, proceeding or investigation, whether civil,
criminal or administrative, including an action by or in the right of the
Corporation, to the fullest extent permitted by an applicable portion of this
Article that shall not have been invalidated and to the fullest extent permitted
by applicable law.
14. DEFINITIONS. Terms used herein and defined in Section 145(h) and
Section 145(i) of the General Corporation Law of the State of Delaware shall
have the respective meanings assigned to such terms in such Section 145(h) and
Section 145(i).
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15. SUBSEQUENT LEGISLATION. If the General Corporation Law of the State of
Delaware is amended after adoption of this Article to expand further the
indemnification permitted to Indemnitees, then the Corporation shall indemnify
such persons to the fullest extent permitted by the General Corporation Law of
the State of Delaware, as so amended.
ELEVENTH. The Corporation reserves the right to amend or repeal any
provision contained in this Fourth Amended and Restated Certificate of
Incorporation in the manner prescribed by the laws of the State of Delaware and
all rights conferred upon stockholders are granted subject to this reservation,
PROVIDED, HOWEVER, that in addition to any vote of the holders of any class or
series of stock of the Corporation required by law, this Fourth Amended and
Restated Certificate of Incorporation or a Certificate of Designation with
respect to a series of Preferred Stock, the affirmative vote of the holders of
shares of voting stock of the Corporation representing at least seventy-five
percent (75%) of the voting power of all of the then outstanding shares of the
capital stock of the Corporation entitled to vote generally in the election of
directors, voting together as a single class, shall be required to (i) reduce or
eliminate the number of authorized shares of Common Stock or the number of
authorized shares of Preferred Stock set forth in Article FOURTH or (ii) amend
or repeal, or adopt any provision inconsistent with, Parts A, B and C of Article
FOURTH and Articles FIFTH, SIXTH, SEVENTH, EIGHTH, NINTH, TENTH and this Article
ELEVENTH of this Amended and Restated Certificate of Incorporation.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
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IN WITNESS WHEREOF, the undersigned has hereunto signed his name and
affirms that the statements made in this Fourth Amended and Restated Certificate
of Incorporation are true under the penalties of perjury this ____ day of ____,
2000.
By:______________________________
Name: Akhil Garland
Title: President, Chief Executive Officer and
Chairman
Attest:
By:______________________________
Name: Patrick Moran
Title: Secretary
<PAGE>
EXHIBIT 3.03
FIFTH AMENDED AND RESTATED CERTIFICATE OF INCORPORATION
OF
ESSENTIAL.COM, INC.
(INCORPORATED OCTOBER 30, 1998)
* * * * * *
I, Akhil Garland, President of essential.com, inc. (the "Corporation"), a
corporation organized and existing under and by virtue of the General
Corporation Law of the State of Delaware, do hereby certify that the Certificate
of Incorporation of essential.com, inc. , as amended, originally incorporated
under the name, etility.com, inc., has been further amended, and restated as
amended, in accordance with provisions of Sections 242 and 245 of the General
Corporation Law of the State of Delaware, and, as amended and restated, is set
forth in its entirety as follows:
FIRST. The name of the Corporation is essential.com, inc.
SECOND. The address of the registered office of the Corporation in the
State of Delaware is 1209 Orange Street, Wilmington, County of New Castle,
Delaware 19801. The name of its registered agent at such address is The
Corporation Trust Company.
THIRD. The nature of the business or purposes to be conducted or promoted
is to engage in any lawful act or activity for which corporations may be
organized under the General Corporation Law of the State of Delaware.
FOURTH. The total number of shares of all classes of capital stock which
the Corporation shall have authority to issue is 400,000,000 shares, consisting
of 395,000,000 shares of Common Stock with a par value of $.01 per share (the
"Common Stock") and 5,000,000 shares of Preferred Stock with a par value of $.01
per share (the "Preferred Stock").
A description of the respective classes of stock and a statement of the
designations, powers, preferences and rights, and the qualifications,
limitations and restrictions of the Preferred Stock and Common Stock are as
follows:
A. COMMON STOCK
1. GENERAL. All shares of Common Stock will be identical and will entitle
the holders thereof to the same rights, powers and privileges. The rights,
powers and privileges of the holders of the Common Stock are subject to and
qualified by the rights of holders of the Preferred Stock.
<PAGE>
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2. DIVIDENDS. Dividends may be declared and paid on the Common Stock from
funds lawfully available therefor as and when determined by the Board of
Directors and subject to any preferential dividend rights of any then
outstanding Preferred Stock.
3. DISSOLUTION, LIQUIDATION OR WINDING UP. In the event of any dissolution,
liquidation or winding up of the affairs of the Corporation, whether voluntary
or involuntary, each issued and outstanding share of Common Stock shall entitle
the holder thereof to receive an equal portion of the net assets of the
Corporation available for distribution to the holders of Common Stock, subject
to any preferential rights of any then outstanding Preferred Stock.
4. VOTING RIGHTS. Except as otherwise required by law or this Fifth Amended
and Restated Certificate of Incorporation, each holder of Common Stock shall
have one vote in respect of each share of stock held of record by such holder on
the books of the Corporation for the election of directors and on all matters
submitted to a vote of stockholders of the Corporation. Except as otherwise
required by law or provided herein, holders of Common Stock shall vote together
with holders of the Preferred Stock as a single class, subject to any special or
preferential voting rights of any then outstanding Preferred Stock. There shall
be no cumulative voting.
B. PREFERRED STOCK
The Preferred Stock may be issued in one or more series at such time or
times and for such consideration or considerations as the Board of Directors of
the Corporation may determine. Each series shall be so designated as to
distinguish the shares thereof from the shares of all other series and classes.
Except as otherwise provided in this Fifth Amended and Restated Certificate of
Incorporation, different series of Preferred Stock shall not be construed to
constitute different classes of shares for the purpose of voting by classes.
The Board of Directors is expressly authorized to provide for the issuance
of all or any shares of the undesignated Preferred Stock in one or more series,
each with such designations, preferences, voting powers (or special,
preferential or no voting powers), relative, participating, optional or other
special rights and privileges and such qualifications, limitations or
restrictions thereof as shall be stated in the resolution or resolutions adopted
by the Board of Directors to create such series, and a certificate of said
resolution or resolutions (a "Certificate of Designation") shall be filed in
accordance with the General Corporation Law of the State of Delaware. The
authority of the Board of Directors with respect to each such series shall
include, without limitation of the foregoing, the right to provide that the
shares of each such series may be: (i) subject to redemption at such time or
times and at such price or prices; (ii) entitled to receive dividends (which may
be cumulative or non-cumulative) at such rates, on such conditions, and at such
times, and payable in preference to, or in such relation to, the dividends
payable on any other class or classes or any other series; (iii) entitled to
such rights upon the dissolution of, or upon any distribution of the assets of,
the Corporation; (iv) convertible into, or exchangeable for, shares of any other
class or classes of stock, or of any other series of the same or any other class
or classes of stock of the Corporation at such price or prices or at such rates
of exchange and with such adjustments, if any; (v) entitled to the benefit of
such limitations, if any,
<PAGE>
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on the issuance of additional shares of such series or shares of any other
series of Preferred Stock; or (vi) entitled to such other preferences, powers,
qualifications, rights and privileges, all as the Board of Directors may deem
advisable and as are not inconsistent with law and the provisions of this Fifth
Amended and Restated Certificate of Incorporation.
FIFTH. The Corporation is to have perpetual existence.
SIXTH. The following provisions are included for the management of the
business and the conduct of the affairs of the Corporation, and for further
definition, limitation and regulation of the powers of the Corporation and of
its Board of Directors and stockholders:
1. The business and affairs of the Corporation shall be managed by or
under the direction of the Board of Directors of the Corporation.
2. The Board of Directors of the Corporation is expressly authorized
to adopt, amend or repeal the By-laws of the Corporation, subject to any
limitation thereof contained in the By-laws. The stockholders shall also have
the power to adopt, amend or repeal the By-laws of the Corporation; PROVIDED,
however, that, in addition to any vote of the holders of any class or series of
stock of the Corporation required by law or by this Amended and Restated
Certificate of Incorporation, the affirmative vote of the holders of at least
[seventy-five percent (75%)] of the voting power of all of the then outstanding
shares of the capital stock of the Corporation entitled to vote generally in the
election of directors, voting together as a single class, shall be required to
adopt, amend or repeal any provision of the By-laws of the Corporation.
3. Stockholders of the Corporation may not take any action by written
consent in lieu of a meeting.
4. Special meetings of stockholders may be called at any time only by
the Chief Executive Officer, President, the Chairman of the Board of Directors
(if any) or a majority of the Board of Directors. Business transacted at any
special meeting of stockholders shall be limited to matters relating to the
purpose or purposes stated in the notice of meeting.
5. The books of the Corporation may be kept at such place within or
without the State of Delaware as the By-laws of the Corporation may provide or
as may be designated from time to time by the Board of Directors of the
Corporation.
SEVENTH.
1. NUMBER OF DIRECTORS. The number of directors which shall constitute the
whole Board of Directors shall be determined by resolution of a majority of the
Board of Directors, but in no event shall the number of directors be less than
three. The number of directors may be decreased at any time and from time to
time by a majority of the directors then in office, but only to eliminate
vacancies existing by reason of the death, resignation, removal or expiration of
the term of one or more directors. The directors shall be elected at the annual
meeting of
<PAGE>
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stockholders by such stockholders as have the right to vote on such election.
Directors need not be stockholders of the Corporation.
2. CLASSES OF DIRECTORS. The Board of Directors shall be and is divided
into three classes: Class I, Class II and Class III. No one class shall have
more than one director more than any other class.
3. ELECTION OF DIRECTORS. Elections of directors need not be by written
ballot except as and to the extent provided in the By-laws of the Corporation.
4. TERMS OF OFFICE. Each director shall serve for a term ending on the date
of the third annual meeting following the annual meeting at which such director
was elected; provided, however, that each initial director in Class I shall
serve for a term ending on the date of the annual meeting next following the end
of the Corporation's fiscal year ending December 31, 2000; each initial director
in Class II shall serve for a term ending on the date of the annual meeting next
following the end of the Corporation's fiscal year ending December 31, 2001; and
each initial director in Class III shall serve for a term ending on the date of
the annual meeting next following the end of the Corporation's fiscal year
ending December 31, 2002.
5. ALLOCATION OF DIRECTORS AMONG CLASSES IN THE EVENT OF INCREASES OR
DECREASES IN THE NUMBER OF DIRECTORS. In the event of any increase or decrease
in the authorized number of directors, (i) each director then serving as such
shall nevertheless continue as director of the class of which he or she is a
member until the expiration of such director's current term or his or her prior
death, removal or resignation and (ii) the newly created or eliminated
directorships resulting from such increase or decrease shall be apportioned by
the Board of Directors among the three classes of directors so as to ensure that
no one class has more than one director more than any other class. To the extent
possible, consistent with the foregoing rule, any newly created directorships
shall be added to those classes whose terms of office are to expire at the
earliest dates following such allocation. No decrease in the number of directors
constituting the whole Board of Directors shall shorten the term of an incumbent
Director.
6. TENURE. Notwithstanding any provisions to the contrary contained herein,
each director shall hold office until his or her successor is elected and
qualified, or until his or her earlier death, resignation or removal.
7. VACANCIES. Unless and until filled by the stockholders, any vacancy in
the Board of Directors, however occurring, including a vacancy resulting from an
enlargement of the Board of Directors, may be filled only by vote of a majority
of the directors then in office, even if less than a quorum, or by a sole
remaining director. A director elected to fill a vacancy shall be elected for
the unexpired term of his or her predecessor in office, if applicable, and a
director chosen to fill a position resulting from an increase in the number of
directors shall hold office until the next election of the class for which such
director shall have been chosen and until his or her successor is elected and
qualified, or until his or her earlier death, resignation or removal.
<PAGE>
-5-
8. QUORUM. A majority of the total number of the whole Board of
Directors shall constitute a quorum at all meetings of the Board of Directors.
In the event one or more of the directors shall be disqualified to vote at any
meeting, then the required quorum shall be reduced by one for each such director
so disqualified; provided, however, that in no case shall less than one-third
(1/3) of the number so fixed constitute a quorum. In the absence of a quorum at
any such meeting, a majority of the directors present may adjourn the meeting
from time to time without further notice other than announcement at the meeting,
until a quorum shall be present.
9. ACTION AT MEETING. At any meeting of the Board of Directors at
which a quorum is present, the vote of a majority of those present shall be
sufficient to take any action, unless a different vote is specified by law or
the Corporation's By-laws.
10. REMOVAL. Any one or more or all of the directors may be removed
(i) with cause only by the holders of at least a majority of the shares then
entitled to vote at an election of directors or (ii) without cause only by the
holders of at least seventy-five percent (75%) of the shares then entitled to
vote at an election of directors.
11. STOCKHOLDER NOMINATIONS AND INTRODUCTION OF BUSINESS, ETC. Advance
notice of stockholder nominations for election of directors and other business
to be brought by stockholders before a meeting of stockholders shall be given in
the manner provided in the By-laws of the Corporation.
12. RIGHTS OF PREFERRED STOCK. The provisions of this Article are
subject to the rights of the holders of any series of Preferred Stock from time
to time outstanding.
EIGHTH. No director (including any advisory director) of the
Corporation shall be personally liable to the Corporation or its stockholders
for monetary damages for breach of fiduciary duty as a director notwithstanding
any provision of law imposing such liability; provided, however, that, to the
extent provided by applicable law, this provision shall not eliminate the
liability of a director (i) for any breach of the director's duty of loyalty to
the Corporation or its stockholders, (ii) for acts or omissions not in good
faith or which involve intentional misconduct or a knowing violation of law,
(iii) under Section 174 of the General Corporation Law of the State of Delaware,
or (iv) for any transaction from which the director derived an improper personal
benefit. No amendment to or repeal of this provision shall apply to or have any
effect on the liability or alleged liability of any director for or with respect
to any acts or omissions of such director occurring prior to such amendment or
repeal.
NINTH. The Board of Directors of the Corporation, when evaluating any
offer of another party (a) to make a tender or exchange offer for any equity
security of the Corporation or (b) to effect a business combination, shall, in
connection with the exercise of its judgment in determining what is in the best
interests of the Corporation as whole, be authorized to give due consideration
to any such factors as the Board of Directors determines to be relevant,
including, without limitation:
<PAGE>
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(i) the interests of the Corporation's stockholders, including the
possibility that these interests might be best served by the continued
independence of the Corporation;
(ii) whether the proposed transaction might violate federal or state
laws;
(iii) not only the consideration being offered in the proposed
transaction, in relation to the then current market price for the
outstanding capital stock of the Corporation, but also to the market price
for the capital stock of the Corporation over a period of years, the
estimated price that might be achieved in a negotiated sale of the
Corporation as a whole or in part or through orderly liquidation, the
premiums over market price for the securities of other corporations in
similar transactions, current political, economic and other factors
bearing on securities prices and the Corporation's financial condition and
future prospects; and
(iv) the social, legal and economic effects upon employees, suppliers,
customers, creditors and others having similar relationships with the
Corporation, upon the communities in which the Corporation conducts its
business and upon the economy of the state, region and nation.
In connection with any such evaluation, the Board of Directors is authorized to
conduct such investigations and engage in such legal proceedings as the Board of
Directors may determine.
TENTH.
1. ACTIONS, SUITS AND PROCEEDINGS OTHER THAN BY OR IN THE RIGHT OF THE
CORPORATION. The Corporation shall indemnify each person who was or is a party
or is threatened to be made a party to any threatened, pending or completed
action, suit or proceeding, whether civil, criminal, administrative or
investigative (other than an action by or in the right of the Corporation), by
reason of the fact that he is or was, or has agreed to become, a director or
officer of the Corporation, or is or was serving, or has agreed to serve, at the
request of the Corporation, as a director, officer or trustee of, or in a
similar capacity with, another corporation, partnership, joint venture, trust or
other enterprise (including any employee benefit plan) (all such persons being
referred to hereafter as an "Indemnitee"), or by reason of any action alleged to
have been taken or omitted in such capacity, against all expenses (including
attorneys' fees), judgments, fines and amounts paid in settlement actually and
reasonably incurred by him or on his behalf in connection with such action, suit
or proceeding and any appeal therefrom, if he acted in good faith and in a
manner he reasonably believed to be in, or not opposed to, the best interests of
the Corporation, and, with respect to any criminal action or proceeding, had no
reasonable cause to believe his conduct was unlawful. The termination of any
action, suit or proceeding by judgment, order, settlement, conviction or upon a
plea of NOLO CONTENDERE or its equivalent, shall not, of itself, create a
presumption that the person did not act in good faith and in a manner which he
reasonably believed to be in, or not opposed to, the best interests of the
Corporation, and, with respect to any criminal action or proceeding, had
reasonable cause to believe that his conduct was unlawful. Notwithstanding
anything to the contrary in this Article, except as set forth in Section 6
below, the Corporation shall not indemnify an Indemnitee seeking
<PAGE>
-7-
indemnification in connection with a proceeding (or part thereof) initiated by
the Indemnitee unless the initiation thereof was approved by the Board of
Directors of the Corporation.
2. ACTIONS OR SUITS BY OR IN THE RIGHT OF THE CORPORATION. The Corporation
shall indemnify any Indemnitee who was or is a party or is threatened to be made
a party to any threatened, pending or completed action or suit by or in the
right of the Corporation to procure a judgment in its favor by reason of the
fact that he is or was, or has agreed to become, a director or officer of the
Corporation, or is or was serving, or has agreed to serve, at the request of the
Corporation, as a director, officer or trustee of, or in a similar capacity
with, another corporation, partnership, joint venture, trust or other enterprise
(including any employee benefit plan), or by reason of any action alleged to
have been taken or omitted in such capacity, against all expenses (including
attorneys' fees) and amounts paid in settlement actually and reasonably incurred
by him or on his behalf in connection with such action, suit or proceeding and
any appeal therefrom, if he acted in good faith and in a manner he reasonably
believed to be in, or not opposed to, the best interests of the Corporation,
except that no indemnification shall be made in respect of any claim, issue or
matter as to which such person shall have been adjudged to be liable to the
Corporation unless and only to the extent that the Court of Chancery of Delaware
or the court in which such action or suit was brought shall determine upon
application that, despite the adjudication of such liability but in view of all
the circumstances of the case, such person is fairly and reasonably entitled to
indemnity for such expenses (including attorneys' fees) which the Court of
Chancery of Delaware or such other court shall deem proper.
3. INDEMNIFICATION FOR EXPENSES OF SUCCESSFUL PARTY. Notwithstanding the
other provisions of this Article, to the extent that an Indemnitee has been
successful, on the merits or otherwise, in defense of any action, suit or
proceeding referred to in Sections 1 and 2 of this Article, or in defense of any
claim, issue or matter therein, or on appeal from any such action, suit or
proceeding, he shall be indemnified against all expenses (including attorneys'
fees) actually and reasonably incurred by him or on his behalf in connection
therewith. Without limiting the foregoing, if any action, suit or proceeding is
disposed of, on the merits or otherwise (including a disposition without
prejudice), without (i) the disposition being adverse to the Indemnitee, (ii) an
adjudication that the Indemnitee was liable to the Corporation, (iii) a plea of
guilty or NOLO CONTENDERE by the Indemnitee, (iv) an adjudication that the
Indemnitee did not act in good faith and in a manner he reasonably believed to
be in or not opposed to the best interests of the Corporation, and (v) with
respect to any criminal proceeding, an adjudication that the Indemnitee had
reasonable cause to believe his conduct was unlawful, the Indemnitee shall be
considered for the purpose hereof to have been wholly successful with respect
thereto.
4. NOTIFICATION AND DEFENSE OF CLAIM. As a condition precedent to his right
to be indemnified, the Indemnitee must notify the Corporation in writing as soon
as practicable of any action, suit, proceeding or investigation involving him
for which indemnity will or could be sought. With respect to any action, suit,
proceeding or investigation of which the Corporation is so notified, the
Corporation will be entitled to participate therein at its own expense and/or to
assume the defense thereof at its own expense, with legal counsel reasonably
acceptable to the Indemnitee. After notice from the Corporation to the
Indemnitee of its election so to assume such defense, the Corporation shall not
be liable to the Indemnitee for any legal or other expenses
<PAGE>
-8-
subsequently incurred by the Indemnitee in connection with such claim, other
than as provided below in this Section 4. The Indemnitee shall have the right to
employ his own counsel in connection with such claim, but the fees and expenses
of such counsel incurred after notice from the Corporation of its assumption of
the defense thereof shall be at the expense of the Indemnitee unless (i) the
employment of counsel by the Indemnitee has been authorized by the Corporation,
(ii) counsel to the Indemnitee shall have reasonably concluded that there may be
a conflict of interest or position on any significant issue between the
Corporation and the Indemnitee in the conduct of the defense of such action or
(iii) the Corporation shall not in fact have employed counsel to assume the
defense of such action, in each of which cases the fees and expenses of counsel
for the Indemnitee shall be at the expense of the Corporation, except as
otherwise expressly provided by this Article. The Corporation shall not be
entitled, without the consent of the Indemnitee, to assume the defense of any
claim brought by or in the right of the Corporation or as to which counsel for
the Indemnitee shall have reasonably made the conclusion provided for in clause
(ii) above.
5. ADVANCE OF EXPENSES. Subject to the provisions of Section 6 below,
in the event that the Corporation does not assume the defense pursuant to
Section 4 of this Article of any action, suit, proceeding or investigation of
which the Corporation receives notice under this Article, any expenses
(including attorneys' fees) incurred by an Indemnitee in defending a civil or
criminal action, suit, proceeding or investigation or any appeal therefrom shall
be paid by the Corporation in advance of the final disposition of such matter,
PROVIDED, HOWEVER, that the payment of such expenses incurred by an Indemnitee
in advance of the final disposition of such matter shall be made only upon
receipt of an undertaking by or on behalf of the Indemnitee to repay all amounts
so advanced in the event that it shall ultimately be determined that the
Indemnitee is not entitled to be indemnified by the Corporation as authorized in
this Article. Such undertaking may be accepted without reference to the
financial ability of such person to make such repayment.
6. PROCEDURE FOR INDEMNIFICATION. In order to obtain indemnification
or advancement of expenses pursuant to Section 1, 2, 3 or 5 of this Article, the
Indemnitee shall submit to the Corporation a written request, including in such
request such documentation and information as is reasonably available to the
Indemnitee and is reasonably necessary to determine whether and to what extent
the Indemnitee is entitled to indemnification or advancement of expenses. Any
such indemnification or advancement of expenses shall be made promptly, and in
any event within 60 days after receipt by the Corporation of the written request
of the Indemnitee, unless with respect to requests under Section 1, 2 or 5 the
Corporation determines, by clear and convincing evidence, within such 60-day
period that the Indemnitee did not meet the applicable standard of conduct set
forth in Section 1 or 2, as the case may be. Such determination shall be made in
each instance by (a) a majority vote of the directors of the Corporation who are
not at that time parties to the action, suit or proceeding in question
("disinterested directors"), even though less than a quorum, (b) by a committee
of disinterested directors designated by a majority vote of disinterested
directors, even though less than a quorum, (c) if there are no such
disinterested directors, or if such disinterested directors so direct, by
independent legal counsel (who may be regular legal counsel to the corporation)
in a written opinion, (d) a majority vote of a quorum of the outstanding shares
of stock of all classes entitled
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to vote for directors, voting as a single class, which quorum shall consist of
stockholders who are not at that time parties to the action, suit or proceeding
in question, or (e) a court of competent jurisdiction.
7. REMEDIES. The right to indemnification or advances as granted by
this Article shall be enforceable by the Indemnitee in any court of competent
jurisdiction if the Corporation denies such request, in whole or in part, or if
no disposition thereof is made within the 60-day period referred to above in
Section 6. Unless otherwise provided by law, the burden of proving that the
Indemnitee is not entitled to indemnification or advancement of expenses under
this Article shall be on the Corporation. Neither the failure of the Corporation
to have made a determination prior to the commencement of such action that
indemnification is proper in the circumstances because the Indemnitee has met
the applicable standard of conduct, nor an actual determination by the
Corporation pursuant to Section 6 that the Indemnitee has not met such
applicable standard of conduct, shall be a defense to the action or create a
presumption that the Indemnitee has not met the applicable standard of conduct.
The Indemnitee's expenses (including attorneys' fees) incurred in connection
with successfully establishing his right to indemnification, in whole or in
part, in any such proceeding shall also be indemnified by the Corporation.
8. SUBSEQUENT AMENDMENT. No amendment, termination or repeal of this
Article or of the relevant provisions of the General Corporation Law of the
State of Delaware or any other applicable laws shall affect or diminish in any
way the rights of any Indemnitee to indemnification under the provisions hereof
with respect to any action, suit, proceeding or investigation arising out of or
relating to any actions, transactions or facts occurring prior to the final
adoption of such amendment, termination or repeal.
9. OTHER RIGHTS. The indemnification and advancement of expenses
provided by this Article shall not be deemed exclusive of any other rights to
which an Indemnitee seeking indemnification or advancement of expenses may be
entitled under any law (common or statutory), agreement or vote of stockholders
or disinterested directors or otherwise, both as to action in his official
capacity and as to action in any other capacity while holding office for the
Corporation, and shall continue as to an Indemnitee who has ceased to be a
director or officer, and shall inure to the benefit of the estate, heirs,
executors and administrators of the Indemnitee. Nothing contained in this
Article shall be deemed to prohibit, and the Corporation is specifically
authorized to enter into, agreements with officers and directors providing
indemnification rights and procedures different from those set forth in this
Article. In addition, the Corporation may, to the extent authorized from time to
time by its Board of Directors, grant indemnification rights to other employees
or agents of the Corporation or other persons serving the Corporation and such
rights may be equivalent to, or greater or less than, those set forth in this
Article.
10. PARTIAL INDEMNIFICATION. If an Indemnitee is entitled under any
provision of this Article to indemnification by the Corporation for some or a
portion of the expenses (including attorneys' fees), judgments, fines or amounts
paid in settlement actually and reasonably incurred by him or on his behalf in
connection with any action, suit, proceeding or investigation and any appeal
therefrom but not, however, for the total amount thereof, the Corporation shall
<PAGE>
-10-
nevertheless indemnify the Indemnitee for the portion of such expenses
(including attorneys' fees), judgments, fines or amounts paid in settlement to
which the Indemnitee is entitled.
11. INSURANCE. The Corporation may purchase and maintain insurance, at its
expense, to protect itself and any director, officer, employee or agent of the
Corporation or another corporation, partnership, joint venture, trust or other
enterprise (including any employee benefit plan) against any expense, liability
or loss incurred by him in any such capacity, or arising out of his status as
such, whether or not the Corporation would have the power to indemnify such
person against such expense, liability or loss under the General Corporation Law
of the State of Delaware.
12. MERGER OR CONSOLIDATION. If the Corporation is merged into or
consolidated with another corporation and the Corporation is not the surviving
corporation, the surviving corporation shall assume the obligations of the
Corporation under this Article with respect to any action, suit, proceeding or
investigation arising out of or relating to any actions, transactions or facts
occurring prior to the date of such merger or consolidation.
13. SAVINGS CLAUSE. If this Article or any portion hereof shall be
invalidated on any ground by any court of competent jurisdiction, then the
Corporation shall nevertheless indemnify each Indemnitee as to any expenses
(including attorneys' fees), judgments, fines and amounts paid in settlement in
connection with any action, suit, proceeding or investigation, whether civil,
criminal or administrative, including an action by or in the right of the
Corporation, to the fullest extent permitted by an applicable portion of this
Article that shall not have been invalidated and to the fullest extent permitted
by applicable law.
14. DEFINITIONS. Terms used herein and defined in Section 145(h) and
Section 145(i) of the General Corporation Law of the State of Delaware shall
have the respective meanings assigned to such terms in such Section 145(h) and
Section 145(i).
15. SUBSEQUENT LEGISLATION. If the General Corporation Law of the State of
Delaware is amended after adoption of this Article to expand further the
indemnification permitted to Indemnitees, then the Corporation shall indemnify
such persons to the fullest extent permitted by the General Corporation Law of
the State of Delaware, as so amended.
ELEVENTH. The Corporation reserves the right to amend or repeal any
provision contained in this Fifth Amended and Restated Certificate of
Incorporation in the manner prescribed by the laws of the State of Delaware and
all rights conferred upon stockholders are granted subject to this reservation,
PROVIDED, HOWEVER, that in addition to any vote of the holders of any class or
series of stock of the Corporation required by law, this Fifth Amended and
Restated Certificate of Incorporation or a Certificate of Designation with
respect to a series of Preferred Stock, the affirmative vote of the holders of
shares of voting stock of the Corporation representing at least seventy-five
percent (75%) of the voting power of all of the then outstanding shares of the
capital stock of the Corporation entitled to vote generally in the election of
directors, voting together as a single class, shall be required to (i) reduce or
eliminate the number of authorized shares of Common Stock or the number of
authorized shares of Preferred Stock set
<PAGE>
-11-
forth in Article FOURTH or (ii) amend or repeal, or adopt any provision
inconsistent with, Parts A and B of Article FOURTH and Articles FIFTH, SIXTH,
SEVENTH, EIGHTH, NINTH, TENTH and this Article ELEVENTH of this Amended and
Restated Certificate of Incorporation.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
<PAGE>
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IN WITNESS WHEREOF, the undersigned has hereunto signed his name and
affirms that the statements made in this Fifth Amended and Restated Certificate
of Incorporation are true under the penalties of perjury this ____ day of ____,
2000.
By:______________________________
Name: Akhil Garland
Title: President, Chief Executive Officer and Chairman
Attest:
By:______________________________
Name: Patrick Moran
Title: Secretary
<PAGE>
SECOND AMENDED AND RESTATED BY-LAWS OF
essential.com, inc.
A DELAWARE CORPORATION
Dated: July 22, 1999
<PAGE>
<TABLE>
<CAPTION>
<S> <C>
ARTICLE I..............................................................................1
MEETINGS OF STOCKHOLDERS...............................................................1
SECTION 1. PLACE OF MEETINGS.........................................................1
SECTION 2. ANNUAL MEETING............................................................1
SECTION 3. SPECIAL MEETINGS..........................................................1
SECTION 4. NOTICE OF MEETINGS........................................................1
SECTION 5. VOTING LIST...............................................................2
SECTION 6. QUORUM....................................................................2
SECTION 7. ADJOURNMENTS..............................................................2
SECTION 8. ACTION AT MEETINGS........................................................2
SECTION 9. VOTING AND PROXIES........................................................3
SECTION 10. ACTION WITHOUT MEETING...................................................3
ARTICLE II.............................................................................3
DIRECTORS..............................................................................3
SECTION 1. NUMBER, ELECTION, TENURE AND QUALIFICATION................................3
SECTION 2. ENLARGEMENT...............................................................4
SECTION 3. VACANCIES.................................................................4
SECTION 4. RESIGNATION AND REMOVAL...................................................4
SECTION 5. GENERAL POWERS............................................................4
SECTION 6. CHAIRMAN OF THE BOARD ....................................................5
SECTION 7. PLACE OF MEETINGS ........................................................5
SECTION 8. REGULAR MEETINGS .........................................................5
SECTION 9. SPECIAL MEETINGS .........................................................5
SECTION 10. QUORUM, ACTION AT MEETING, ADJOURNMENTS .................................5
SECTION 11. ACTION BY CONSENT .......................................................5
SECTION 12. TELEPHONIC MEETINGS .....................................................6
SECTION 13. COMMITTEES ..............................................................6
SECTION 14. COMPENSATION ............................................................6
ARTICLE III............................................................................7
OFFICERS...............................................................................7
SECTION 1. ENUMERATION ..............................................................7
SECTION 2. ELECTION .................................................................7
SECTION 3. TENURE....................................................................7
SECTION 4. PRESIDENT.................................................................7
SECTION 5. VICE-PRESIDENTS ..........................................................8
SECTION 6. SECRETARY ................................................................8
SECTION 7. ASSISTANT SECRETARIES ....................................................8
SECTION 8. TREASURER ................................................................8
SECTION 9. ASSISTANT TREASURERS .....................................................9
SECTION 10. BOND ....................................................................9
ARTICLE IV.............................................................................9
NOTICES................................................................................9
SECTION 1. DELIVERY .................................................................9
SECTION 2. WAIVER OF NOTICE .........................................................9
ARTICLE V.............................................................................10
INDEMNIFICATION ......................................................................10
SECTION 1. ACTIONS OTHER THAN BY OR IN THE RIGHT OF THE CORPORATION ................10
SECTION 2. ACTIONS BY OR IN THE RIGHT OF THE CORPORATION ...........................10
SECTION 3. SUCCESS ON THE MERITS ...................................................10
SECTION 4. SPECIFIC AUTHORIZATION...................................................11
(i)
<PAGE>
SECTION 5. ADVANCE PAYMENT .........................................................11
SECTION 6. NON-EXCLUSIVITY .........................................................11
SECTION 7. INSURANCE ...............................................................11
SECTION 8. CONTINUATION OF INDEMNIFICATION AND ADVANCEMENT OF EXPENSES .............11
SECTION 9. SEVERABILITY ............................................................12
SECTION 10. INTENT OF ARTICLE .......................................................12
ARTICLE VI.............................................................................12
CAPITAL STOCK.........................................................................12
SECTION 1. CERTIFICATES OF STOCK ...................................................12
SECTION 2. LOST CERTIFICATES .......................................................12
SECTION 3. TRANSFER OF STOCK .......................................................12
SECTION 4. RECORD DATE .............................................................13
SECTION 5. REGISTERED STOCKHOLDERS .................................................13
ARTICLE VII...........................................................................14
CERTAIN TRANSACTIONS..................................................................14
SECTION 1. TRANSACTIONS WITH INTERESTED PARTIES.....................................14
SECTION 2. QUORUM...................................................................14
ARTICLE VIII .........................................................................14
GENERAL PROVISIONS....................................................................14
SECTION 1. DIVIDENDS................................................................14
SECTION 2. RESERVES ................................................................15
SECTION 3. CHECKS ..................................................................15
SECTION 4. FISCAL YEAR..............................................................15
SECTION 5. SEAL.....................................................................15
ARTICLE IX............................................................................15
AMENDMENTS ...........................................................................15
</TABLE>
Addendum
Register of Amendments to the By-Laws
(ii)
<PAGE>
essential.com, inc.
*****
SECOND AMENDED AND RESTATED
BY-LAWS
*****
ARTICLE I
MEETINGS OF STOCKHOLDERS
Section 1. PLACE OF MEETINGS. All meetings of the stockholders shall be
held at such place within or without the State of Delaware as may be fixed from
time to time by the Board of Directors or the Chief Executive Officer, or if not
so designated, at the registered office of the Corporation.
Section 2. ANNUAL MEETING. Unless directors are elected by written
consent in lieu of an annual meeting as permitted by law and these By-Laws, an
annual meeting of stockholders shall be held at such date and time as shall be
designated from time to time by the Board of Directors or the Chief Executive
Officer, at which meeting the stockholders shall elect by a plurality vote a
board of directors and shall transact such other business as may be properly
brought before the meeting. If no annual meeting is held in accordance with the
foregoing provisions, the Board of Directors shall cause the meeting to be held
as soon thereafter as convenient, which meeting shall be designated a special
meeting in lieu of annual meeting.
Section 3. SPECIAL MEETINGS. Special meetings of the stockholders, for
any purpose or purposes, may, unless otherwise prescribed by statute or by the
certificate of incorporation, be called by the Board of Directors or the Chief
Executive Officer and shall be called by the Chief Executive Officer or
Secretary at the request in writing of a majority of the Board of Directors, or
at the request in writing of stockholders owning a majority in amount of the
entire capital stock of the Corporation issued and outstanding and entitled to
vote. Such request shall state the purpose or purposes of the proposed meeting.
Business transacted at any special meeting shall be limited to matters relating
to the purpose or purposes stated in the notice of meeting.
Section 4. NOTICE OF MEETINGS. Except as otherwise provided by law,
written notice of each meeting of stockholders, annual or special, stating the
place, date and hour of the meeting and, in the case of a special meeting, the
purpose or purposes for which the meeting is called, shall be given not less
than ten (10) or more than sixty (60) days before the date of the meeting, to
each stockholder entitled to vote at such meeting.
<PAGE>
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Section 5. VOTING LIST. The officer who has charge of the stock ledger
of the Corporation shall prepare and make, at least ten (10) days before every
meeting of stockholders, a complete list of the stockholders entitled to vote at
the meeting, arranged in alphabetical order, and showing the address of each
stockholder and the number of shares registered in the name of each stockholder.
Such list shall be open to the examination of any stockholder, for any purpose
germane to the meeting, during ordinary business hours, for a period of at least
ten (10) days prior to the meeting, either at a place within the city or town
where the meeting is to be held, which place shall be specified in the notice of
the meeting, or, if not so specified, at the place where the meeting is to be
held. The list shall also be produced and kept at the time and place of the
meeting during the whole time thereof, and may be inspected by any stockholder
who is present.
Section 6. QUORUM. The holders of a majority of the stock issued and
outstanding and entitled to vote thereat, present in person or represented by
proxy, shall constitute a quorum at all meetings of the stockholders for the
transaction of business, except as otherwise provided by statute, the
certificate of incorporation or these By-Laws. Where a separate vote by a class
or classes is required, a majority of the outstanding shares of such class or
classes, present in person or represented by proxy, shall constitute a quorum
entitled to take action with respect to that vote on that matter. If no quorum
shall be present or represented at any meeting of stockholders, such meeting may
be adjourned in accordance with Section 7 hereof, until a quorum shall be
present or represented.
Section 7. ADJOURNMENTS. Any meeting of stockholders may be adjourned
from time to time to any other time and to any other place at which a meeting of
stockholders may be held under these By-Laws, which time and place shall be
announced at the meeting, by a majority of the stockholders present in person or
represented by proxy at the meeting and entitled to vote (whether or not a
quorum is present), or, if no stockholder is present or represented by proxy, by
any officer entitled to preside at or to act as Secretary of such meeting,
without notice other than announcement at the meeting. At such adjourned
meeting, any business may be transacted which might have been transacted at the
original meeting, provided that a quorum either was present at the original
meeting or is present at the adjourned meeting. If the adjournment is for more
than thirty days, or if after the adjournment a new record date is fixed for the
adjourned meeting, a notice of the adjourned meeting shall be given to each
stockholder of record entitled to vote at the meeting.
Section 8. ACTION AT MEETINGS. When a quorum is present at any meeting,
the affirmative vote of the holders of a majority of the stock present in person
or represented by proxy, entitled to vote and voting on the matter (or where a
separate vote by a class or classes is required, the affirmative vote of the
majority of shares of such class or classes present in person or represented by
proxy at the meeting) shall decide any matter (other than the election of
Directors) brought before such meeting, unless the matter is one upon which by
express provision of law, the certificate of incorporation or these By-Laws, a
different vote is required, in which case such express provision shall govern
and control the decision of such matter. The stock of holders who abstain from
voting on any matter shall be deemed not to have been voted on such matter.
Directors shall be elected by a plurality of the votes of the shares present in
<PAGE>
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person or represented by proxy at the meeting, entitled to vote and voting on
the election of Directors.
Section 9. VOTING AND PROXIES. Unless otherwise provided in the
certificate of incorporation, each stockholder shall at every meeting of the
stockholders be entitled to one vote for each share of capital stock having
voting power held of record by such stockholder. Each stockholder entitled to
vote at a meeting of stockholders, or to express consent or dissent to corporate
action in writing without a meeting, may authorize another person or persons to
act for him by proxy, but no such proxy shall be voted or acted upon after three
years from its date, unless the proxy provides for a longer period.
Section 10. ACTION WITHOUT MEETING. Any action required to be taken at
any annual or special meeting of stockholders, or any action which may be taken
at any annual or special meeting of such stockholders, may be taken without a
meeting, without prior notice and without a vote, if a consent or consents in
writing, setting forth the action so taken, shall be (1) signed and dated by the
holders of outstanding stock having not less than the minimum number of votes
that would be necessary to authorize or take such action at a meeting at which
all shares entitled to vote thereon were present and voted and (2) delivered to
the Corporation within sixty days of the earliest dated consent by delivery to
its registered office in the State of Delaware (in which case delivery shall be
by hand or by certified or registered mail, return receipt requested), its
principal place of business, or an officer or agent of the Corporation having
custody of the book in which proceedings of meetings of stockholders are
recorded. Prompt notice of the taking of the corporate action without a meeting
by less than unanimous written consent shall be given to those stockholders who
have not consented in writing.
ARTICLE II
DIRECTORS
Section 1. NUMBER, ELECTION, TENURE AND QUALIFICATION. The number of
Directors which shall constitute the whole board shall be not less than one nor
more than seven. Within such limit, the number of Directors shall be determined
by resolution of the Board of Directors or by the stockholders at the annual
meeting or at any special meeting of stockholders. The directors shall be
elected at the annual meeting or at any special meeting of stockholders, or by
written consent in lieu of an annual or special meeting of the stockholders
(provided, however, that if such consent is less than unanimous, such action by
written consent may be in lieu of holding an annual meeting only if all of the
directorships to which directors could be elected at an annual meeting held at
the effective time of such action are vacant and are filled by such action),
except as provided in section 3 of this Article, and each director elected shall
hold office until his successor is elected and qualified, unless sooner
displaced. Directors need not be stockholders.
<PAGE>
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Section 2. ENLARGEMENT. The number of the Board of Directors may be
increased at any time by vote of the holders of (i) a majority of the Preferred
Stock of the corporation and (ii) a majority of the Common Stock of the
corporation, each voting separately as a class.
Section 3. VACANCIES. Vacancies and newly created Directorships
resulting from any increase in the authorized number of Directors may be filled
the vote of the holders of (i) a majority of the Preferred Stock of the
corporation and (ii) a majority of the Common Stock of the corporation, each
voting separately as a class, and the Directors so chosen shall hold office
until the next annual election and until their successors are duly elected and
shall qualify, unless sooner displaced. If there are no Directors in office,
then an election of Directors may be held in the manner provided by statute. In
the event of a vacancy in the Board of Directors, the remaining Directors,
except as otherwise provided by law or these By-Laws, may exercise the powers of
the full board until the vacancy is filled.
Section 4. RESIGNATION AND REMOVAL. Any director may resign at any time
upon written notice to the Corporation at its principal place of business or to
the Chief Executive Officer or Secretary. Such resignation shall be effective
upon receipt unless it is specified to be effective at some other time or upon
the happening of some other event. Any director of the Board of Directors who is
elected solely by a vote of holders of the corporation's Common Stock may be
removed without cause from the Board of Directors only by the affirmative vote
of the holders of a majority of the shares of the corporation's Common Stock,
voting as a class. Any director of the Board of Directors who is elected solely
by a vote of holders of the corporation's Preferred Stock may be removed without
cause from the Board of Directors only by the affirmative vote of the holders of
a majority of the shares of the corporation's Preferred Stock, voting as a
class. Any director of the Board of Directors who is elected by the vote of
holders of (i) a majority of the corporation's Preferred Shares and (ii) a
majority of the corporation's Common Shares, each voting separately as a class,
may be removed without cause from the Board of Directors only by the affirmative
vote of holders of (i) a majority of the corporation's Preferred Shares and (ii)
a majority of the corporation's Common Shares, each voting separately as a
class. Any director of the Board of Directors may be removed with cause by the
affirmative vote of the holders of the shares of the corporation's Preferred
Stock and the corporation's Common stock voting together as a single class.
Section 5. GENERAL POWERS. The business and affairs of the Corporation
shall be managed by its Board of Directors, which may exercise all powers of the
Corporation and do all such lawful acts and things as are not by statute or by
the certificate of incorporation or by these By-Laws directed or required to be
exercised or done by the stockholders.
Section 6. CHAIRMAN OF THE BOARD. If the Board of Directors appoints a
chairman of the board, he shall, when present, preside at all meetings of the
stockholders and the Board of Directors. He shall perform such duties and
possess such powers as are customarily vested in the office of the chairman of
the board or as may be vested in him by the Board of Directors.
Section 7. PLACE OF MEETINGS. The Board of Directors may hold meetings,
both regular and special, either within or without the State of Delaware.
<PAGE>
-5-
Section 8. REGULAR MEETINGS. Regular meetings of the Board of Directors
may be held without notice at such time and at such place as shall from time to
time be determined by the board; provided that any director who is absent when
such a determination is made shall be given prompt notice of such determination.
A regular meeting of the Board of Directors may be held without notice
immediately after and at the same place as the annual meeting of stockholders.
Section 9. SPECIAL MEETINGS. Special meetings of the board may be
called by the Chief Executive Officer, Secretary, or on the written request of
one (1) or more Directors. Two (2) days' notice to each director, either
personally or by telegram, cable, telecopy, commercial delivery service, telex
or similar means sent to his business or home address, or three (3) days' notice
by written notice deposited in the mail, shall be given to each director by the
Secretary or by the officer or one of the Directors calling the meeting. A
notice or waiver of notice of a meeting of the Board of Directors need not
specify the purposes of the meeting.
Section 10. QUORUM, ACTION AT MEETING, ADJOURNMENTS. At all meetings of
the board a majority of Directors then in office, but in no event less than one
third of the entire board, shall constitute a quorum for the transaction of
business and the act of a majority of the Directors present at any meeting at
which there is a quorum shall be the act of the Board of Directors, except as
may be otherwise specifically provided by law or by the certificate of
incorporation. For purposes of this section, the term "entire board" shall mean
the number of Directors last fixed by the stockholders or Directors, as the case
may be, in accordance with law and these ByLaws; provided, however, that if less
than all the number so fixed of Directors were elected, the "entire board" shall
mean the greatest number of Directors so elected to hold office at any one time
pursuant to such authorization. If a quorum shall not be present at any meeting
of the Board of Directors, a majority of the Directors present thereat may
adjourn the meeting from time to time, without notice other than announcement at
the meeting, until a quorum shall be present.
Section 11. ACTION BY CONSENT. Unless otherwise restricted by the
certificate of incorporation or these By-Laws, any action required or permitted
to be taken at any meeting of the Board of Directors or of any committee thereof
may be taken without a meeting, if all members of the board or committee, as the
case may be, consent thereto in writing, and the writing or writings are filed
with the minutes of proceedings of the board or committee.
Section 12. TELEPHONIC MEETINGS. Unless otherwise restricted by the
certificate of incorporation or these By-Laws, members of the Board of-Directors
or of any committee thereof may participate in a meeting of the Board of
Directors or of any committee, as the case may be, by means of conference
telephone or similar communications equipment by means of which all persons
participating in the meeting can hear each other, and such participation in a
meeting shall constitute presence in person at the meeting.
Section 13. COMMITTEES. The Board of Directors may designate one or
more committees, each committee to consist of one or more of the Directors of
the Corporation. The board may designate one or more Directors as alternate
members of any committee, who may
<PAGE>
-6-
replace any absent or disqualified member at any meeting of the committee. Any
such committee, to the extent provided in the resolution of the Board of
Directors, shall have and may exercise all the powers and authority of the Board
of Directors in the management of the business and affairs of the Corporation,
and may authorize the seal of the Corporation to be affixed to all papers which
may require it; but no such committee shall have the power or authority in
reference to (a) adopting, amending or repealing the By-Laws of the Corporation
or any of them or (b) approving or adopting, or recommending to the stockholders
any action or matter expressly required by law to be submitted to stockholders
for approval. Such committee or committees shall have such name or names as may
be determined from time to time by resolution adopted by the Board of
Directors. Each committee shall keep regular minutes of its meetings and make
such reports to the Board of Directors as the Board of Directors may request.
Except as the Board of Directors may otherwise determine, any committee may make
rules for the conduct of its business, but unless otherwise provided by the
Directors or in such rules, its business shall be conducted as nearly as
possible in the same manner as is provided in these By-Laws for the conduct of
its business by the Board of Directors.
Section 14. COMPENSATION. Unless otherwise restricted by the
certificate of incorporation or these By-Laws, the Board of Directors shall have
the authority to fix from time to time the compensation of Directors. The
Directors may be paid their expenses, if any, of attendance at each meeting of
the Board of Directors and the performance of their responsibilities as
Directors and may be paid a fixed sum for attendance at each meeting of the
Board of Directors and/or a stated salary as director. No such payment shall
preclude any director from serving the Corporation or its parent or subsidiary
corporations in any other capacity and receiving compensation therefor. The
Board of Directors may also allow compensation for members of special or
standing committees for service on such committees.
ARTICLE III
OFFICERS
Section 1. ENUMERATION. The officers of the Corporation shall be chosen
by the Board of Directors and shall be a President, a Secretary and a Treasurer
and such other officers with such titles, terms of office and duties as the
Board of Directors may from time to time determine, including a Chairman of the
Board, one or more Vice-Presidents, and one or more Assistant Secretaries and
Assistant Treasurers. If authorized by resolution of the Board of Directors, the
Chief Executive Officer may be empowered to appoint from time to time Assistant
Secretaries and Assistant Treasurers. Any number of offices may be held by the
same person, unless the Certificate of Incorporation or these By-Laws otherwise
provide.
Section 2. ELECTION. The Board of Directors at its first meeting after
each annual meeting of stockholders shall choose a President, a Secretary and a
Treasurer. Other officers may be appointed by the Board of Directors at such
meeting, at any other meeting, or by written consent.
<PAGE>
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Section 3. TENURE. The officers of the Corporation shall hold office
until their successors are chosen and qualify, unless a different term is
specified in the vote choosing or appointing him, or until his earlier death,
resignation or removal. Any officer elected or appointed by the Board of
Directors or by the Chief Executive Officer may be removed at any time, with or
without cause, by the affirmative vote of a majority of the Board of Directors
or a committee duly authorized to do so, except that any officer appointed by
the Chief Executive Officer may also be removed at any time, with or without
cause, by the Chief Executive Officer. Any vacancy occurring in any office of
the Corporation may be filled by the Board of Directors, at its discretion. Any
officer may resign by delivering his written resignation to the Corporation at
its principal place of business or to the Chief Executive Officer or the
Secretary. Such resignation shall be effective upon receipt unless it is
specified to be effective at some other time or upon the happening of some other
event.
Section 4. PRESIDENT. The President shall be the Chief Operating
Officer of the Corporation. He shall also be the Chief Executive Officer unless
the Board of Directors otherwise provides. If no Chief Executive Officer shall
have been appointed by the Board of Directors, all references herein to the
"Chief Executive Officer" shall be to the President. The President shall, unless
the Board of Directors provides otherwise in a specific instance or generally,
preside at all meetings of the stockholders and the Board of Directors, have
general and active management of the business of the Corporation and see that
all orders and resolutions of the Board of Directors are carried into effect.
The President shall execute bonds, mortgages, and other contracts requiring a
seal, under the seal of the Corporation, except where required or permitted by
law to be otherwise signed and executed and except where the signing and
execution thereof shall be expressly delegated by the Board of Directors to some
other officer or agent of the Corporation.
Section 5. VICE-PRESIDENTS. In the absence of the President or in the
event of his or her inability or refusal to act, the Vice-President, or if there
be more than one Vice-President, the Vice-Presidents in the order designated by
the Board of Directors or the Chief Executive Officer (or in the absence of any
designation, then in the order determined by their tenure in office) shall
perform the duties of the President, and when so acting, shall have all the
powers of and be subject to all the restrictions upon the President. The
Vice-Presidents shall perform such other duties and have such other powers as
the Board of Directors or the Chief Executive Officer may from time to time
prescribe.
Section 6. SECRETARY. The Secretary shall have such powers and perform
such duties as are incident to the office of Secretary. The Secretary shall
maintain a stock ledger and prepare lists of stockholders and their addresses as
required and shall be the custodian of corporate records. The Secretary shall
attend all meetings of the Board of Directors and all meetings of the
stockholders and record all the proceedings of the meetings of the Corporation
and of the Board of Directors in a book to be kept for that purpose and shall
perform like duties for the standing committees when required. The Secretary
shall give, or cause to be given, notice of all meetings of the Stockholders and
special meetings of the Board of Directors, and shall perform such other duties
as may be from time to time prescribed by the Board of Directors or Chief
Executive Officer, under whose supervision the Secretary shall be. The Secretary
shall have custody of the
<PAGE>
-8-
corporate seal of the Corporation and the Secretary, or an assistant Secretary,
shall have authority to affix the same to any instrument requiring it and when
so affixed, it may be attested by his or her signature or by the signature of
such assistant Secretary. The Board of Directors may give general authority to
any other officer to affix the seal of the Corporation and to attest the
affixing by his or her signature.
Section 7. ASSISTANT SECRETARIES. The assistant Secretary, or if there
be more than one, the assistant secretaries in the order determined by the Board
of Directors, the Chief Executive Officer or the Secretary (or if there be no
such determination, then in the order determined by their tenure in office),
shall, in the absence of the Secretary or in the event of his or her inability
or refusal to act, perform the duties and exercise the powers of the Secretary
and shall perform such other duties and have such other powers as the Board of
Directors, the Chief Executive Officer or the Secretary may from time to time
prescribe. In the absence of the Secretary or any assistant Secretary at any
meeting of stockholders or Directors, the person presiding at the meeting shall
designate a temporary or acting Secretary to keep a record of the meeting.
Section 8. TREASURER. The Treasurer shall perform such duties and shall
have such powers as may be assigned to him or her by the Board of Directors or
the Chief Executive Officer. In addition, the Treasurer shall perform such
duties and have such powers as are incident to the office of Treasurer. The
Treasurer shall have the custody of the corporate funds and securities and shall
keep full and accurate accounts of receipts and disbursements in books belonging
to the Corporation and shall deposit all moneys and other valuable effects in
the name and to the credit of the Corporation in such depositories as may be
designated by the Board of Directors. He shall disburse the funds of the
Corporation as may be ordered by the Board of Directors, taking proper vouchers
for such disbursements, and shall render to the Chief Executive Officer and the
Board of Directors, when the Chief Executive Officer or Board of Directors so
requires, an account of all his or her transactions as Treasurer and of the
financial condition of the Corporation.
Section 9. ASSISTANT TREASURERS. The assistant Treasurer, or if there
shall be more than one, the assistant Treasurers in the order determined by the
Board of Directors, the Chief Executive Officer or the Treasurer (or if there be
no such determination, then in the order determined by their tenure in office),
shall, in the absence of the Treasurer or in the event of his or her inability
or refusal to act, perform the duties and exercise the powers of the Treasurer
and shall perform such other duties and have such other powers as the Board of
Directors, the Chief Executive Officer or the Treasurer may from time to time
prescribe.
Section 10. BOND. If required by the Board of Directors, any officer
shall give the Corporation a bond in such sum and with such surety or sureties
and upon such terms and conditions as shall be satisfactory to the Board of
Directors, including without limitation a bond for the faithful performance of
the duties of his office and for the restoration to the Corporation of all
books, papers, vouchers, money and other property of whatever kind in his
possession or under his control and belonging to the Corporation.
<PAGE>
-9-
ARTICLE IV
NOTICES
Section 1. DELIVERY. Whenever, under the provisions of law, or of the
Certificate of Incorporation or these By-Laws, written notice is required to be
given to any director or stockholder, such notice may be given by mail,
addressed to such director or stockholder, at his address as it appears on the
records of the Corporation, with postage thereon prepaid, and such notice shall
be deemed to be given at the time when the same shall be deposited in the United
States mail. Unless written notice by mail is required by law, written notice
may also be given by telegram, cable, telecopy, commercial delivery service,
telex or similar means, addressed to such director or stockholder at his address
as it appears on the records of the corporation, in which case such notice shall
be deemed to be given when delivered into the control of the persons charged
with effecting such transmission, the transmission charge to be paid by the
Corporation or the person sending such notice and not by the addressee. Oral
notice or other in-hand delivery (in person or by telephone) shall be deemed
given at the time it is actually given.
Section 2. WAIVER OF NOTICE. Whenever any notice is required to be
given under the provisions of law or of the certificate of incorporation or of
these By-Laws, a waiver thereof in writing, signed by the person or persons
entitled to said notice, whether before or after the time stated therein, shall
be deemed equivalent thereto.
ARTICLE V
INDEMNIFICATION
Section 1. ACTIONS OTHER THAN BY OR IN THE RIGHT OF THE CORPORATION.
The corporation shall indemnify any person who was or is a party or is
threatened to be made a party to any threatened, pending or completed action,
suit or proceeding, whether civil, criminal, administrative or investigative
(other than an action by or in the right of the Corporation) by reason of the
fact that such person is or was a director, officer, employee or agent of the
corporation, or is or was serving at the request of the Corporation as a
director, officer, employee or agent of another corporation, partnership, joint
venture, trust or other enterprise, against expenses (including attorneys'
fees), judgments, fines and amounts paid in settlement actually and reasonably
incurred by such person in connection with such action, suit or proceeding if
such person acted in good faith and in a manner such person reasonably believed
to be in or not opposed to the best interests of the Corporation, and, with
respect to any criminal action or proceedings, had no reasonable cause to
believe such person's conduct was unlawful. The termination of any action, suit
or proceeding by judgment, order, settlement, conviction, or upon a plea of NOLO
CONTENDERE or its equivalent, shall not, of itself, create a presumption that
the person did not act in good faith and in a manner which such person
reasonably believed to be in or not opposed to the best interests of the
corporation, and, with respect to any criminal action or proceeding, had
reasonable cause to believe that such person's conduct was unlawful.
<PAGE>
-10-
Section 2. ACTIONS BY OR IN THE RIGHT OF THE CORPORATION. The
corporation shall indemnify any person who was or is a party or is threatened to
be made a party to any threatened, pending or completed action or suit by or in
the right of the Corporation to procure a judgment in its favor by reason of the
fact that he or she is or was a director, officer, employee or agent of the
Corporation, or is or was serving at the request of the Corporation as a
director, officer, employee or agent of another corporation, partnership, joint
venture, trust or other enterprise against expenses (including attorneys' fees)
actually and reasonably incurred by such person in connection with the defense
or settlement of such action or suit if such person acted in good faith and in a
manner he or she reasonably believed to be in or not opposed to the best
interests of the Corporation and except that no indemnification shall be made in
respect of any claim, issue or matter as to which such person shall have been
adjudged to be liable unless and only to the extent that the Court of Chancery
of the State of Delaware or the court in which such action or suit was brought
shall determine upon application that, despite the adjudication of liability but
in view of all the circumstances of the case, such person is fairly and
reasonably entitled to indemnity for such expenses which the Court of Chancery
of the State of Delaware or such other court shall deem proper.
Section 3. SUCCESS ON THE MERITS. To the extent that any person
described in Section 1 or 2 of this Article V has been successful on the merits
or otherwise in defense of any action, suit or proceeding referred to in said
Sections, or in defense of any claim, issue or matter therein, he shall be
indemnified against expenses (including attorneys' fees) actually and reasonably
incurred by him in connection therewith.
Section 4. SPECIFIC AUTHORIZATION. Any indemnification under Section 1
or 2 of this Article V (unless ordered by a court) shall be made by the
Corporation only as authorized in the specific case upon a determination that
indemnification of any person described in said Sections is proper in the
circumstances because he has met the applicable standard of conduct set forth in
said Sections. Such determination shall be made (1) by the Board of Directors by
a majority vote of Directors who were not parties to such action, suit or
proceeding (even though less than a quorum), or (2) if there are no
disinterested Directors or if a majority of disinterested Directors so directs,
by independent legal counsel (who may be regular legal counsel to the
Corporation) in a written opinion, or (3) by the stockholders of the
Corporation.
Section 5. ADVANCE PAYMENT. Expenses incurred in defending a pending or
threatened civil or criminal action, suit or proceeding may be paid by the
Corporation in advance of the final disposition of such action, suit or
proceeding upon receipt of an undertaking by or on behalf of any person
described in said Section to repay such amount if it shall ultimately be
determined that he or she is not entitled to indemnification by the Corporation
as authorized in this Article V.
Section 6. NON-EXCLUSIVITY. The indemnification and advancement of
expenses provided by, or granted pursuant to, the other Sections of this
Article V shall not be deemed exclusive of any other rights to which those
provided indemnification or advancement of expenses may be entitled under any
By-Law, agreement, vote of stockholders or disinterested
<PAGE>
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Directors or otherwise, both as to action in his official capacity and as to
action in another capacity while holding such office.
Section 7. INSURANCE. The Board of Directors may authorize, by a vote
of the majority of the full board, the Corporation to purchase and maintain
insurance on behalf of any person who is or was a director, officer, employee or
agent of the Corporation, or is or was serving at the request of the Corporation
as a director, officer, employee or agent of another corporation, partnership,
joint venture, trust or other enterprise against any liability asserted against
him and incurred by him in any such capacity, or arising out of his status as
such, whether or not the Corporation would have the power to indemnify him
against such liability under the provisions of this Article V.
Section 8. CONTINUATION OF INDEMNIFICATION AND ADVANCEMENT OF EXPENSES.
The indemnification and advancement of expenses provided by, or granted pursuant
to, this Article V shall continue as to a person who has ceased to be a
director, officer, employee or agent and shall inure to the benefit of the
heirs, executors and administrators of such a person.
Section 9. SEVERABILITY. If any word, clause or provision of this
Article V or any award made hereunder shall for any reason be determined to be
invalid, the provisions hereof shall not otherwise be affected thereby but shall
remain in full force and effect.
Section 10. INTENT OF ARTICLE. The intent of this Article V is to
provide for indemnification and advancement of expenses to the fullest extent
permitted by Section 145 of the General Corporation Law of Delaware. To the
extent that such Section or any successor section may be amended or supplemented
from time to time, this Article V shall be amended automatically and construed
so as to permit indemnification and advancement of expenses to the fullest
extent from time to time permitted by law.
ARTICLE VI
CAPITAL STOCK
Section 1. CERTIFICATES OF STOCK. Every holder of stock in the
Corporation shall be entitled to have a certificate, signed by, or in the name
of the Corporation by, the chairman or Vice-chairman of the Board of Directors,
or the President or a Vice-President and the Treasurer or an assistant
Treasurer, or the Secretary or an assistant Secretary of the Corporation,
certifying the number of shares owned by such holder in the Corporation. Any or
all of the signatures on the certificate may be a facsimile. In case any
officer, transfer agent or registrar who has signed or whose facsimile signature
has been placed upon a certificate shall have ceased to be such officer,
transfer agent or registrar before such certificate is issued, it may be issued
by the Corporation with the same effect as if he were such officer, transfer
agent or registrar at the date of issue. Certificates may be issued for partly
paid shares and in such case upon the face or back of the certificates issued to
represent any such partly paid shares, the total amount of the consideration to
be paid therefor, and the amount paid thereon shall be specified.
<PAGE>
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Section 2. LOST CERTIFICATES. The Board of Directors may direct a new
certificate or certificates to be issued in place of any certificate or
certificates theretofore issued by the Corporation alleged to have been lost,
stolen or destroyed. When authorizing such issue of a new certificate or
certificates, the Board of Directors may, in its discretion and as a condition
precedent to the issuance thereof, require the owner of such lost, stolen or
destroyed certificate or certificates, or his legal representative, to give
reasonable evidence of such loss, theft or destruction, to advertise the same in
such manner as it shall require and/or to give the Corporation a bond in such
sum as it may direct as indemnity against any claim that may be made against the
Corporation with respect to the certificate alleged to have been lost, stolen or
destroyed or the issuance of such new certificate.
Section 3. TRANSFER OF STOCK. Upon surrender to the Corporation or the
transfer agent of the Corporation of a certificate for shares, duly endorsed or
accompanied by proper evidence of succession, assignment or authority to
transfer, and proper evidence of compliance with other conditions to rightful
transfer, it shall be the duty of the Corporation to issue a new certificate to
the person entitled thereto, cancel the old certificate and record the
transaction upon its books.
Section 4. RECORD DATE. In order that the Corporation may determine the
stockholders entitled to notice of or to vote at any meeting of stockholders or
any adjournment thereof, the Board of Directors may fix a record date, which
shall not precede the date upon which the resolution fixing the record date is
adopted by the Board of Directors, and which shall not be more than sixty days
nor less then ten days before the date of such meeting. A determination of
stockholders of record entitled to notice of or to vote at a meeting of
stockholders shall apply to any adjournment of the meeting; provided, however,
that the Board of Directors may fix a new record date for the adjourned meeting.
If no record date is fixed, the record date for determining stockholders
entitled to notice of or to vote at a meeting of stockholders shall be at the
close of business on the day before the day on which notice is given, or, if
notice is waived, at the close of business on the day before the day on which
the meeting is held. In order that the Corporation may determine the
stockholders entitled to consent to corporate action in writing without a
meeting, the Board of Directors may fix a record date, which shall not precede
the date upon which the resolution fixing the record date is adopted by the
Board of Directors, and which shall not be more than ten days after the date
upon which the resolution fixing the record date is adopted by the Board of
Directors. If no record date is fixed, the record date for determining
stockholders entitled to consent to corporate action in writing without a
meeting, when no prior action by the Board of Directors is required by statute,
shall be the first date on which a signed written consent setting forth the
action taken or proposed to be taken is delivered to the Corporation as provided
in Section 10 of Article I. If no record date is fixed and prior action by the
Board of Directors is required, the record date for determining stockholders
entitled to consent to corporate action in writing without a meeting shall be at
the close of business on the date on which the Board of Directors adopts the
resolution taking such prior action. In order that the Corporation may determine
the stockholders entitled to receive payment of any dividend or other
distribution or allotment of any rights or the stockholders entitled to exercise
any rights in respect of any change, conversion or exchange of stock, or for the
purpose of any other lawful action, the Board of Directors may fix a record
date, which shall
<PAGE>
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not precede the date upon which the resolution fixing the record date is
adopted, and which shall be not more than sixty days prior to such action. If no
record date is fixed, the record date for determining stockholders for any such
purpose shall be at the close of business on the day on which the Board of
Directors adopts the resolution relating to such purpose.
Section 5. REGISTERED STOCKHOLDERS. The Corporation shall be entitled
to recognize the exclusive right of a person registered on its books as the
owner of shares to receive dividends, and to vote as such owner, and to hold
liable for calls and assessments a person registered on its books as the owner
of shares, and shall not be bound to recognize any equitable or other claim to
or interest in such share or shares on the part of any other person, whether or
not it shall have express or other notice thereof, except as otherwise provided
by the laws of Delaware.
ARTICLE VII
CERTAIN TRANSACTIONS
Section 1. TRANSACTIONS WITH INTERESTED PARTIES. No contract or
transaction between the Corporation and one or more of its Directors or
officers, or between the Corporation and any other corporation, partnership,
association, or other organization in which one or more of its Directors or
officers are Directors or officers, or have a financial interest, shall be void
or voidable solely for this reason, or solely because the director or officer is
present at or participates in the meeting of the board or committee thereof
which authorizes the contract or transaction or solely because his or their
votes are counted for such purpose, if:
(a) The material facts as to his relationship or interest and
as to the contract or transaction are disclosed or are known to the
Board of Directors or the committee, and the board or committee in good
faith authorizes the contract or transaction by the affirmative votes
of a majority of the disinterested Directors, even though the
disinterested Directors be less than a quorum; or
(b) The material facts as to his relationship or interest and
as to the contract or transaction are disclosed or are known to the
stockholders entitled to vote thereon, and the contract or transaction
is specifically approved in good faith by vote of the stockholders; or
(c) The contract or transaction is fair as to the Corporation
as of the time it is authorized, approved or ratified, by the Board of
Directors, a committee thereof, or the stockholders.
Section 2. QUORUM. Common or interested Directors may be counted in
determining the presence of a quorum at a meeting of the Board of Directors or
of a committee which authorizes the contract or transaction.
<PAGE>
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ARTICLE VIII
GENERAL PROVISIONS
Section 1. DIVIDENDS. Dividends upon the capital stock of the
corporation, if any, may be declared by the Board of Directors at any regular or
special meeting or by written consent, pursuant to law. Dividends may be paid in
cash, in property, or in shares of the capital stock, subject to the provisions
of the certificate of incorporation.
Section 2. RESERVES. The Directors may set apart out of any funds of
the Corporation available for dividends a reserve or reserves for any proper
purpose and may abolish any such reserve.
Section 3. CHECKS. All checks or demands for money and notes of the
Corporation shall be signed by such officer or officers or such other person or
persons as the Board of Directors may from time to time designate.
Section 4. FISCAL YEAR. The fiscal year of the Corporation shall be
fixed by resolution of the Board of Directors.
Section 5. SEAL. The Board of Directors may, by resolution, adopt a
corporate seal. The corporate seal shall have inscribed thereon the name of the
Corporation, the year of its organization and the word "Delaware." The seal may
be used by causing it or a facsimile thereof to be impressed or affixed or
reproduced or otherwise. The seal may be altered from time to time by the Board
of Directors.
ARTICLE IX
AMENDMENTS
These By-Laws may be altered, amended or repealed or new By-Laws may be
adopted by the stockholders or by the Board of Directors, when such power is
conferred upon the Board of Directors by the certificate of incorporation, at
any regular meeting of the stockholders or of the Board of Directors or at any
special meeting of the stockholders or of the Board of Directors; provided,
HOWEVER, that, in addition to any vote of the holders of any class or series of
stock of the Corporation required by law or by the Certificate of Incorporation,
the affirmative vote of at least fifty percent (50%) of the then outstanding
Preferred Stock of the Corporation, voting separately as a class, shall be
required to adopt, amend or repeal any provision of the By-Laws of the
Corporation.
<PAGE>
Register of Amendments to the By-Laws
<TABLE>
<CAPTION>
Date Section Affected Change
- ---- ---------------- ------
<S> <C> <C>
March 26, 1999 Name changed from "etility.com, inc." to
"esssential.com, inc."
March 26, 1999 Article II, Section 1 Number of Directors fixed at no more than
three (3).
April 15, 1999 Article II, Section 1 Number of Directors fixed at no more than
five (5)
July 22, 1999 Article II, Section 1 Number of Directors fixed at no more than
seven (7).
March 26, 1999 Article II, Section 2 Board may be enlarged only by a vote of the
holders of a majority of the preferred and
common stock of the corporation, each voting
separately as a class.
March 26, 1999 Article II, Section 3 Vacancies created by enlargement of the
Board may be filled only by a vote of the
holders of a majority of the preferred and
common stock of the corporation, each voting
separately as a class.
March 26, 1999 Article II, Section 4 Removal without cause of directors by the
class of the corporation's capital stock that
elected such director. Removal with cause of
directors by the vote of the corporation's
Common and Preferred Stock, voting together
as a single class.
July 22, 1999 Article II, Section 9 Special meetings of the board may be called
by the Chief Executive Officer, Secretary, or
on the written request of one (1) or more
Directors.
March 26, 1999 Article IX Amendments to By-Laws require a majority
vote of the preferred stock.
</TABLE>
<PAGE>
EXHIBIT 3.05
THIRD AMENDED AND RESTATED
BY-LAWS
OF
ESSENTIAL.COM, INC.
Effective as of ___________ __, 2000
<PAGE>
<TABLE>
<CAPTION>
BY-LAWS
-------
TABLE OF CONTENTS
-----------------
PAGE
----
<S> <C>
ARTICLE 1 - Stockholders ....................................... 1
Section 1.1 Place of Meetings ...................... 1
Section 1.2 Annual Meeting ......................... 1
Section 1.3 Special Meetings
Section 1.4 Notice of Meetings ..................... 1
Section 1.5 Voting List ............................ 1
Section 1.6 Quorum ................................. 2
Section 1.7 Adjournments ........................... 2
Section 1.8 Voting and Proxies ..................... 2
Section 1.9 Action at Meeting ...................... 3
Section 1.10 Introduction of Business at Meeting .... 3
Section 1.11 Action without Meeting ................. 6
ARTICLE 2 - Directors .......................................... 6
Section 2.1 General Powers ......................... 6
Section 2.2 Number; Election and Qualification ..... 7
Section 2.3 Classes of Directors ................... 7
Section 2.4 Terms in Office ........................ 7
Section 2.5 Allocation of Directors Among
Classes in the Event of Increases
or Decreases in the Number of
Directors .............................. 7
Section 2.6 Tenure ................................. 8
Section 2.7 Vacancies .............................. 8
Section 2.8 Resignation ............................ 8
Section 2.9 Regular Meetings ....................... 8
Section 2.10 Special Meetings ....................... 8
Section 2.11 Notice of Special Meetings
Section 2.12 Meetings by Telephone Conference Calls . 8
Section 2.13 Quorum ................................. 9
Section 2.14 Action at Meeting ...................... 9
Section 2.15 Action by Written Consent .............. 9
Section 2.16 Removal ................................ 9
Section 2.17 Committees ............................. 9
Section 2.18 Compensation of Directors .............. 10
</TABLE>
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<PAGE>
<TABLE>
<CAPTION>
<S> <C>
Section 2.19 Amendments to Article ................... 10
ARTICLE 3 - Officers ............................................ 10
Section 3.1 Enumeration ............................ 10
Section 3.2 Election ............................... 10
Section 3.3 Qualification .......................... 10
Section 3.4 Tenure ................................. 10
Section 3.5 Resignation and Removal ................ 11
Section 3.6 Vacancies .............................. 11
Section 3.7 Chairman of the Board and Vice-
Chairman of the Board .................. 11
Section 3.8 President .............................. 11
Section 3.9 Vice Presidents ........................ 11
Section 3.10 Secretary and Assistant Secretaries .... 12
Section 3.11 Treasurer and Assistant Treasurers ..... 12
Section 3.12 Salaries ............................... 12
Section 3.13 Action with Respect to Securities of
Other Corporations .................... 13
ARTICLE 4 - Capital Stock .................................. 13
Section 4.1 Issuance of Stock ...................... 13
Section 4.2 Certificates of Stock .................. 13
Section 4.3 Transfers .............................. 13
Section 4.4 Lost, Stolen or Destroyed Certificates . 14
Section 4.5 Record Date ............................ 14
ARTICLE 5 - General Provisions .................................. 14
Section 5.1 Fiscal Year ............................ 14
Section 5.2 Corporate Seal ......................... 14
Section 5.3 Notices ................................ 14
Section 5.4 Waiver of Notice ....................... 15
Section 5.5 Evidence of Authority .................. 15
Section 5.6 Facsimile Signatures ................... 15
Section 5.7 Reliance upon Books, Reports and Records 15
Section 5.8 Time Periods ........................... 15
Section 5.9 Certificate of Incorporation ........... 15
Section 5.10 Transactions with Interested Parties ... 16
Section 5.11 Severability ........................... 16
Section 5.12 Pronouns ............................... 16
</TABLE>
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<PAGE>
<TABLE>
<S> <C>
ARTICLE 6 - Amendments .......................................... 16
Section 6.1 By the Board of Directors .............. 16
Section 6.2 . By the Stockholders .................... 16
</TABLE>
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<PAGE>
THIRD AMENDED AND RESTATED
BY-LAWS
OF
essential.com, inc. (the "Corporation")
ARTICLE 1 - STOCKHOLDERS
1.1 PLACE OF MEETINGS. All meetings of stockholders shall be held at such
place within or without the State of Delaware as may be designated from time to
time by the Chairman of the Board (if any), the board of directors of the
Corporation (the "Board of Directors") or the President or, if not so
designated, at the registered office of the Corporation.
1.2 ANNUAL MEETING. The annual meeting of stockholders for the election of
directors and for the transaction of such other business as may properly be
brought before the meeting shall be held on a date to be fixed by the Chairman
of the Board (if any), Board of Directors, the Chief Executive Officer or the
President (which date shall not be a legal holiday in the place where the
meeting is to be held) at the time and place to be fixed by the Chairman of the
Board, the Board of Directors, the Chief Executive Officer or the President and
stated in the notice of the meeting.
1.3 SPECIAL MEETINGS. Special meetings of stockholders may be called at any
time only by the Chairman of the Board (if any), a majority of the Board of
Directors, the Chief Executive Officer or the President and shall be held at
such place, on such date and at such time as shall be fixed by the Board of
Directors or the person calling the meeting. Business transacted at any special
meeting of stockholders shall be limited to matters relating to the purpose or
purposes stated in the notice of meeting.
1.4 NOTICE OF MEETINGS. Except as otherwise provided by law, written notice
of each meeting of stockholders, whether annual or special, shall be given not
less than ten (10) nor more than sixty (60) days before the date of the meeting
to each stockholder entitled to vote at such meeting. The notices of all
meetings shall state the place, date and hour of the meeting. The notice of a
special meeting shall state, in addition, the purpose or purposes for which the
meeting is called. If mailed, notice is given when deposited in the United
States mail, postage prepaid, directed to the stockholder at his or her address
as it appears on the records of the Corporation.
1.5 VOTING LIST. The officer who has charge of the stock ledger of the
Corporation shall prepare, at least ten (10) days before every meeting of
stockholders, a complete list of the stockholders entitled to vote at the
meeting, arranged in alphabetical order, and showing the address of each
stockholder and the number of shares registered in the name of each stockholder.
Such list shall be open to the examination of any stockholder, for any purpose
germane to the
<PAGE>
meeting, during ordinary business hours, for a period of at least ten (10) days
prior to the meeting, either at a place within the metropolitan area of the city
where the meeting is to be held, which place shall be specified in the notice of
the meeting, or if not so specified, at the place where the meeting is to be
held. The list shall also be produced and kept at the time and place of the
meeting during the whole time of the meeting, and may be inspected by any
stockholder who is present. This list shall presumptively determine the identity
of the stockholders entitled to vote at the meeting and the number of shares
held by each of them.
1.6 QUORUM. Except as otherwise provided by law, the Corporation's
Certificate of Incorporation, as such may be amended from time to time, or these
Third Amended and Restated By-Laws, as such may be amended from time to time
(the "THIRD AMENDED AND RESTATED BY-LAWS"), the holders of a majority of the
shares of the capital stock of the Corporation issued and outstanding and
entitled to vote at the meeting, present in person or represented by proxy,
shall constitute a quorum for the transaction of business. Shares held by
brokers which such brokers are prohibited from voting (pursuant to their
discretionary authority on behalf of beneficial owners of such shares who have
not submitted a proxy with respect to such shares) on some or all of the matters
before the stockholders, but which shares would otherwise be entitled to vote at
the meeting ("Broker Non-Votes") shall be counted, for the purpose of
determining the presence or absence of a quorum, both (a) toward the total
voting power of the shares of capital stock of the Corporation and (b) as being
represented by proxy. If a quorum has been established for the purpose of
conducting the meeting, a quorum shall be deemed to be present for the purpose
of all votes to be conducted at such meeting, provided that where a separate
vote by a class or classes, or series thereof, is required, a majority of the
voting power of the shares of such class or classes, or series, present in
person or represented by proxy shall constitute a quorum entitled to take action
with respect to that vote on that matter. If a quorum shall fail to attend any
meeting, the chairman of the meeting or the holders of a majority of the voting
power of the shares of stock entitled to vote who are present, in person or by
proxy, may adjourn the meeting to another place, date, or time.
1.7 ADJOURNMENTS. Any meeting of stockholders may be adjourned to any other
time and to any other place at which a meeting of stockholders may be held under
these Third Amended and Restated By-Laws by the stockholders present or
represented at the meeting and entitled to vote, although less than a quorum,
or, if no stockholder is present, by any officer entitled to preside at or to
act as Secretary of such meeting. It shall not be necessary to notify any
stockholder of any adjournment of less than 30 days if the time and place of the
adjourned meeting are announced at the meeting at which adjournment is taken,
unless after the adjournment a new record date is fixed for the adjourned
meeting. At the adjourned meeting, the Corporation may transact any business
that might have been transacted at the original meeting.
1.8 VOTING AND PROXIES. At any meeting of the stockholders, each
stockholder shall have one vote for each share of stock entitled to vote at such
meeting held of record by such stockholder and a proportionate vote for each
fractional share so held, unless otherwise provided in the Certificate of
Incorporation. Each stockholder of record entitled to vote at a meeting of
stockholders, or to express consent or dissent to corporate action in writing
without a meeting (to the extent not otherwise prohibited by the Certificate of
Incorporation or these By-laws), may
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vote or express such consent or dissent in person or may authorize another
person or persons to vote or act for such stockholder by written proxy executed
by such stockholder or his or her authorized agent or by a transmission
permitted by law and delivered to the Secretary of the Corporation. No such
proxy shall be voted or acted upon after three years from the date of its
execution, unless the proxy expressly provides for a longer period. Any copy,
facsimile telecommunication or other reliable reproduction of the writing or
transmission created pursuant to this Section 1.8 may be substituted or used in
lieu of the original writing or transmission for any and all purposes for which
the original writing or transmission could be used, provided that such copy,
facsimile telecommunication or reproduction shall be a complete reproduction of
the entire original writing or transmission.
In the election of directors, voting shall be by written ballot, and for
any other action, voting need not be by ballot.
The Corporation may, and to the extent required by law or the Certificate
of Incorporation, shall, in advance of any meeting of stockholders, appoint one
or more inspectors to act at such meeting and make a written report thereof. The
Corporation may designate one or more persons as alternate inspectors to replace
any inspector who fails to act. If no inspector or alternate is able to act at a
meeting of stockholders, the person presiding at such meeting may, and to the
extent required by law or the Certificate of Incorporation, shall, appoint one
or more inspectors to act at such meeting. Each inspector, before entering upon
the discharge of his duties, shall take and sign an oath faithfully to execute
the duties of inspector with strict impartiality and according to the best of
his or her ability.
1.9 ACTION AT MEETING. When a quorum is present at any meeting of
stockholders, the holders of a majority of the stock present or represented and
voting on a matter (or if there are two or more classes of stock entitled to
vote as separate classes, then in the case of each such class, the holders of a
majority of the stock of that class present or represented and voting on such
matter) shall decide any matter to be voted upon by the stockholders at such
meeting (other than the election of directors), except when a different vote is
required by express provision of law, the Certificate of Incorporation or these
Third Amended and Restated By-Laws. Any election of directors by the
stockholders shall be determined by a plurality of the votes cast by the
stockholders entitled to vote at such election, except as otherwise provided by
the Certificate of Incorporation. For the purposes of this paragraph, Broker
Non-Votes represented at the meeting but not permitted to vote on a particular
matter shall not be counted, with respect to the vote on such matter, in the
number of (a) votes cast, (b) votes cast affirmatively, or (c) votes cast
negatively.
1.10 INTRODUCTION OF BUSINESS AT MEETINGS.
A. ANNUAL MEETINGS OF STOCKHOLDERS.
(1) Nominations of persons for election to the Board of Directors
and the proposal of business to be considered by the stockholders may
be made at an annual meeting of stockholders (a) pursuant to the
Corporation's notice of meeting,
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(b) by or at the direction of the Board of Directors or (c) by any
stockholder of the Corporation who was a stockholder of record at the
time of giving of notice provided for in this Section 1.10, who is
entitled to vote at the meeting and who complies with the notice
procedures set forth in this Section 1.10.
(2) For nominations or other business to be properly brought
before an annual meeting by a stockholder pursuant to clause (c) of
paragraph (A)(1) of this Section 1.10, the stockholder must have given
timely notice thereof in writing to the Secretary of the Corporation
and such other business must otherwise be a proper matter for
stockholder action. To be timely, a stockholder's notice shall be
delivered to the Secretary at the principal executive offices of the
Corporation not later than the close of business on the one hundred
twentieth (120th) day nor earlier than the close of business on the
one hundred fiftieth (150th) day prior to the first anniversary of the
date of the proxy statement delivered to stockholders in connection
with the preceding year's annual meeting; provided, however, that if
either (i) the date of the annual meeting is more than thirty (30)
days before or more than sixty (60) days after the first anniversary
date of the preceding year's annual meeting or (ii) no proxy statement
was delivered to stockholders in connection with the preceding year's
annual meeting, notice by the stockholder to be timely must be so
delivered not earlier than the close of business on the ninetieth
(90th) day prior to such annual meeting and not later than the close
of business on the later of the sixtieth (60th) day prior to such
annual meeting or the close of business on the tenth (10th) day
following the day on which public announcement of the date of such
meeting is first made by the Corporation. Such stockholder's notice
shall set forth (a) as to each person whom the stockholder proposes to
nominate for election or reelection as a director, all information
relating to such person that is required to be disclosed in
solicitations of proxies for election of directors, or is otherwise
required, in each case pursuant to Regulation 14A under the Securities
Exchange Act of 1934, as amended (the "Exchange Act") (including such
person's written consent to being named in the proxy statement as a
nominee and to serving as a director if elected); (b) as to any other
business that the stockholder proposes to bring before the meeting, a
brief description of the business desired to be brought before the
meeting, the reasons for conducting such business at the meeting and
any material interest in such business of such stockholder and the
beneficial owner, if any, on whose behalf the proposal is made; and
(c) as to the stockholder giving the notice and the beneficial owner,
if any, on whose behalf the nomination or proposal is made (i) the
name and address of such stockholder, as they appear on the
Corporation's books, and of such beneficial owner and (ii) the class
and number of shares of capital stock of the Corporation that are
owned beneficially and held of record by such stockholder and such
beneficial owner.
(3) Notwithstanding anything in the second sentence of paragraph
(A)(2) of this Section 1.10 to the contrary, in the event that the
number of directors to be elected to the Board of Directors of the
Corporation is increased and there is no public announcement by the
Corporation naming all of the nominees for director or specifying the
size of the increased Board of Directors at least seventy (70) days
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prior to the first anniversary of the preceding year's annual meeting
(or, if the annual meeting is held more than thirty (30) days before
or sixty (60) days after such anniversary date, at least seventy (70)
days prior to such annual meeting), a stockholder's notice required by
this Section 1.10 shall also be considered timely, but only with
respect to nominees for any new positions created by such increase, if
it shall be delivered to the Secretary at the principal executive
office of the Corporation not later than the close of business on the
tenth (10th) day following the day on which such public announcement
is first made by the Corporation.
B. SPECIAL MEETINGS OF STOCKHOLDERS. Only such business shall be
conducted at a special meeting of stockholders as shall have been
brought before the meeting pursuant to the Corporation's notice of
meeting. Nominations of persons for election to the Board of Directors
may be made at a special meeting of stockholders at which directors
are to be elected pursuant to the Corporation's notice of meeting (a)
by or at the direction of the Board of Directors or (b) provided that
the Board of Directors has determined that directors shall be elected
at such meeting, by any stockholder of the Corporation who is a
stockholder of record at the time of giving of notice of the special
meeting, who shall be entitled to vote at the meeting and who complies
with the notice procedures set forth in this Section 1.10. If the
Corporation calls a special meeting of stockholders for the purpose of
electing one or more directors to the Board of Directors, any such
stockholder may nominate a person or persons (as the case may be), for
election to such position(s) as specified in the Corporation's notice
of meeting, if the stockholder's notice required by paragraph (A)(2)
of this Section 1.10 shall be delivered to the Secretary at the
principal executive offices of the Corporation not earlier than the
ninetieth (90th) day prior to such special meeting nor later than the
later of (x) the close of business on the sixtieth (60th) day prior to
such special meeting or (y) the close of business on the tenth (10th)
day following the day on which public announcement is first made of
the date of such special meeting and of the nominees proposed by the
Board of Directors to be elected at such meeting.
C. GENERAL.
(1) Only such persons who are nominated in accordance with the
procedures set forth in this Section 1.10 shall be eligible to serve
as directors and only such business shall be conducted at a meeting of
stockholders as shall have been brought before the meeting in
accordance with the procedures set forth in this Section 1.10. Except
as otherwise provided by law, the Certificate of Incorporation or
these Third Amended and Restated By-Laws, the chairman of the meeting
shall have the power and duty to determine whether a nomination or any
business proposed to be brought before the meeting was made or
proposed, as the case may be, in accordance with the procedures set
forth in this Section 1.10 and, if any proposed nomination or business
is not in compliance herewith, to declare that such defective proposal
or nomination shall be disregarded.
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(2) For purposes of this Section 1.10, "public announcement"
shall mean disclosure in a press release reported by the Dow Jones
News Service, Associated Press, PR Newswire, Reuters or comparable
national news service or in a document publicly filed by the
Corporation with the Securities and Exchange Commission pursuant to
Section 13, 14 or 15(d) of the Exchange Act.
(3) Notwithstanding the foregoing provisions of this Section
1.10, a stockholder shall also comply with all applicable requirements
of the Exchange Act and the rules and regulations thereunder with
respect to the matters set forth herein. Nothing in this Section 1.10
shall be deemed to affect any rights (i) of stockholders to request
inclusion of proposals in the Corporation's proxy statement pursuant
to Rule 14a-8 under the Exchange Act or (ii) of the holders of any
series of Preferred Stock to elect directors under specified
circumstances.
1.11 ACTION WITHOUT MEETING. Stockholders of the Corporation may not take
any action by written consent in lieu of a meeting. Notwithstanding any other
provision of law, the Certificate of Incorporation or these Third Amended and
Restated By-Laws, and notwithstanding the fact that a lesser percentage may be
specified by law, the affirmative vote of the holders of at least seventy-five
percent (75%) of the votes which all the stockholders would be entitled to cast
at any annual election of directors or class of directors shall be required to
amend or repeal, or to adopt any provision inconsistent with, this Section 1.11.
ARTICLE 2 - DIRECTORS
2.1 GENERAL POWERS. The business and affairs of the Corporation shall be
managed by or under the direction of a Board of Directors, who may exercise all
of the powers of the Corporation except as otherwise provided by law or the
Certificate of Incorporation. In the event of a vacancy in the Board of
Directors, the remaining directors, except as otherwise provided by law or the
Certificate of Incorporation, may exercise the powers of the full Board of
Directors until the vacancy is filled. Without limiting the foregoing, the Board
of Directors may:
(a) declare dividends from time to time in accordance with law;
(b) purchase or otherwise acquire any property, rights or privileges
on such terms as it shall determine;
(c) authorize the creation, making and issuance, in such form as it
may determine, of written obligations of every kind, negotiable or
non-negotiable, secured or unsecured, to borrow funds and guarantee
obligations, and to do all things necessary in connection therewith;
(d) remove any officer of the Corporation with or without cause, and
from time to time to devolve the powers and duties of any officer upon any
other person for the time being;
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(e) confer upon any officer of the Corporation the power to appoint,
remove and suspend subordinate officers, employees and agents;
(f) adopt from time to time such stock option, stock purchase, bonus or
other compensation plans for directors, officers, employees, consultants
and agents of the Corporation and its subsidiaries as it may determine;
(g) adopt from time to time such insurance, retirement, and other
benefit plans for directors, officers, employees, consultants and agents
of the Corporation and its subsidiaries as it may determine; and
(h) adopt from time to time regulations, not inconsistent herewith, for
the management of the Corporation's business and affairs.
2.2 NUMBER; ELECTION AND QUALIFICATION. The number of directors which shall
constitute the whole Board of Directors shall be determined by resolution of the
Board of Directors, but in no event shall be less than three. The number of
directors may be decreased at any time and from time to time by a majority of
the directors then in office, but only to eliminate vacancies existing by reason
of the death, resignation, removal or expiration of the term of one or more
directors. The directors shall be elected at the annual meeting of stockholders
(or, if so determined by the Board of Directors pursuant to Section 10 hereof,
at a special meeting of stockholders), by such stockholders as have the right to
vote on such election. Directors need not be stockholders of the Corporation.
2.3 CLASSES OF DIRECTORS. The Board of Directors shall be and is divided
into three classes: Class I, Class II and Class III. No one class shall have
more than one director more than any other class.
2.4 TERMS IN OFFICE. Each director shall serve for a term ending on the
date of the third annual meeting following the annual meeting at which such
director was elected; provided, however, that each initial director in Class I
shall serve for a term ending on the date of the annual meeting next following
the end of the Corporation's fiscal year ending December 31, 2000; each initial
director in Class II shall serve for a term ending on the date of the annual
meeting next following the end of the Corporation's fiscal year ending December
31, 2001; and each initial director in Class III shall serve for a term ending
on the date of the annual meeting next following the end of the Corporation's
fiscal year ending December 31, 2002.
2.5 ALLOCATION OF DIRECTORS AMONG CLASSES IN THE EVENT OF INCREASES OR
DECREASES IN THE NUMBER OF Directors. In the event of any increase or decrease
in the authorized number of directors, (i) each director then serving as such
shall nevertheless continue as a director of the class of which he or she is a
member until the expiration of such director's current term or his or her prior
death, removal or resignation and (ii) the newly created or eliminated
directorships resulting from such increase or decrease shall be apportioned by
the Board of Directors among the three classes of directors, subject to the
second sentence of Section 2.3. To the extent
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possible, consistent with the foregoing rule, any newly created directorships
shall be added to those classes whose terms of office are to expire at the
earliest dates following such allocation, unless otherwise provided for from
time to time by resolution adopted by a majority of the directors then in
office, although less than a quorum. No decrease in the number of directors
constituting the whole Board of Directors shall shorten the term of an incumbent
Director.
2.6 TENURE. Notwithstanding any provisions to the contrary contained
herein, each director shall hold office until his or her successor is elected
and qualified, or until his or her earlier death, resignation or removal.
2.7 VACANCIES. Unless and until filled by the stockholders, any vacancy in
the Board of Directors, however occurring, including a vacancy resulting from an
enlargement thereof, may be filled by vote of a majority of the directors then
in office, although less than a quorum, or by a sole remaining director. A
director elected to fill a vacancy shall be elected for the unexpired term of
his or her predecessor in office, if any, and a director chosen to fill a
position resulting from an increase in the number of directors shall hold office
until the next election of directors of the class for which such director was
chosen and until his or her successor is elected and qualified, or until his or
her earlier death, resignation or removal.
2.8 RESIGNATION. Any director may resign by delivering his or her written
resignation to the Corporation at its principal office or to the President or
Secretary. Such resignation shall be effective upon receipt unless it is
specified to be effective at some other time or upon the happening of some other
event.
2.9 REGULAR MEETINGS. Regular meetings of the Board of Directors may be
held without notice at such time and place, either within or without the State
of Delaware, as shall be determined from time to time by the Board of Directors;
provided that any director who is absent when such a determination is made shall
be given notice of the determination.
2.10 SPECIAL MEETINGS. Special meetings of the Board of Directors may be
held at any time and place, within or without the State of Delaware, designated
in a call by the Chairman of the Board (if any), the Chief Executive Officer,
the President, two or more directors, or by one director in the event that there
is only a single director in office.
2.11 NOTICE OF SPECIAL MEETINGS. Notice of any special meeting of directors
shall be given to each director by the Secretary or by the officer or one of the
directors calling the meeting. Notice shall be duly given to each director (i)
by giving notice to such director in person or by telephone at least forty-eight
(48) hours in advance of the meeting, (ii) by sending a telegram or delivering
written notice by facsimile transmission or by hand, to his or her last known
business or home address at least forty-eight (48) hours in advance of the
meeting, or (iii) by mailing written notice to his or her last known business or
home address at least seventy-two (72) hours in advance of the meeting. A notice
or waiver of notice of a meeting of the Board of Directors need not specify the
purposes of the meeting.
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2.12 MEETINGS BY TELEPHONE CONFERENCE CALLS. Directors or any members of
any committee designated by the Board of Directors may participate in a meeting
of the Board of Directors or such committee by means of conference telephone or
similar communications equipment by means of which all persons participating in
the meeting can hear each other, and participation by such means shall be deemed
to constitute presence in person at such meeting.
2.13 QUORUM. A majority of the total number of the whole Board of Directors
shall constitute a quorum at all meetings of the Board of Directors. In the
event one or more of the directors shall be disqualified to vote at any meeting,
then the required quorum shall be reduced by one for each such director so
disqualified; provided, however, that in no case shall less than one-third (1/3)
of the total number of the whole Board of Directors constitute a quorum. In the
absence of a quorum at any such meeting, a majority of the directors present may
adjourn the meeting from time to time without further notice other than
announcement at the meeting, until a quorum shall be present.
2.14 ACTION AT MEETING. At any meeting of the Board of Directors at which a
quorum is present, the vote of a majority of those present shall be sufficient
to take any action, unless a different vote is specified by law, the Certificate
of Incorporation or these Third Amended and Restated By-Laws.
2.15 ACTION BY WRITTEN CONSENT. Any action required or permitted to be
taken at any meeting of the Board of Directors or of any committee of the Board
of Directors may be taken without a meeting, if all members of the Board of
Directors or committee, as the case may be, consent to such action in writing,
and the written consents are filed with the minutes of proceedings of the Board
of Directors or committee.
2.16 REMOVAL. Unless otherwise provided in the Certificate of
Incorporation, any one or more or all of the directors may be removed (i) with
cause only by the holders of at least a majority of the shares then entitled to
vote at an election of directors or (ii) without cause only by the holders of at
least seventy-five percent (75%) of the shares then entitled to vote at an
election of directors.
2.17 COMMITTEES. The Board of Directors may, by resolution passed by a
majority of the whole Board, designate one or more committees, each committee to
consist of one or more of the directors of the Corporation. The Board of
Directors may designate one or more directors as alternate members of any
committee, who may replace any absent or disqualified member at any meeting of
such committee. In the absence or disqualification of a member of a committee,
the member or members of such committee present at any meeting and not
disqualified from voting, whether or not such member or members constitute a
quorum, may unanimously appoint another member of the Board of Directors to act
at such meeting in the place of any such absent or disqualified member. Any such
committee, to the extent provided in the resolution of the Board of Directors
and subject to the provisions of the General Corporation Law of the State of
Delaware, shall have and may exercise all the powers and authority of the Board
of Directors in the management of the business and affairs of the Corporation
and may authorize the seal of the Corporation to be affixed to all papers which
may require it. Each such committee shall keep
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minutes and make such reports as the Board of Directors may from time to time
request. Except as the Board of Directors may otherwise determine or as provided
herein, any committee may make rules for the conduct of its business, but unless
otherwise provided by the directors or in such rules, its business shall be
conducted as nearly as possible in the same manner as is provided in these Third
Amended and Restated By-Laws for the Board of Directors. Adequate provisions
shall be made for notice to members of all meeting of committees. One-third
(1/3) of the members of any committee shall constitute a quorum unless the
committee shall consist of one (1) or two (2) members, in which event one (1)
member shall constitute a quorum; and all matters shall be determined by a
majority vote of the members present. Action may be taken by any committee
without a meeting if all members thereof consent thereto in writing, and the
writing or writings are filed with the minutes of the proceedings of such
committee.
2.18 COMPENSATION OF DIRECTORS. Directors may be paid such compensation for
their services and such reimbursement for expenses of attendance at meetings as
the Board of Directors may from time to time determine. No such payment shall
preclude any director from serving the Corporation or any of its parent or
subsidiary corporations in any other capacity and receiving compensation for
such service.
2.19 AMENDMENTS TO ARTICLE. Notwithstanding any other provisions of law,
the Certificate of Incorporation or these Third Amended and Restated By-Laws,
and notwithstanding the fact that a lesser percentage may be specified by law,
the affirmative vote of the holders of a least seventy-five percent (75%) of the
votes which all the stockholders would be entitled to cast at any annual
election of directors or class of directors shall be required to amend or
repeal, or to adopt any provision inconsistent with, this Article 2.
ARTICLE 3 - OFFICERS
3.1 ENUMERATION. The officers of the Corporation shall consist of a
President, a Secretary, a Treasurer and such other officers with such other
titles as the Board of Directors shall determine, including, but not limited to,
a Chairman of the Board, a Vice-Chairman of the Board, and one or more Vice
Presidents, Assistant Treasurers and Assistant Secretaries. The Board of
Directors may appoint such other officers as it may deem appropriate.
3.2 ELECTION. The President, Treasurer and Secretary shall be elected
annually by the Board of Directors at its first meeting following the annual
meeting of stockholders. Other officers may be appointed by the Chief Executive
Officer, except that the Directors shall have the power to rescind any such
appointment by a vote of a majority of the Directors then in office.
3.3 QUALIFICATION. No officer need be a stockholder. Any two or more
offices may be held by the same person.
3.4 TENURE. Except as otherwise provided by law, by the Certificate of
Incorporation or by these Third Amended and Restated By-Laws, each officer shall
hold office until his or her
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successor is elected and qualified, unless a different term is specified in the
vote choosing or appointing such officer, or until his or her earlier death,
resignation or removal.
3.5 RESIGNATION AND REMOVAL. Any officer may resign by delivering his or
her written resignation to the Chairman of the Board (if any), to the Board of
Directors at a meeting thereof, to the Corporation at its principal office or to
the President or Secretary. Such resignation shall be effective upon receipt
unless it is specified to be effective at some other time or upon the happening
of some other event.
Any officer may be removed at any time, with or without cause, by vote of a
majority of the entire number of directors then in office.
Except as the Board of Directors may otherwise determine, no officer who
resigns or is removed shall have any right to any compensation as an officer for
any period following his or her resignation or removal, or any right to damages
on account of such removal, whether his or her compensation be by the month or
by the year or otherwise, unless such compensation is expressly provided in a
duly authorized written agreement with the Corporation.
3.6 VACANCIES. The Board of Directors may fill any vacancy occurring in any
office for any reason and may, in its discretion, leave unfilled for such period
as it may determine any offices other than those of President, Treasurer and
Secretary. Each such successor shall hold office for the unexpired term of his
predecessor and until his or her successor is elected and qualified, or until
his or her earlier death, resignation or removal.
3.7 CHAIRMAN OF THE BOARD AND VICE-CHAIRMAN OF THE BOARD. The Chairman of
the Board, if any, shall preside at all meetings of the Board of Directors and
stockholders at which he or she is present and shall perform such duties and
possess such powers as are designated by the Board of Directors. If the Board of
Directors appoints a Vice-Chairman of the Board, he or she shall, in the absence
or disability of the Chairman of the Board, perform the duties and exercise the
powers of the Chairman of the Board and shall perform such other duties and
possess such other powers as may from time to time be designated by the Board of
Directors.
3.8 PRESIDENT. The President shall, subject to the direction of the Board
of Directors, have general charge and supervision of the business of the
Corporation. Unless otherwise provided by the Board of Directors, and provided
that there is no Chairman of the Board or that the Chairman and Vice-Chairman,
if any, are not available, the President shall preside at all meetings of the
stockholders, and, if a director, at all meetings of the Board of Directors.
Unless the Board of Directors has designated another officer as the Chief
Executive Officer, the President shall be the Chief Executive Officer of the
Corporation. The President shall perform such other duties and shall have such
other powers as the Board of Directors may from time to time prescribe. The
President shall have the power to enter into contracts and otherwise bind the
Corporation in matters arising in the ordinary course of the Corporation's
business.
3.9 VICE PRESIDENTS. Any Vice President shall perform such duties and
possess such powers as the Board of Directors or the President may from time to
time prescribe. In the event
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of the absence, inability or refusal to act of the President, the Vice President
(or if there shall be more than one, the Vice Presidents in the order determined
by the Board of Directors) shall perform the duties of the President and, when
so performing, shall have all the powers of and be subject to all the
restrictions upon the President. The Board of Directors may assign to any Vice
President the title of Executive Vice President, Senior Vice President or any
other title selected by the Board of Directors. Unless otherwise determined by
the Board of Directors, any Vice President shall have the power to enter into
contracts and otherwise bind the Corporation in matters arising in the ordinary
course of the Corporation's business.
3.10 SECRETARY AND ASSISTANT SECRETARIES. The Secretary shall perform such
duties and shall have such powers as the Board of Directors or the President may
from time to time prescribe. In addition, the Secretary shall perform such
duties and have such powers as are incident to the office of secretary,
including without limitation the duty and power to give notices of all meetings
of stockholders and special meetings of the Board of Directors, to attend all
meetings of stockholders and the Board of Directors and keep a record of the
proceedings, to maintain a stock ledger and prepare lists of stockholders and
their addresses as required, to be custodian of corporate records and the
corporate seal and to affix and attest to the same on documents.
Any Assistant Secretary shall perform such duties and possess such powers
as the Board of Directors, the President or the Secretary may from time to time
prescribe. In the event of the absence, inability or refusal to act of the
Secretary, the Assistant Secretary (or if there shall be more than one, the
Assistant Secretaries in the order determined by the Board of Directors) shall
perform the duties and exercise the powers of the Secretary.
In the absence of the Secretary or any Assistant Secretary at any meeting
of stockholders or directors, the person presiding at the meeting shall
designate a temporary secretary to keep a record of the meeting.
3.11 TREASURER AND ASSISTANT TREASURERS. The Treasurer shall perform such
duties and shall have such powers as the Board of Directors or the President may
from time to time prescribe. In addition, the Treasurer shall perform such
duties and have such powers as are incident to the office of treasurer,
including without limitation the duty and power to keep and be responsible for
all funds and securities of the Corporation, to deposit funds of the Corporation
in depositories selected in accordance with these Third Amended and Restated
By-Laws, to disburse such funds as ordered by the Board of Directors, to make
proper accounts for such funds, and to render as required by the Board of
Directors statements of all such transactions and of the financial condition of
the Corporation.
The Assistant Treasurers shall perform such duties and possess such powers
as the Board of Directors, the President or the Treasurer may from time to time
prescribe. In the event of the absence, inability or refusal to act of the
Treasurer, the Assistant Treasurer (or if there shall be more than one, the
Assistant Treasurers in the order determined by the Board of Directors) shall
perform the duties and exercise the powers of the Treasurer.
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3.12 SALARIES. Officers of the Corporation shall be entitled to such
salaries, compensation or reimbursement as shall be fixed or allowed from time
to time by the Board of Directors.
3.13 ACTION WITH RESPECT TO SECURITIES OF OTHER CORPORATIONS. Unless
otherwise directed by the Board of Directors, the President or any officer of
the Corporation authorized by the President shall have power to vote and
otherwise act on behalf of the Corporation, in person or by proxy, at any
meeting of stockholders of or with respect to any action of stockholders of any
other corporation in which the Corporation may hold securities and otherwise to
exercise any and all rights and powers which this Corporation may possess by
reason of its ownership of securities in such other corporation.
ARTICLE 4 - CAPITAL STOCK
4.1 ISSUANCE OF STOCK. Unless otherwise voted by the stockholders and
subject to the provisions of the Certificate of Incorporation, the whole or any
part of any unissued balance of the authorized capital stock of the Corporation
or the whole or any part of any issued, authorized capital stock of the
Corporation held in its treasury may be issued, sold, transferred or otherwise
disposed of by vote of the Board of Directors in such manner, for such
consideration and on such terms as the Board of Directors may determine.
4.2 CERTIFICATES OF STOCK. Every holder of stock of the Corporation shall
be entitled to have a certificate, in such form as may be prescribed by law and
by the Board of Directors, certifying the number and class of shares owned by
such stockholder in the Corporation. Each such certificate shall be signed by,
or in the name of the Corporation by, the Chairman or Vice-Chairman, if any, of
the Board of Directors, or the President or a Vice President, and the Treasurer
or an Assistant Treasurer, or the Secretary or an Assistant Secretary of the
Corporation. Any or all of the signatures on such certificate may be a
facsimile.
Each certificate for shares of stock which are subject to any restriction
on transfer pursuant to the Certificate of Incorporation, the Third Amended and
Restated By-Laws, applicable securities laws or any agreement among any number
of shareholders or among such holders and the Corporation shall have
conspicuously noted on the face or back of such certificate either the full text
of such restriction or a statement of the existence of such restriction.
4.3 TRANSFERS. Except as otherwise established by rules and regulations
adopted by the Board of Directors, and subject to applicable law, shares of
stock may be transferred on the books of the Corporation by the surrender to the
Corporation or its transfer agent of the certificate representing such shares,
properly endorsed or accompanied by a written assignment or power of attorney
properly executed, and with such proof of authority or the authenticity of
signature as the Corporation or its transfer agent may reasonably require.
Except as may be otherwise required by law, by the Certificate of Incorporation
or by these Third Amended and Restated By-Laws, the Corporation shall be
entitled to treat the record holder of stock as shown on its books as the owner
of such stock for all purposes, including the payment of dividends and
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the right to vote with respect to such stock, regardless of any transfer, pledge
or other disposition of such stock, until the shares have been transferred on
the books of the Corporation in accordance with the requirements of these Third
Amended and Restated By-Laws.
4.4 LOST, STOLEN OR DESTROYED CERTIFICATES. The Corporation may issue a new
certificate of stock in place of any previously issued certificate alleged to
have been lost, stolen, or destroyed, upon such terms and conditions as the
President may prescribe, including the presentation of reasonable evidence of
such loss, theft or destruction and the giving of such indemnity as the
President may require for the protection of the Corporation or any transfer
agent or registrar.
4.5 RECORD DATE. The Board of Directors may fix in advance a date as a
record date for the determination of the stockholders entitled to notice of or
to vote at any meeting of stockholders or, to the extent permitted by the
Certificate of Incorporation and these Third Amended and Restated By-laws, to
express consent (or dissent) to corporate action in writing without a meeting,
or entitled to receive payment of any dividend or other distribution or
allotment of any rights in respect of any change, conversion or exchange of
stock, or for the purpose of any other lawful action. Such record date shall not
be more than 60 nor less than 10 days before the date of such meeting, nor more
than 60 days prior to any other action to which such record date relates.
If no record date is fixed, the record date for determining stockholders
entitled to notice of or to vote at a meeting of stockholders shall be at the
close of business on the day before the day on which notice is given, or, if
notice is waived, at the close of business on the day before the day on which
the meeting is held. The record date for determining stockholders entitled to
express consent to corporate action in writing without a meeting (to the extent
permitted by the Certificate of Incorporation and these Third Amended and
Restated By-laws) when no prior action by the Board of Directors is necessary,
shall be the day on which the first written consent is expressed. If no record
date is fixed, the record date for determining stockholders for any other
purpose shall be at the close of business on the day on which the Board of
Directors adopts the resolution relating to such purpose.
A determination of stockholders of record entitled to notice of or to vote
at a meeting of stockholders shall apply to any adjournment of the meeting;
provided, however, that the Board of Directors may fix a new record date for the
adjourned meeting.
ARTICLE 5 - GENERAL PROVISIONS
5.1 FISCAL YEAR. The fiscal year of the Corporation shall be fixed by
resolution of the Board of Directors.
5.2 CORPORATE SEAL. The corporate seal shall be in such form as shall be
approved by the Board of Directors.
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5.3 NOTICES. Except as otherwise specifically provided herein or required
by law or the Certificate of Incorporation, all notices required to be given to
any person pursuant to these Third Amended and Restated By-Laws shall be in
writing and may in every instance be effectively given by hand delivery to the
recipient thereof, by depositing such notice in the mails, postage paid, or by
sending such notice by prepaid telegram or facsimile transmission. Any such
notice shall be addressed to such person at his or her last known address as the
same appears on the books of the Corporation. The time when such notice is
received shall be deemed to be the time of the giving of the notice.
5.4 WAIVER OF NOTICE. Whenever any notice whatsoever is required to be
given by law, by the Certificate of Incorporation or by these Third Amended and
Restated By-Laws, a waiver of such notice either in writing signed by the person
entitled to such notice or such person's duly authorized attorney, or by
telegraph, facsimile transmission or any other available method, whether before,
at or after the time stated in such waiver, or the appearance of such person or
persons at such meeting in person or by proxy, shall be deemed equivalent to
such notice.
5.5 EVIDENCE OF AUTHORITY. A certificate by the Secretary, or an Assistant
Secretary, or a temporary Secretary, as to any action taken by the stockholders,
directors, a committee or any officer or representative of the Corporation
shall, as to all persons who rely on the certificate in good faith, be
conclusive evidence of such action.
5.6 FACSIMILE SIGNATURES. In addition to the provisions for use of
facsimile signatures elsewhere specifically authorized in these Third Amended
and Restated By-Laws, facsimile signatures of any officer or officers of the
Corporation may be used whenever and as authorized by the Board of Directors or
a committee thereof.
5.7 RELIANCE UPON BOOKS, REPORTS AND RECORDS. Each director, each member of
any committee designated by the Board of Directors, and each officer of the
Corporation shall, in the performance of his or her duties, be fully protected
in relying in good faith upon the books of account or other records of the
Corporation and upon such information, opinions, reports or statements presented
to the Corporation by any of its officers or employees or committees of the
Board of Directors so designated, or by any other person as to matters which
such director or committee member reasonably believes are within such other
person's professional or expert competence and who has been selected with
reasonable care by or on behalf of the Corporation.
5.8 TIME PERIODS. In applying any provision of these Third Amended and
Restated By-Laws that requires that an act be done or not be done a specified
number of days prior to an event or that an act be done during a period of a
specified number of days prior to an event, calendar days shall be used, the day
of the doing of the act shall be excluded, and the day of the event shall be
included.
5.9 CERTIFICATE OF INCORPORATION. All references in these Third Amended and
Restated By-Laws to the Certificate of Incorporation shall be deemed to refer to
the Fourth
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Amended and Restated Certificate of Incorporation of the Corporation, as amended
and in effect from time to time.
5.10 TRANSACTIONS WITH INTERESTED PARTIES. No contract or transaction
between the Corporation and one or more of the directors or officers, or between
the Corporation and any other corporation, partnership, association, or other
organization in which one or more of the directors or officers are directors or
officers, or have a financial interest, shall be void or voidable solely for
this reason, or solely because such director or officer is present at or
participates in the meeting of the Board of Directors or a committee of the
Board of Directors which authorizes the contract or transaction or solely
because his, her or their votes are counted for such purpose, if:
(1) The material facts as to his or her relationship or interest and as
to the contract or transaction are disclosed or are known to the Board of
Directors or the committee, and the Board or committee in good faith
authorizes the contract or transaction by the affirmative vote of a
majority of the disinterested directors, even though the disinterested
directors be less than a quorum;
(2) The material facts as to his or her relationship or interest and as
to the contract or transaction are disclosed or are known to the
stockholders entitled to vote thereon, and the contract or transaction is
specifically approved in good faith by vote of the stockholders; or
(3) The contract or transaction is fair as to the Corporation as of the
time it is authorized, approved or ratified, by the Board of Directors, a
committee of the Board of Directors, or the stockholders.
Common or interested directors may be counted in determining the presence
of a quorum at a meeting of the Board of Directors or of a committee which
authorizes the contract or transaction.
5.11 SEVERABILITY. Any determination that any provision of these Third
Amended and Restated By-Laws is for any reason inapplicable, illegal or
ineffective shall not affect or invalidate any other provision of these Third
Amended and Restated By-Laws.
5.12 PRONOUNS. All pronouns used in these Third Amended and Restated
By-Laws shall be deemed to refer to the masculine, feminine or neuter, singular
or plural, as the identity of the persons or persons so designated may require.
ARTICLE 6 - AMENDMENTS
6.1 BY THE BOARD OF DIRECTORS. Except as is otherwise set forth in these
Third Amended and Restated By-Laws, these Third Amended and Restated By-Laws may
be altered, amended or repealed, or new by-laws may be adopted, by the
affirmative vote of a majority of the directors present at any regular or
special meeting of the Board of Directors at which a quorum is present.
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6.2 BY THE STOCKHOLDERS. Except as otherwise set forth in these Third
Amended and Restated By-Laws, these Third Amended and Restated By-Laws may be
altered, amended or repealed or new by-laws may be adopted by the affirmative
vote of the holders of seventy-five percent (75%) of the shares of the capital
stock of the Corporation issued and outstanding and entitled to vote at any
regular meeting of stockholders, or at any special meeting of stockholders,
provided notice of such alteration, amendment, repeal or adoption of new by-laws
shall have been stated in the notice of such special meeting.
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Exhibit 4.01
essential.com. inc.
SECOND AMENDED AND RESTATED INVESTOR RIGHTS AGREEMENT
Dated as of February 8, 2000
<PAGE>
TABLE OF CONTENTS
Page
----
1. Definitions .......................................................... 1
2. Demand Registration .................................................. 3
A. Demand Rights .................................................. 3
B. S-3 Registration Rights ........................................ 4
3. Company Registration ................................................. 4
4. Obligations of the Company ........................................... 5
5. Furnish Information .................................................. 7
6. Expenses of Registration ............................................. 7
7. Underwriting Requirements ............................................ 8
8. Indemnification ...................................................... 8
9. Reports Under the Exchange Act .......................................10
10. Assignment of Registration Rights ....................................11
11. Limitations on Registration Rights ...................................11
12. "Market Stand-Off' Agreement .........................................11
13. Amendment; Waiver ....................................................12
14. Changes in Registrable Securities ....................................12
15. Information ..........................................................12
(a) Financial and Related Data ....................................13
(b) Access to Properties ..........................................14
16. Termination of Registration Rights ...................................14
17. Legends and Opinions .................................................15
18. Entire Agreement .....................................................15
19. Governing Law ........................................................15
20. Successors and Assigns ...............................................15
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21. Notices ..............................................................15
22. Severability .........................................................16
23. Titles and Subtitles .................................................16
24. Delays or Omissions; Remedies Cumulative .............................16
25. Arbitration ..........................................................16
26. Counterparts .........................................................16
27. Accession to Agreement ...............................................16
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SECOND AMENDED AND RESTATED INVESTOR RIGHTS AGREEMENT
This Second Amended and Restated Investor Rights Agreement (this
"Agreement") is made as of the 8th day of February, 2000 by and among (i)
essential.com, inc., a Delaware corporation (the "Company"), (ii) those holders
of the Company's Series A Preferred Stock, $.01 par value per share (the "Series
A Stock"), set forth on Schedule I hereto under the heading "Angel Investor"
(the "Angel Investors"), (iii) those holders of Series A Stock and the Company's
Series B Preferred Stock, $.0l par value per share (the "Series B Stock"), set
forth on Schedule I hereto under the heading "Existing Outside Investors" (the
"Existing Outside Investors"), and (iv) those holders of the Company's Series C
Preferred Stock, $.0 1 par value per share (the "Series C Stock"), set forth on
Schedule I hereto under the heading "Series C Investors" (the "Series C
Investors"), as such Schedule shall be amended from time to time to reflect each
person who shall, after the date hereof, acquire shares of capital stock and
join in and become party to this Agreement as a Series C Investor by executing
and delivering to the Company an Instrument of Accession in the form of Schedule
II hereto. The Existing Outside Investors and the Series C Investors are
referred to collectively herein as the "Outside Investors." The Angel Investors
and the Outside Investors are referred to collectively herein as the "Investors"
and each collectively as an "Investor." For purposes of this Agreement, Zafa
shall be entitled to the rights of an Outside Investor set forth herein only to
the extent of his ownership of shares of Series B Stock.
RECITALS:
A. Concurrently with the execution of this Agreement, the Series C
Investors are acquiring from the Company shares of the Company's Series C Stock,
pursuant to the Series C Convertible Preferred Stock Purchase Agreement of even
date herewith (the "Purchase Agreement").
B. By entering into this Agreement, the Company wishes to provide a
further inducement to the Series C Investors to purchase the Company's Series C
Stock pursuant to the Purchase Agreement.
NOW, THEREFORE, in consideration of the foregoing, the parties agree
as follows:
1. Definitions. For purposes of this Agreement:
(a) "Common Shares" means shares of Common Stock, par value $0.01 per
share, of the Company.
(b) "Exchange Act" means the Securities Exchange Act of 1934, as amended.
(c) "Form S-3" means such form of registration statement under the
Securities Act as in effect on the date hereof or any registration form under
the Securities Act subsequently adopted by the SEC which permits inclusion or
incorporation of substantial information by reference to other documents filed
by the Company with the SEC.
<PAGE>
(d) "Holder" means any Person owning or having the right to acquire
Registrable Securities, or any assignee thereof in accordance with Section 11.
(e) "Initiating Holders" means the Holder(s) initiating a registration
request under Section 2.
(f) "Majority in Interest of the Initiating Holders" means Initiating
Holders holding a majority of the Registrable Securities held by all Initiating
Holders.
(g) "Person" means any individual, partnership, limited liability company,
joint venture, corporation, association, trust or any other entity or
organization.
(h) "Preferred Stock" means collectively, the Series A Stock, the Series B
Stock and the Series C Stock.
(i) "Qualifying Request" means a written request to register Registrable
Securities with a reasonably anticipated aggregate offering price in excess of
$5,000,000 from any of the Investors that in the aggregate possess either (i) at
least fifty percent (50%) of the Registrable Securities outstanding as of the
date of such request or (ii) at least fifty percent (50%) of the Registrable
Securities issued or issuable upon conversion of the Series C Stock and held by
the Series C Investors or their successors, assigns or donees on the date of
such request.
(j) "Register," "registered," and "registration" refer to a registration
effected by preparing and filing a registration statement or similar document in
compliance with the Securities Act, and the declaration or ordering of
effectiveness of such registration statement or document.
(k) "Registrable Securities" means (1) any Common Shares issuable (without
regard to any restriction on conversion that may be applicable to any particular
holder of Preferred Stock) or issued upon conversion of the Preferred Stock; (2)
any Common Shares issued as (or issuable upon the conversion or exercise of any
warrant, right or other security which is issued as) a dividend or other
distribution with respect to, or in exchange for or in replacement of, or upon
conversion of, such Preferred Stock; and (3) any other capital stock of the
Company whether now owned or hereafter acquired upon the conversion of, exchange
for, or in replacement of, Preferred Stock; provided, however, that any
Registrable Securities sold by a Person in a transaction in which such Person's
rights under this Agreement are not assigned pursuant to Section 11 below shall
cease to be Registrable Securities from and after the time of such sale.
(l) The number of shares of "Registrable Securities then outstanding"
shall be determined by the number of Common Shares outstanding, and the number
of Common Shares issuable, which are Registrable Securities.
(m) "SEC" means the Securities and Exchange Commission.
(n) "Securities Act" means the Securities Act of 1933, as amended.
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(o) "Series C Qualifying Request" means a Qualifying Request from the
Series C Investors pursuant to (ii) in the definition of Qualifying Request
contained in this Section 1.
(p) "Violation" means any of the following statements, omissions or
violations: (i) any untrue statement or alleged untrue statement of a material
fact contained in a registration statement under this Agreement, including any
preliminary prospectus or final prospectus contained therein or any amendments
or supplements thereto or any documents filed under state securities or "blue
sky" laws in connection therewith, (ii) the omission or alleged omission to
state therein a material fact required to be stated therein, or necessary to
make the statements therein not misleading; or (iii) any violation or alleged
violation by the Company of the Securities Act, the Exchange Act, any state
securities law or any rule or regulation promulgated under the Securities Act,
the Exchange Act or any state securities law.
2. Demand Registration.
A. Demand Rights.
(a) If, after the earlier of (i) one hundred eighty (180) days after
the consummation of the initial public offering of the Company's Common Stock,
or (ii) March 29, 2002, the Company shall receive a Qualifying Request that the
Company file a registration statement under the Securities Act with respect to
Registrable Securities then outstanding, then the Company shall, subject to the
limitations of Section 2A(b) below, use its best efforts to effect as soon as
practicable, and in any event within ninety (90) days of the receipt of such
Qualifying Request, such registration. Notwithstanding the foregoing, the
Company shall not be obligated to effect any such registration within 6 months
after the effective date of an immediately preceding registration pursuant to
this Section 2A. The Company shall be obligated to effect only two (2)
registrations pursuant to this Section 2A (an offering which is not consummated
shall not be counted for this purpose).
(b) If Initiating Holders intend to distribute the Registrable
Securities covered by their request by means of an underwriting, they shall so
advise the Company as a part of their request made pursuant to this Section 2A.
In such event, the right of any Holder to include such Holder's Registrable
Securities in such registration shall be conditioned upon such Holder's
participation in such underwriting and the inclusion of such Holder's
Registrable Securities in the underwriting (unless otherwise mutually agreed by
a Majority in Interest of the Initiating Holders and such Holder) to the extent
provided herein. The Company shall select the managing underwriter or
underwriters in such underwriting, such underwriter(s) to be reasonably
satisfactory to a Majority in Interest of the Initiating Holders. All Holders
proposing to distribute their securities through such underwriting shall
(together with the Company as provided in Section 4(f)) enter into an
underwriting agreement in customary form with the underwriter or underwriters so
selected for such underwriting by a Majority in Interest of the Initiating
Holders; provided, however, that the Company shall use commercially reasonable
efforts to negotiate with the underwriters to assure that none of the Holders
shall be required to make any representations or warranties or provide
indemnification except as relates to such Holder's ownership of shares and
authority to enter into the underwriting agreement and to such Holder's intended
method of distribution, and the liability of such Holder shall be limited to an
amount equal to the net proceeds from the offering received by such Holder. In
the event that the underwriters advise the
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Company that marketing factors require a limitation of the number of shares to
be underwritten, the Company and its underwriters shall allocate the number of
Registrable Securities requested to be registered by each of the Holders as
follows: (i) first, to the Outside Investors holding Registrable Securities that
have elected to participate in such offering, pro rata according to the number
of Registrable Securities held by each such Outside Investor; and (ii)
thereafter, to the extent additional securities may be included in such
offering, to the Angel Investors holding Registrable Securities that have
elected to participate in such underwritten offering, pro rata according to the
number of Registrable Securities held by each such Angel Investor; provided,
however, that if the Qualifying Request is a Series C Qualifying Request, and in
the event that the underwriters advise the Company that marketing factors
require a limitation of the number of shares to be underwritten, the Company and
its underwriters shall allocate the number of Registrable Securities requested
to be registered by each of the Holders as follows: (i) first, to the Series C
Investors holding Registrable Securities that have elected to participate in
such offering, pro rata according to the number of Registrable Securities held
by each such Series C Investor; (ii) second, to the Outside Investors (other
than the Series C Investors) holding Registrable Securities that have elected to
participate in such offering, pro rata according to the number of Registrable
Securities held by each such Outside Investor (other than the Series C
Investors); and (iii) thereafter, to the extent additional securities may be
included in such offering, to the Angel Investors holding Registrable Securities
that have elected to participate in such underwritten offering, pro rata
according to the number of Registrable Securities held by each such Angel
Investor.
B. S-3 Registration Rights.
The Company shall be obligated to effect up to two (2) registrations
pursuant to this Section 2B as may be requested by the Investors in the event
and so long as a registration statement pursuant to Form S-3 or any similar
"short-form" registration (a "Short-Form Registration") is available for such
Registration, provided further, that the reasonably anticipated aggregate
offering price will be in excess of $1,000,000. The Company shall not be
obligated to effect a Short Form Registration more than once in any six-month
period.
C. Notwithstanding the foregoing provisions of Sections 2A and 2B,
if the Company shall furnish to Holders requesting a registration statement
pursuant to this Section 2, a certificate signed by the President of the Company
stating that, in the good faith judgment of the Board of Directors of the
Company, it would be detrimental to the Company and its shareholders for such
registration statement to be filed by reason of a material pending announcement
or transaction or series of pending transactions and it is therefore necessary
to defer the filing of such registration statement, the Company shall have the
right to defer such filing for a period of not more than one hundred eighty
(180) days after receipt of the request of the Holders; provided, however, that
the Company may not utilize this right more than once in any twelve (12) month
period.
3. Company Registration. If (but without any obligation to do so)
the Company proposes to register (including for this purpose a registration
effected by the Company for shareholders) any of its stock or other securities
under the Securities Act in connection with a public offering of such securities
solely for cash other than (i) a registration on Form S-8 (or other similar
successor form) relating solely to the sale of securities to participants in a
Company
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stock plan or to other compensatory arrangements to the extent includable on
Form S-8 (or other similar successor form), or (ii) a registration on Form S-4
(or other similar successor form), the Company shall, at such time, promptly
give each Holder written notice of such registration. Upon the written request
of each Holder given within twenty (20) days after mailing of such notice by the
Company in accordance with Section 22, the Company shall, subject to the
provisions of Section 7, use its best efforts to cause to be registered under
the Securities Act all of the Registrable Securities that each such Holder has
requested to be registered. In the event that the underwriters advise the
Company that marketing factors require a limitation of the number of shares to
be underwritten, the Company and its underwriters shall allocate the number of
Registrable Securities requested to be registered by each of the Holders as
follows: (i) first, to the Company; (ii) second, to the Outside Investors
holding Registrable Securities that have elected to participate in such
offering, pro rata according to the number of Registrable Securities held by
each such Outside Investor; and (iii) thereafter, to the extent additional
securities may be included in such offering, to the Angel Investors holding
Registrable Securities that have elected to participate in such underwritten
offering, pro rata according to the number of Registrable Securities held by
each such Angel Investor; provided, however, that in no event shall the number
of Registrable Securities to be registered by the Outside Investors be less than
twenty percent (20%) of the total number of shares to be sold in such offering.
The Company shall have no obligation under this Section 3 to make any offering
of its securities, or to complete an offering of its securities that it proposes
to make, and shall incur no liability to any Holder for its failure to do so.
4. Obligations of the Company. Whenever required under this
Agreement to effect the registration of any Registrable Securities, the Company
shall, as expeditiously as reasonably possible:
(a) Prepare and file with the SEC a registration statement with
respect to such Registrable Securities and use its best efforts to cause such
registration statement to become effective, and, upon the request of the Holders
of a majority of the Registrable Securities being registered thereunder, keep
such registration statement effective for up to one hundred twenty (120) days or
until the Holders have completed the distribution referred to in such
registration statement, whichever occurs first (but in any event for at least
any period required under the Securities Act); provided that before filing such
registration statement or any amendments thereto, the Company will furnish to
the directors elected by the holders of the Preferred Stock copies of all such
documents proposed to be filed; provided, further, however, that each such
director may elect to waive such requirement by written notice to the Company.
(b) Prepare and file with the SEC such amendments and supplements to
such registration statement and the prospectus used in connection with such
registration statement as may be necessary to comply with the provisions of the
Securities Act with respect to the disposition of all securities covered by such
registration statement.
(c) Furnish to the Holders such number of copies of such
registration statement and of each amendment and supplement thereto (in each
case including all exhibits), such number of copies of the prospectus contained
in such registration statement (including each preliminary prospectus and any
summary prospectus) and any other prospectus filed under Rule 424 under the
Securities Act, in conformity with the requirements of the Securities Act, and
such
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other documents as Holders may reasonably request in order to facilitate the
disposition of Registrable Securities owned by them.
(d) Use commercially reasonable efforts to register and qualify the
securities covered by such registration statement under such other securities or
"blue sky" laws of such states or jurisdictions as shall be reasonably requested
by the Holders, provided that the Company shall not be required in connection
therewith or as a condition thereto (i) to qualify to do business in any state
or jurisdiction where it would not otherwise be required to qualify but for the
requirements of this clause (d), or (ii) to file a general consent to service of
process in any such state or jurisdiction.
(e) Use commercially reasonable efforts to cause all Registrable
Securities covered by such registration statement to be registered with or
approved by such other governmental agencies or authorities as may be necessary
by virtue of the Company's business or operations to enable the seller or
sellers thereof to consummate the disposition of such Registrable Securities.
(f) In the event of any underwritten public offering, enter into and
perform its obligations under an underwriting agreement, in usual and customary
form, with the managing underwriter of such offering.
(g) Notify each Holder of Registrable Securities covered by such
registration statement at any time when a prospectus relating thereto is
required to be delivered under the Securities Act of the happening of any event
as a result of which the prospectus included in such registration statement, as
then in effect, includes an untrue statement of a material fact or omits to
state a material fact required to be stated therein or necessary to make the
statements therein not misleading in the light of the circumstances then
existing.
(h) Notify each Holder of Registrable Securities covered by such
registration statement and such Holder's underwriters, if any, and confirm such
advice in writing: (i) when the registration statement has become effective;
(ii) when any post-effective amendment to the registration statement becomes
effective; and (iii) of any request by the SEC for any amendment or supplement
to the registration statement or prospectus or for additional information.
(i) Notify each Holder of Registrable Securities if at any time the
SEC should institute or threaten to institute any proceedings for the purpose of
issuing, or should issue, a stop order suspending the effectiveness of the
Registration Statement. Upon the occurrence of any of the events mentioned in
the preceding sentence, the Company will use commercially reasonable efforts to
prevent the issuance of any stop order or to obtain the withdrawal thereof as
soon as possible. The Company will advise each Holder of Registrable Securities
promptly of any order or communication of any public board or body addressed to
the Company suspending or threatening to suspend the qualification of any
Registrable Securities for sale in any jurisdiction.
(j) Furnish, at the request of any Holder requesting registration of
Registrable Securities pursuant to this Agreement, (i) on the date that such
Registrable Securities are delivered to the underwriters for sale in connection
with any registration pursuant to this Agreement in which securities are being
sold through underwriters, an opinion, dated such date,
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of the counsel representing the Company for the purposes of such registration,
in form and substance as is customarily given to underwriters in an underwritten
public offering, addressed to the underwriters, if any, and to the Holders
requesting registration of Registrable Securities and (ii) on the date that the
registration statement with respect to such securities becomes effective, a
"comfort" letter dated such date, from the independent certified public
accountants of the Company, in form and substance as is customarily given by
independent certified public accountants to underwriters in an underwritten
public offering, addressed to the underwriters, if any, and to the Holders
requesting registration of Registrable Securities, and a reaffirmation of such
letter on the date that such Registrable Securities are delivered to the
underwriters for sale.
(k) As soon as practicable after the effective date of the
registration statement, and in any event within sixteen (16) months thereafter,
have "made generally available to its security holders" (within the meaning of
Rule 158 under the Securities Act) an earning statement (which need not be
audited) covering a period of at least twelve (12) months beginning after the
effective date of the registration statement and otherwise complying with
Section 11(a) of the Securities Act.
5. Furnish Information. It shall be a condition precedent to the
obligations of the Company to take any action pursuant to this Agreement with
respect to the Registrable Securities of any selling Holder that such Holder
shall furnish to the Company such information regarding itself, the Registrable
Securities held by it, and the intended method of distribution of such
securities as shall be required to effect the registration of such Holder's
Registrable Securities. If any registration statement or comparable statement
under the Securities Act refers to an Investor or any of its affiliates, by name
or otherwise, as the holder of any securities of the Company then, unless
counsel to the Company advises the Company that the Securities Act or the SEC
requires that such reference be included in any such statement, each such
Investor shall have the right to require the deletion of such reference to
itself and its affiliates.
6. Expenses of Registration. All expenses, other than underwriting
discounts and commissions relating to Registrable Securities, incurred in
connection with registrations, filings or qualifications pursuant to this
Agreement, including without limitation all registration, filing and
qualification fees, printers' and accounting fees, fees and disbursements (up to
$25,000) of one counsel (selected by a majority of Holders participating in such
a registration) for the selling Holders shall be borne by the Company; provided,
however, that the Company shall not be required to bear such expenses in
connection with any registration begun pursuant to Section 2 if the offering is
not consummated primarily as a result of any act or omission of any
participating Holder (in which case all participating Holders shall bear such
expenses pro rata), unless with respect to a demand made pursuant to Section 2,
a Majority in Interest of the Initiating Holders agree to forfeit one (1) of the
demand registration(s) to which they are then entitled pursuant to Section 2;
provided, further, however, that if (i) at the time of such withdrawal, the
Holders have learned of a material adverse change in the financial condition or
business of the Company from that known to the Holders at the time of their
request, or (ii) if such withdrawal is at the request of, caused by, or the
result of an unreasonable delay by the Company, then the Holders shall not be
required to pay any such expenses and shall retain their rights pursuant to
Section 2 of this Agreement.
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7. Underwriting Requirements. In connection with any offering
involving an underwriting of shares being issued by the Company, the Company
shall not be required under Section 3 to include any Holder's securities in such
underwriting unless such Holder accepts the terms of the underwriting as agreed
upon between the Company and the underwriters selected by the Company (with the
approval of Holders holding a majority of the Registrable Securities held by all
Holders, such approval not to be unreasonably withheld); provided, however, that
no Holder participating in such underwriting shall be required to make any
representations or warranties or provide indemnification except as relates to
such Holder's ownership of shares and authority to enter into the underwriting
agreement and to such Holder's intended method of distribution, and the
liability of such Holder shall be limited to an amount equal to the net proceeds
from the offering received by such Holder.
8. Indemnification. In the event any Registrable Securities are
included in a registration statement under this Agreement:
(a) The Company will indemnify and hold harmless each Holder, his or
her heirs, personal representatives and assigns, each of such Holder's partners,
officers, directors, employees and affiliates, any underwriter (as defined in
the Securities Act) for such Holder and each Person, if any, who controls such
Holder or underwriter within the meaning of the Securities Act or the Exchange
Act against any losses, claims, damages or liabilities (joint or several) to
which they may become subject under the Securities Act, the Exchange Act or
other federal or state law, insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) arise out of or are based upon a
Violation (provided, however, that the Company will not be required to indemnify
any of the foregoing Persons on account of any losses, claims, damages or
liabilities arising from a Violation if and to the extent that such Violation
was made in a preliminary prospectus and was corrected in a subsequent
prospectus that was required by law to be delivered to the Person making the
claim with respect to which indemnification is sought hereunder, and such
subsequent prospectus was made available by the Company to permit delivery of
such prospectus in a timely manner, and such subsequent prospectus was not so
delivered to such Person by a selling stockholder making use of a prospectus
from a Registration Statement on Form S-3); and the Company will pay to each
such indemnified party, as incurred, any legal or other expenses reasonably
incurred by them in connection with investigating or defending any such loss,
claim, damage, liability, or action; provided, however, that the indemnity
agreement contained in this Section 8(a) shall not apply to amounts paid in
settlement of any such loss, claim, damage, liability or action if such
settlement is effected without the consent of the Company (which consent shall
not be unreasonably withheld), nor shall the Company be liable in any such case
to a particular indemnified party for any such loss, claim, damage, liability or
action to the extent that it arises out of or is based upon a Violation which
occurs in reliance upon, and in conformity with, written information furnished
expressly for use in connection with such registration by or on behalf of such
indemnified party.
(b) Each selling Holder will indemnify and hold harmless the
Company, each of its directors, each of its officers who has signed the
registration statement, each Person, if any, who controls the Company within the
meaning of the Securities Act, any underwriter, any other Holder selling
securities in such registration statement and any controlling Person of any such
underwriter or other Holder, against any losses, claims, damages or liabilities
(joint or several) to which any of the foregoing Persons may become subject,
under the Securities Act, the Exchange
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<PAGE>
Act or other federal or state law, insofar as such losses, claims, damages or
liabilities (or actions in respect thereto) arise out of or are based upon any
Violation, in each case to the extent (and only to the extent) that such
Violation occurs in reliance upon and in conformity with written information
furnished by or on behalf of such Holder expressly for use in connection with
such registration; and each such Holder will pay, as incurred, any legal or
other expenses reasonably incurred by any Person intended to be indemnified
pursuant to this Section 8(b), in connection with investigating or defending any
such loss, claim, damage, liability, or action; provided, however, that the
indemnity agreement contained in this Section 8(b) shall not apply to amounts
paid in settlement of any such loss, claim, damage, liability or action if such
settlement is effected without the consent of the Holder, which consent shall
not be unreasonably withheld; and provided further, that, in no event shall the
liability of any Holder under this Section 8(b) exceed the net proceeds from the
offering received by such Holder.
(c) Promptly after receipt by an indemnified party under this
Section 8 of notice of the commencement of any action (including any
governmental action), such indemnified party will, if a claim in respect thereof
is to be made against any indemnifying party under this Section 8, deliver to
the indemnifying party a written notice of the commencement thereof and the
indemnifying party shall have the right to participate in, and, to the extent
the indemnifying party so desires, jointly with any other indemnifying party
similarly noticed, to assume the defense thereof with counsel mutually
satisfactory to the parties; provided, however, that the indemnified parties
shall have the right to retain one counsel of their own, with the fees and
expenses of one such counsel to be paid by the indemnifying party, if
representation of such indemnified parties by the counsel retained by the
indemnifying party would be inappropriate due to actual or potential differing
interests between such indemnified parties and any other party represented by
such counsel in such proceeding. The failure to deliver written notice to the
indemnifying party within a reasonable time of the commencement of any such
action shall not relieve such indemnifying party of any liability to the
indemnified party under this Section 8 except if, and only to the extent that,
the indemnifying party is actually prejudiced thereby; and such failure to
deliver written notice to the indemnifying party will not relieve it of any
liability that it may have to any indemnified party otherwise than under this
Section 8.
(d) The obligations of the Company and Holders under this Section 8
shall survive the completion of any offering of Registrable Securities in a
registration statement under this Agreement, and otherwise.
(e) Any indemnity agreements contained herein shall be in addition
to any other rights to indemnification or contribution which any indemnified
party may have pursuant to law or contract and shall remain operative and in
full force and effect regardless of any investigation made or omitted by or on
behalf of any indemnified party.
(f) If for any reason the foregoing indemnity is unavailable, then
the indemnifying party shall contribute to the amount paid or payable by the
indemnified party as a result of such losses, claims, damages, liabilities or
expenses (i) in such proportion as is appropriate to reflect the relative
benefits received by the indemnifying party on the one hand and the indemnified
party on the other (taking into consideration, among other things, the fact that
the provision of the registration rights and indemnification hereunder is a
material inducement to the Investors to purchase Registrable Securities pursuant
to the Purchase Agreement) or (ii) if the
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<PAGE>
allocation provided by clause (i) above is not permitted by applicable law or
provides a lesser sum to the indemnified party than the amount hereinafter
calculated, in such proportion as is appropriate to reflect not only the
relative benefits received by the indemnifying party on the one hand and the
indemnified party on the other (taking into consideration, among other things,
the fact that the provision of the registration rights and indemnification
hereunder is a material inducement to the Investors to purchase Registrable
Securities pursuant to the Purchase Agreement) but also the relative fault of
the indemnifying party and the indemnified party as well as any other relevant
equitable considerations. The relative fault shall be determined by reference
to, among other things, whether the untrue or alleged untrue statement of a
material fact or the omission or alleged omission to state a material fact
relates to information supplied by or on behalf of the indemnifying party or the
indemnified party and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such untrue statement or
omission. No Person guilty of fraudulent misrepresentation (within the meaning
of Section 11(f) of the Securities Act) shall be entitled to contribution from
any Person who was not guilty of such fraudulent misrepresentation.
Notwithstanding anything to the contrary in this Section 8, no Holder shall be
required, pursuant to this Section 8, to contribute any amount in excess of the
net proceeds received by such indemnifying party from the sale of Common Stock
in the offering to which the losses, claims, damages, liabilities or expenses of
the indemnified party relate.
9. Reports Under the Exchange Act. With a view to making available
to the Holders the benefits of Rule 144 under the Securities Act and any other
rule or regulation of the SEC that may at any time permit a Holder to sell
securities of the Company to the public without registration or pursuant to a
registration on Form S-3, the Company agrees to use commercially reasonable
efforts to:
(a) make and keep public information available, as those terms are
understood and defined in Rule 144 under the Securities Act, at all times after
the effective date of the first registration statement filed by the Company for
the offering of its securities to the general public;
(b) take such action as is necessary to enable the Holders to
utilize Form S-3 for the sale of their Registrable Securities;
(c) file with the SEC in a timely manner all reports and other
documents required of the Company under the Securities Act and the Exchange Act;
and
(d) furnish to any Holder, so long as the Holder owns any
Registrable Securities, forthwith upon request (i) a written statement by the
Company that it has complied with the reporting requirements of Rule 144 under
the Securities Act (at any time after the effective date of the first
registration statement filed by the Company) and the Securities Act and Exchange
Act (at any time after it has become subject to such reporting requirements) or
that it qualifies as a registrant whose securities may be resold pursuant to
Form S-3 (at any time it so qualifies), (ii) a copy of the most recent annual or
quarterly report of the Company and such other reports and documents so filed by
the Company, and (iii) such other information as may be reasonably requested in
availing any Holder of any rule or regulation of the SEC which permits the
selling of any such securities without registration or pursuant to such form.
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<PAGE>
10. Rule 144A Information. During any period in which the Company is
not subject to Section 13 or 15(d) of the Exchange Act, the Company shall make
available information required to be provided by Rule 144A(d)(4), upon request.
11. Assignment of Registration Rights. The rights to cause the
Company to register Registrable Securities pursuant to this Agreement may be
assigned in whole or in part by a Holder to one or more transferees or assignees
of not less than 1,000,000 shares of Registrable Securities; provided, however,
that (i) such transferee or assignee delivers to the Company a written
instrument by which such transferee or assignee agrees to be bound by the
obligations imposed on Holders under this Agreement to the same extent as if
such transferee or assignee was a party hereto; and (ii) such volume limitation
shall not apply to transferees or assignees who are Affiliates or the transferor
or assignor.
12. Limitations on Registration Rights. Except as set forth in the
Amended Investor Rights Agreement dated as of July 30, 1999, as amended, the
Company represents and warrants to the Holders that no other "registration
rights" relating to securities of the Company exist on the date hereof. Except
as set forth in the Amended Investor Rights Agreement dated as of July 30, 1999,
as amended, each of the Holders represents to each other Holder that it has no
other "registration rights" relating to securities of the Company as of the date
hereof. From and after the date of this Agreement, the Company shall not,
without the prior written consent of the Holders of a majority of the
outstanding Registrable Securities, enter into any agreement with any holder or
prospective holder of any securities of the Company which would allow such
holder or prospective holder (a) to include such securities in any registration
filed under this Agreement, unless under the terms of such agreement, such
holder or prospective holder may include such securities in any such
registration only to the extent that the inclusion of such holder's securities
will not reduce the amount of the Registrable Securities of the Holders which is
included therein or (b) to request a registration. From and after the date of
this Agreement, the Company shall not, without the prior written consent of the
Holders of a majority of the Series C Stock, enter into any agreement with any
holder or prospective holder of any securities of the Company which would grant
such holder or prospective holder rights superior to those granted hereunder to
the Holders of the Series C Stock. It is understood and agreed that the
registration rights set forth herein apply only to the Common Shares and that
nothing contained herein shall obligate the Company to register any shares of
the Preferred Stock.
13. "Market Stand-Off" Agreement. Each Holder hereby agrees that, if
requested by an underwriter in connection with an initial underwritten public
offering of the Company's Common Stock, during the period of 180 days following
the effective date of a registration statement of the Company filed under the
Securities Act in connection with such underwritten offering, it shall not, to
the extent requested by the Company and such underwriter, sell or otherwise
transfer or dispose of (other than to donees or partners who agree to be
similarly bound) any Common Stock or any securities of the Company convertible
into Common Stock held by it, except Common Stock included in such registration.
In addition, for a period of 180 days following the consummation of an initial
public offering and for such reasonable amount of time prior to such
consummation as the underwriters may request (collectively, the "Lock-up
Period"), the Company shall use commercially reasonable efforts to require that
during the Lock-Up Period its directors, officers and beneficial owners of five
percent (5%) or more of the Company's securities do not, sell or otherwise
transfer or dispose of (other than to donees or
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<PAGE>
partners who agree to be similarly bound) any Common Stock or any securities of
the Company convertible into Common Stock held by it, except Common Stock
included in such registration, without the express written consent of the
underwriters. Notwithstanding the foregoing, the provisions of this Section 13
shall not apply (i) to shares of Common Stock acquired by a Holder in the
Company's initial public offering of Common Stock pursuant to an effective
registration statement filed with the SEC or (ii) to shares of Common Stock
acquired by a Holder in the public market subsequent to the Company's initial
public offering of Common Stock pursuant to an effective registration statement
filed with the SEC.
14. Amendment Waiver. Any provision of this Agreement may be amended
only with the written consent of the Company and the Holders of a majority of
the Registrable Securities then outstanding (including at least a majority in
interest of the Outside Investors and at least a majority in interest of the
Series C Stock and Common Stock obtained upon conversion thereof and that is
held by the Series C Investors); provided, however, that should an amendment
hereto be detrimental to the interests of the Series C Investors with respect to
their holdings of Series C Stock, such amendment shall required the written
consent of each Series C Investor. The observance of any provision of this
Agreement may be waived (either generally or in a particular instance and either
retroactively or prospectively) only with the written consent of the party to be
charged, provided that the Holders of a majority of the Registrable Securities
then outstanding (including at least a majority in interest of the Outside
Investors) may act on behalf of all such Holders of Registrable Securities. Any
amendment or waiver effected in accordance with this Section 14 shall be binding
upon each Holder of Registrable Securities at the time outstanding, each future
Holder of all such securities, and the Company.
15. Changes in Registrable Securities. If, and as often as, there
are any changes in the Registrable Securities by way of stock split, stock
dividend, combination or reclassification, or through merger, consolidation,
reorganization or recapitalization, or by any other means, appropriate
adjustment shall be made in the provisions of this Agreement, as may be
required, so that the rights and privileges granted hereby shall continue with
respect to the Registrable Securities as so changed. Without limiting the
generality of the foregoing, the Company will require any successor by merger or
consolidation to assume and agree to be bound by the terms of this Agreement, as
a condition to any such merger or consolidation.
16. Information. Each of the Outside Investors (and, in the case of
clauses (ii) and (iii) below, each of the Angel Investors) and each of their
respective assignees shall be entitled to receive, and the Company agrees to
provide to each of the Outside Investors (and, in the case of clauses (ii) and
(iii) below, each of the Angel Investors) and each of their respective
assignees, the following:
(a) Financial and Related Data.
(i) As soon as available, but in any event not later than
thirty (30) days after the end of each month, the unaudited balance sheet as at
the end of such month of the Company and the related unaudited statements of
operations, stockholders' equity and cash flows for such month and for the
elapsed period in such fiscal year, all in reasonable detail and stating in
comparative form the figures as of the end of and for the comparable period of
the preceding fiscal year and budgeted figures for the period. All such
financial statements shall be complete
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and correct in all material respects, and shall be accompanied by a certificate
of the President or chief financial officer of the Company to such effect.
(ii) As soon as available, but in any event not later than
forty-five (45) days after the end of each fiscal quarter, the unaudited balance
sheet as at the end of such quarter of the Company and the related unaudited
statements of operations, stockholders' equity and cash flows of such quarter
and for the elapsed period of such fiscal year, all in reasonable detail and
stating in comparative form the figures as of the end of and for the comparable
period of the preceding fiscal year and budgeted figures for the period. All
such financial statements shall be complete and correct in all material
respects, and shall be accompanied by a certificate of the President or chief
financial officer of the Company to such effect.
(iii) As soon as available, but in any event within ninety
(90) days after the end of each fiscal year of the Company, the audited balance
sheet of the Company as at the end of such fiscal year and the related audited
statements of operations, stockholders' equity and cash flows of the Company for
such fiscal year, all in reasonable detail and stating in comparative form the
figures as at the end of and for the previous fiscal year and budgeted figures
for the fiscal year, accompanied by an opinion of an accounting firm of
nationally recognized standing selected by the Company with respect to such
financial statements, which opinion shall state that such accounting firm's
audit was conducted in accordance with generally accepted auditing standards
and, accordingly, included such tests of accounting records and such other
auditing procedures as were considered necessary under the circumstances. All
such financial statements shall be complete and correct in all material respects
and prepared in reasonable detail and in accordance with GAAP applied, except as
stated therein, on a consistent basis throughout the periods reflected therein.
(iv) As soon as available, but in any event not later than
thirty (30) days prior to the end of each fiscal year of the Company, the
financial plan and business plan of the Company for the next succeeding fiscal
year, including but not limited to cash flow and balance sheet projections,
capital budget and operating budget, calculated monthly, and any updates or
revisions as soon as available.
(v) Promptly after receipt, copies of all management letters
from accountants and all certificates prepared by or for the Company as to
compliance, defaults, material adverse changes, material litigation or similar
matters, but only to the extent that the delivery thereof would not result in
the loss of any generally recognizable privilege otherwise applicable thereto.
(vi) Within fifteen (15) days after the Company obtains
knowledge of the commencement or written threat of commencement of any material
litigation or proceeding against the Company or its assets, written notice by
the Company of the nature and extent of such litigation or proceeding.
(vii) Promptly, but in any event within five (5) days, after
any distribution to its stockholders generally or to specific stockholders by
agreement, to its directors, to prospective investors or to the financial
community of an annual report, proxy statement, registration statement or other
similar report or communication, a copy of each such report, proxy
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statement, registration statement or other similar report or communication; and
promptly, but in any event within ten (10) days after any filing with the SEC or
with any national securities exchange or with the National Association of
Securities Dealers, Inc., of any publicly available annual or periodic or
special report or proxy statement or registration statement, a copy of such
report or statement; and promptly, but in any event within two (2) business
days, after released, copies of all press releases and other statements made
available generally by the Company to the public concerning material
developments.
(viii) Within sixty (60) days after the end of each fiscal
year, a list of stockholders and other security holders, showing the authorized
and outstanding shares by class (including the common stock equivalents of any
convertible security), the holdings of each stockholder (both before giving
effect to dilution and on a fully-diluted basis) and the holdings of each Person
that holds options, warrants or convertible securities (both before giving
effect to dilution and on a fully diluted basis).
(ix) From time to time, and promptly, such additional
information and financial data regarding results of operations, financial
condition, business, affairs or prospects of the Company, which any Investor may
reasonably request.
The obligation of the Company to provide the items required by clauses (v), (vi)
and (viii) shall terminate upon the consummation of an underwritten public
offering by the Company under the Securities Act. Provided that the Company is a
reporting company under the Exchange Act, the obligation of the Company to
provide the items required by the remaining clauses of this Section 14(a) shall
terminate as to any Investor in the event such Investor (1) holds less than 3%
of the outstanding capital stock of the Company (calculated on an as-converted
to common stock basis) or (2) elects by written notice to the Company to
terminate such obligation.
(b) Access to Properties. The Company shall permit representatives
designated by each Outside Investor, upon reasonable prior notice to the
Company, to visit and inspect each of the Company's properties, to examine its
respective corporate and financial records (and make copies thereof or extracts
therefrom), to discuss its respective affairs, finances and accounts with the
Company's directors and officers, and, through the President or chief financial
officer of the Company, as the case may be, its key employees and accountants,
all at such reasonable times as may be requested by any such Investor.
17. Termination of Registration Rights. The registration rights of
any Holder provided herein shall terminate if in the written opinion of counsel
for the Company, which counsel and the opinion so rendered shall be reasonably
acceptable to such Holder of Registrable Securities, such Holder may sell
without registration under the Securities Act all Registrable Securities then
held by such Holder under Rule 144 of the Securities Act without regard to
volume limitations.
18. Legends and Opinions. The Company shall not require an opinion
of counsel for the Holders before (i) authorizing the transfer of shares of
Registrable Securities (A) pursuant to an effective registration statement or
Rule 144 of the Securities Act or (B) in connection with any distributions to
any partner of a Holder or (ii) the removal of securities legends for the
certificates representing such Registrable Securities; provided, however, that
in
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the case of clause (ii), such Holder shall certify to the Company that such
Holder is permitted to sell such Registrable Securities pursuant to Rule 144(k)
of the Securities Act. The foregoing shall not imply that an opinion of counsel
to the Company shall not be required in such circumstances.
19. Entire Agreement. Each of the Investor Rights Agreement, dated
March 29, 1999, by and among the Company and the parties set forth on the
signature pages thereto, and the Amended and Restated Investor Rights Agreement,
dated as of July 29, 1999, by and among the Company and the parties set forth on
the signature pages thereto, are hereby terminated and each shall be of no
further force or effect. This Agreement constitutes the full and entire
understanding and agreement among the parties with regard to the subject matter
hereof. Nothing in this Agreement, express or implied, is intended to confer
upon any Person, other than the parties hereto and their respective successors
and assigns, any rights, remedies, obligations, or liabilities under or by
reason of this Agreement, except as expressly provided herein.
20. Governing Law. This Agreement shall be governed in all respects
by the laws of the State of Delaware, exclusive of reference to rules and
principles of conflicts of law.
21. Successors and Assigns. The provisions hereof shall inure to the
benefit of, and be binding upon, the successors, permitted assigns (as provided
in Section 11), heirs, executors and administrators of the parties hereto;
provided, however, that except as provided in Section 11, this Agreement may
only be assigned in connection with an estate transfer or as otherwise approved
in writing by the directors elected solely by the holders of the Preferred
Stock.
22. Notices. Unless otherwise provided, any notice required or
permitted under this Agreement shall be given in writing and shall be deemed
effectively given upon receipt by the party to be notified or three (3) days
after deposit with the United States Post Office, by registered or certified
mail, postage prepaid and addressed to the party to be notified (a) if to a
party other than the Company, at such party's address set forth at the end of
this Agreement or at such other address as such party shall have furnished the
Company in writing, or, until any such party so furnishes an address to the
Company, then to and at the address of the last holder of the shares covered by
this Agreement who has so furnished an address to the Company, or (b) if to the
Company, at its address set forth at the end of this Agreement, or at such other
address as the Company shall have furnished to the parties in writing.
23. Severability. Any invalidity, illegality or limitation on the
enforceability of this Agreement or any part thereof, by any party whether
arising by reason of the law of the respective party's domicile or otherwise,
shall in no way affect or impair the validity, legality or enforceability of
this Agreement with respect to other parties. If any provision of this Agreement
shall be judicially determined to be invalid, illegal or unenforceable, the
validity, legality and enforceability of the remaining provisions shall not in
any way be affected or impaired thereby.
24. Titles and Subtitles. The titles of the Sections of this
Agreement are for convenience of reference only and are not to be considered in
construing this Agreement.
25. Delays or Omissions: Remedies Cumulative. It is agreed that no
delay or omission to exercise any right, power or remedy accruing to the
parties, upon any breach or
- 15 -
<PAGE>
default of the Company under this Agreement, shall impair any such right, power
or remedy, nor shall it be construed to be a waiver of any such breach or
default, or any acquiescence therein, or of any similar breach or default
thereafter occurring; nor shall any waiver of any single breach or default be
deemed a waiver of any other breach or default theretofore or thereafter
occurring. It is further agreed that any waiver, permit, consent or approval of
any kind or character by a party of any breach or default under this Agreement,
or any waiver by a party of any provisions or conditions of this Agreement must
be in writing and shall be effective only to the extent specifically set forth
in writing and that all remedies, either under this Agreement, or by law or
otherwise afforded to a party, shall be cumulative and not alternative.
26. Arbitration. Any controversy or claim arising out of or in
conjunction with this Agreement (other than an action for injunctive relief)
shall be settled by arbitration in accordance with the rules of the American
Arbitration Association then in effect in the State of Delaware and judgment
upon such award rendered by the arbitrator shall be final and binding upon the
parties and may be entered and enforced in any court having jurisdiction
thereof. The arbitration shall be held in the State of Delaware. The arbitration
award shall include attorneys' fees and costs to the prevailing party.
27. Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be an original, but all of which together
shall constitute one instrument.
28. Accession to Agreement. Any person or entity who becomes a party
to the Purchase Agreement as an Additional Investor (as defined therein) shall
become a party to this Agreement by executing a counterpart signature page
hereto, whereupon such person shall become a party to this Agreement for all
purposes hereunder as if such person had been an original signatory.
29. Aggregation. For purposes of determining the rights exercisable
by a Holder hereunder, all shares of Registrable Securities held by a Series C
Investor and that constitute either Series C Stock or Common Stock obtained upon
the conversion of Series C Stock may be aggregated by the Holder with those
shares of Registrable Securities constituting Series C Stock or Common Stock
obtained upon conversion of Series C Stock beneficially held by Affiliates of
such Holder. For purposes hereof, "Affiliate" shall mean with respect to any
Holder that is a corporation, partnership or other business entity, any of the
stockholders, subsidiaries, officers, directors, members or partners of such
Holder, and any other corporation, partnership or other business entity which
directly or indirectly controls, is controlled by or is under common control
with such Holder. For purposes hereof, the following entities shall be deemed to
be Affiliates of each other: Amerindo Technology Growth Fund II; Matthew
Fitzmaurice; Litton Master Trust; Emeric McDonald; William S. Slattery; James
Stableford; Vertex Capital II, LLC; Sand Brothers Venture Capital LLC; and SB
Necessary Associates LLC. For purposes hereof, the following entities shall be
deemed to be Affiliates of each other: BayStar Capital L.P., BayStar
International Ltd., Wolstar BV and Stichting Wolstar Administratiekantoor.
* * * * *
- 16 -
<PAGE>
IN WITNESS WHEREOF, the parties hereto have executed this Agreement
as of the day and year first above written.
Address
ESSENTIAL.COM, INC. Three Burlington Woods Drive
Burlington, Massachusetts 01803-4543
By: /s/ Akhil Garland Attention: Akhil Garland, President
----------------------- Telephone: (781) 932-0088
Name: Akhil Garland Telecopier: (781) 932-6611
Title: President
- 17 -
<PAGE>
SECOND AMENDED AND RESTATED INVESTOR RIGHTS AGREEMENT
SIGNATURE PAGE
The undersigned hereby (a) executes that certain Second Amended and
Restated Investor Rights Agreement dated as of the date first above written (the
"Investor Rights Agreement") by and among essential.com, inc. and the Investors
named in Schedule I thereto, (b) agrees to become a party to and be bound as an
"Investor" under such Investor Rights Agreement, and (c) authorizes this
signature page to be attached as a counterpart signature page to such Investor
Rights Agreement.
INVESTOR:
/s/ [ILLEGIBLE]
-----------------------------------------
Signature of Investor
Amerindo Technology Growth Fund II
-----------------------------------------
Printed Name of Investor
Address:
--------------------------------
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<PAGE>
SECOND AMENDED AND RESTATED INVESTOR RIGHTS AGREEMENT
SIGNATURE PAGE
The undersigned hereby (a) executes that certain Second Amended and
Restated Investor Rights Agreement dated as of the date first above written (the
"Investor Rights Agreement") by and among essential.com, inc. and the Investors
named in Schedule I thereto, (b) agrees to become a party to and be bound as an
"Investor" under such Investor Rights Agreement, and (c) authorizes this
signature page to be attached as a counterpart signature page to such Investor
Rights Agreement.
INVESTOR:
/s/ Rachel E. Hyman, Manager
-----------------------------------------
Signature of Investor
Aurora Technology Fund LLC
by Aurora Technology Fund Management LLC
by Rachel E. Hyman
-----------------------------------------
Printed Name of Investor
152 W. 57th St., 57th Floor
Address: New York, NY 10019
--------------------------------
- 18 -
<PAGE>
SECOND AMENDED AND RESTATED INVESTOR RIGHTS AGREEMENT
SIGNATURE PAGE
The undersigned hereby (a) executes that certain Second Amended and
Restated Investor Rights Agreement dated as of the date first above written (the
"Investor Rights Agreement") by and among essential.com, inc. and the Investors
named in Schedule I thereto, (b) agrees to become a party to and be bound as an
"Investor" under such Investor Rights Agreement, and (c) authorizes this
signature page to be attached as a counterpart signature page to such Investor
Rights Agreement.
INVESTOR:
/s/ Gregory Bellow
-----------------------------------------
Signature of Investor
Bellow 1984 Trust u/a 11/20/84
By: Gregory Bellow
-----------------------------------------
Printed Name of Investor
775 Hillcrest Way
Address: Redwood City, CA 94062
--------------------------------
- 18 -
<PAGE>
SECOND AMENDED AND RESTATED INVESTOR RIGHTS AGREEMENT
SIGNATURE PAGE
The undersigned hereby (a) executes that certain Second Amended and
Restated Investor Rights Agreement dated as of the date first above written (the
"Investor Rights Agreement") by and among essential.com, inc. and the Investors
named in Schedule I thereto, (b) agrees to become a party to and be bound as an
"Investor" under such Investor Rights Agreement, and (c) authorizes this
signature page to be attached as a counterpart signature page to such Investor
Rights Agreement.
INVESTOR:
/s/ Michael A. Roth
-----------------------------------------
Signature of Investor
BayStar Capital. L.P.
-----------------------------------------
Printed Name of Investor
1500 W. Market St.
Suite 200
Address: Mequon, WI 53092
--------------------------------
- 18 -
<PAGE>
SECOND AMENDED AND RESTATED INVESTOR RIGHTS AGREEMENT
SIGNATURE PAGE
The undersigned hereby (a) executes that certain Second Amended and
Restated Investor Rights Agreement dated as of the date first above written (the
"Investor Rights Agreement") by and among essential.com, inc. and the Investors
named in Schedule I thereto, (b) agrees to become a party to and be bound as an
"Investor" under such Investor Rights Agreement, and (c) authorizes this
signature page to be attached as a counterpart signature page to such Investor
Rights Agreement.
INVESTOR:
/s/ Michael A. Roth
-----------------------------------------
Signature of Investor
BayStar International Ltd.
-----------------------------------------
Printed Name of Investor
1500 W. Market St.
Suite 200
Address: Mequon, WI 53092
--------------------------------
- 18 -
<PAGE>
SECOND AMENDED AND RESTATED INVESTOR RIGHTS AGREEMENT
SIGNATURE PAGE
The undersigned hereby (a) executes that certain Second Amended and
Restated Investor Rights Agreement dated as of the date first above written (the
"Investor Rights Agreement") by and among essential.com, inc. and the Investors
named in Schedule I thereto, (b) agrees to become a party to and be bound as an
"Investor" under such Investor Rights Agreement, and (c) authorizes this
signature page to be attached as a counterpart signature page to such Investor
Rights Agreement.
INVESTOR:
/s/ Robert H. Buescher
-----------------------------------------
Signature of Investor
Bessec Ventures IV LP
By: Deer IV & Co. LLC, General Partner
By: Robert H. Buescher. Manager
-----------------------------------------
Printed Name of Investor
Address:
--------------------------------
- 18 -
<PAGE>
SECOND AMENDED AND RESTATED INVESTOR RIGHTS AGREEMENT
SIGNATURE PAGE
The undersigned hereby (a) executes that certain Second Amended and
Restated Investor Rights Agreement dated as of the date first above written (the
"Investor Rights Agreement") by and among essential.com, inc. and the Investors
named in Schedule I thereto, (b) agrees to become a party to and be bound as an
"Investor" under such Investor Rights Agreement, and (c) authorizes this
signature page to be attached as a counterpart signature page to such Investor
Rights Agreement.
INVESTOR:
/s/ Robert H. Buescher
-----------------------------------------
Signature of Investor
BESSEMER VENTURE PARTNERS IV. L.P.
By: Deer IV & Co. LLC, General Partner
By: Robert H. Buescher, Manager
-----------------------------------------
Printed Name of Investor
Address:
--------------------------------
- 18 -
<PAGE>
SECOND AMENDED AND RESTATED INVESTOR RIGHTS AGREEMENT
SIGNATURE PAGE
The undersigned hereby (a) executes that certain Second Amended and
Restated Investor Rights Agreement dated as of the date first above written (the
"Investor Rights Agreement") by and among essential.com, inc. and the Investors
named in Schedule I thereto, (b) agrees to become a party to and be bound as an
"Investor" under such Investor Rights Agreement, and (c) authorizes this
signature page to be attached as a counterpart signature page to such Investor
Rights Agreement.
INVESTOR:
BRAND EQUITY VENTURES I, L.P.
/s/ William Meurer
----------------------------------------------
Signature of Investor
By: William Meurer, Vice President, Brand
Equity Partners I, L.L.C., its General Partner
----------------------------------------------
Printed Name of Investor
Address:
-------------------------------------
- 18 -
<PAGE>
SECOND AMENDED AND RESTATED INVESTOR RIGHTS AGREEMENT
SIGNATURE PAGE
The undersigned hereby (a) executes that certain Second Amended and
Restated Investor Rights Agreement dated as of the date first above written (the
"Investor Rights Agreement") by and among essential.com, inc. and the Investors
named in Schedule I thereto, (b) agrees to become a party to and be bound as an
"Investor" under such Investor Rights Agreement, and (c) authorizes this
signature page to be attached as a counterpart signature page to such Investor
Rights Agreement.
INVESTOR:
/s/ Manuel Harrington
-----------------------------------------
Signature of Investor
COMDISCO, INC.
Manuel A. Harrington
-----------------------------------------
Printed Name of Investor
611 North River Road
Rosemont, IL 60018
Address: Attn: Venture Group
--------------------------------
- 18 -
<PAGE>
SECOND AMENDED AND RESTATED INVESTOR RIGHTS AGREEMENT
SIGNATURE PAGE
The undersigned hereby (a) executes that certain Second Amended and
Restated Investor Rights Agreement dated as of the date first above written (the
"Investor Rights Agreement") by and among essential.com, inc. and the Investors
named in Schedule I thereto, (b) agrees to become a party to and be bound as an
"Investor" under such Investor Rights Agreement, and (c) authorizes this
signature page to be attached as a counterpart signature page to such Investor
Rights Agreement.
INVESTOR:
/s/ Hussain Sajwani
-----------------------------------------
Signature of Investor
DAMAC INVESTORS XII INC.
Hussain Sajwani -- Director
-----------------------------------------
Printed Name of Investor
Post Box: 2195
Address: Dubai, UAE
--------------------------------
- 18 -
<PAGE>
SECOND AMENDED AND RESTATED INVESTOR RIGHTS AGREEMENT
SIGNATURE PAGE
The undersigned hereby (a) executes that certain Second Amended and
Restated Investor Rights Agreement dated as of the date first above written (the
"Investor Rights Agreement") by and among essential.com, inc. and the Investors
named in Schedule I thereto, (b) agrees to become a party to and be bound as an
"Investor" under such Investor Rights Agreement, and (c) authorizes this
signature page to be attached as a counterpart signature page to such Investor
Rights Agreement.
INVESTOR:
/s/ Hussain Sajwani
-----------------------------------------------
Signature of Investor
DAMAC TECHNOLOGY PARTNERS, LP
Hussain Sajwani -- Director of General Partner
-----------------------------------------------
Printed Name of Investor
Post Box: 2195
Address: Dubai, UAE
-----------------------------------
- 18 -
<PAGE>
SECOND AMENDED AND RESTATED INVESTOR RIGHTS AGREEMENT
SIGNATURE PAGE
The undersigned hereby (a) executes that certain Second Amended and
Restated Investor Rights Agreement dated as of the date first above written (the
"Investor Rights Agreement") by and among essential.com, inc. and the Investors
named in Schedule I thereto, (b) agrees to become a party to and be bound as an
"Investor" under such Investor Rights Agreement, and (c) authorizes this
signature page to be attached as a counterpart signature page to such Investor
Rights Agreement.
INVESTOR:
/s/ Linda DeRenzo
-----------------------------------------
Signature of Investor
Linda DeRenzo
-----------------------------------------
Printed Name of Investor
238 Kenrick Street
Address: Newton, MA 02458
--------------------------------
- 18 -
<PAGE>
SECOND AMENDED AND RESTATED INVESTOR RIGHTS AGREEMENT
SIGNATURE PAGE
The undersigned hereby (a) executes that certain Second Amended and
Restated Investor Rights Agreement dated as of the date first above written (the
"Investor Rights Agreement") by and among essential.com, inc. and the Investors
named in Schedule I thereto, (b) agrees to become a party to and be bound as an
"Investor" under such Investor Rights Agreement, and (c) authorizes this
signature page to be attached as a counterpart signature page to such Investor
Rights Agreement.
INVESTOR:
/s/ Ivy Dodes
-----------------------------------------
Signature of Investor
DLJ ESC II, L.P.
By: DLJ LBO Plans Management Corporation
By: Ivy Dodes, Vice President
-----------------------------------------
Printed Name of Investor
277 Park Avenue, 23rd Floor
Address: New York, NY 10172
--------------------------------
- 18 -
<PAGE>
SECOND AMENDED AND RESTATED INVESTOR RIGHTS AGREEMENT
SIGNATURE PAGE
The undersigned hereby (a) executes that certain Second Amended and
Restated Investor Rights Agreement dated as of the date first above written (the
"Investor Rights Agreement") by and among essential.com, inc. and the Investors
named in Schedule I thereto, (b) agrees to become a party to and be bound as an
"Investor" under such Investor Rights Agreement, and (c) authorizes this
signature page to be attached as a counterpart signature page to such Investor
Rights Agreement.
INVESTOR:
/s/ Ivy Dodes
-----------------------------------------
Signature of Investor
DLJ FUND INVESTMENT PARTNERS II, L.P.
By: DLJ LBO Plans Management Corporation
By: Ivy Dodes, Vice President
-----------------------------------------
Printed Name of Investor
277 Park Avenue, 23rd Floor
Address: New York, NY 10172
--------------------------------
- 18 -
<PAGE>
SECOND AMENDED AND RESTATED INVESTOR RIGHTS AGREEMENT
SIGNATURE PAGE
The undersigned hereby (a) executes that certain Second Amended and
Restated Investor Rights Agreement dated as of the date first above written (the
"Investor Rights Agreement") by and among essential.com, inc. and the Investors
named in Schedule I thereto, (b) agrees to become a party to and be bound as an
"Investor" under such Investor Rights Agreement, and (c) authorizes this
signature page to be attached as a counterpart signature page to such Investor
Rights Agreement.
INVESTOR:
/s/ Ivy Dodes
-----------------------------------------
Signature of Investor
DLJ Private Equity Employees Fund, L.P.
By: DLJ LBO Plans Management Corporation
By: Ivy Dodes, Vice President
-----------------------------------------
Printed Name of Investor
277 Park Avenue, 23rd Floor
Address: New York, NY 10172
--------------------------------
- 18 -
<PAGE>
SECOND AMENDED AND RESTATED INVESTOR RIGHTS AGREEMENT
SIGNATURE PAGE
The undersigned hereby (a) executes that certain Second Amended and
Restated Investor Rights Agreement dated as of the date first above written (the
"Investor Rights Agreement") by and among essential.com, inc. and the Investors
named in Schedule I thereto, (b) agrees to become a party to and be bound as an
"Investor" under such Investor Rights Agreement, and (c) authorizes this
signature page to be attached as a counterpart signature page to such Investor
Rights Agreement.
INVESTOR:
/s/ Ivy Dodes
-----------------------------------------
Signature of Investor
DLJ Private Equity Partners Fund, L.P.
By: WSW Capital, Inc.
By: Ivy Dodes, Vice President
-----------------------------------------
Printed Name of Investor
277 Park Avenue, 23rd Floor
Address: New York, NY 10172
--------------------------------
- 18 -
<PAGE>
SECOND AMENDED AND RESTATED INVESTOR RIGHTS AGREEMENT
SIGNATURE PAGE
The undersigned hereby (a) executes that certain Second Amended and
Restated Investor Rights Agreement dated as of the date first above written (the
"Investor Rights Agreement") by and among essential.com, inc. and the Investors
named in Schedule I thereto, (b) agrees to become a party to and be bound as an
"Investor" under such Investor Rights Agreement, and (c) authorizes this
signature page to be attached as a counterpart signature page to such Investor
Rights Agreement.
INVESTOR:
/s/ Scott B. Ungerer
--------------------------------------------------
Signature of Investor
EnerTech Capital Partners, L.P.
By: EnerTech Management, L.P., its General Partner
By: EnerTech Management Company, L.L.C.,
its General Partner
--------------------------------------------------
Printed Name of Investor
Address:
-------------------------------------
- 18 -
<PAGE>
SECOND AMENDED AND RESTATED INVESTOR RIGHTS AGREEMENT
SIGNATURE PAGE
The undersigned hereby (a) executes that certain Second Amended and
Restated Investor Rights Agreement dated as of the date first above written (the
"Investor Rights Agreement") by and among essential.com, inc. and the Investors
named in Schedule I thereto, (b) agrees to become a party to and be bound as an
"Investor" under such Investor Rights Agreement, and (c) authorizes this
signature page to be attached as a counterpart signature page to such Investor
Rights Agreement.
INVESTOR:
/s/ Scott B. Ungerer
--------------------------------------------------
Signature of Investor
EnerTech Capital Partners II, L.P.
By: ECP II Management, L.P., its General Partner
By: ECP II Management, L.L.C., its General Partner
--------------------------------------------------
Printed Name of Investor
Address:
-------------------------------------
- 18 -
<PAGE>
SECOND AMENDED AND RESTATED INVESTOR RIGHTS AGREEMENT
SIGNATURE PAGE
The undersigned hereby (a) executes that certain Second Amended and
Restated Investor Rights Agreement dated as of the date first above written (the
"Investor Rights Agreement") by and among essential.com, inc. and the Investors
named in Schedule I thereto, (b) agrees to become a party to and be bound as an
"Investor" under such Investor Rights Agreement, and (c) authorizes this
signature page to be attached as a counterpart signature page to such Investor
Rights Agreement.
INVESTOR:
/s/ Matthew O. Fitzmaurice
----------------------------------------
Signature of Investor
Matthew O. Fitzmaurice
----------------------------------------
Printed Name of Investor
130 West Lake Street
Address: Wayzata, MN 55391
-------------------------------
- 18 -
<PAGE>
SECOND AMENDED AND RESTATED INVESTOR RIGHTS AGREEMENT
SIGNATURE PAGE
The undersigned hereby (a) executes that certain Second Amended and
Restated Investor Rights Agreement dated as of the date first above written (the
"Investor Rights Agreement") by and among essential.com, inc. and the Investors
named in Schedule I thereto, (b) agrees to become a party to and be bound as an
"Investor" under such Investor Rights Agreement, and (c) authorizes this
signature page to be attached as a counterpart signature page to such Investor
Rights Agreement.
INVESTOR:
/s/ Marie Paulette Galliker
----------------------------------------
Signature of Investor
Marie Paulette Galliker
----------------------------------------
Printed Name of Investor
14 Ship Pasture Way
Address: E. Sandwich, MA 02537
-------------------------------
- 18 -
<PAGE>
SECOND AMENDED AND RESTATED INVESTOR RIGHTS AGREEMENT
SIGNATURE PAGE
The undersigned hereby (a) executes that certain Second Amended and
Restated Investor Rights Agreement dated as of the date first above written (the
"Investor Rights Agreement") by and among essential.com, inc. and the Investors
named in Schedule I thereto, (b) agrees to become a party to and be bound as an
"Investor" under such Investor Rights Agreement, and (c) authorizes this
signature page to be attached as a counterpart signature page to such Investor
Rights Agreement.
INVESTOR:
/s/ Thomas C. O'Laughlin
----------------------------------------
Signature of Investor
Gas Research Institute
----------------------------------------
Printed Name of Investor
8600 West Bryn Mawr Avenue
Address: Chicago, IL 60631
-------------------------------
- 18 -
<PAGE>
SECOND AMENDED AND RESTATED INVESTOR RIGHTS AGREEMENT
SIGNATURE PAGE
The undersigned hereby (a) executes that certain Second Amended and
Restated Investor Rights Agreement dated as of the date first above written (the
"Investor Rights Agreement") by and among essential.com, inc. and the Investors
named in Schedule I thereto, (b) agrees to become a party to and be bound as an
"Investor" under such Investor Rights Agreement, and (c) authorizes this
signature page to be attached as a counterpart signature page to such Investor
Rights Agreement.
INVESTOR:
/s/ Eric J. Hall
---------------------------------------------
Signature of Investor
Robert Hall, Eric Hall & William Hall, JTWROS
---------------------------------------------
Printed Name of Investor
183 State Street
Address: Boston, MA 02109
------------------------------------
- 18 -
<PAGE>
SECOND AMENDED AND RESTATED INVESTOR RIGHTS AGREEMENT
SIGNATURE PAGE
The undersigned hereby (a) executes that certain Second Amended and
Restated Investor Rights Agreement dated as of the date first above written (the
"Investor Rights Agreement") by and among essential.com, inc. and the Investors
named in Schedule I thereto, (b) agrees to become a party to and be bound as an
"Investor" under such Investor Rights Agreement, and (c) authorizes this
signature page to be attached as a counterpart signature page to such Investor
Rights Agreement.
INVESTOR:
/s/ Robert A. Hall
---------------------------------------------
Signature of Investor
Robert Hall, Eric Hall & William Hall, JTWROS
---------------------------------------------
Printed Name of Investor
183 State Street
Address: Boston, MA 02109
------------------------------------
- 18 -
<PAGE>
SECOND AMENDED AND RESTATED INVESTOR RIGHTS AGREEMENT
SIGNATURE PAGE
The undersigned hereby (a) executes that certain Second Amended and
Restated Investor Rights Agreement dated as of the date first above written (the
"Investor Rights Agreement") by and among essential.com, inc. and the Investors
named in Schedule I thereto, (b) agrees to become a party to and be bound as an
"Investor" under such Investor Rights Agreement, and (c) authorizes this
signature page to be attached as a counterpart signature page to such Investor
Rights Agreement.
INVESTOR:
/s/ William J. Hall
---------------------------------------------
Signature of Investor
Robert Hall, Eric Hall & William Hall, JTWROS
---------------------------------------------
Printed Name of Investor
183 State Street
Address: Boston, MA 02109
------------------------------------
- 18 -
<PAGE>
SECOND AMENDED AND RESTATED INVESTOR RIGHTS AGREEMENT
SIGNATURE PAGE
The undersigned hereby (a) executes that certain Second Amended and
Restated Investor Rights Agreement dated as of the date first above written (the
"Investor Rights Agreement") by and among essential.com, inc. and the Investors
named in Schedule I thereto, (b) agrees to become a party to and be bound as an
"Investor" under such Investor Rights Agreement, and (c) authorizes this
signature page to be attached as a counterpart signature page to such Investor
Rights Agreement.
INVESTOR:
/s/ George W. Thibeault
----------------------------------------
Signature of Investor
HIGH STREET INVESTORS 2000
By: Testa, Hurwitz & Thibeault, LLP
By: George W. Thibeault, Partner
----------------------------------------
Printed Name of Investor
125 High Street
Address: Boston, MA 02110
-------------------------------
- 18 -
<PAGE>
SECOND AMENDED AND RESTATED INVESTOR RIGHTS AGREEMENT
SIGNATURE PAGE
The undersigned hereby (a) executes that certain Second Amended and
Restated Investor Rights Agreement dated as of the date first above written (the
"Investor Rights Agreement") by and among essential.com, inc. and the Investors
named in Schedule I thereto, (b) agrees to become a party to and be bound as an
"Investor" under such Investor Rights Agreement, and (c) authorizes this
signature page to be attached as a counterpart signature page to such Investor
Rights Agreement.
INVESTOR:
/s/ Michael B. Kolowich
----------------------------------------
Signature of Investor
Michael E. Kolowich
----------------------------------------
Printed Name of Investor
116 Monument Street
Address: Concord, MA 01742
-------------------------------
- 18 -
<PAGE>
SECOND AMENDED AND RESTATED INVESTOR RIGHTS AGREEMENT
SIGNATURE PAGE
The undersigned hereby (a) executes that certain Second Amended and
Restated Investor Rights Agreement dated as of the date first above written (the
"Investor Rights Agreement") by and among essential.com, inc. and the Investors
named in Schedule I thereto, (b) agrees to become a party to and be bound as an
"Investor" under such Investor Rights Agreement, and (c) authorizes this
signature page to be attached as a counterpart signature page to such Investor
Rights Agreement.
INVESTOR:
/s/ Edmund W. Lang
----------------------------------------
Signature of Investor
Edmund W. Lang
----------------------------------------
Printed Name of Investor
5 Tabor Hill Road
Address: Lincoln, MA 01773
-------------------------------
- 18 -
<PAGE>
SECOND AMENDED AND RESTATED INVESTOR RIGHTS AGREEMENT
SIGNATURE PAGE
The undersigned hereby (a) executes that certain Second Amended and
Restated Investor Rights Agreement dated as of the date first above written (the
"Investor Rights Agreement") by and among essential.com, inc. and the Investors
named in Schedule I thereto, (b) agrees to become a party to and be bound as an
"Investor" under such Investor Rights Agreement, and (c) authorizes this
signature page to be attached as a counterpart signature page to such Investor
Rights Agreement.
INVESTOR:
/s/ Ilene H. Lang
----------------------------------------
Signature of Investor
Ilene H. Lang
----------------------------------------
Printed Name of Investor
78 Jason Street
Address: Arlington, MA 02476
-------------------------------
- 18 -
<PAGE>
SECOND AMENDED AND RESTATED INVESTOR RIGHTS AGREEMENT
SIGNATURE PAGE
The undersigned hereby (a) executes that certain Second Amended and
Restated Investor Rights Agreement dated as of the date first above written (the
"Investor Rights Agreement") by and among essential.com, inc. and the Investors
named in Schedule I thereto, (b) agrees to become a party to and be bound as an
"Investor" under such Investor Rights Agreement, and (c) authorizes this
signature page to be attached as a counterpart signature page to such Investor
Rights Agreement.
INVESTOR:
[ILLEGIBLE]
----------------------------------------
Signature of Investor
Litton Master Trust
----------------------------------------
Printed Name of Investor
Address:
--------------------------------
- 18 -
<PAGE>
SECOND AMENDED AND RESTATED INVESTOR RIGHTS AGREEMENT
SIGNATURE PAGE
The undersigned hereby (a) executes that certain Second Amended and
Restated Investor Rights Agreement dated as of the date first above written (the
"Investor Rights Agreement") by and among essential.com, inc. and the Investors
named in Schedule I thereto, (b) agrees to become a party to and be bound as an
"Investor" under such Investor Rights Agreement, and (c) authorizes this
signature page to be attached as a counterpart signature page to such Investor
Rights Agreement.
INVESTOR:
/s/ Emeric J. McDonald
----------------------------------------
Signature of Investor
Emeric J. McDonald
----------------------------------------
Printed Name of Investor
707 Continental Circle, #431
Address: Mt. View, CA 94040
-------------------------------
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<PAGE>
SECOND AMENDED AND RESTATED INVESTOR RIGHTS AGREEMENT
SIGNATURE PAGE
The undersigned hereby (a) executes that certain Second Amended and
Restated Investor Rights Agreement dated as of the date first above written (the
"Investor Rights Agreement") by and among essential.com, inc. and the Investors
named in Schedule I thereto, (b) agrees to become a party to and be bound as an
"Investor" under such Investor Rights Agreement, and (c) authorizes this
signature page to be attached as a counterpart signature page to such Investor
Rights Agreement.
INVESTOR:
/s/ Robert W. Driscoll, Jr.
----------------------------------------
Signature of Investor
Mellon Ventures II, L.P.
By MVMA II, L.P., its General Partner
By MVMA, Inc. its General Partner
----------------------------------------
Printed Name of Investor
Mellon Ventures, Inc.
Five Radnor Corporate Center
100 Matsonford Road, Suite 170
Address: Radner, PA 19087
-------------------------------
- 18 -
<PAGE>
SECOND AMENDED AND RESTATED INVESTOR RIGHTS AGREEMENT
SIGNATURE PAGE
The undersigned hereby (a) executes that certain Second Amended and
Restated Investor Rights Agreement dated as of the date first above written (the
"Investor Rights Agreement") by and among essential.com, inc. and the Investors
named in Schedule I thereto, (b) agrees to become a party to and be bound as an
"Investor" under such Investor Rights Agreement, and (c) authorizes this
signature page to be attached as a counterpart signature page to such Investor
Rights Agreement.
INVESTOR:
/s/ Norman C. Nicholson
----------------------------------------
Signature of Investor
Norman C. Nicholson
----------------------------------------
Printed Name of Investor
Address:
-------------------------------
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<PAGE>
SECOND AMENDED AND RESTATED INVESTOR RIGHTS AGREEMENT
SIGNATURE PAGE
The undersigned hereby (a) executes that certain Second Amended and
Restated Investor Rights Agreement dated as of the date first above written (the
"Investor Rights Agreement") by and among essential.com, inc. and the Investors
named in Schedule I thereto, (b) agrees to become a party to and be bound as an
"Investor" under such Investor Rights Agreement, and (c) authorizes this
signature page to be attached as a counterpart signature page to such Investor
Rights Agreement.
INVESTOR:
/s/[ILLEGIBLE], EVP & CFO
----------------------------------------
Signature of Investor
Rare Medium Group, Inc.
----------------------------------------
Printed Name of Investor
Address:
-------------------------------
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<PAGE>
SECOND AMENDED AND RESTATED INVESTOR RIGHTS AGREEMENT
SIGNATURE PAGE
The undersigned hereby (a) executes that certain Second Amended and
Restated Investor Rights Agreement dated as of the date first above written (the
"Investor Rights Agreement") by and among essential.com, inc. and the Investors
named in Schedule I thereto, (b) agrees to become a party to and be bound as an
"Investor" under such Investor Rights Agreement, and (c) authorizes this
signature page to be attached as a counterpart signature page to such Investor
Rights Agreement.
INVESTOR:
/s/ Pamela Stone Ryan
----------------------------------------
Signature of Investor
Pamela Stone Ryan
----------------------------------------
Printed Name of Investor
Address:
-------------------------------
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<PAGE>
SECOND AMENDED AND RESTATED INVESTOR RIGHTS AGREEMENT
SIGNATURE PAGE
The undersigned hereby (a) executes that certain Second Amended and
Restated Investor Rights Agreement dated as of the date first above written (the
"Investor Rights Agreement") by and among essential.com, inc. and the Investors
named in Schedule I thereto, (b) agrees to become a party to and be bound as an
"Investor" under such Investor Rights Agreement, and (c) authorizes this
signature page to be attached as a counterpart signature page to such Investor
Rights Agreement.
INVESTOR:
/s/ Martin Sands
----------------------------------------
Signature of Investor
Sands Brothers Venture Capital LLC
By: SB Venture Capital Management LLC
By: Martin Sands, Manager
----------------------------------------
Printed Name of Investor
c/o Sands Brothers
90 Park Avenue, 39th Floor
Address: New York, New York 10016
-------------------------------
- 18 -
<PAGE>
SECOND AMENDED AND RESTATED INVESTOR RIGHTS AGREEMENT
SIGNATURE PAGE
The undersigned hereby (a) executes that certain Second Amended and
Restated Investor Rights Agreement dated as of the date first above written (the
"Investor Rights Agreement") by and among essential.com, inc. and the Investors
named in Schedule I thereto, (b) agrees to become a party to and be bound as an
"Investor" under such Investor Rights Agreement, and (c) authorizes this
signature page to be attached as a counterpart signature page to such Investor
Rights Agreement.
INVESTOR:
/s/ Martin Sands
----------------------------------------
Signature of Investor
SB Necessary Associates LLC
By: SB Necessary Management Associates LLC
By: Martin Sands, Manager
----------------------------------------
Printed Name of Investor
c/o Sands Brothers
90 Park Avenue, 39th Floor
Address: New York, New York 10016
-------------------------------
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<PAGE>
SECOND AMENDED AND RESTATED INVESTOR RIGHTS AGREEMENT
SIGNATURE PAGE
The undersigned hereby (a) executes that certain Second Amended and
Restated Investor Rights Agreement dated as of the date first above written (the
"Investor Rights Agreement") by and among essential.com, inc. and the Investors
named in Schedule I thereto, (b) agrees to become a party to and be bound as an
"Investor" under such Investor Rights Agreement, and (c) authorizes this
signature page to be attached as a counterpart signature page to such Investor
Rights Agreement.
INVESTOR:
/s/ Abdullah Mosa'ad Abdulaziz
----------------------------------------
Signature of Investor
Saudi Paper Manufacturing Company, Ltd.
Abdullah Mosa'ad Abdulaziz, Chairman
----------------------------------------
Printed Name of Investor
P.O. Box 55375
Address: Riyadh 11534, K.S.A
-------------------------------
- 18 -
<PAGE>
SECOND AMENDED AND RESTATED INVESTOR RIGHTS AGREEMENT
SIGNATURE PAGE
The undersigned hereby (a) executes that certain Second Amended and
Restated Investor Rights Agreement dated as of the date first above written (the
"Investor Rights Agreement") by and among essential.com, inc. and the Investors
named in Schedule I thereto, (b) agrees to become a party to and be bound as an
"Investor" under such Investor Rights Agreement, and (c) authorizes this
signature page to be attached as a counterpart signature page to such Investor
Rights Agreement.
INVESTOR:
/s/ William S. Slattery
----------------------------------------
Signature of Investor
William S. Slattery
----------------------------------------
Printed Name of Investor
Address:
-------------------------------
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<PAGE>
SECOND AMENDED AND RESTATED INVESTOR RIGHTS AGREEMENT
SIGNATURE PAGE
The undersigned hereby (a) executes that certain Second Amended and
Restated Investor Rights Agreement dated as of the date first above written (the
"Investor Rights Agreement") by and among essential.com, inc. and the Investors
named in Schedule I thereto, (b) agrees to become a party to and be bound as an
"Investor" under such Investor Rights Agreement, and (c) authorizes this
signature page to be attached as a counterpart signature page to such Investor
Rights Agreement.
INVESTOR:
/s/ James Stableford
----------------------------------------
Signature of Investor
James Stableford
----------------------------------------
Printed Name of Investor
Address:
-------------------------------
- 18 -
<PAGE>
SECOND AMENDED AND RESTATED INVESTOR RIGHTS AGREEMENT
SIGNATURE PAGE
The undersigned hereby (a) executes that certain Second Amended and
Restated Investor Rights Agreement dated as of the date first above written (the
"Investor Rights Agreement") by and among essential.com, inc. and the Investors
named in Schedule I thereto, (b) agrees to become a party to and be bound as an
"Investor" under such Investor Rights Agreement, and (c) authorizes this
signature page to be attached as a counterpart signature page to such Investor
Rights Agreement.
INVESTOR:
/s/ William A. Stone
----------------------------------------
Signature of Investor
William A. Stone
----------------------------------------
Printed Name of Investor
5208 Indian Woods Ct.
Address: Louisville, KY 40207
-------------------------------
- 18 -
<PAGE>
SECOND AMENDED AND RESTATED INVESTOR RIGHTS AGREEMENT
SIGNATURE PAGE
The undersigned hereby (a) executes that certain Second Amended and
Restated Investor Rights Agreement dated as of the date first above written (the
"Investor Rights Agreement") by and among essential.com, inc. and the Investors
named in Schedule I thereto, (b) agrees to become a party to and be bound as an
"Investor" under such Investor Rights Agreement, and (c) authorizes this
signature page to be attached as a counterpart signature page to such Investor
Rights Agreement.
INVESTOR:
/s/ James W. Storey
----------------------------------------
Signature of Investor
James W. Storey
----------------------------------------
Printed Name of Investor
Address:
-------------------------------
- 18 -
<PAGE>
SECOND AMENDED AND RESTATED INVESTOR RIGHTS AGREEMENT
SIGNATURE PAGE
The undersigned hereby (a) executes that certain Second Amended and
Restated Investor Rights Agreement dated as of the date first above written (the
"Investor Rights Agreement") by and among essential.com, inc. and the Investors
named in Schedule I thereto, (b) agrees to become a party to and be bound as an
"Investor" under such Investor Rights Agreement, and (c) authorizes this
signature page to be attached as a counterpart signature page to such Investor
Rights Agreement.
INVESTOR:
/s/ Scott D. Sullivan
----------------------------------------
Signature of Investor
Scott D. Sullivan
----------------------------------------
Printed Name of Investor
6318 Woodbury Road
Address: Boca Raton, FL 33433
-------------------------------
- 18 -
<PAGE>
SECOND AMENDED AND RESTATED INVESTOR RIGHTS AGREEMENT
SIGNATURE PAGE
The undersigned hereby (a) executes that certain Second Amended and
Restated Investor Rights Agreement dated as of the date first above written (the
"Investor Rights Agreement") by and among essential.com, inc. and the Investors
named in Schedule I thereto, (b) agrees to become a party to and be bound as an
"Investor" under such Investor Rights Agreement, and (c) authorizes this
signature page to be attached as a counterpart signature page to such Investor
Rights Agreement.
INVESTOR:
/s/ Brad Rudderman
----------------------------------------
Signature of Investor
Talon Ventures Two, LLC
----------------------------------------
Printed Name of Investor
9440 Santa Monica Blvd, #600
Address: Beverly Hills, CA 90210
-------------------------------
- 18 -
<PAGE>
SECOND AMENDED AND RESTATED INVESTOR RIGHTS AGREEMENT
SIGNATURE PAGE
The undersigned hereby (a) executes that certain Second Amended and
Restated Investor Rights Agreement dated as of the date first above written (the
"Investor Rights Agreement") by and among essential.com, inc. and the Investors
named in Schedule I thereto, (b) agrees to become a party to and be bound as an
"Investor" under such Investor Rights Agreement, and (c) authorizes this
signature page to be attached as a counterpart signature page to such Investor
Rights Agreement.
INVESTOR:
/s/ Matthew O. Fitzmaurice
----------------------------------------
Signature of Investor
Vertex Capital II, L.L.C.
By: Matthew O. Fitzmaurice, Manager
----------------------------------------
Printed Name of Investor
Attn: Matthew O. Fitzmaurice
130 West Lake Street
Address: Wayzata, MN 55391
-------------------------------
- 18 -
<PAGE>
SECOND AMENDED AND RESTATED INVESTOR RIGHTS AGREEMENT
SIGNATURE PAGE
The undersigned hereby (a) executes that certain Second Amended and
Restated Investor Rights Agreement dated as of the date first above written (the
"Investor Rights Agreement") by and among essential.com, inc. and the Investors
named in Schedule I thereto, (b) agrees to become a party to and be bound as an
"Investor" under such Investor Rights Agreement, and (c) authorizes this
signature page to be attached as a counterpart signature page to such Investor
Rights Agreement.
INVESTOR:
/s/ Brooks Whitehouse, Jr.
----------------------------------------
Signature of Investor
Brooks Whitehouse, Jr.
----------------------------------------
Printed Name of Investor
74 Gates Street
Address: Portsmouth, NH 03801
-------------------------------
- 18 -
<PAGE>
SECOND AMENDED AND RESTATED INVESTOR RIGHTS AGREEMENT
SIGNATURE PAGE
The undersigned hereby (a) executes that certain Second Amended and
Restated Investor Rights Agreement dated as of the date first above written (the
"Investor Rights Agreement") by and among essential.com, inc. and the Investors
named in Schedule I thereto, (b) agrees to become a party to and be bound as an
"Investor" under such Investor Rights Agreement, and (c) authorizes this
signature page to be attached as a counterpart signature page to such Investor
Rights Agreement.
INVESTOR:
/s/ Maurice Wyatt
----------------------------------------
Signature of Investor
Maurice Wyatt
----------------------------------------
Printed Name of Investor
7 Bertwell Ct.
Address: Timonium, MD 21093
-------------------------------
- 18 -
<PAGE>
SECOND AMENDED AND RESTATED INVESTOR RIGHTS AGREEMENT
SIGNATURE PAGE
The undersigned hereby (a) executes that certain Second Amended and
Restated Investor Rights Agreement dated as of the date first above written (the
"Investor Rights Agreement") by and among essential.com, inc. and the Investors
named in Schedule I thereto, (b) agrees to become a party to and be bound as an
"Investor" under such Investor Rights Agreement, and (c) authorizes this
signature page to be attached as a counterpart signature page to such Investor
Rights Agreement.
INVESTOR:
/s/ Henry M. Zachs
----------------------------------------
Signature of Investor
Henry M. Zachs
----------------------------------------
Printed Name of Investor
40 Woodland Street
Address: Hartford, CT 06105
-------------------------------
- 18 -
<PAGE>
SECOND AMENDED AND RESTATED INVESTOR RIGHTS AGREEMENT
SIGNATURE PAGE
The undersigned hereby (a) executes that certain Second Amended and
Restated Investor Rights Agreement dated as of the date first above written (the
"Investor Rights Agreement") by and among essential.com, inc. and the Investors
named in Schedule I thereto, (b) agrees to become a party to and be bound as an
"Investor" under such Investor Rights Agreement, and (c) authorizes this
signature page to be attached as a counterpart signature page to such Investor
Rights Agreement.
INVESTOR:
/s/ Henry M. Zachs
----------------------------------------
Signature of Investor
Zafa II LLC
Henry M. Zachs
----------------------------------------
Printed Name of Investor
40 Woodland Street
Address: Hartford, CT 06105
-------------------------------
- 18 -
<PAGE>
SECOND AMENDED AND RESTATED INVESTOR RIGHTS AGREEMENT
SIGNATURE PAGE
The undersigned hereby (a) executes that certain Second Amended and
Restated Investor Rights Agreement dated as of the date first above written (the
"Investor Rights Agreement") by and among essential.com, inc. and the Investors
named in Schedule I thereto, (b) agrees to become a party to and be bound as an
"Investor" under such Investor Rights Agreement, and (c) authorizes this
signature page to be attached as a counterpart signature page to such Investor
Rights Agreement.
INVESTOR:
/s/ Kevin Cannon
------------------------------------------
Signature of Investor
Kevin Cannon, CEO Zweig-Dimenna
International, Managers, Inc., Investment
Manager of Zweia-Dimenna International Ltd
------------------------------------------
Printed Name of Investor
Zweig-Dimenna International Ltd
c/o Zwieg-Dimenna International
Managers, Inc.
900 Third Avenue
Address: New York, New York 10022
---------------------------------
- 18 -
<PAGE>
SECOND AMENDED AND RESTATED INVESTOR RIGHTS AGREEMENT
SIGNATURE PAGE
The undersigned hereby (a) executes that certain Second Amended and
Restated Investor Rights Agreement dated as of the date first above written (the
"Investor Rights Agreement") by and among essential.com, inc. and the Investors
named in Schedule I thereto, (b) agrees to become a party to and be bound as an
"Investor" under such Investor Rights Agreement, and (c) authorizes this
signature page to be attached as a counterpart signature page to such Investor
Rights Agreement.
INVESTOR:
/s/ Kevin Cannon
-----------------------------------------------
Signature of Investor
Kevin Cannon, CEO, Zweig-Dimenna Assoc. LLC
General Partner of Zweig-Dimenna Investors, L.P
-----------------------------------------------
Printed Name of Investor
Zweig-Dimenna Investors, L.P.
900 Third Avenue
Address: New York, New York 10022
--------------------------------------
- 18 -
<PAGE>
SECOND AMENDED AND RESTATED INVESTOR RIGHTS AGREEMENT
SIGNATURE PAGE
The undersigned hereby (a) executes that certain Second Amended and
Restated Investor Rights Agreement dated as of the date first above written (the
"Investor Rights Agreement") by and among essential.com, inc. and the Investors
named in Schedule I thereto, (b) agrees to become a party to and be bound as an
"Investor" under such Investor Rights Agreement, and (c) authorizes this
signature page to be attached as a counterpart signature page to such Investor
Rights Agreement.
INVESTOR:
/s/ Kevin Cannon
-----------------------------------------------
Signature of Investor
Kevin Cannon, CEO, Zweig-Dimenna Assoc. LLC
General Partner of Zweig-Dimenna Partners, L.P.
-----------------------------------------------
Printed Name of Investor
Zweig-Dimenna Partners, L.P.
900 Third Avenue
Address: New York, NY 10022
--------------------------------------
- 18 -
<PAGE>
SECOND AMENDED AND RESTATED INVESTOR RIGHTS AGREEMENT
SIGNATURE PAGE
The undersigned hereby (a) executes that certain Second Amended and
Restated Investor Rights Agreement dated as of the date first above written (the
"Investor Rights Agreement") by and among essential.com, inc. and the Investors
named in Schedule I thereto, (b) agrees to become a party to and be bound as an
"Investor" under such Investor Rights Agreement, and (c) authorizes this
signature page to be attached as a counterpart signature page to such Investor
Rights Agreement.
INVESTOR:
/s/ Kevin Cannon
---------------------------------------------
Signature of Investor
Kevin Cannon, CEO, Zweig-Dimenna Assoc. LLC
General Partner of Zweig-Dimenna Select, L.P.
---------------------------------------------
Printed Name of Investor
Zweig-Dimenna Select, L.P.
900 Third Avenue
Address: New York, NY 10022
------------------------------------
- 18 -
<PAGE>
SECOND AMENDED AND RESTATED INVESTOR RIGHTS AGREEMENT
SIGNATURE PAGE
The undersigned hereby (a) executes that certain Second Amended and
Restated Investor Rights Agreement dated as of the date first above written (the
"Investor Rights Agreement") by and among essential.com, inc. and the Investors
named in Schedule I thereto, (b) agrees to become a party to and be bound as an
"Investor" under such Investor Rights Agreement, and (c) authorizes this
signature page to be attached as a counterpart signature page to such Investor
Rights Agreement.
INVESTOR:
/s/ Kevin Cannon
-------------------------------------------------
Signature of Investor
Kevin Cannon, CEO, Zweig-Dimenna Assoc. LLC
General Partner of
Zweig-Dimenna Special Opportunities, L.P.
-------------------------------------------------
Printed Name of Investor
Zweig-Dimenna Special Opportunities, L.P
900 Third Avenue
Address: New York, NY 10022
----------------------------------------
- 18 -
<PAGE>
SCHEDULE I
Angel Investors
Bellow 1984 Trust u/a 11/20/84
Linda DeRenzo
Marie Paulette Galliker
Robert A. Hall, Eric J. Hall & William J. Hall, JTWROS
Michael E. Kolowich
Edmund W. Lang
Ilene H. Lang
David J. Mushlitz
Mark C. Nicholson
Norman C. Nicholson, Jr.
Pamela Stone Ryan
William A. Stone
James W. Storey
Brooks Whitehouse, Jr.
Maurice R. Wyatt, Sr.
Henry Zachs
Existing Outside Investors
EnerTech Capital Partners, L.P.
Bessemer Venture Partners IV L.P.
Bessec Venture Partners IV L.P.
Brand Equity Ventures I, L.P.
Comdisco, Inc.
Gas Research Institute
Zafa II, LLC
Series C Investors
Amerindo Technology Growth Fund II
Aurora Technology Fund II LLC
BayStar Capital L.P.
Bessec Ventures IV L.P.
Bessemer Venture Partners IV L.P.
Brand Equity Ventures I, L.P.
Comdisco, Inc.
Damac Investors XII Inc.
Damac Technology Partners, L.P.
DLJ ESC II, L.P.
- 19 -
<PAGE>
DLJ Investment Partners II, L.P.
DLJ Private Equity Employees Fund, L.P.
DLJ Private Equity Partners Fund, L.P.
EnerTech Capital Partners II, L.P.
Matthew Fitzmaurice
High Street Investors
Litton Master Trust
Emeric McDonald
Mellon Ventures II, L.P.
Rare Medium Group Inc.
Sands Brothers Venture Capital LLC
Saudi Paper Manufacturing Company Ltd.
SB Necessary Associates LLC
William Slattery
James Stableford
Scott Sullivan
Talon Ventures Two, LLC
Vertex Capital II, LLC
Zweig-Dimenna International Ltd.
Zweig-Dimenna Investors, L.P.
Zweig-Dimenna Partners, L.P.
Zweig-Dimenna Select, L.P.
Zweig-Dimenna Special Opportunities, L.P.
- 20 -
<PAGE>
SCHEDULE II
essential.com, inc.
SECOND AMENDED AND RESTATED INVESTOR RIGHTS AGREEMENT
INSTRUMENT OF ACCESSION
The undersigned, __________________, as a condition precedent to becoming
the owner or holder of record of _____________________ (_______) shares of the
Series C Convertible Preferred Stock, par value $.01 per share, of
essential.com, inc., a Delaware corporation (the "Company"), hereby agrees to
become party to and bound by that certain Second Amended and Restated Investor
Rights Agreement, dated as of February 8, 2000, by and among the Company and
other stockholders of the Company as a Series C Investor. This Instrument of
Accession shall take effect and shall become an integral part of the said
Investor Rights Agreement immediately upon execution and delivery to the Company
of this Instrument.
IN WITNESS WHEREOF, this INSTRUMENT OF ACCESSION has been duly executed by
or on behalf of the undersigned, as a sealed instrument under the laws of the
State of Delaware, as of the date below written.
Name:___________________________________
By:____________________________
Name of Signator:
Title (If Applicable):
Address:
________________________________________
________________________________________
________________________________________
Date: __________________________________
Accepted:
essential.com, inc.
By:_____________________________________
Name:_________________________________
Title:________________________________
Date:___________________________________
<PAGE>
etility.com, inc.
AMENDED AND RESTATED 1998 STOCK OPTION AND INCENTIVE PLAN
1. PURPOSE AND ELIGIBILITY
The purpose of this 1998 Stock Option and Incentive Plan (the "PLAN")
of etility.com, inc. (the "COMPANY") is to provide stock options and other
equity interests in the Company (each an "AWARD") to employees, officers,
directors, consultants and advisors of the Company and its Subsidiaries, all of
whom are eligible to receive Awards under the Plan. Any person to whom an Award
has been granted under the Plan is called a "PARTICIPANT". Additional
definitions are contained in Section 8.
2. ADMINISTRATION
a. ADMINISTRATION BY BOARD OF DIRECTORS. The Plan will be administered
by the Board of Directors of the Company (the "BOARD"). The Board, in its sole
discretion, shall have the authority to grant and amend Awards, to adopt, amend
and repeal rules relating to the Plan and to interpret and correct the
provisions of the Plan and any Award. All decisions by the Board shall be final
and binding on all interested persons. Neither the Company nor any member of the
Board shall be liable for any action or determination relating to the Plan.
b. APPOINTMENT OF COMMITTEES. To the extent permitted by applicable
law, the Board may delegate any or all of its powers under the Plan to one or
more committees or subcommittees of the Board (a "COMMITTEE"). All references in
the Plan to the "BOARD" shall mean such Committee or the Board.
c. DELEGATION TO EXECUTIVE OFFICERS. To the extent permitted by
applicable law, the Board may delegate to one or more executive officers of the
Company the power to grant Awards and exercise such other powers under the Plan
as the Board may determine, PROVIDED THAT the Board shall fix the maximum number
of Awards to be granted and the maximum number of shares issuable to any one
Participant pursuant to Awards granted by such executive officers.
3. STOCK AVAILABLE FOR AWARDS
a. NUMBER OF SHARES. Subject to adjustment under Section 3(c), the
aggregate number of shares of Common Stock of the Company (the "COMMON STOCK")
that may be issued pursuant to the Plan is 931,971 shares. If any Award expires,
or is terminated, surrendered or forfeited, in whole or in part, the unissued
Common Stock covered by such Award shall again be available for the grant of
Awards under the Plan. If shares of Common Stock issued pursuant to the Plan are
repurchased by, or are surrendered or forfeited to, the Company at no more than
cost, such shares of Common Stock shall again be available for the grant of
Awards under the Plan; PROVIDED, HOWEVER, that the cumulative number of such
shares that may be so reissued under the Plan will not exceed 931,971. Shares
issued under the Plan may consist in whole or in part of authorized but unissued
shares or treasury shares.
<PAGE>
-2-
b. PER-PARTICIPANT LIMIT. Subject to adjustment under Section 3(c), no
Participant may be granted Awards during any one fiscal year to purchase more
than 336,080 shares of Common Stock.
c. ADJUSTMENT TO COMMON STOCK. In the event of any stock split, stock
dividend, extraordinary cash dividend, recapitalization, reorganization, merger,
consolidation, combination, exchange of shares, liquidation, spin-off, split-up,
or other similar change in capitalization or event, (i) the number and class of
securities available for Awards under the Plan and the per-Participant share
limit, (ii) the number and class of securities, vesting schedule and exercise
price per share subject to each outstanding Option, (iii) the repurchase price
per security subject to repurchase, and (iv) the terms of each other outstanding
stock-based Award shall be adjusted by the Company (or substituted Awards may be
made) to the extent the Board shall determine, in good faith, that such an
adjustment (or substitution) is appropriate. If Section 7(e)(i) applies for any
event, this Section 3(c) shall not be applicable.
4. STOCK OPTIONS
a. GENERAL. The Board may grant options to purchase Common Stock (each,
an "OPTION") and determine the number of shares of Common Stock to be covered
by each Option, the exercise price of each Option and the conditions and
limitations applicable to the exercise of each Option and the Common Stock
issued upon the exercise of each Option, including vesting provisions,
repurchase provisions and restrictions relating to applicable federal or state
securities laws, as it considers advisable.
b. INCENTIVE STOCK OPTIONS. An Option that the Board intends to be an
"incentive stock option" as defined in Section 422 of the Code (an "INCENTIVE
STOCK OPTION") shall be granted only to employees of the Company and shall be
subject to and shall be construed consistently with the requirements of Section
422 of the Code. The Board and the Company shall have no liability if an Option
or any part thereof that is intended to be an Incentive Stock Option does not
qualify as such. An Option or any part thereof that does not qualify as an
Incentive Stock Option is referred to herein as a "NONSTATUTORY STOCK OPTION".
c. EXERCISE PRICE. The Board shall establish the exercise price (or
determine the method by which the exercise price shall be determined) at the
time each Option is granted and specify it in the applicable option agreement.
d. DURATION OF OPTIONS. Each Option shall be exercisable at such times
and subject to such terms and conditions as the Board may specify in the
applicable option agreement.
e. EXERCISE OF OPTION. Options may be exercised only by delivery to the
Company of a written notice of exercise signed by the proper person together
with payment in full as specified in Section 4(f) for the number of shares for
which the Option is exercised.
<PAGE>
-3-
f. PAYMENT UPON EXERCISE. Common Stock purchased upon the exercise of
an Option shall be paid for by one or any combination of the following forms of
payment:
(i) by check payable to the order of the Company;
(ii) except as otherwise explicitly provided in the applicable
option agreement, and only if the Common Stock is then publicly traded, delivery
of an irrevocable and unconditional undertaking by a creditworthy broker to
deliver promptly to the Company sufficient funds to pay the exercise price, or
delivery by the Participant to the Company of a copy of irrevocable and
unconditional instructions to a creditworthy broker to deliver promptly to the
Company cash or a check sufficient to pay the exercise price; or
(iii) to the extent explicitly provided in the applicable
option agreement, by (x) delivery of shares of Common Stock owned by the
Participant valued at fair market value (as determined by the Board or as
determined pursuant to the applicable option agreement), (y) delivery of a
promissory note of the Participant to the Company (and delivery to the Company
by the Participant of a check in an amount equal to the par value of the shares
purchased), or (z) payment of such other lawful consideration as the Board may
determine.
5. RESTRICTED STOCK
a. GRANTS. The Board may grant Awards entitling recipients to acquire
shares of Common Stock, subject to (i) delivery to the Company by the
Participant of a check in an amount at least equal to the par value of the
shares purchased, and (ii) the right of the Company to repurchase all or part of
such shares at their issue price or other stated or formula price from the
Participant in the event that conditions specified by the Board in the
applicable Award are not satisfied prior to the end of the applicable
restriction period or periods established by the Board for such Award (each, a
"RESTRICTED STOCK AWARD").
b. TERMS AND CONDITIONS. The Board shall determine the terms and
conditions of any such Restricted Stock Award. Any stock certificates issued in
respect of a Restricted Stock Award shall be registered in the name of the
Participant and, unless otherwise determined by the Board, deposited by the
Participant, together with a stock power endorsed in blank, with the Company (or
its designee). After the expiration of the applicable restriction periods, the
Company (or such designee) shall deliver the certificates no longer subject to
such restrictions to the Participant or, if the Participant has died, to the
beneficiary designated by a Participant, in a manner determined by the Board, to
receive amounts due or exercise rights of the Participant in the event of the
Participant's death (the "DESIGNATED BENEFICIARY"). In the absence of an
effective designation by a Participant, Designated Beneficiary shall mean the
Participant's estate.
6. OTHER STOCK-BASED AWARDS
The Board shall have the right to grant other Awards based upon the
Common Stock having such terms and conditions as the Board may determine,
including, without limitation, the
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grant of shares based upon certain conditions, the grant of securities
convertible into Common Stock and the grant of stock appreciation rights,
phantom stock awards or stock units.
7. GENERAL PROVISIONS APPLICABLE TO AWARDS
a. TRANSFERABILITY OF AWARDS. Except as the Board may otherwise
determine or provide in an Award, Awards shall not be sold, assigned,
transferred, pledged or otherwise encumbered by the person to whom they are
granted, either voluntarily or by operation of law, except by will or the laws
of descent and distribution, and, during the life of the Participant, shall be
exercisable only by the Participant. References to a Participant, to the extent
relevant in the context, shall include references to authorized transferees.
b. DOCUMENTATION. Each Award under the Plan shall be evidenced by a
written instrument in such form as the Board shall determine or as executed by
an officer of the Company pursuant to authority delegated by the Board. Each
Award may contain terms and conditions in addition to those set forth in the
Plan PROVIDED THAT such terms and conditions do not contravene the provisions of
the Plan.
c. BOARD DISCRETION. The terms of each type of Award need not be
identical, and the Board need not treat Participants uniformly.
d. TERMINATION OF STATUS. The Board shall determine the effect on an
Award of the disability, death, retirement, authorized leave of absence or other
change in the employment or other status of a Participant and the extent to
which, and the period during which, the Participant, or the Participant's legal
representative, conservator, guardian or Designated Beneficiary, may exercise
rights under the Award.
e. ACQUISITION OF THE COMPANY
(i) CONSEQUENCES OF AN ACQUISITION AND DEFINITION.
(A) CONSEQUENCES OF AN ACQUISITION. Upon the
consummation of an Acquisition: (x) all outstanding Awards shall remain the
obligation of the Company or be assumed by the surviving or acquiring entity,
and there shall be automatically substituted for the shares of Common Stock then
subject to such Awards the consideration payable with respect to the outstanding
shares of Common Stock in connection with the Acquisition and (y) the vesting
provisions of all Awards shall become accelerated by a period of one year.
(B) ACQUISITION DEFINED. An "ACQUISITION " shall
mean: (x) any merger or consolidation after which the voting securities of the
Company outstanding immediately prior thereto represent (either by remaining
outstanding or by being converted into voting securities of the surviving or
acquiring entity) less than 50% of the combined voting power of the voting
securities of the Company or such surviving or acquiring entity outstanding
immediately after such event; or (y) any sale of all or substantially all of the
assets or capital
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stock of the Company (other than in a spin-off or similar transaction) or (z)
any other acquisition of the business of the Company, as determined by the
Board.
(ii) ASSUMPTION OF OPTIONS UPON CERTAIN EVENTS. In connection
with a merger or consolidation of an entity with the Company or the acquisition
by the Company of property or stock of an entity, the Board may grant Awards
under the Plan in substitution for stock and stock-based awards issued by such
entity or an affiliate thereof. The substitute Awards shall be granted on such
terms and conditions as the Board considers appropriate in the circumstances.
(iii) POOLING-OF INTERESTS-ACCOUNTING. If the Company proposes
to engage in an Acquisition intended to be accounted for as a
pooling-of-interests, and in the event that the provisions of this Plan or of
any Award hereunder, or any actions of the Board taken in connection with such
Acquisition, are determined by the Company's or the acquiring company's
independent public accountants to cause such Acquisition to fail to be accounted
for as a pooling-of-interests, then such provisions or actions shall be amended
or rescinded by the Board, without the consent of any Participant, to be
consistent with pooling-of-interests accounting treatment for such Acquisition.
(iv) PARACHUTE AWARDS. Notwithstanding the provisions of
Section 7(e)(i)(A), if, in connection with an Acquisition described therein, a
tax under Section 4999 of the Code would be imposed on the Participant (after
taking into account the exceptions set forth in Sections 280G(b)(4) and
280G(b)(5) of the Code), then the number of Awards which shall become
exercisable, realizable or vested as provided in such section shall be reduced
(or delayed), to the minimum extent necessary, so that no such tax would be
imposed on the Participant (the Awards not becoming so accelerated, realizable
or vested, the "PARACHUTE AWARDS"); PROVIDED, HOWEVER, that if the "AGGREGATE
PRESENT VALUE" of the Parachute Awards would exceed the tax that, but for this
sentence, would be imposed on the Participant under Section 4999 of the Code in
connection with the Acquisition, then the Awards shall become immediately
exercisable, realizable and vested without regard to the provisions of this
sentence. For purposes of the preceding sentence, the "AGGREGATE PRESENT VALUE"
of an Award shall be calculated on an after-tax basis (other than taxes imposed
by Section 4999 of the Code) and shall be based on economic principles rather
than the principles set forth under Section 280G of the Code and the regulations
promulgated thereunder. All determinations required to be made under this
Section 7(e)(iv) shall be made by the Company.
f. WITHHOLDING. Each Participant shall pay to the Company, or make
provisions satisfactory to the Company for payment of, any taxes required by law
to be withheld in connection with Awards to such Participant no later than the
date of the event creating the tax liability. The Board may allow Participants
to satisfy such tax obligations in whole or in part by transferring shares of
Common Stock, including shares retained from the Award creating the tax
obligation, valued at their fair market value (as determined by the Board or as
determined pursuant to the applicable option agreement). The Company may, to the
extent permitted by law, deduct any such tax obligations from any payment of any
kind otherwise due to a Participant.
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g. AMENDMENT OF AWARDS. The Board may amend, modify or terminate any
outstanding Award including, but not limited to, substituting therefor another
Award of the same or a different type, changing the date of exercise or
realization, and converting an Incentive Stock Option to a Nonstatutory Stock
Option, PROVIDED THAT, except as otherwise provided in Section 7(e)(iii), the
Participant's consent to such action shall be required unless the Board
determines that the action, taking into account any related action, would not
materially and adversely affect the Participant.
h. CONDITIONS ON DELIVERY OF STOCK. The Company will not be obligated
to deliver any shares of Common Stock pursuant to the Plan or to remove
restrictions from shares previously delivered under the Plan until (i) all
conditions of the Award have been met or removed to the satisfaction of the
Company, (ii) in the opinion of the Company's counsel, all other legal matters
in connection with the issuance and delivery of such shares have been satisfied,
including any applicable securities laws and any applicable stock exchange or
stock market rules and regulations, and (iii) the Participant has executed and
delivered to the Company such representations or agreements as the Company may
consider appropriate to satisfy the requirements of any applicable laws, rules
or regulations.
i. ACCELERATION. The Board may at any time provide that any Options
shall become immediately exercisable in full or in part, that any Restricted
Stock Awards shall be free of some or all restrictions, or that any other
stock-based Awards may become exercisable in full or in part or free of some or
all restrictions or conditions, or otherwise realizable in full or in part, as
the case may be, despite the fact that the foregoing actions may (i) cause the
application of Sections 280G and 4999 of the Code if a change in control of the
Company occurs, or (ii) disqualify all or part of the Option as an Incentive
Stock Option.
8. MISCELLANEOUS
a. DEFINITIONS.
(i) "COMPANY," for purposes of eligibility under the Plan,
shall include any present or future subsidiary corporations of etility.com,
inc., as defined in Section 424(f) of the Code (a "SUBSIDIARY"), and any present
or future parent corporation of etility.com, inc., as defined in Section 424(e)
of the Code. For purposes of Awards other than Incentive Stock Options, the term
"COMPANY" shall include any other business venture in which the Company has a
direct or indirect significant interest, as determined by the Board in its sole
discretion.
(ii) "CODE" means the Internal Revenue Code of 1986, as
amended, and any regulations promulgated thereunder.
(iii) "EMPLOYEE" for purposes of eligibility under the Plan
shall include a person to whom an offer of employment has been extended by the
Company.
b. NO RIGHT TO EMPLOYMENT OR OTHER STATUS. No person shall have any
claim or right to be granted an Award, and the grant of an Award shall not be
construed as giving a
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Participant the right to continued employment or any other relationship with the
Company. The Company expressly reserves the right at any time to dismiss or
otherwise terminate its relationship with a Participant free from any liability
or claim under the Plan.
c. NO RIGHTS AS STOCKHOLDER. Subject to the provisions of the
applicable Award, no Participant or Designated Beneficiary shall have any rights
as a stockholder with respect to any shares of Common Stock to be distributed
with respect to an Award until becoming the record holder thereof.
d. EFFECTIVE DATE AND TERM OF PLAN. The Plan shall become effective on
the date on which it is adopted by the Board. No Awards shall be granted under
the Plan after the completion of ten years from the date on which the Plan was
adopted by the Board, but Awards previously granted may extend beyond that date.
e. AMENDMENT OF PLAN. The Board may amend, suspend or terminate the
Plan or any portion thereof at any time.
f. GOVERNING LAW. The provisions of the Plan and all Awards made
hereunder shall be governed by and interpreted in accordance with the laws of
the Commonwealth of Massachusetts, without regard to its principles or rules
relating to conflicts of law.
Adopted by the Board of Directors on
March 26, 1999
Approved by the stockholders on
March 26, 1999
<PAGE>
EXHIBIT 10.02
ESSENTIAL.COM, INC.
2000 EMPLOYEE STOCK PURCHASE PLAN
ARTICLE 1 - PURPOSE.
This 2000 Employee Stock Purchase Plan (the "PLAN") is intended to
encourage stock ownership by all eligible employees of essential.com, inc. (the
"Company"), a Delaware corporation, and its participating subsidiaries (as
defined in Article 17 (Participating Subsidiaries)) so that they may share in
the growth of the Company by acquiring or increasing their proprietary interest
in the Company. The Plan is designed to encourage eligible employees to remain
in the employ of the Company and its participating subsidiaries. The Plan is
intended to constitute an "employee stock purchase plan" within the meaning of
Section 423(b) of the Internal Revenue Code of 1986, as amended (the "CODE").
ARTICLE 2 - ADMINISTRATION OF THE PLAN.
The Plan may be administered by a committee appointed by the Board of
Directors of the Company (the "COMMITTEE"). The Committee shall consist of not
less than two members of the Company's Board of Directors. The Board of
Directors may from time to time remove members from, or add members to, the
Committee. Vacancies on the Committee, howsoever caused, shall be filled by the
Board of Directors. The Committee may select one of its members as Chairman, and
shall hold meetings at such times and places as it may determine. Acts by a
majority of the Committee, or acts reduced to or approved in writing by a
majority of the members of the Committee, shall be the valid acts of the
Committee.
The interpretation and construction by the Committee of any provisions of
the Plan or of any option granted under it shall be final, unless otherwise
determined by the Board of Directors. The Committee may from time to time adopt
such rules and regulations for carrying out the Plan as it may deem best,
provided that any such rules and regulations shall be applied on a uniform basis
to all employees under the Plan. No member of the Board of Directors or the
Committee shall be liable for any action or determination made in good faith
with respect to the Plan or any option granted under it.
In the event the Board of Directors fails to appoint or refrains from
appointing a Committee, the Board of Directors shall have all power and
authority to administer the Plan. In such event, the word "Committee" wherever
used herein shall be deemed to mean the Board of Directors.
ARTICLE 3 - ELIGIBLE EMPLOYEES.
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All employees of the Company or any of its participating subsidiaries
shall be eligible to receive options under the Plan to purchase common stock of
the Company, and all eligible employees shall have the same rights and
privileges hereunder. Persons who are eligible employees on the first business
day of any Payment Period (as defined in Article 5 (Payment Period and Stock
Options)) shall receive their options as of such day. Persons who become
eligible employees after any date on which options are granted under the Plan
shall be granted options on the first day of the next succeeding Payment Period
on which options are granted to eligible employees under the Plan. In no event,
however, may an employee be granted an option if such employee, immediately
after the option was granted, would be treated as owning stock possessing five
percent or more of the total combined voting power or value of all classes of
stock of the Company or of any parent corporation or subsidiary corporation, as
the terms "parent corporation" and "subsidiary corporation" are defined in
Section 424(e) and (f) of the Code. For purposes of determining stock ownership
under this paragraph, the rules of Section 424(d) of the Code shall apply, and
stock which the employee may purchase under outstanding options shall be treated
as stock owned by the employee.
For the purposes of this Article 3, the term "employee" shall mean an
employee whose customary employment is more than twenty (20) hours per week
and for more than five (5) months in any calendar year.
ARTICLE 4 - STOCK SUBJECT TO THE PLAN.
The stock subject to the options under the Plan shall be shares of the
Company's authorized but unissued common stock, par value $.01 per share (the
"Common Stock"), or shares of Common Stock reacquired by the Company, including
shares purchased in the open market. The aggregate number of shares which may be
issued pursuant to the Plan is 250,000, subject to adjustment as provided in
Article 12 (Adjustments). If any option granted under the Plan shall expire or
terminate for any reason without having been exercised in full or shall cease
for any reason to be exercisable in whole or in part, the unpurchased shares
subject thereto shall again be available under the Plan.
ARTICLE 5 - PAYMENT PERIOD AND STOCK OPTIONS.
Payment Periods during which payroll deductions will be accumulated under
the Plan shall consist of the six-month periods from September 1 to the last day
of February and from March 1 to August 31 of each calendar year, beginning with
the first Payment Period. The first Payment Period under the Plan shall commence
on the effective date of an initial public offering of Common Stock of the
Company (the "Effective Date") and shall end on the following August 31st.
Payroll deductions made from bonus and commission payments will be deemed
accumulated under the Plan during the Payment Period during which such payments
are made. All other payroll deductions will be deemed accumulated under the Plan
during the Payment Period during which the regular payroll period to which it
relates ends.
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Twice each year, on the first business day of each Payment Period, the
Company will grant to each eligible employee who is then a participant in the
Plan an option to purchase on the last day of such Payment Period, at the
Option Price hereinafter provided for, a maximum of 1,000 shares, on
condition that such employee remains eligible to participate in the Plan
throughout the remainder of such Payment Period. The participant shall be
entitled to exercise the option so granted only to the extent of the
participant's accumulated payroll deductions on the last day of such Payment
Period. If the participant's accumulated payroll deductions on the last day
of the Payment Period would enable the participant to purchase more than
1,000 shares except for the 1,000 share limitation, the excess of the amount
of the accumulated payroll deductions over the aggregate purchase price of
the 1,000 shares shall be promptly refunded to the participant by the
Company, without interest. The Option Price per share for each Payment Period
shall be the lesser of (i) 85% of the average market price of the Common
Stock on the first business day of the Payment Period and (ii) 85% of the
average market price of the Common Stock on the last business day of the
Payment Period, in either event rounded up to avoid fractions of a dollar
other than 1/4, 1/2 and 3/4. The foregoing limitation on the number of shares
subject to option and the Option Price shall be subject to adjustment as
provided in Article 12 (Adjustments).
For purposes of the Plan, the term "average market price" on any date means
(i) the average (on that date) of the high and low prices of the Common Stock on
the principal national securities exchange on which the Common Stock is traded,
if the Common Stock is then traded on a national securities exchange; or (ii)
the last reported sale price (on that date) of the Common Stock on the Nasdaq
National Market, if the Common Stock is not then traded on a national securities
exchange; or (iii) the average of the closing bid and asked prices last quoted
(on that date) by an established quotation service for over-the-counter
securities, if the Common Stock is not reported on the Nasdaq National Market;
or (iv) if the Common Stock is not publicly traded, the fair market value of the
Common Stock as determined by the Committee after taking into consideration all
factors which it deems appropriate, including, without limitation, recent sale
and offer prices of the Common Stock in private transactions negotiated at arm's
length. For purposes of determining the "last reported" sale price or the "last
quoted" price for the foregoing provision, the last reported or quoted prices
shall mean as the case may be, at 4:00 p.m., New York time, on that day.
For purposes of the Plan, the term "business day" means a day on which
there is trading on the Nasdaq National Market or the aforementioned national
securities exchange, whichever is applicable pursuant to the preceding
paragraph; and if neither is applicable, a day that is not a Saturday, Sunday or
legal holiday in the Commonwealth of Massachusetts.
No employee shall be granted an option which permits the employee's right
to purchase stock under the Plan, and under all other Section 423(b) employee
stock purchase plans of the Company and any parent or subsidiary corporations,
to accrue at a rate which exceeds $25,000 of fair market value of such stock
(determined on the date or dates that options on such stock were granted) for
each calendar year in which such option is outstanding at any time. The purpose
of the limitation in the preceding sentence is to comply with Section 423(b)(8)
of the Code. If the participant's accumulated payroll deductions on the last day
of the Payment Period would otherwise enable the participant to purchase Common
Stock in excess of the Section 423(b)(8)
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limitation described in this paragraph, the excess of the amount of the
accumulated payroll deductions over the aggregate purchase price of the shares
actually purchased shall be promptly refunded to the participant by the Company,
without interest.
ARTICLE 6 - EXERCISE OF OPTION.
Each eligible employee who continues to be a participant in the Plan on the
last day of a Payment Period shall be deemed to have exercised his or her option
on such date and shall be deemed to have purchased from the Company such number
of full shares of Common Stock reserved for the purpose of the Plan as the
participant's accumulated payroll deductions on such date will pay for at the
Option Price, subject to the 1,000 share limit of the option and the Section
423(b)(8) limitation described in Article 5 (Payment Period and Stock Options).
If the individual is not a participant on the last day of a Payment Period, then
he or she shall not be entitled to exercise his or her option. Only full shares
of Common Stock may be purchased under the Plan. Unused payroll deductions
remaining in a participant's account at the end of a Payment Period by reason of
the inability to purchase a fractional share shall be carried forward to the
next Payment Period.
ARTICLE 7 - AUTHORIZATION FOR ENTERING THE PLAN.
An employee may elect to enter the Plan by filling out, signing and
delivering to the Company an authorization:
A. Stating the percentage to be deducted regularly from the
employee's pay;
B. Authorizing the purchase of stock for the employee in each
Payment Period in accordance with the terms of the Plan; and
C. Specifying the exact name or names in which stock purchased
for the employee is to be issued as provided under Article 11
(Issuance of Stock) hereof.
Such authorization must be received by the Company at least ten days before the
first day of the next succeeding Payment Period and shall take effect only if
the employee is an eligible employee on the first business day of such Payment
Period.
Unless a participant files a new authorization or withdraws from the Plan,
the deductions and purchases under the authorization the participant has on file
under the Plan will continue from one Payment Period to succeeding Payment
Periods as long as the Plan remains in effect.
The Company will accumulate and hold for each participant's account the
amounts deducted from his or her pay. No interest will be paid on these amounts.
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ARTICLE 8 - MAXIMUM AMOUNT OF PAYROLL DEDUCTIONS.
An employee may authorize payroll deductions in an amount (expressed as a
whole percentage) not less than one percent (1%) but not more than ten percent
(10%) of the employee's total compensation, including base pay or salary and any
overtime, bonuses or commissions.
ARTICLE 9 - CHANGE IN PAYROLL DEDUCTIONS.
Deductions may not be increased or decreased during a Payment Period.
However, a participant may withdraw in full from the Plan.
ARTICLE 10 - WITHDRAWAL FROM THE PLAN.
A participant may withdraw from the Plan (in whole but not in part) at any
time prior to the last day of a Payment Period by delivering a withdrawal notice
to the Company.
To re-enter the Plan, an employee who has previously withdrawn must file a
new authorization at least ten days before the first day of the next Payment
Period in which he or she wishes to participate. The employee's re-entry into
the Plan becomes effective at the beginning of such Payment Period, provided
that he or she is an eligible employee on the first business day of the Payment
Period.
ARTICLE 11 - ISSUANCE OF STOCK.
Certificates for stock issued to participants shall be delivered as soon as
practicable after each Payment Period by the Company's transfer agent.
Stock purchased under the Plan shall be issued only in the name of the
participant, or if the participant's authorization so specifies, in the name of
the participant and another person of legal age as joint tenants with rights of
survivorship.
ARTICLE 12 - ADJUSTMENTS.
Upon the happening of any of the following described events, a
participant's rights under options granted under the Plan shall be adjusted as
hereinafter provided:
A. In the event that the shares of Common Stock shall be subdivided or
combined into a greater or smaller number of shares or if, upon a
reorganization, split-up, liquidation, recapitalization or the like of the
Company, the shares of Common Stock shall be exchanged for other securities
of the Company, each participant shall be entitled, subject to the
conditions herein stated, to purchase such number of shares of Common Stock
or amount of other securities of the Company as were exchangeable for the
number of shares of Common Stock that such participant would have been
entitled to purchase except for
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such action, and appropriate adjustments shall be made in the purchase
price per share to reflect such subdivision, combination or exchange; and
B. In the event the Company shall issue any of its shares as a stock
dividend upon or with respect to the shares of stock of the class which
shall at the time be subject to an option hereunder, each participant upon
exercising such an option shall be entitled to receive (for the purchase
price paid upon such exercise) the shares as to which the participant is
exercising his or her option and, in addition thereto (at no additional
cost), such number of shares of the class or classes in which such stock
dividend or dividends were declared or paid, and such amount of cash in
lieu of fractional shares, as is equal to the number of shares thereof and
the amount of cash in lieu of fractional shares, respectively, which the
participant would have received if the participant had been the holder of
the shares as to which the participant is exercising his or her option at
all times between the date of the granting of such option and the date of
its exercise.
Upon the happening of any of the foregoing events, the class and aggregate
number of shares set forth in Article 4 (Stock Subject to the Plan) hereof which
are subject to options which have been or may be granted under the Plan and the
limitations set forth in the second paragraph of Article 5 (Payment Period and
Stock Options) shall also be appropriately adjusted to reflect the events
specified in paragraphs A and B above. Notwithstanding the foregoing, any
adjustments made pursuant to paragraphs A or B shall be made only after the
Committee, based on advice of counsel for the Company, determines whether such
adjustments would constitute a "modification" (as that term is defined in
Section 424 of the Code). If the Committee determines that such adjustments
would constitute a modification, it may refrain from making such adjustments.
If the Company is to be consolidated with or acquired by another entity in
a merger, a sale of all or substantially all of the Company's assets or
otherwise (an "ACQUISITION"), the Committee or the board of directors of any
entity assuming the obligations of the Company hereunder (the "SUCCESSOR BOARD")
shall, with respect to options then outstanding under the Plan, either (i) make
appropriate provision for the continuation of such options by arranging for the
substitution on an equitable basis for the shares then subject to such options
either (a) the consideration payable with respect to the outstanding shares of
the Common Stock in connection with the Acquisition, (b) shares of stock of the
successor corporation, or a parent or subsidiary of such corporation, or (c)
such other securities as the Successor Board deems appropriate, the fair market
value of which shall not materially exceed the fair market value of the shares
of Common Stock subject to such options immediately preceding the Acquisition;
or (ii) terminate each participant's options in exchange for a cash payment
equal to the excess of (a) the fair market value on the date of the Acquisition,
of the number of shares of Common Stock that the participant's accumulated
payroll deductions as of the date of the Acquisition could purchase, at an
option price determined with reference only to the first business day of the
applicable Payment Period and subject to the 500 share limit, Code Section
423(b)(8) and fractional-share limitations on the amount of stock a participant
would be entitled to purchase, over (b) the result of multiplying such number of
shares by such option price.
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The Committee or Successor Board shall determine the adjustments to be made
under this Article 12, and its determination shall be conclusive.
ARTICLE 13 - NO TRANSFER OR ASSIGNMENT OF EMPLOYEE'S RIGHTS.
An option granted under the Plan may not be transferred or assigned and may
be exercised only by the participant.
ARTICLE 14 - TERMINATION OF EMPLOYEE'S RIGHTS.
Whenever a participant ceases to be an eligible employee because of
retirement, voluntary or involuntary termination, resignation, layoff,
discharge, death or for any other reason, his or her rights under the Plan shall
immediately terminate, and the Company shall promptly refund, without interest,
the entire balance of his or her payroll deduction account under the Plan.
Notwithstanding the foregoing, eligible employment shall be treated as
continuing intact while a participant is on military leave, sick leave or other
bona fide leave of absence, for up to 90 days, or for so long as the
participant's right to re-employment is guaranteed either by statute or by
contract, if longer than 90 days. If a participant's payroll deductions are
interrupted by any legal process, a withdrawal notice will be considered as
having been received from the participant on the day the interruption occurs.
ARTICLE 15 - TERMINATION AND AMENDMENTS TO PLAN.
Unless terminated sooner as provided below, the Plan shall terminate on
April 6, 2010. The Plan may be terminated at any time by the Company's Board of
Directors but such termination shall not affect options then outstanding under
the Plan. It will terminate in any case when all or substantially all of the
unissued shares of stock reserved for the purposes of the Plan have been
purchased. If at any time shares of stock reserved for the purpose of the Plan
remain available for purchase but not in sufficient number to satisfy all then
unfilled purchase requirements, the available shares shall be apportioned among
participants in proportion to the amount of payroll deductions accumulated on
behalf of each participant that would otherwise be used to purchase stock, and
the Plan shall terminate. Upon such termination or any other termination of the
Plan, all payroll deductions not used to purchase stock will be refunded,
without interest.
The Committee or the Board of Directors may from time to time adopt
amendments to the Plan provided that, without the approval of the stockholders
of the Company, no amendment may (i) increase the number of shares that may be
issued under the Plan; (ii) change the class of employees eligible to receive
options under the Plan, if such action would be treated as the adoption of a new
plan for purposes of Section 423(b) of the Code; or (iii) cause Rule 16b-3 under
the Securities Exchange Act of 1934 to become inapplicable to the Plan.
ARTICLE 16 - LIMITS ON SALE OF STOCK PURCHASED UNDER THE PLAN.
The Plan is intended to provide shares of Common Stock for investment and
not for resale. The Company does not, however, intend to restrict or influence
any employee in the conduct of
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his or her own affairs. An employee may, therefore, sell stock purchased under
the Plan at any time the employee chooses, subject to compliance with any
applicable federal or state securities laws and subject to any restrictions
imposed under Article 21 (Withholding of Additional Income Taxes) to ensure that
tax withholding obligations are satisfied. THE EMPLOYEE ASSUMES THE RISK OF ANY
MARKET FLUCTUATIONS IN THE PRICE OF THE STOCK.
ARTICLE 17 - PARTICIPATING SUBSIDIARIES.
The term "participating subsidiary" shall mean any present or future
subsidiary of the Company, as that term is defined in Section 424(f) of the
Code, which is designated from time to time by the Board of Directors to
participate in the Plan. The Board of Directors shall have the power to make
such designation before or after the Plan is approved by the stockholders.
ARTICLE 18 - OPTIONEES NOT STOCKHOLDERS.
Neither the granting of an option to an employee nor the deductions from
his or her pay shall constitute such employee a stockholder of the shares
covered by an option until such shares have been actually purchased by the
employee.
ARTICLE 19 - APPLICATION OF FUNDS.
The proceeds received by the Company from the sale of Common Stock pursuant
to options granted under the Plan will be used for general corporate purposes.
ARTICLE 20 - NOTICE TO COMPANY OF DISQUALIFYING DISPOSITION.
By electing to participate in the Plan, each participant agrees to notify
the Company in writing immediately after the participant transfers Common Stock
acquired under the Plan, if such transfer occurs within two years after the
first business day of the Payment Period in which such Common Stock was
acquired. Each participant further agrees to provide any information about such
a transfer as may be requested by the Company or any subsidiary corporation in
order to assist it in complying with the tax laws. Such dispositions generally
are treated as "disqualifying dispositions" under Sections 421 and 424 of the
Code, which have certain tax consequences to participants and to the Company and
its participating subsidiaries.
ARTICLE 21 - WITHHOLDING OF ADDITIONAL INCOME TAXES.
By electing to participate in the Plan, each participant acknowledges that
the Company and its participating subsidiaries are required to withhold taxes
with respect to the amounts deducted from the participant's compensation and
accumulated for the benefit of the participant under the Plan, and each
participant agrees that the Company and its participating subsidiaries may
deduct additional amounts from the participant's compensation, when amounts are
added to the participant's account, used to purchase Common Stock or refunded,
in order to satisfy such withholding obligations. Each participant further
acknowledges that when Common Stock is purchased under the Plan the Company and
its participating subsidiaries may be required to
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withhold taxes with respect to all or a portion of the difference between the
fair market value of the Common Stock purchased and its purchase price, and each
participant agrees that such taxes may be withheld from compensation otherwise
payable to such participant. It is intended that tax withholding will be
accomplished in such a manner that the full amount of payroll deductions elected
by the participant under Article 7 (Authorization for Entering the Plan) will be
used to purchase Common Stock. However, if amounts sufficient to satisfy
applicable tax withholding obligations have not been withheld from compensation
otherwise payable to any participant, then, notwithstanding any other provision
of the Plan, the Company may withhold such taxes from the participant's
accumulated payroll deductions and apply the net amount to the purchase of
Common Stock, unless the participant pays to the Company, prior to the exercise
date, an amount sufficient to satisfy such withholding obligations. Each
participant further acknowledges that the Company and its participating
subsidiaries may be required to withhold taxes in connection with the
disposition of stock acquired under the Plan and agrees that the Company or any
participating subsidiary may take whatever action it considers appropriate to
satisfy such withholding requirements, including deducting from compensation
otherwise payable to such participant an amount sufficient to satisfy such
withholding requirements or conditioning any disposition of Common Stock by the
participant upon the payment to the Company or such subsidiary of an amount
sufficient to satisfy such withholding requirements.
ARTICLE 22 - GOVERNMENTAL REGULATIONS.
The Company's obligation to sell and deliver shares of Common Stock under
the Plan is subject to the approval of any governmental authority required in
connection with the authorization, issuance or sale of such shares.
Government regulations may impose reporting or other obligations on the
Company with respect to the Plan. For example, the Company may be required to
identify shares of Common Stock issued under the Plan on its stock ownership
records and send tax information statements to employees and former employees
who transfer title to such shares.
ARTICLE 23 - GOVERNING LAW.
The validity and construction of the Plan shall be governed by the laws of
Delaware, without giving effect to the principles of conflicts of law thereof.
ARTICLE 24 - APPROVAL OF BOARD OF DIRECTORS AND STOCKHOLDERS OF THE COMPANY.
The Plan was adopted by the Board of Directors on April 6, 2000 and was
approved by the stockholders of the Company on [______ ____], 2000.
<PAGE>
EXHIBIT 10.03
essential.com, inc.
2000 NON-EMPLOYEE DIRECTOR STOCK OPTION PLAN
1. PURPOSE. This Non-Qualified Stock Option Plan, to be known as the 2000
Non-Employee Director Stock Option Plan (hereinafter, this "PLAN") is intended
to promote the interests of essential.com, inc. (hereinafter, the "COMPANY") by
providing an inducement to obtain and retain the services of qualified persons
who are not employees or officers of the Company to serve as members of its
Board of Directors (the "BOARD").
2. AVAILABLE SHARES. The total number of shares of Common Stock, par value
$.01 per share, of the Company (the "COMMON STOCK") for which options may be
granted under this Plan shall not exceed 250,000 shares, subject to adjustment
in accordance with paragraph 10 (Adjustments Upon Changes in Capitalization and
Other Events) of this Plan. Shares subject to this Plan are authorized but
unissued shares or shares that were once issued and subsequently reacquired by
the Company. If any options granted under this Plan are surrendered before
exercise or lapse without exercise, in whole or in part, the shares reserved
therefor shall continue to be available under this Plan.
3. ADMINISTRATION. This Plan shall be administered by the Board or by a
committee appointed by the Board (the "COMMITTEE"). In the event the Board fails
to appoint or refrains from appointing a Committee, the Board shall have all
power and authority to administer this Plan. In such event, the word "Committee"
wherever used herein shall be deemed to mean the Board. The Committee shall,
subject to the provisions of the Plan, have the power to construe this Plan, to
determine all questions hereunder, and to adopt and amend such rules and
regulations for the administration of this Plan as it may deem desirable. No
member of the Board or the Committee shall be liable for any action or
determination made in good faith with respect to this Plan or any option granted
under it.
4. AUTOMATIC GRANT OF OPTIONS. Subject to the availability of shares under
this Plan, (a) each person who is or becomes a member of the Board and who is
not an employee or officer of the Company (a "NON-EMPLOYEE DIRECTOR") shall be
automatically granted on either (i) the effective date of an initial public
offering of Common Stock of the Company (the "EFFECTIVE DATE") or (ii) the date
such person is first elected to the Board after the Effective Date, without
further action by the Board, an option to purchase (x) 10,000 shares of the
Common Stock in the case of persons who are Non-Employee Directors at the
Effective Date or (y) 20,000 shares of Common Stock in the case of persons first
elected to the Board after the Effective Date, and (b) each person receiving an
option pursuant to clause (a) hereof who is a Non-Employee Director on the last
day of February and the last day of August during the term of this Plan shall be
automatically granted without further action by the Board on each such date an
option to
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purchase 1,250 shares of the Common Stock. The options to be granted under this
paragraph 4 shall be the only options ever to be granted at any time to such
member under this Plan. The number of shares covered by options granted under
this paragraph 4 shall be subject to adjustment in accordance with the
provisions of paragraph 10 (Adjustments Upon Changes in Capitalization and Other
Events) of this Plan. Notwithstanding anything to the contrary set forth herein,
if this Plan is not approved by a majority of the Company's stockholders
present, or represented, and voting at a meeting of the Stockholders or
consenting via written consent in lieu of a meeting on such matter, then the
Plan and the options granted pursuant to this Section 4 shall terminate and
become void, and no further options shall be granted under this Plan.
5. OPTION PRICE. The purchase price of the stock covered by an option
granted pursuant to this Plan shall be 100% of the fair market value of such
shares on the day the option is granted. The option price will be subject to
adjustment in accordance with the provisions of paragraph 10 (Adjustments Upon
Changes in Capitalization and Other Events) of this Plan. For purposes of this
Plan, if, at the time an option is granted under the Plan, the Company's Common
Stock is publicly traded, "fair market value" shall be determined as of the last
business day for which the prices or quotes discussed in this sentence are
available prior to the date such option is granted and shall mean (i) the
average (on that date) of the high and low prices of the Common Stock on the
principal national securities exchange on which the Common Stock is traded, if
the Common Stock is then traded on a national securities exchange; or (ii) the
last reported sale price (on that date) of the Common Stock on the Nasdaq
National Market, if the Common Stock is not then traded on a national securities
exchange; or (iii) the closing bid price (or average of bid prices) last quoted
(on that date) by an established quotation service for over-the-counter
securities, if the Common Stock is not reported on the Nasdaq National Market
List. However, if the Common Stock is not publicly traded at the time an option
is granted under the Plan, "fair market value" shall be deemed to be the fair
value of the Common Stock as determined by the Committee after taking into
consideration all factors which it deems appropriate, including, without
limitation, recent sale and offer prices of the Common Stock in private
transactions negotiated at arm's length. For purposes of determining the "last
reported" sale price or the "last quoted" price for the foregoing provision, the
last reported or quoted prices shall mean as the case may be, at 4:00 p.m., New
York time, on that day.
6. PERIOD OF OPTION. Unless sooner terminated in accordance with the
provisions of paragraph 8 (Termination of Option Rights) of this Plan, an option
granted hereunder shall expire on the date which is ten (10) years after the
date of grant of the option.
7. (a) VESTING OF SHARES AND NON-TRANSFERABILITY OF OPTIONS. Options
granted under this Plan shall not be exercisable until they become vested.
Options granted under this Plan shall vest in the optionee and thus become
exercisable, in accordance with the following schedule, provided that the
optionee has continuously served as a member of the Board through such vesting
date:
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Options Granted Under Section 4(a) hereof:
Fraction of Option
Shares for Which
Option Will be Exercisable Date of Vesting
-------------------------- ---------------
1/4th First, second, third and fourth
anniversaries of the date of grant
Options Granted Under Section 4(b) hereof:
Fraction of Option
Shares for Which
Option Will be Exercisable Date of Vesting
-------------------------- ---------------
1/12th Last day of each month over the
year after the date of the grant
The number of shares as to which options may be exercised shall be
cumulative, so that once the option shall become exercisable as to any shares it
shall continue to be exercisable as to said shares, until expiration or
termination of the option as provided in this Plan.
(b) NON-TRANSFERABILITY. Any option granted pursuant to this Plan shall not
be assignable or transferable other than by will or the laws of descent and
distribution or pursuant to a domestic relations order and shall be exercisable
during the optionee's lifetime only by him or her.
8. TERMINATION OF OPTION RIGHTS.
(a) In the event an optionee ceases to be a member of the Board for any
reason other than death or permanent disability, any then unexercised portion of
options granted to such optionee shall, to the extent not then vested,
immediately terminate and become void; any portion of an option which is then
vested but has not been exercised at the time the optionee so ceases to be a
member of the Board may be exercised, to the extent it is then vested, by the
optionee within 90 days of the date the optionee ceased to be a member of the
Board; and all options shall terminate after such 90 days have expired.
(b) In the event that an optionee ceases to be a member of the Board by
reason of his or her death or permanent disability, any option granted to such
optionee shall be immediately and automatically accelerated and become fully
vested and all unexercised options shall be exercisable by the optionee (or by
the optionee's personal representative, heir or legatee, in the event of death)
until the scheduled expiration date of the option.
9. EXERCISE OF OPTION. Subject to the terms and conditions of this Plan and
the option agreements, an option granted hereunder shall, to the extent then
exercisable, be exercisable in
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-4-
whole or in part by giving written notice to the Company by mail or in person
addressed to essential.com, inc., Three Burlington Woods Drive, Burlington, MA
01803, at its principal executive offices, stating the number of shares with
respect to which the option is being exercised, accompanied by payment in full
for such shares. Payment may be (a) in United States dollars in cash or by
check, (b) in whole or in part in shares of the Common Stock of the Company
already owned by the person or persons exercising the option or shares subject
to the option being exercised (subject to such restrictions and guidelines as
the Board may adopt from time to time), valued at fair market value determined
in accordance with the provisions of paragraph 5 (Option Price) or (c)
consistent with applicable law, through the delivery of an assignment to the
Company of a sufficient amount of the proceeds from the sale of the Common Stock
acquired upon exercise of the option and an authorization to the broker or
selling agent to pay that amount to the Company, which sale shall be at the
participant's direction at the time of exercise. There shall be no such exercise
at any one time as to fewer than one hundred (100) shares or all of the
remaining shares then purchasable by the person or persons exercising the
option, if fewer than one hundred (100) shares. The Company's transfer agent
shall, on behalf of the Company, prepare a certificate or certificates
representing such shares acquired pursuant to exercise of the option, shall
register the optionee as the owner of such shares on the books of the Company
and shall cause the fully executed certificate(s) representing such shares to be
delivered to the optionee as soon as practicable after payment of the option
price in full. The holder of an option shall not have any rights of a
stockholder with respect to the shares covered by the option, except to the
extent that one or more certificates for such shares shall be delivered to him
or her upon the due exercise of the option.
10. ADJUSTMENTS UPON CHANGES IN CAPITALIZATION AND OTHER EVENTS. Upon the
occurrence of any of the following events, an optionee's rights with respect to
options granted to him or her hereunder shall be adjusted as hereinafter
provided:
(a) STOCK DIVIDENDS AND STOCK SPLITS. If the shares of Common Stock
shall be subdivided or combined into a greater or smaller number of shares
or if the Company shall issue any shares of Common Stock as a stock
dividend on its outstanding Common Stock, the number of shares of Common
Stock deliverable upon the exercise of options shall be appropriately
increased or decreased proportionately, and appropriate adjustments shall
be made in the purchase price per share to reflect such subdivision,
combination or stock dividend.
(b) RECAPITALIZATION ADJUSTMENTS. If the Company is to be consolidated
with or acquired by another entity in a merger, sale of all or
substantially all of the Company's assets or otherwise, each option granted
under this plan which is outstanding but unvested as of the effective date
of such event shall become exercisable in full three (3) business days
prior to the effective date of such event. In the event of a
reorganization, recapitalization, merger, consolidation, or any other
change in the corporate structure or shares of the Company, to the extent
permitted by Rule 16b-3 under the Securities Exchange Act of 1934,
adjustments in the number and kind of shares authorized by this Plan and in
the number and kind of shares covered by, and in the option price of
outstanding options under this Plan necessary to maintain the proportionate
interest of the optionee and preserve, without
<PAGE>
-5-
exceeding, the value of such option, shall be made. Notwithstanding the
foregoing, no such adjustment shall be made which would, within the meaning
of any applicable provisions of the Internal Revenue Code of 1986, as
amended, constitute a modification, extension or renewal of any Option or a
grant of additional benefits to the holder of an Option.
(c) ISSUANCES OF SECURITIES. Except as expressly provided herein, no
issuance by the Company of shares of stock of any class, or securities
convertible into shares of stock of any class, shall affect, and no
adjustment by reason thereof shall be made with respect to, the number or
price of shares subject to options. No adjustments shall be made for
dividends paid in cash or in property other than securities of the Company.
(d) ADJUSTMENTS. Upon the happening of any of the foregoing events,
the class and aggregate number of shares set forth in paragraphs 2
(Available Shares) and 4 (Automatic Grant of Options) of this Plan that are
subject to options which previously have been or subsequently may be
granted under this Plan shall also be appropriately adjusted to reflect
such events. The Board shall determine the specific adjustments to be made
under this paragraph 10 and its determination shall be conclusive.
11. RESTRICTIONS ON ISSUANCE OF SHARES. Notwithstanding the provisions of
paragraphs 4 (Automatic Grant of Options) and 9 (Exercise of Option) of this
Plan, the Company shall have no obligation to deliver any certificate or
certificates upon exercise of an option until one of the following conditions
shall be satisfied:
(i) The issuance of shares with respect to which the option has been
exercised is at the time of the issue of such shares effectively registered
under applicable Federal and state securities laws as now in force or
hereafter amended; or
(ii) Counsel for the Company shall have given an opinion that the
issuance of such shares is exempt from registration under Federal and state
securities laws as now in force or hereafter amended; and the Company has
complied with all applicable laws and regulations with respect thereto,
including without limitation all regulations required by any stock exchange
upon which the Company's outstanding Common Stock is then listed.
12. LEGEND ON CERTIFICATES. The certificates representing shares issued
pursuant to the exercise of an option granted hereunder shall carry such
appropriate legend, and such written instructions shall be given to the
Company's transfer agent, as may be deemed necessary or advisable by counsel to
the Company in order to comply with the requirements of the Securities Act of
1933 or any state securities laws.
13. REPRESENTATION OF OPTIONEE. If requested by the Company, the optionee
shall deliver to the Company written representations and warranties upon
exercise of the option that are necessary to show compliance with Federal and
state securities laws, including representations and warranties to the effect
that a purchase of shares under the option is made for investment and not with a
view to their distribution (as that term is used in the Securities Act of 1933).
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14. OPTION AGREEMENT. Each option granted under the provisions of this Plan
shall be evidenced by an option agreement, which agreement shall be duly
executed and delivered on behalf of the Company and by the optionee to whom such
option is granted. The option agreement shall contain such terms, provisions and
conditions not inconsistent with this Plan as may be determined by the officer
executing it.
15. TERMINATION AND AMENDMENT OF PLAN. Options may no longer be granted
under this Plan after April 6, 2010, and this Plan shall terminate when all
options granted or to be granted hereunder are no longer outstanding. The Board
may at any time terminate this Plan or make such modification or amendment
thereof as it deems advisable; PROVIDED, HOWEVER, that the Board may not,
without approval of the stockholders, (a) increase the maximum number of shares
for which options may be granted under this Plan (except by adjustment pursuant
to Section 10 (Adjustment Upon Changes in Capitalization and Other Events)), (b)
materially modify the requirements as to eligibility to participate in this Plan
or (c) materially increase benefits accruing to option holders under this Plan.
Termination or any modification or amendment of this Plan shall not, without
consent of a participant, affect his or her rights under an option previously
granted to him or her.
16. WITHHOLDING OF INCOME TAXES. Upon the exercise of an option, the
Company, in accordance with Section 3402(a) of the Internal Revenue Code of
1986, as amended, and any other applicable withholding requirements, may
require the optionee to pay withholding taxes in respect of amounts considered
to be compensation includible in the optionee's gross income.
17. COMPLIANCE WITH REGULATIONS. It is the Company's intent that the Plan
comply in all respects with Rule 16b-3 under the Securities Exchange Act of 1934
(or any successor or amended provision thereof) and any applicable Securities
and Exchange Commission interpretations thereof. If any provision of this Plan
is deemed not to be in compliance with Rule 16b-3, the provision shall be null
and void.
18. GOVERNING LAW. The validity and construction of this Plan and the
instruments evidencing options shall be governed by the laws of the State of
Delaware, without giving effect to the principles of conflicts of law thereof.
Date Approved by Board of Directors of the Company: April 6, 2000
Date Approved by Stockholders of the Company: [ ], 2000
--------------
<PAGE>
Exhibit 10.04
RESALE AGREEMENT
(District of Columbia)
PREFACE
THIS RESALE AGREEMENT (this "Agreement") is made effective as of
August 6, 1999 (the "Effective Date") by and between Essential.Com, Inc.
("Reseller"), a Delaware corporation, with offices at Three Burlington Woods
Drive, Burlington, MA 01803, and Bell Atlantic - Washington, D.C., Inc. ("Bell
Atlantic"), a New York corporation, with offices at 1710 H Street N. W.,
Washington, D. C. 20006.
WHEREAS, pursuant to Section 251(c)(4) of the Act, 47 U.S.C. Section
251(c)(4), Reseller wishes to purchase Bell Atlantic Retail Telecommunications
Services from Bell Atlantic for resale by Reseller as a Telecommunications
Carrier providing Telecommunications Services in the District of Columbia; and
WHEREAS, Bell Atlantic is willing to provide such Bell Atlantic Retail
Telecommunications Services in accordance with this Agreement.
NOW THEREFORE, in consideration of the mutual promises set forth in
this Agreement, Reseller and Bell Atlantic, each on behalf of itself and its
respective successors and assigns, agree as follows:
1. DEFINITIONS
1.1 As used in the Principal Document, the terms listed below shall
have the meanings stated below:
1.1.1 "Act" means the Communications Act of 1934, 47 U.S.C. Section
151, ET SEQ., as amended from time-to-time.
1.1.2 "Agent" means agent or servant.
1.1.3 "Applicable Law" means all applicable laws and government
regulations and orders.
1.1.4 "Bell Atlantic Ancillary Service" means any service offered by
Bell Atlantic to Reseller in Exhibit I.
1.1.5 "Bell Atlantic Retail Telecommunications Service" means any
Telecommunications Service that Bell Atlantic provides at retail to
subscribers who are not Telecommunications Carriers. The term "Bell
Atlantic Retail Telecommunications
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<PAGE>
Service" does not include any exchange access service (as defined in
Section 3(16) of the Act, 47 U.S.C. Section 153(16)) provided by Bell
Atlantic.
1.1.6 "Bell Atlantic Service" means and includes any Bell Atlantic
Retail Telecommunications Service and any Bell Atlantic Ancillary Service.
1.1.7 "Bell Atlantic's Affiliates" means any corporations, partnerships
or other persons who control, are controlled by, or are under common
control with, Bell Atlantic.
1.1.8 "Bell Atlantic's Tariffs" and "Bell Atlantic Tariff" mean and
include:
(a) Bell Atlantic's effective Federal and state tariffs, as
amended by Bell Atlantic from time-to-time; and,
(b) to the extent Bell Atlantic Services are not subject to Bell
Atlantic tariffs, any standard agreements and other documents, as amended
by Bell Atlantic from time-to-time, that set forth the generally available
terms, conditions and prices under which Bell Atlantic offers such Bell
Atlantic Services.
The terms "Bell Atlantic's Tariffs" and "Bell Atlantic Tariff" do
not include Bell Atlantic's "Statement of Generally Available Terms and
Conditions for Interconnection, Unbundled Network Elements, Ancillary
Services and Resale of Telecommunications Services" which has been or may
be approved by the Commission pursuant to Section 252(f) of the Act, 47
U.S.C. Section 252(f).
1.1.9 "Commission" means the Public Service Commission of the District
of Columbia.
1.1.10 "Contract Period", as used in Section 1.1.25 and Section 6.2,
means a stated period or minimum period of time for which Reseller is
required by this Agreement to subscribe to, use and/or pay for a Bell
Atlantic Service.
1.1.11 "Customer" means and includes customers, subscribers and patrons,
of a Party, purchasers and users of Telecommunications Services (including,
but not limited to, resold Bell Atlantic Retail Telecommunications
Services) provided by a Party, and purchasers and users of other services
and products provided by a Party. The term "Customer" does not include a
Party.
1.1.12 "Bell Atlantic Customer" means a Customer of Bell Atlantic.
1.1.13 "Customer Information" means CPNI of a Customer and any other
non-public, individually identifiable information about a Customer or the
purchase by a Customer of the services or products of a Party.
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1.1.14 "Customer Proprietary Network Information" ("CPNI") means
"Customer Proprietary Network Information" as defined in Section 222 of the
Act, 47 U.S.C. Section 222.
1.1.15 "Effective Date" means the date first above written.
1.1.16 "Jurisdiction" means the District of Columbia.
1.1.17 "Operator Services" means: (a) services accessed by dialing 411,
555-1212, 1-555-1212, 0+ local, 0+ intraLATA, and, 0-; and, (b) any other
automated or live operator or directory assistance service.
1.1.18 "Order" means an order or application.
1.1.19 "Principal Document" means this document, including the Preface,
Sections 1 through 39, the signature page, Exhibit I, Exhibit II, and
Exhibit II, Attachment 1.
1.1.20 "Reseller Customer" means a Customer of Reseller.
1.1.21 "Retail Prices" means the prices at which Bell Atlantic Retail
Telecommunications Services are provided by Bell Atlantic at retail to
subscribers who are not Telecommunications Carriers.
1.1.22 "Telecommunications Carrier" means "Telecommunications Carrier"
as defined in Section 3(44) of the Act, 47 U.S.C. Section 153(44).
1.1.23 "Telecommunications Service" means "Telecommunications Service"
as defined in Section 3(46) of the Act, 47 U.S.C. Section 153(46).
1.1.24 "Telephone Exchange Service" means Telephone Exchange Service" as
defined in Section 3(47) of the Act, 47 U.S.C. Section 153(47).
1.1.25 "Termination Date Bell Atlantic Service" means: (a) any Bell
Atlantic Service being provided by Bell Atlantic under this Agreement at
the time of termination of this Agreement, that at the time of termination
of this Agreement is subject to a Contract Period which is greater than one
(1) month; and, (b) any Bell Atlantic Service requested by Reseller under
this Agreement in an Order accepted by Bell Atlantic prior to termination
of this Agreement but not yet being provided by Bell Atlantic at the time
of termination of this Agreement, that is subject to an initial Contract
Period which is greater than one (1) month.
1.2 Unless the context clearly indicates otherwise, any defined term
which is defined or used in the singular shall include the plural, and any
defined term which is defined or used in the plural shall include the
singular.
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<PAGE>
2. THE AGREEMENT
2.1 This Agreement includes: (a) the Principal Document; (b) Bell
Atlantic's Tariffs (which Bell Atlantic Tariffs are incorporated into this
Agreement by reference and made a part hereof); and, (c) a Reseller Order
to provide, change or terminate a Bell Atlantic Service, which has been
accepted by Bell Atlantic (including, but not limited to, any Order which
includes a commitment to purchase a stated number or minimum number of
lines or other Bell Atlantic Services, or a commitment to purchase lines or
other Bell Atlantic Services for a stated period or minimum period of
time).
2.2 Conflicts among terms in the Principal Document, Bell Atlantic's
Tariffs, and a Reseller Order which has been accepted by Bell Atlantic,
shall be resolved in accordance with the following order of precedence,
where the document identified in subsection "(a)" shall have the highest
precedence: (a) the Principal Document; (b) Bell Atlantic's Tariffs; and,
(c) a Reseller Order which has been accepted by Bell Atlantic. The fact
that a term appears in the Principal Document but not in a Bell Atlantic
Tariff, or in a Bell Atlantic Tariff but not in the Principal Document,
shall not be interpreted as, or deemed grounds for finding, a conflict for
the purposes of this Section 2.2.
2.3 This Agreement (including the Principal Document, Bell Atlantic's
Tariffs, and Reseller Orders which have been accepted by Bell Atlantic),
constitutes the entire agreement between the Parties on the subject matter
hereof, and supersedes any prior or contemporaneous agreement,
understanding, or representation on the subject matter hereof. Except as
otherwise provided in the Principal Document, the terms in the Principal
Document may not be waived or modified except by a written document which
is signed by the Parties. Subject to the requirements of Applicable Law,
Bell Atlantic shall have the right to add, modify, or withdraw, a Bell
Atlantic Tariff at any time, without the consent of, or notice to,
Reseller.
2.4 A failure or delay of either Party to enforce any of the
provisions of this Agreement, or any right or remedy available under this
Agreement or at law or in equity, or to require performance of any of the
provisions of this Agreement, or to exercise any option provided under this
Agreement, shall in no way be construed to be a waiver of such provisions,
rights, remedies, or options.
3. BELL ATLANTIC SERVICES
3.1 During the term of this Agreement, Reseller, pursuant to Section
251(c)(4) of the Act, 47 U.S.C. Section 251(c)(4), may submit Orders to
Bell Atlantic requesting Bell Atlantic to provide Bell Atlantic Retail
Telecommunications Services for resale by Reseller as a Telecommunications
Carrier providing Telecommunications Services.
3.2 During the term of this Agreement, Reseller may submit Orders to
Bell Atlantic requesting Bell Atlantic to provide Bell Atlantic Ancillary
Services for use by Reseller as a Telecommunications Carrier providing
Telecommunications Services.
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<PAGE>
3.3 Bell Atlantic may require that Reseller's Orders requesting Bell
Atlantic to provide Bell Atlantic Services be in writing on forms specified
by Bell Atlantic or in an electronic form specified by Bell Atlantic.
3.4 Upon receipt and acceptance by Bell Atlantic of a Reseller Order
requesting Bell Atlantic to provide a Bell Atlantic Service, Bell Atlantic
shall provide, and Reseller shall subscribe to, use and pay for, the Bell
Atlantic Service, in accordance with this Agreement.
3.5 Bell Atlantic Retail Telecommunications Services may be purchased
by Reseller under this Agreement only for the purpose of resale by Reseller
as a Telecommunications Carrier providing Telecommunications Services,
pursuant to Section 251(c)(4) of the Act, 47 U.S.C. Section 251(c)(4). Bell
Atlantic Retail Telecommunications Services to be purchased by Reseller for
other purposes (including, but not limited to, Reseller's own use) must be
purchased by Reseller pursuant to separate written agreements, including,
but not limited to, applicable Bell Atlantic Tariffs. Reseller warrants and
agrees that Reseller will purchase Bell Atlantic Retail Telecommunications
Services from Bell Atlantic under this Agreement only for the purpose of
resale by Reseller as a Telecommunications Carrier providing
Telecommunications Services, pursuant to Section 251(c)(4) of the Act, 47
U.S.C. Section 251(c)(4).
3.6 Bell Atlantic Ancillary Services may be purchased by Reseller
under this Agreement only for use by Reseller as a Telecommunications
Carrier providing Telecommunications Services. Bell Atlantic Ancillary
Services to be purchased by Reseller for other purposes must be purchased
by Reseller pursuant to separate written agreements, including, but not
limited to, applicable Bell Atlantic Tariffs. Reseller warrants and agrees
that Reseller will purchase Bell Atlantic Ancillary Services from Bell
Atlantic under this Agreement only for use by Reseller as a
Telecommunications Carrier providing Telecommunications Services.
3.7 Subject to the requirements of Applicable Law, Bell Atlantic
shall have the right to add, modify, grandfather, discontinue or terminate
Bell Atlantic Services at any time, without the consent of Reseller.
4. PRICES
4.1 Reseller shall pay Bell Atlantic for Bell Atlantic Services at
the prices stated in this Agreement, including, but not limited to, in
Exhibit II, Attachment 1.
4.2 If, prior to establishment of a Bell Atlantic Service, Reseller
cancels or changes its Order for the Bell Atlantic Service, Reseller shall
reimburse Bell Atlantic for the costs associated with such cancellation or
changes as required by this Agreement (including, but not limited to, Bell
Atlantic's Tariffs).
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4.3 Upon request by Bell Atlantic, Reseller shall provide to Bell
Atlantic adequate assurance of payment of charges due to Bell Atlantic.
Assurance of payment of charges may be requested by Bell Atlantic: (a) if
Reseller, in Bell Atlantic's reasonable judgment, at the Effective Date or
at any time thereafter, is unable to show itself to be creditworthy; (b) if
Reseller, in Bell Atlantic's reasonable judgment, at the Effective Date or
at any time thereafter, is not creditworthy; or, (c) if Reseller fails to
timely pay a bill rendered to Reseller by Bell Atlantic. Unless otherwise
agreed by the Parties, the assurance of payment shall be in the form of a
cash deposit and shall be in an amount equal to the charges for Bell
Atlantic Services that Reseller may reasonably be expected to incur during
a period of two (2) months. Bell Atlantic may at any time use the deposit
or other assurance of payment to pay amounts due from Reseller.
5. BILLING AND PAYMENT
5.1 Except as otherwise permitted or required by this Agreement, or
agreed in writing by the Parties, Bell Atlantic shall render bills to
Reseller monthly. Except as otherwise agreed in writing by the Parties,
Bell Atlantic will render bills to Reseller in a paper form.
5.2 Reseller shall pay Bell Atlantic's bills in immediately available
U.S. funds. Except as otherwise agreed in writing by the Parties, payments
shall be transmitted by electronic funds transfer.
5.3 Payment of charges shall be due by the due date stated on Bell
Atlantic's bills. Except as otherwise required by Bell Atlantic's Tariffs
or agreed in writing by the Parties, the due date shall not be sooner than
twenty (20) days after the date the bill is received by Reseller.
5.4 Charges which are not paid by the due date stated on Bell
Atlantic's bill shall be subject to a late payment charge. The late
payment charge shall be in an amount specified by Bell Atlantic, which
shall not exceed a rate of one-and-one-half percent (1.5%) of the over-due
amount (including any unpaid, previously billed late payment charges) per
month.
5.5 Reseller acknowledges and agrees that:
5.5.1 During the term of this Agreement, Bell Atlantic will be engaged
in developing and deploying new or modified forms of bills for
Telecommunications Carriers who are engaged in the resale of Bell Atlantic
Retail Telecommunications Services and new or modified systems and methods
for computing and rendering such bills.
5.5.2 Prior to the completion of deployment of such new or modified
forms of bills and such new or modified systems and methods for computing
and rendering bills,
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Bell Atlantic's form of bill and systems and methods for computing and
rendering bills may be subject to limitations and restrictions, including,
but not limited to, the limitations stated in Section 5.5.3, below, the
inability to provide Reseller with a single, consolidated bill for all Bell
Atlantic Services purchased by Reseller, and the unavailability of bills
and billing information in an electronic form (e.g., bills may be rendered
in a paper form).
5.5.3 Prior to the completion of deployment of the new or modified
forms of bills and the new or modified systems and methods for computing
and rendering bills, Bell Atlantic may apply the discount identified in
Exhibit II, Section 1.1, in a manner (including, but not limited to, in a
"bottom-of-the-bill" format) that results in the Exhibit II, Section 1.1
discount being applied to charges stated in the bill (including, but not
limited to, Subscriber Line Charges, Federal Line Cost Charges, end user
common line charges, carrier selection and change charges, Audiotex Service
charges, and charges for services which are not Bell Atlantic Retail
Telecommunications Services) which are not subject to the Exhibit II,
Section 1.1 discount. Bell Atlantic will implement a "true-up" process and
within six (6) months after the due date of each monthly bill, issue to
Reseller a "true-up" bill for amounts which were not collected from
Reseller under the monthly bill because of the application of the Exhibit
II, Section 1.1 discount to charges which are not subject to the Exhibit
II, Section 1.1 discount. The "true-up" bill may be issued as a part of or
an entry on a monthly bill, as a bill separate from a monthly bill, or in
such other form as Bell Atlantic may determine.
5.6 Although it is the intent of Bell Atlantic to submit timely and
accurate bills, failure by Bell Atlantic to present bills (including, but
not limited to, monthly bills and "true-up" bills) to Reseller in a timely
or accurate manner shall not constitute a breach or default of this
Agreement, or a waiver of a right of payment of the incurred charges, by
Bell Atlantic. Reseller shall not be entitled to dispute charges for Bell
Atlantic Services provided by Bell Atlantic based on Bell Atlantic's
failure to submit a bill for the charges in a timely fashion.
6. TERM
6.1 The term of this Agreement shall commence on the Effective Date,
and, except as otherwise provided in this Agreement, shall remain in effect
through August 5, 2000 (the "Initial Term Ending Date"). After the Initial
Term Ending Date, this Agreement shall continue in force and effect unless
and until terminated as provided in this Agreement. Following the Initial
Term Ending Date, either Party may terminate this Agreement by providing
written notice of termination to the other Party, such written notice to be
provided at least ninety (90) days in advance of the date of termination.
6.2 Following termination of this Agreement pursuant to Section 6.1,
this Agreement, as amended from time to time, shall remain in effect as to
any Termination Date Bell Atlantic Service for the remainder of the
Contract Period applicable to such Termination Date Bell Atlantic Service
at the time of the termination of this Agreement.
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If a Termination Date Bell Atlantic Service is terminated prior to the
expiration of the Contract Period applicable to such Termination Date Bell
Atlantic Service, Reseller shall pay any termination charge provided for in this
Agreement.
7. SERVICE INSTALLATION AND MAINTENANCE
Reseller shall comply with Bell Atlantic's processes and
procedures (including, but not limited to, requirements by Bell Atlantic
that Reseller use Bell Atlantic OSS Services) for the communication to Bell
Atlantic of (a) Reseller's Orders to provide, change or terminate, Bell
Atlantic Services, and (b) Reseller's requests for information about,
assistance in using, or repair or maintenance of, Bell Atlantic Services.
Bell Atlantic may, from time-to-time, upon notice to Reseller, change these
processes and procedures.
8. ASSIGNMENT
8.1 Reseller shall not assign this Agreement or any right or interest
under this Agreement, nor delegate any obligation under this Agreement,
without the prior written approval of Bell Atlantic, which approval shall
not be unreasonably withheld, conditioned or delayed. Any attempted
assignment or delegation in contravention of the foregoing shall be void
and ineffective.
8.2 Bell Atlantic may, without the consent of Reseller, assign
this Agreement or any right or interest under this Agreement, and/or
delegate any obligation under this Agreement, to any of Bell Atlantic's
Affiliates, or to a person with which Bell Atlantic merges or which
acquires substantially all of Bell Atlantic's assets.
9. AVAILABILITY OF SERVICE
9.1 Subject to the requirements of Applicable Law, Bell Atlantic
shall be obligated to provide Bell Atlantic Services to Reseller under this
Agreement only where Bell Atlantic is able, without unreasonable expense
(as determined by Bell Atlantic in its reasonable judgment), (a) to obtain,
retain, install and maintain suitable facilities for the provision of such
Bell Atlantic Services, and (b) to obtain, retain and maintain suitable
rights for the provision of such Bell Atlantic Services.
9.2 Bell Atlantic's obligation to provide a Bell Atlantic Retail
Telecommunications Service to Reseller under this Agreement shall be
limited to providing the Bell Atlantic Retail Telecommunications Service to
Reseller where, and to the same extent, that Bell Atlantic provides such
Bell Atlantic Retail Telecommunications Service to Bell Atlantic's own end
user retail Customers.
10. BRANDING
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10.1 Except as stated in Section 10.2, in providing Bell Atlantic
Services to Reseller, Bell Atlantic shall have the right, but not the
obligation, to identify the Bell Atlantic Services with Bell Atlantic's
trade names, trademarks and service marks. Any such identification of the
Bell Atlantic Services shall not constitute the grant of a license or other
right to Reseller to use Bell Atlantic's trade names, trade marks or
service marks.
10.2 To the extent required by Applicable Law, upon request by
Reseller and at prices, terms and conditions to be negotiated by Reseller
and Bell Atlantic, Bell Atlantic shall provide Bell Atlantic Retail
Telecommunications Services that are identified by Reseller's trade name,
or that are not identified by trade name, trademark or service mark.
11. CHOICE OF LAW
11.1 The construction, interpretation and performance of this
Agreement shall be governed by the laws of the United States of America and
the laws of Jurisdiction (without regard to Jurisdiction's conflicts of
laws rules). All disputes relating to this Agreement shall be resolved
through the application of such laws.
11.2 Reseller agrees to submit to the jurisdiction of any court,
commission or other governmental entity in which a claim, suit or
proceeding which arises out of or in connection with this Agreement or Bell
Atlantic Services provided under this Agreement and in which Bell Atlantic
is a party, is brought.
12. COMPLIANCE WITH APPLICABLE LAW
12.1 Each Party shall in its performance of this Agreement comply with
Applicable Law, including, but not limited to, all applicable regulations
and orders of the Commission and the Federal Communications Commission
(hereinafter the "FCC").
12.2 Reseller shall in providing Bell Atlantic Retail
Telecommunications Services to Reseller Customers comply with Applicable
Law, including, but not limited to, all applicable regulations and orders
of the Commission and the FCC.
13. CONFIDENTIAL INFORMATION
13.1 For the purposes of this Section 13, "Confidential Information"
means the following information disclosed by one Party ("Discloser") to the
other Party ("Recipient") in connection with this Agreement:
(a) Customer Information related to a Reseller Customer which is
disclosed by Reseller to Bell Atlantic (except to the extent that (i) the
Customer Information is subject to publication in a directory, (ii) the
Customer Information is subject to disclosure through an Operator Service
or other Telecommunications Service, or in the course of furnishing
Telecommunications Services, or (iii) the Reseller
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Customer to whom the Customer Information is related, in the manner
required by Applicable Law, has given Bell Atlantic permission to use
and/or disclose the Customer Information);
(b) Customer Information related to a Bell Atlantic Customer
which is disclosed by Bell Atlantic to Reseller (except to the extent that
the Bell Atlantic Customer to whom the Customer Information is related, in
the manner required by Applicable Law, has given Reseller permission to use
and/or disclose the Customer Information);
(c) Information related to specific Bell Atlantic facilities and
equipment (including, but not limited to, cable-and-pair information) which
is disclosed by Bell Atlantic to Reseller; and
(d) Any other information which is identified by the Discloser as
Confidential Information in accordance with Section 13.2.
13.2 All information which is to be treated as Confidential
Information under Section 13.1(d) shall:
(a) if in written, graphic, electromagnetic, or other tangible
form, be marked as "Confidential" or "Proprietary"; and
(b) if oral, (i) be identified by the Discloser at the time of
disclosure to be "Confidential" or "Proprietary", and (ii) be set forth in
a written summary which identifies the information as "Confidential" or
"Proprietary" and is delivered by the Discloser to the Recipient within ten
(10) days after the oral disclosure.
Each Party shall have the right to correct an inadvertent failure
to identify information as Confidential Information pursuant to Section
13.1(d) by giving written notification within thirty (30) days after the
information is disclosed. The Recipient shall, from that time forward,
treat such information as Confidential Information.
Notwithstanding any other provision of this Agreement, a Party
shall have the right to refuse to accept receipt of information which the
other Party has identified as Confidential Information pursuant to Section
13.1(d).
13.3 In addition to any requirements imposed by law, including,
but not limited to, 47 U.S.C. Section 222, for a period of five years from
the receipt of Confidential Information from the Discloser, except as
otherwise specified in this Agreement, the Recipient agrees:
(a) to use the Confidential Information only for the purpose of
performing under this Agreement;
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(b) using the same degree of care that it uses with similar
confidential information of its own, to hold the Confidential Information
in confidence and restrict disclosure of the Confidential Information
solely to the Recipient's Affiliates, and the directors, officers and
employees of the Recipient and the Recipient's Affiliates, having a need to
know the Confidential Information for the purpose of performing under this
Agreement. The Recipient's Affiliates and the directors, officers and
employees of the Recipient and the Recipient's Affiliates, shall be
required by the Recipient to comply with the provisions of this Section 13
in the same manner as the Recipient. The Recipient shall be liable for any
failure of the Recipient's Affiliates and the directors, officers and
employees of the Recipient and the Recipient's Affiliates, to comply with
the provisions of this Section 13.
13.4 If the Recipient wishes to disclose the Discloser's Confidential
Information to a third party Agent or contractor, such disclosure must be
mutually agreed to in writing by the Parties to this Agreement, and the
Agent or contractor must have executed a written agreement of
non-disclosure and non-use comparable in scope to the terms of this Section
13.
13.5 The Recipient may make copies of Confidential Information only as
reasonably necessary to perform its obligations under this Agreement. All
such copies shall bear the same copyright and proprietary rights notices as
are contained on the original.
13.6 The Recipient shall return or destroy all Confidential
Information received from the Discloser, including any copies made by the
Recipient, within thirty (30) days after a written request by the Discloser
is delivered to the Recipient, except for (a) Confidential Information that
the Recipient reasonably requires to perform its obligations under this
Agreement, and (b) Customer Information related to a Reseller Customer that
is to be treated by Bell Atlantic as Confidential Information pursuant to
Section 13.1(a). If the Recipient loses or makes an unauthorized disclosure
of the Discloser's Confidential Information, it shall notify the Discloser
immediately and use reasonable efforts to retrieve the lost or improperly
disclosed information.
13.7 The requirements of this Section 13 shall not apply to
Confidential Information:
(a) which was in the possession of the Recipient free of restriction
prior to its receipt from the Discloser;
(b) after it becomes publicly known or available through no
breach of this Agreement by the Recipient, the Recipient's Affiliates, or
the directors, officers, employees, Agents, or contractors, of the
Recipient or the Recipient's Affiliates;
(c) after it is rightfully acquired by the Recipient free of
restrictions on its disclosure;
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(d) after it is independently developed by the Recipient; or
(e) to the extent the disclosure is required by Applicable Law, a
court, or governmental agency; provided, the Discloser has been notified of
the required disclosure promptly after the Recipient becomes aware of the
required disclosure, the Recipient undertakes reasonable lawful measures to
avoid disclosing the Confidential Information until the Discloser has had
reasonable time to seek a protective order, and the Recipient complies with
any protective order that covers the Confidential Information to be
disclosed.
13.8 Each Party's obligations to safeguard Confidential Information
disclosed prior to expiration, cancellation or termination of this
Agreement shall survive such expiration, cancellation or termination.
13.9 Confidential Information shall remain the property of the
Discloser, and the Discloser shall retain all of the Discloser's right,
title and interest in any Confidential Information disclosed by the
Discloser to the Recipient. Except as otherwise expressly provided
elsewhere in this Agreement, no license is granted by this Agreement with
respect to any Confidential Information (including, but not limited to,
under any patent, trademark, or copyright), nor is any such license to be
implied, solely by virtue of the disclosure of any Confidential
Information.
13.10 Each Party agrees that the Discloser would be irreparably
injured by a breach of this Section 13 by the Recipient, the Recipient's
Affiliates, or the directors, officers, employees, Agents or contractors of
the Recipient or the Recipient's Affiliates, and that the Discloser shall
be entitled to seek equitable relief, including injunctive relief and
specific performance, in the event of any breach of the provisions of this
Section 13. Such remedies shall not be deemed to be the exclusive remedies
for a breach of this Section 13, but shall be in addition to any other
remedies available under this Agreement or at law or in equity.
13.11 The provisions of this Section 13 shall be in addition to and
not in derogation of any provisions of Applicable Law, including, but not
limited to, 47 U.S.C. Section 222, and are not intended to constitute a
waiver by a Party of any right with regard to protection of the
confidentiality of information of the Party or its Customers provided by
Applicable Law. In the event of a conflict between a provision of this
Section 13 and a provision of Applicable Law, the provision of Applicable
Law shall prevail.
14. CONTINGENCIES
Neither Party shall be liable for any delay or failure in
performance by it which results from strikes, labor slowdowns, or other
labor disputes, fires, explosions, floods, earthquakes, volcanic action,
delays in obtaining or inability to obtain necessary services, facilities,
equipment, parts or repairs thereof, power failures, embargoes,
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boycotts, unusually severe weather conditions, revolution, riots or other
civil disturbances, war or acts of the public enemy, acts of God, or causes
beyond the Party's reasonable control.
15. COUNTERPARTS
This Agreement may be executed in two or more counterparts, each
of which shall be deemed an original and all of which shall together
constitute one and the same instrument.
16. CUSTOMER INFORMATION
16.1 Without in any way limiting Section 12, each Party shall comply
with Applicable Law with regard to Customer Information, including, but not
limited to, 47 U.S.C. Section 222 and the FCC rules in 47 CFR Section
64.2001 - Section 64.2009.
16.2 A Party ("Accessing Party") shall not access (including, but not
limited to, in the case of Reseller, through Bell Atlantic OSS Services),
use or disclose Customer Information made available to the Accessing Party
by the other Party pursuant to this Agreement unless the Accessing Party,
in the manner required by Applicable Law, has obtained any Customer
authorization for such access, use and/or disclosure required by Applicable
Law. By accessing, using or disclosing Customer Information made available
to the Accessing Party by the other Party pursuant to this Agreement, the
Accessing Party represents and warrants that the Accessing Party has
obtained, in the manner required by Applicable Law, any Customer
authorization for such action required by Applicable Law. The Accessing
Party shall upon request by the other Party provide proof of such
authorization (including, a copy of any written authorization).
16.3 Bell Atlantic shall have the right (but not the obligation) to
audit Reseller to ascertain whether Reseller is complying with the
requirements of Applicable Law and this Agreement, with regard to
Reseller's access to, and use and disclosure of, Customer Information which
is made available to Reseller by Bell Atlantic pursuant to this Agreement.
16.4 In addition to Bell Atlantic's audit rights under Section 16.3,
Bell Atlantic shall have the right (but not the obligation) to monitor
Reseller's access to and use of Customer Information which is made
available by Bell Atlantic to Reseller pursuant to this Agreement, to
ascertain whether Reseller is complying with the requirements of Applicable
Law and this Agreement, with regard to Reseller's access to, and use and
disclosure of, such Customer Information. The foregoing right shall
include, but not be limited to, the right (but not the obligation) to
electronically monitor Reseller's access to and use of Customer Information
which is made available by Bell Atlantic to Reseller pursuant to this
Agreement through Bell Atlantic OSS Facilities or other electronic
interfaces or gateways.
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16.5 Information obtained by Bell Atlantic pursuant to Section 16.3 or
Section 16.4 shall be treated by Bell Atlantic as Confidential Information
of Reseller pursuant to Section 13; provided that, Bell Atlantic shall have
the right (but not the obligation) to use and disclose information obtained
by Bell Atlantic pursuant to this Section 16 to enforce Applicable Law
and/or Bell Atlantic's rights under this Agreement.
17. DEFAULT
17.1 If Reseller materially breaches a material provision of this
Agreement (other than an obligation to make payment of any amount billed
under this Agreement), and such breach continues for more than thirty
(30) days after written notice thereof from Bell Atlantic, then, except as
otherwise required by Applicable Law, Bell Atlantic shall have the right,
upon notice to Reseller, to terminate or suspend this Agreement and/or
provision of Bell Atlantic Services, in whole or in part.
17.2.1 If Reseller fails to make a payment of any amount billed under
this Agreement by the due date stated on the bill and such failure
continues for more than thirty (30) days after written notice thereof from
Bell Atlantic, then, except as provided in Section 17.2.2, below, or as
otherwise required by Applicable Law, Bell Atlantic shall have the right,
upon notice to Reseller, to terminate or suspend this Agreement and/or
provision of Bell Atlantic Services, in whole or in part.
17.2.2 If a good faith dispute arises between the Parties concerning
the obligation of Reseller to make payment of an amount billed under this
Agreement, the failure to pay the amount in dispute shall not constitute
cause for termination or suspension of this Agreement or provision of Bell
Atlantic Services, if, within thirty (30) days of the date that Bell
Atlantic gives Reseller written notice of the failure to pay the amount in
dispute, Reseller (a) gives Bell Atlantic written notice of the dispute
stating the basis of the dispute, and (b) furnishes to Bell Atlantic an
irrevocable letter of credit in a form acceptable to Bell Atlantic or other
security arrangement acceptable to Bell Atlantic, guaranteeing payment to
Bell Atlantic of any portion of the disputed amount (including the whole of
the disputed amount) which is thereafter agreed by Bell Atlantic and
Reseller, or determined by a court or other governmental entity of
appropriate jurisdiction, to be due to Bell Atlantic. The existence of such
a dispute shall not relieve Reseller of its obligations to pay any
undisputed amount which is due to Bell Atlantic and to otherwise comply
with this Agreement.
18. FACILITIES
18.1 Bell Atlantic or its suppliers shall retain all right, title and
interest in, and ownership of, all facilities, equipment, software,
information, and wiring, used to provide Bell Atlantic Services. Bell
Atlantic shall have access at all reasonable times to Reseller and Reseller
Customer locations for the purpose of installing, inspecting, maintaining,
repairing, and removing, facilities, equipment, software, and wiring, used
to provide the
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Bell Atlantic Services. Reseller shall, at Reseller's expense, obtain any
rights and authorizations necessary for such access.
18.2 Except as otherwise agreed to in writing by Bell Atlantic, Bell
Atlantic shall not be responsible for the installation, inspection, repair,
maintenance, or removal, of facilities, equipment, software, or wiring,
provided by Reseller or Reseller Customers for use with Bell Atlantic
Services.
19. INTELLECTUAL PROPERTY
Except as expressly stated in this Agreement, nothing contained
within this Agreement shall be construed as the grant of a license, either
express or implied, with respect to any patent, copyright, trade name,
trade mark, service mark, trade secret, or other proprietary interest or
intellectual property, now or hereafter owned, controlled or licensable by
either Party.
20. JOINT WORK PRODUCT
The Principal Document is the joint work product of the
representatives of the Parties. For convenience, the Principal Document has
been drafted in final form by Bell Atlantic. Accordingly, in the event of
ambiguities, no inferences shall be drawn against either Party solely on
the basis of authorship of the Principal Document.
21. LIABILITY
21.1.1 AS USED IN THIS SECTION 21, "OTHER BELL ATLANTIC PERSONS" MEANS
BELL ATLANTIC'S AFFILIATES, AND THE DIRECTORS, OFFICERS, EMPLOYEES, AGENTS
AND CONTRACTORS, OF BELL ATLANTIC AND BELL ATLANTIC'S AFFILIATES.
21.1.2 AS USED IN THIS SECTION 21, "BELL ATLANTIC SERVICE FAILURE" MEANS
AND INCLUDES ANY FAILURE TO INSTALL, RESTORE, PROVIDE OR TERMINATE A BELL
ATLANTIC SERVICE, AND ANY MISTAKE, OMISSION, INTERRUPTION, DELAY, ERROR,
DEFECT, FAULT, FAILURE, OR DEFICIENCY, IN A BELL ATLANTIC SERVICE.
21.2 THE LIABILITY, IF ANY, OF BELL ATLANTIC AND OTHER BELL ATLANTIC
PERSONS, TO RESELLER, RESELLER CUSTOMERS AND/OR ANY OTHER PERSON, FOR ANY
CLAIM, LOSS OR DAMAGES ARISING OUT OF OR IN CONNECTION WITH A BELL ATLANTIC
SERVICE FAILURE, SHALL BE LIMITED AND/OR EXCLUDED AS SET FORTH IN BELL
ATLANTIC'S TARIFFS.
21.3.1 TO THE EXTENT THE BELL ATLANTIC TARIFFS APPLICABLE TO A BELL
ATLANTIC SERVICE DO NOT CONTAIN A
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PROVISION WHICH LIMITS OR EXCLUDES THE LIABILITY OF BELL ATLANTIC AND/OR
OTHER BELL ATLANTIC PERSONS TO RESELLER, RESELLER CUSTOMERS AND/OR ANY
OTHER PERSON, FOR ANY CLAIM, LOSS OR DAMAGES ARISING OUT OF OR IN
CONNECTION WITH A BELL ATLANTIC SERVICE FAILURE, SECTION 21.3.3 SHALL
APPLY.
21.3.2 TO THE EXTENT A BELL ATLANTIC SERVICE IS NOT SUBJECT TO A BELL
ATLANTIC TARIFF, SECTION 21.3.3 SHALL APPLY.
21.3.3 THE LIABILITY, IF ANY, OF BELL ATLANTIC AND OTHER BELL ATLANTIC
PERSONS, TO RESELLER, RESELLER CUSTOMERS AND/OR ANY OTHER PERSON, FOR ANY
CLAIM, LOSS OR DAMAGES ARISING OUT OF OR IN CONNECTION WITH A BELL ATLANTIC
SERVICE FAILURE, SHALL BE LIMITED TO A TOTAL AMOUNT NOT IN EXCESS OF: (a)
TWICE THE PROPORTIONATE CHARGE FOR THE BELL ATLANTIC SERVICE AFFECTED
DURING THE PERIOD OF THE BELL ATLANTIC SERVICE FAILURE; OR, (b) IF THERE
IS NO CHARGE FOR THE BELL ATLANTIC SERVICE AFFECTED, FIVE HUNDRED DOLLARS
($500.00).
21.4 NOTWITHSTANDING ANYTHING CONTAINED IN SECTION 21.2, SECTION
21.3.1, SECTION 21.3.2, OR SECTION 21.3.3, ABOVE, BELL ATLANTIC AND OTHER
BELL ATLANTIC PERSONS SHALL HAVE NO LIABILITY TO RESELLER, RESELLER
CUSTOMERS, AND/OR ANY OTHER PERSON, FOR ANY SPECIAL, INDIRECT, INCIDENTAL,
OR CONSEQUENTIAL, DAMAGES (INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR HARM
TO BUSINESS, LOST REVENUES, LOST PROFITS, LOST SAVINGS, OR OTHER COMMERCIAL
OR ECONOMIC LOSS), ARISING OUT OF OR IN CONNECTION WITH A BELL ATLANTIC
SERVICE FAILURE OR ANY BREACH OR FAILURE IN PERFORMANCE OF THIS AGREEMENT
BY BELL ATLANTIC.
21.5 THE LIMITATIONS AND EXCLUSIONS FROM LIABILITY STATED IN SECTIONS
21.2 THROUGH 21.4 SHALL APPLY REGARDLESS OF THE FORM OF A CLAIM OR ACTION,
WHETHER IN CONTRACT, WARRANTY, TORT (INCLUDING, BUT NOT LIMITED TO, THE
NEGLIGENCE OF BELL ATLANTIC AND/OR OTHER BELL ATLANTIC PERSONS), STRICT
LIABILITY, OR OTHERWISE, AND REGARDLESS OF WHETHER BELL ATLANTIC HAS BEEN
ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
21.6 Reseller shall, in its tariffs or other contracts with Reseller
Customers, provide that in no case shall Bell Atlantic or Other Bell
Atlantic Persons be liable to Reseller Customers or to any other third
parties for any indirect, special, incidental, consequential, or other
damages, including, but not limited to, harm to business, lost revenues,
lost profits, lost savings, or other commercial or economic loss, whether
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foreseeable or not, and regardless of notification of the possibility of
such damages. Reseller shall indemnify, defend and hold Bell Atlantic and
Other Bell Atlantic Persons harmless from claims by Reseller Customers and
other third parties as provided in Bell Atlantic's Tariffs.
21.7 Bell Atlantic's obligations under this Agreement shall extend
only to Reseller. Bell Atlantic shall have no liability under this
Agreement to Reseller Customers or to any other third party. Nothing in
this Agreement shall be deemed to create a third party beneficiary
relationship between Bell Atlantic and Reseller Customers or any other
third party.
21.8 Reseller shall indemnify, defend and hold harmless Bell Atlantic,
Bell Atlantic's Affiliates, and the directors, officers and employees of
Bell Atlantic and Bell Atlantic's Affiliates, from any claims, suits,
government proceedings, judgments, fines, liabilities, losses, damages,
costs or expenses (including reasonable attorneys fees) arising out of or
in connection with: (a) the failure of Reseller to transmit to Bell
Atlantic a request by a Reseller Customer to install, provide, change or
terminate, a Bell Atlantic Retail Telecommunications Service; (b) the
transmission by Reseller to Bell Atlantic of an Order to install, provide,
change or terminate, a Bell Atlantic Retail Telecommunications Service,
which Order was not authorized by the applicable Reseller Customer; (c)
erroneous or inaccurate information in an Order transmitted by Reseller to
Bell Atlantic; (d) the transmission by Reseller to Bell Atlantic of an
Order to change or terminate a Telecommunications Service provided to an
end user by Bell Atlantic or another Telecommunications Service provider,
or to install or provide a Telecommunications Service for an end user,
which Order was not authorized by the applicable end user; (e) the
transmission by Reseller to Bell Atlantic of an Order to select, change or
reassign a telephone number for an end user, which Order was not authorized
by the applicable end user; (f) the transmission by Reseller to Bell
Atlantic of an Order to select a Telephone Exchange Service provider for an
end user, or to change or terminate an end user's selection of a Telephone
Exchange Service provider, which Order was not authorized by the applicable
end user in the manner required by Applicable Law (or, in the absence of
such Applicable Law, in the manner required by the rules and procedures in
47 CFR Section 64.1100); (g) access to, or use or disclosure of, Customer
Information or Bell Atlantic OSS Information by Reseller or Reseller's
employees, Agents or contractors; (h) the failure of Reseller to transmit,
or to transmit in a timely manner, E911/911 information to Bell Atlantic;
(i) erroneous or inaccurate E911/911 information transmitted by Reseller to
Bell Atlantic; (j) any information provided by Reseller for inclusion in
Bell Atlantic's LIDB; or, (k) the marketing, advertising or sale of
Reseller's services and/or products (including, but not limited to, resold
Bell Atlantic Retail Telecommunications Services), or the billing or
collection of charges for Reseller's services and/or products (including,
but not limited to, resold Bell Atlantic Retail Telecommunications
Services). For the purposes of Section 21.8(b), (d) and (e), an Order shall
be deemed not to have been authorized by a Reseller Customer or end user if
Applicable Law and/or this Agreement required such authorization to be
obtained in a
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particular manner, and Reseller did not obtain the authorization in the
manner required by Applicable Law and this Agreement.
22. NON-EXCLUSIVE REMEDIES
Except as otherwise expressly provided in this Agreement, each of
the remedies provided under this Agreement is cumulative and is in addition
to any other remedies that may be available under this Agreement or at law
or in equity.
23. NOTICES
All notices and other communications under this Agreement shall
be deemed effective upon receipt by the Party being notified, provided such
notices or communications are in writing and are sent by certified or
registered mail, return receipt requested, or by a reputable private
delivery service which provides a record of delivery, and addressed as
shown below:
To Bell Atlantic:
Bell Atlantic - Washington, D.C., Inc.
c/o Bell Atlantic Network Services, Inc.
1320 North Courthouse Road
Arlington, Virginia 22201
Attn.: Director, Resale
Initiatives
To Reseller:
President
Essential.Com, Inc.
3 Burlington Woods Drive
Burlington, MA 01803
Tel: (781) 229-9599
Fax: (781) 229-9499
Either Party may from time-to-time designate another address or
addressee by giving notice in accordance with this Section 23.
24. OPTION TO OBTAIN BELL ATLANTIC SERVICE UNDER OTHER AGREEMENTS
24.1 If, at any time while this Agreement is in effect, Bell Atlantic
is a party to an agreement with a Telecommunications Carrier other than
Reseller ("Third-Person Telecommunications Carrier) to provide Bell
Atlantic Services to the Third-Person Telecommunications Carrier, which
agreement has been approved by the Commission pursuant to 47 U.S.C. Section
252, upon request by Reseller, Bell Atlantic, to the extent required by
Applicable Law (including, but not limited to 47 U.S.C. Section 252(i)),
shall make available to Reseller any Bell Atlantic Service offered by Bell
Atlantic under the
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agreement with the Third-Person Telecommunications Carrier upon the same
terms and conditions (including prices) provided in the agreement with the
Third-Person Telecommunications Carrier, but (except as otherwise expressly
agreed in writing by the Parties) only on a prospective basis. Following
such request by Reseller and prior to provision of the Bell Atlantic
Service by Bell Atlantic to Reseller pursuant to the terms and conditions
(including prices) of the Third-Person Telecommunications Carrier
agreement, this Agreement shall be amended to incorporate the terms and
conditions (including prices) from the Third-Person Telecommunications
Carrier agreement applicable to the Bell Atlantic Service Reseller has
elected to purchase pursuant to the terms and conditions (including prices)
of the Third-Person Telecommunications Carrier agreement. Except as
otherwise expressly agreed in writing by the Parties, the amendment shall
apply on a prospective basis only and shall not apply with regard to any
Bell Atlantic Service provided by Bell Atlantic to Reseller prior to the
effective date of the amendment.
24.2 To the extent the exercise of the foregoing option requires a
rearrangement of facilities by Bell Atlantic, Reseller shall be liable for
the non-recurring charges associated therewith, as well as for any
termination charges associated with the termination of existing facilities
or Bell Atlantic Services.
25. REGULATORY APPROVALS
25.1 Within thirty (30) days after execution of this Agreement by the
Parties, Bell Atlantic shall file the Agreement with the Commission for
approval by the Commission.
25.2 Each Party shall exercise reasonable efforts (including
reasonably cooperating with the other Party) to secure approval of this
Agreement, and any amendment to this Agreement agreed to by the Parties,
from the Commission, the FCC, and other applicable governmental entities.
25.3 Upon request by Bell Atlantic, Reseller shall, at Reseller's
expense, provide reasonable, good-faith support and assistance to Bell
Atlantic in obtaining any governmental approvals necessary for (a) this
Agreement and any amendment to this Agreement agreed to by the Parties,
and/or (b) the provision of Bell Atlantic Services by Bell Atlantic to
Reseller. Without in any way limiting the foregoing, upon request by Bell
Atlantic, Reseller shall (a) join in petitions requesting approval of this
Agreement, or an amendment to this Agreement agreed to by the Parties, to
be filed with the Commission, the FCC, or other applicable governmental
entities, and (b) file other documents with and present testimony to the
Commission, the FCC, or other applicable governmental entities, requesting
approval of this Agreement or an amendment to this Agreement agreed to by
the Parties.
26. REGULATORY CONTINGENCIES
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26.1 Neither Party shall be liable for any delay or failure in
performance by it which results from requirements of Applicable Law, or
acts or failures to act of any governmental entity or official.
26.2 In the event that any provision of this Agreement shall be
invalid or unenforceable, such invalidity or unenforceability shall not
invalidate or render unenforceable any other provision of this Agreement,
and this Agreement shall be construed as if it did not contain such invalid
or unenforceable provision.
26.3 In the event that any legislative, regulatory, judicial or other
governmental action materially affects any material terms of this
Agreement, the ability of either Party to perform any material terms of
this Agreement, or the rights or obligations of either Party under this
Agreement, the Parties shall take such action as shall be necessary to
conform this Agreement to the governmental action and/or to permit Bell
Atlantic to continue to provide and Reseller to continue to purchase Bell
Atlantic Services, including, but not limited to, conducting good faith
negotiations to enter into a mutually acceptable modified or substitute
agreement, filing tariffs, or additional, supplemental or modified tariffs,
and making other required filings with governmental entities.
26.4 In the event of a governmental action described in Section 26.3,
above, to the extent permitted by Applicable Law, Bell Atlantic shall
continue to provide and Reseller shall continue to subscribe to, use and
pay for, any Bell Atlantic Services affected by the governmental action
until the action to be taken by Bell Atlantic and Reseller under Section
26.3, above, is taken and becomes effective in accordance with Applicable
Law. Such continued provision of and subscription to, use of and payment
for, the affected Bell Atlantic Services shall be in accordance with the
terms (including prices) of this Agreement, unless other terms, including
but not limited to the terms of a Bell Atlantic Tariff, are required by
Applicable Law.
26.5 If suspension or termination of the provision of any Bell
Atlantic Service is required by or as a result of a governmental action,
such suspension or termination shall not affect Reseller's subscription to,
use or obligation to pay for, other Bell Atlantic Services, unless such
suspension or termination has a material, adverse effect on Reseller's
ability to use the other Bell Atlantic Services.
26.6 If any of the Bell Atlantic Services to be provided by Bell
Atlantic pursuant to a tariff shall at any time become detariffed or
deregulated, Bell Atlantic may transfer the provisions of the tariff
relative to such Bell Atlantic Services to a Bell Atlantic "Guide for
Detariffed Services" or similar document, and such "Guide for Detariffed
Services" or similar document, as amended by Bell Atlantic from time-to-
time, shall become a part of this Agreement.
27. RELATIONSHIP OF THE PARTIES
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27.1 The relationship between the Parties under this Agreement shall
be that of independent contractors.
27.2 Nothing contained in this Agreement shall:
(a) make either Party the Agent or employee of the other Party;
(b) grant either Party the authority to enter into a contract on
behalf of, or otherwise legally bind, the other Party in any way;
(c) create a partnership, joint venture or other similar
relationship between the parties; or
(d) grant to Reseller a franchise, distributorship or similar
interest.
27.3 Each Party shall be solely responsible for selection,
supervision, termination, and compensation, of its respective employees,
Agents and contractors.
27.4 Each Party shall be solely responsible for payment of any Social
Security or other taxes which it is required by Applicable Law to pay in
conjunction with its employees, Agents or contractors, and for collecting
and remitting to applicable taxing authorities any taxes which it is
required by Applicable Law to collect from its employees, Agents or
contractors.
27.5 The relationship of the Parties under this Agreement is a
non-exclusive relationship. Bell Atlantic shall have the right to provide
services offered by Bell Atlantic under this Agreement to persons other
than Reseller. Reseller shall have the right to purchase services that may
be purchased by Reseller under this Agreement from persons other than Bell
Atlantic.
28. RESELLER'S PROVISION OF SERVICE
28.1 Prior to providing Bell Atlantic Retail Telecommunications
Services purchased by Reseller under this Agreement to Reseller Customers,
Reseller shall obtain from the Commission, the FCC, and any other
applicable governmental entities, any certificates or other authorizations
required by Applicable Law for Reseller to provide Telecommunications
Services. Reseller shall promptly notify Bell Atlantic in writing of any
governmental action which suspends, cancels or withdraws any such
certificate or authorization, or otherwise limits or affects Reseller's
right to provide Telecommunications Services.
28.2 To the extent required by Applicable Law, Reseller shall: (a)
file with the Commission, the FCC, and/or other applicable governmental
entities, the tariffs, arrangements and other documents that set forth the
terms, conditions and prices under which Reseller provides
Telecommunications Services; and, (b) make available for
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public inspection, the tariffs, arrangements and other documents that set
forth the terms, conditions and prices under which Reseller provides
Telecommunications Services.
29. RESELLER'S RESALE AND USE OF SERVICE
29.1 Reseller shall comply with the provisions of this Agreement
(including, but not limited to, Bell Atlantic's Tariffs) regarding resale
or use of Bell Atlantic Services, including, but not limited to, any
restrictions on resale or use of Bell Atlantic Services.
29.2 Without in any way limiting Section 29.1, (a) Reseller shall not
resell residential service to persons not eligible to subscribe to such
service from Bell Atlantic (including, but not limited to, business
Reseller Customers and other nonresidential Reseller Customers), and (b)
Reseller shall not resell Lifeline or other means-tested service offerings,
or grandfathered or discontinued service offerings, to persons not eligible
to subscribe to such service offerings from Bell Atlantic.
29.3 Reseller shall undertake in good faith to ensure that Reseller
Customers comply with the provisions of Bell Atlantic's Tariffs applicable
to their use of Bell Atlantic Retail Telecommunications Services.
29.4 Reseller shall comply with Applicable Law, and Bell Atlantic's
procedures, for handling requests from law enforcement and other government
agencies for service termination, assistance with electronic surveillance,
and provision of information.
30. RESPONSIBILITY FOR CHARGES
30.1 Reseller shall be responsible for and pay all charges for any
Bell Atlantic Service provided by Bell Atlantic to Reseller, whether the
Bell Atlantic Service is ordered, activated or used by Reseller, a Reseller
Customer, or another person.
30.2 In addition to the charges for Bell Atlantic Services, Reseller
agrees to pay any charges for Telecommunications Services, facilities,
equipment, software, wiring, or other services or products, provided by
Bell Atlantic, or provided by persons other than Bell Atlantic and billed
for by Bell Atlantic, that are ordered, activated or used by Reseller,
Reseller Customers or other persons, through, by means of, or in
association with, Bell Atlantic Services provided by Bell Atlantic to
Reseller.
30.3 Reseller agrees to indemnify, defend and hold Bell Atlantic
harmless from, any charges for Telecommunications Services, facilities,
equipment, software, wiring, or other services or products, provided by
persons other than Bell Atlantic that are ordered, activated or used by
Reseller, Reseller Customers or other persons, through, by means of, or in
association with, Bell Atlantic Services provided by Bell Atlantic to
Reseller.
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30.4 Without in any way limiting Reseller's obligations under Section
30.1, Section 30.2 and Section 30.3, Reseller shall pay, or collect and
remit to Bell Atlantic, without discount, all Subscriber Line Charges,
Federal Line Cost Charges, end user common line charges, carrier selection
and change charges (PIC change charge), and the Presubscribed Interexchange
Carrier Charge applicable to Reseller Customers who have not presubscribed
to an interexchange carrier for long distance services, associated with
Bell Atlantic Services provided by Bell Atlantic to Reseller.
30.5 Upon request by Reseller, Bell Atlantic will provide for use on
resold Bell Atlantic Retail Telecommunications Service dial tone lines
purchased by Reseller such Bell Atlantic Retail Telecommunications Service
call blocking services as Bell Atlantic provides to Bell Atlantic's own end
user retail Customers, where and to the extent Bell Atlantic provides such
Bell Atlantic Retail Telecommunications Service call blocking services to
Bell Atlantic's own end user retail Customers.
31. SECTION HEADINGS
The section headings in the Principal Document are for
convenience only and are not intended to affect the meaning or
interpretation of the Principal Document.
32. SERVICES NOT COVERED BY THIS AGREEMENT
32.1 This Agreement applies only to Bell Atlantic Services (as the
term "Bell Atlantic Service" is defined in Section 1.1.6) provided, or to
be provided, by Bell Atlantic to Reseller, as specified in Section 3. Any
Telecommunications Services, facilities, equipment, software, wiring, or
other services or products (including, but not limited to,
Telecommunications Services, facilities, equipment, software, wiring, or
other services or products, interconnected or used with Bell Atlantic
Services provided, or to be provided, by Bell Atlantic to Reseller)
provided, or to be provided, by Bell Atlantic to Reseller, which are not
subscribed to by Reseller under this Agreement, must be subscribed to by
Reseller separately, pursuant to other written agreements (including, but
not limited to, applicable Bell Atlantic Tariffs). Reseller shall use and
pay for any Telecommunications Services, facilities, equipment, software,
wiring, or other services or products, provided, or to be provided, by Bell
Atlantic to Reseller, which are not subscribed to by Reseller under this
Agreement, in accordance with such other written agreements (including, but
not limited to, applicable Bell Atlantic Tariffs).
32.2 Without in any way limiting Section 32.1 and without attempting
to list all Bell Atlantic products and services that are not subject to
this Agreement, the Parties agree that this Agreement does not apply to the
purchase by Reseller of the following Bell Atlantic services and products:
except as expressly stated in the Principal Document, exchange access
services as defined in Section 3(16) of the Act, 47 U.S.C. Section 153(16)
(including, but not limited to, primary interLATA toll carrier and primary
intraLATA toll carrier choice or change); Bell Atlantic Answer Call, Bell
Atlantic
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Answer Call Plus, Bell Atlantic Home Voice Mail, Bell Atlantic Home Voice
Mail Plus, Bell Atlantic Voice Mail, Bell Atlantic Basic Mailbox, Bell
Atlantic OptiMail Service, and other voice mail, fax mail, voice messaging,
and fax messaging, services; Bell Atlantic Optional Wire Maintenance Plan;
Bell Atlantic Guardian Enhanced Maintenance Service; Bell Atlantic Sentry I
Enhanced Maintenance Service; Bell Atlantic Sentry II Enhanced Maintenance
Service; Bell Atlantic Sentry III Enhanced Maintenance Service; Bell
Atlantic Call 54 Service; Bell Atlantic Public Telephone Service; customer
premises equipment; Bell Atlantic telephone directory listings offered
under agreements or arrangements other than Bell Atlantic Tariffs filed
with the Commission; and, Bell Atlantic telephone directory advertisements.
32.3 Without in any way limiting Section 32.1, the Parties also agree
that this Agreement does not apply to the installation, inspection,
maintenance, repair, removal, or use of any facilities, equipment,
software, or wiring, located on Reseller's side of the Network Rate
Demarcation Point applicable to Reseller and does not grant to Reseller or
Reseller Customers a right to installation, inspection, maintenance,
repair, or removal, by Bell Atlantic, or use, by Reseller or Reseller
Customers, of any such facilities, equipment, software, or wiring.
32.4 Without in any way limiting Section 32.1, the Parties agree that
this Agreement does not apply to the purchase by Reseller of Audiotex
Services (including, but not limited to, Dial-It, 976, 915 and 556
services) for resale to Audiotex Service providers or other information
service providers. Bell Atlantic shall have the right (but not the
obligation) to block calls made to Audiotex Service numbers (including, but
not limited to, Dial-It numbers and 976, 915 and 556 numbers) through Bell
Atlantic Services purchased by Reseller under this Agreement.
Notwithstanding the foregoing, Reseller shall pay, without discount, any
charges for Audiotex Services (including, but not limited to, Dial-It, 976,
915 and 556 services) that are ordered, activated or used by Reseller,
Reseller Customers or other persons, through, by means of, or in
association with, Bell Atlantic Services provided by Bell Atlantic to
Reseller.
32.5 Nothing contained within this Agreement shall obligate Bell
Atlantic to provide any service or product which is not a Bell Atlantic
Service (including, but not limited to, the services listed in Sections
32.2, 32.3 and 32.4, above) to Reseller.
32.6 Nothing contained within this Agreement shall obligate Bell
Atlantic to provide a Bell Atlantic Service or any other service or product
to a Reseller Customer. Without in any way limiting the foregoing, except
as otherwise required by Applicable Law, Bell Atlantic reserves the right
to terminate provision of services and products (including, but not limited
to, Telecommunications Services and the services listed in Sections 32.2
and 32.3, above) to any person who ceases to purchase Bell Atlantic Retail
Telecommunications Service dial tone line service from Bell Atlantic.
32.7 Nothing contained in this Section 32 shall in any way exclude or
limit Reseller's obligations and liabilities under Section 30, including,
but not limited to
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Reseller's obligations and liabilities to pay charges for services and
products as required by Section 30.
33. SERVICE QUALITY
Bell Atlantic Services provided by Bell Atlantic to Reseller
under this Agreement shall comply with the quality requirements for such
Bell Atlantic Services specified by Applicable Law (including, but not
limited to, any applicable provisions of 47 CFR Sections 51.311 and
51.603(b)).
34. SINGLE POINT OF CONTACT
34.1 Reseller shall be the single point of contact for Reseller
Customers and other persons with regard to Telecommunications Services and
other services and products which they wish to purchase from Reseller or
which they have purchased from Reseller. Communications by Reseller
Customers and other persons with regard to Telecommunications Services and
other services and products which they wish to purchase from Reseller or
which they have purchased from Reseller, shall be made to Reseller, and not
to Bell Atlantic. Reseller shall instruct Reseller Customers and other
persons that such communications shall be directed to Reseller.
34.2 Without in any way limiting Section 34.1, requests by Reseller
Customers for information about or provision of Telecommunications Services
which they wish to purchase from Reseller, requests by Reseller Customers
to change, terminate, or obtain information about, assistance in using, or
repair or maintenance of, Telecommunications Services which they have
purchased from Reseller, and inquiries by Reseller Customers concerning
Reseller's bills, charges for Reseller's Telecommunications Services, and,
if the Reseller Customers receive dial tone line service from Reseller,
annoyance calls, shall be made by the Reseller Customers to Reseller, and
not to Bell Atlantic.
34.3 Reseller shall establish telephone numbers and mailing addresses
at which Reseller Customers and other persons may communicate with Reseller
and shall advise Reseller Customers and other persons who may wish to
communicate with Reseller of these telephone numbers and mailing addresses.
35. SURVIVAL
The liabilities and obligations of a Party for acts or omissions
of the Party prior to the termination, cancellation or expiration of this
Agreement, the rights, liabilities and obligations of a Party under any
provision of this Agreement regarding indemnification or defense, Customer
Information, confidential information, or limitation or exclusion of
liability, the rights of Bell Atlantic and the liabilities and obligations
of Reseller under Section 18.1, and the rights, liabilities and
obligations of a Party under any provision of this Agreement which by its
terms is contemplated to survive (or be
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performed after) termination, cancellation or expiration of this agreement,
shall survive termination, cancellation or expiration of this Agreement.
36. TAXES
36.1 With respect to any purchase of Bell Atlantic Services under this
Agreement, if any Federal, state or local government tax, fee, duty,
surcharge (including, but not limited to any E911/911, telecommunications
relay service, or universal service fund, surcharge), or other tax-like
charge (a "Tax") is required or permitted by Applicable Law to be collected
from Reseller by Bell Atlantic, then (a) to the extent required by
Applicable Law, Bell Atlantic shall bill Reseller for such Tax, (b)
Reseller shall timely remit such Tax to Bell Atlantic (including both Taxes
billed by Bell Atlantic and Taxes Reseller is required by Applicable Law to
remit without billing by Bell Atlantic), and (c) Bell Atlantic shall remit
such collected Tax to the applicable taxing authority.
36.2 With respect to any purchase of Bell Atlantic Services under this
Agreement, if any Tax is imposed by Applicable Law on the receipts of Bell
Atlantic, which Applicable Law permits Bell Atlantic to exclude certain
receipts received from sales of Bell Atlantic Services for resale by
Reseller, such exclusion being based on the fact that Reseller is also
subject to a Tax based upon receipts ("Receipts Tax"), then Reseller (a)
shall provide Bell Atlantic with notice in writing in accordance with
Section 36.7 of its intent to pay the Receipts Tax, and (b) shall timely
pay the Receipts Tax to the applicable taxing authority.
36.3 With respect to any purchase of Bell Atlantic Services under this
Agreement, that are resold by Reseller to a Reseller Customer, if any Tax
is imposed by Applicable Law on the Reseller Customer in connection with
the Reseller Customer's purchase of the resold Bell Atlantic Services which
Reseller is required to impose and/or collect from the Reseller Customer,
then Reseller (a) shall impose and/or collect such Tax from the Reseller
Customer, and (b) shall timely remit such Tax to the applicable taxing
authority.
36.4.1 If Bell Atlantic has not received an exemption certificate from
Reseller and fails to bill Reseller for any Tax as required by Section
36.1, then, as between Bell Atlantic and Reseller, (a) Reseller shall
remain liable for such unbilled Tax, and (b) Bell Atlantic shall be liable
for any interest and/or penalty assessed on the unbilled Tax by the
applicable taxing authority.
36.4.2 If Reseller fails to remit any Tax to Bell Atlantic as required
by Section 36.1, then, as between Bell Atlantic and Reseller, Reseller
shall be liable for such uncollected Tax and any interest and/or penalty
assessed on the uncollected Tax by the applicable taxing authority.
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36.4.3 If Bell Atlantic does not collect a Tax because reseller has
provided Bell Atlantic with an exemption certificate which is later found
to be inadequate by the applicable taxing authority, then, as between Bell
Atlantic and Reseller, Reseller shall be liable for such uncollected Tax
and any interest and/or penalty assessed on the uncollected Tax by the
applicable taxing authority.
36.4.4 Except as provided in Section 36.4.5, if Reseller fails to pay
the Receipts Tax as required by Section 36.2, then, as between Bell
Atlantic and Reseller, (a) Bell Atlantic shall be liable for any Tax
imposed on Bell Atlantic's receipts, (b) Reseller shall be liable for any
interest and/or penalty imposed on Bell Atlantic with respect to the Tax on
Bell Atlantic's receipts, and (c) Reseller shall be liable for any Tax
imposed on Reseller's receipts and any interest and/or penalty assessed by
the applicable taxing authority on Reseller with respect to the Tax on
Reseller's receipts.
36.4.5 If any discount or portion of a discount in price provided to
Reseller under this Agreement (including, but not limited to, a discount
provided for in Exhibit II, Section 1.1) represents Tax savings to Bell
Atlantic which it was anticipated Bell Atlantic would receive, because it
was anticipated that receipts from sales of Bell Atlantic Services, that
would otherwise be subject to a Tax on such receipts, could be excluded
from such Tax under Applicable Law because the Bell Atlantic Services would
be sold to Reseller for resale, and Bell Atlantic is, in fact, required by
Applicable Law to pay such Tax on receipts from sales of Bell Atlantic
Services to Reseller, then, as between Bell Atlantic and Reseller, (a)
Reseller shall be liable for, and shall indemnify and hold harmless Bell
Atlantic against (on an after-tax basis), any such Tax, and (b) Reseller
shall be liable for, and shall indemnify and hold harmless Bell Atlantic
against (on an after-tax basis), any interest and/or penalty assessed by
the applicable taxing authority on either Reseller or Bell Atlantic with
respect to the Tax on Bell Atlantic's receipts.
36.4.6 If Reseller fails to impose and/or collect any Tax from
Reseller Customers as required by Section 36.3, then, as between Bell
Atlantic and Reseller, Reseller shall remain liable for such uncollected
Tax and any interest and/or penalty assessed on such uncollected Tax by the
applicable taxing authority.
36.4.7 With respect to any Tax that Reseller has agreed to pay, is
responsible for because Reseller received a discount in price on Bell
Atlantic Services attributable to anticipated Tax savings by Bell Atlantic,
or is required to impose on and/or collect from Reseller Customers,
Reseller agrees to indemnify and hold Bell Atlantic harmless on an
after-tax basis for any costs incurred by Bell Atlantic as a result of
actions taken by the applicable taxing authority to recover the Tax from
Bell Atlantic due to failure of Reseller to timely remit the Tax to Bell
Atlantic, or timely pay, or collect and timely remit, the Tax to the taxing
authority.
36.5 If either Party is audited by a taxing authority, the other Party
agrees to reasonably cooperate with the Party being audited in order to
respond to any audit
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inquiries in a proper and timely manner so that the audit and/or any
resulting controversy may be resolved expeditiously.
36.6.1 If Applicable Law clearly exempts a purchase of Bell Atlantic
Services under this Agreement from a Tax, and if such Applicable Law also
provides an exemption procedure, such as an exemption certificate
requirement, then, if Reseller complies with such procedure, Bell Atlantic
shall not collect such Tax during the effective period of the exemption.
Such exemption shall be effective upon receipt of the exemption certificate
or affidavit in accordance with Section 36.7.
36.6.2 If Applicable Law clearly exempts a purchase of Bell Atlantic
Services under this Agreement from a Tax, but does not also provide an
exemption procedure, then Bell Atlantic shall not collect such Tax if
Reseller (a) furnishes Bell Atlantic with a letter signed by an officer of
Reseller requesting an exemption and citing the provision in the Applicable
Law which clearly allows such exemption, and (b) supplies Bell Atlantic
with an indemnification agreement, reasonably acceptable to Bell Atlantic,
which holds Bell Atlantic harmless on an after-tax basis with respect to
forbearing to collect such Tax.
36.7 All notices, affidavits, exemption certificates or other
communications required or permitted to be given by either Party to the
other under this Section 36, shall be made in writing and shall be sent by
certified or registered mail, return receipt requested, or by a reputable
private delivery service which provides a record of delivery, to the
addressee stated in Section 23 at the address stated in Section 23 and to
the following:
To Bell Atlantic:
Tax Administration
Bell Atlantic Corporation
1095 Avenue of the Americas
Room 3109
New York, New York 10036
To Reseller: Controller
Essential.Com, Inc.
3 Burlington Woods Drive
Burlington, MA 01803
Tel: (781) 229-9599
Fax: (781) 229-9499
Either Party may from time-to-time designate another address or
addressee by giving notice in accordance with the terms of this Section
36.7.
Any notice or other communication shall be deemed to be given
when received.
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37. TELEPHONE EXCHANGE SERVICE PROVIDER SELECTION
37.1 Without in any way limiting Reseller's obligations under Section
12, Reseller shall comply with Applicable Law with regard to end user
selection of a Telephone Exchange Service provider. Until the Commission or
the FCC adopts regulations and/or orders applicable to end user selection
of a Telephone Exchange Service provider, Reseller shall apply the rules
and procedures set forth in Section 64.1100 of the FCC Rules, 47 CFR
Section 64.1100, to the process for end user selection of a Telephone
Exchange Service provider (including, to end user selection of a Telephone
Exchange Service provider that occurs during any telemarketing contact with
an end user), and shall comply with such rules and procedures.
37.2 By submitting to Bell Atlantic an Order to install, provide,
change or terminate a Telecommunications Service, to select, change or
reassign a telephone number, or to select, change or terminate an end
user's Telephone Exchange Service provider, Reseller represents and
warrants: (a) that Reseller has obtained authorization for such action from
the applicable end user; and, (b) that if Applicable Law and/or this
Agreement required such authorization to be obtained in a particular
manner, Reseller obtained the authorization in the manner required by
Applicable Law and this Agreement. Reseller shall upon request by Bell
Atlantic provide proof of such authorization (including, a copy of any
written authorization).
37.3 If Reseller submits an Order to Bell Atlantic to install,
provide, change or terminate a Telecommunications Service, to select,
change or reassign a telephone number, or to select, change or terminate
an end user's Telephone Exchange Service provider, and (a) when requested
by Bell Atlantic to provide a written document signed by the end user
stating the end user's Telephone Exchange Service provider selection, fails
to provide such document to Bell Atlantic, or.(b) has not obtained
authorization for such installation, provision, selection, change,
reassignment or termination, from the end user in the manner required by
Applicable Law (or, in the absence of Applicable Law, in the manner
required by the rules and procedures in 47 CFR Section 64.1100), Reseller
shall be liable to Bell Atlantic for all charges that would be applicable
to the end user for the initial installation, provision, selection, change,
reassignment or termination, of the end user's Telecommunications Service,
telephone number, and/or Telephone Exchange Service provider, and any
charges for restoring the end user's Telecommunications Service, telephone
number, and/or Telephone Exchange Service provider selection, to its end
user authorized condition.
38. TELEPHONE NUMBERS
38.1 Reseller's use of telephone numbers shall be subject to
Applicable Law (including, but not limited to, the rules of the FCC, the
North American Numbering Council, and the North American Numbering Plan
Administrator), the applicable provisions of this Agreement (including, but
not limited to, this Section 38), and Bell
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Atlantic's practices and procedures for use and assignment of telephone
numbers, as amended from time-to-time.
38.2 Subject to Sections 38.1 and 38.3, if an end user who subscribes
to a Bell Atlantic Retail Telecommunications Service dial tone line from
either Reseller or Bell Atlantic changes the Telecommunications Carrier
from whom the end user subscribes for such dial tone line (including a
change from Bell Atlantic to Reseller, from Reseller to Bell Atlantic, or
from Reseller to a Telecommunications Carrier other than Bell Atlantic),
after such change, the end user may continue to use with the dial tone line
the telephone numbers which were assigned to the dial tone line by Bell
Atlantic immediately prior to the change.
38.3 Bell Atlantic shall have the right to change the telephone
numbers used by an end user if at any time: (a) the type or class of
service subscribed to by the end user changes; (b) the end user requests
service at a new location, that is not served by the Bell Atlantic switch
and the Bell Atlantic rate center from which the end user previously had
service; or, (c) continued use of the telephone numbers is not technically
feasible.
38.4 If service on a Bell Atlantic Retail Telecommunications Service
dial tone line subscribed to by Reseller from Bell Atlantic under this
Agreement is terminated, the telephone numbers associated with such dial
tone line shall be available for reassignment by Bell Atlantic to any
person to whom Bell Atlantic elects to assign the telephone numbers,
including, but not limited to, Bell Atlantic, Bell Atlantic end user retail
Customers, Reseller, or Telecommunications Carriers other than Bell
Atlantic and Reseller.
39. WARRANTIES
EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, BELL ATLANTIC
MAKES NO WARRANTIES WITH RESPECT TO BELL ATLANTIC SERVICES,
WHETHER EXPRESS OR IMPLIED, WRITTEN OR ORAL, IN FACT OR IN LAW.
THE WARRANTIES SET FORTH IN THIS AGREEMENT ARE BELL ATLANTIC'S
EXCLUSIVE WARRANTIES WITH RESPECT TO BELL ATLANTIC SERVICES AND
ARE IN LIEU OF ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, WRITTEN
OR ORAL, IN FACT OR IN LAW. BELL ATLANTIC DISCLAIMS ANY AND ALL
OTHER WARRANTIES, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF
MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, WARRANTIES
AGAINST INFRINGEMENT, AND WARRANTIES ARISING BY TRADE CUSTOM,
TRADE USAGE, COURSE OF DEALING, OR OTHERWISE.
40. PUBLICITY AND USE OF TRADEMARKS OR SERVICE MARKS
40.1.1 Neither Party nor its subcontractors or agents will use the other
Party's trademarks, service marks, logos or other proprietary trade dress
in connection with the
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sale of products and services, or in any advertising, press releases,
publicity matters or other promotional materials without such Party's prior
written consent.
40.1.2 Neither Party may imply any direct or indirect affiliation with
or sponsorship or endorsement of its company, products and services by the
other Party.
41. AUTHORIZATION
41.1.1 Bell Atlantic is a corporation duly organized, validly existing
and in good standing under the laws of the State of New York and has full
power and authority to execute and deliver this Agreement and to perform
the obligations hereunder on behalf of Bell Atlantic.
41.2 Essential.Com, Inc., a corporation, is duly organized, validly
existing and in good standing under the laws of Delaware, and has full
power and authority to execute and deliver this Agreement and to perform
its obligations hereunder.
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IN WITNESS WHEREOF, intending to be legally bound, Reseller and
Bell Atlantic have caused this Agreement to be executed by their respective
authorized representatives.
ESSENTIAL.COM, INC.
BY: /s/ Akhil Garland
--------------------------------------------
Signature
Akhil Garland
--------------------------------------------
Name (Printed)
ITS: CEO
--------------------------------------------
Title
BY: /s/ Patrick Moran
--------------------------------------------
Signature
Patrick Moran
--------------------------------------------
Name (Printed)
ITS: Vice President-Operations
--------------------------------------------
Title
BY: /s/ John A. Duffy
--------------------------------------------
Signature
John Duffy
--------------------------------------------
Name (Printed)
ITS: Vice President -Business Development
--------------------------------------------
Title
BELL ATLANTIC - WASHINGTON, D.C., INC.
BY: /s/ Jeffrey A. Masoner
--------------------------------------------
Signature
Jeffrey A. Masoner
Name (Printed)
TITLE: Vice President - Telecom Industry Services
--------------------------------------------
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EXHIBIT I
BELL ATLANTIC ANCILLARY SERVICES
1. BELL ATLANTIC OSS SERVICES
1.1 DEFINITIONS
As used in the Principal Document, the terms listed below shall have
the meanings stated below:
1.1.1 "Bell Atlantic Operations Support Systems" means Bell Atlantic
systems for pre-ordering, ordering, provisioning, maintenance and repair,
and billing.
1.1.2 "Bell Atlantic OSS Services" means access to Bell Atlantic
Operations Support Systems functions. The term "Bell Atlantic OSS Services"
includes, but is not limited to: (a) Bell Atlantic's provision of Reseller
Usage Information to Reseller pursuant to Exhibit I, Section 1.3, below;
and, (b) "Bell Atlantic OSS Information", as defined in Exhibit I, Section
1.1.4, below.
1.1.3 "Bell Atlantic OSS Facilities" means any gateways, interfaces,
databases, facilities, equipment, software, or systems, used by Bell
Atlantic to provide Bell Atlantic OSS Services to Reseller.
1.1.4 "Bell Atlantic OSS Information" means any information accessed
by, or disclosed or provided to, Reseller through or as a part of Bell
Atlantic OSS Services. The term "Bell Atlantic OSS Information" includes,
but is not limited to: (a) any Customer Information related to a Bell
Atlantic Customer or a Reseller Customer accessed by, or disclosed or
provided to, Reseller through or as a part of Bell Atlantic OSS Services;
and, (b) any Reseller Usage Information (as defined in Exhibit 1, Section
1.1.5, below) accessed by, or disclosed or provided to, Reseller.
1.1.5 "Reseller Usage Information" means the usage information for a
Bell Atlantic Retail Telecommunications Service purchased by Reseller under
this Agreement that Bell Atlantic would record if Bell Atlantic was
furnishing such Bell Atlantic Retail Telecommunications Service to a Bell
Atlantic end-user retail Customer.
1.2 BELL ATLANTIC OSS SERVICES
1.2.1 Upon request by Reseller, Bell Atlantic shall provide to
Reseller, pursuant to Section 251(c)(3) of the Act, 47 U.S.C. Section
251(c)(3), Bell Atlantic OSS Services.
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1.2.2 Subject to the requirements of Applicable Law, Bell Atlantic
Operations Support Systems, Bell Atlantic Operations Support Systems
functions, Bell Atlantic OSS Facilities, Bell Atlantic OSS Information, and
the Bell Atlantic OSS Services that will be offered by Bell Atlantic, shall
be as determined by Bell Atlantic. To the extent required by Applicable Law
and technically feasible, Bell Atlantic will offer to Reseller the Bell
Atlantic OSS Services that Bell Atlantic offers, under agreements approved
by the Commission pursuant to 47 U.S.C. Section 252, to other
Telecommunications Carriers that are engaged in the resale of Bell Atlantic
Retail Telecommunications Services pursuant to 47 U.S.C. Section 251(c)(4).
Subject to the requirements of Applicable Law, Bell Atlantic shall have the
right to change Bell Atlantic Operations Support Systems, Bell Atlantic
Operations Support Systems functions, Bell Atlantic OSS Facilities, Bell
Atlantic OSS Information, and the Bell Atlantic OSS Services, from
time-to-time, without the consent of Reseller.
1.3 RESELLER USAGE INFORMATION
1.3.1 Upon request by Reseller, Bell Atlantic shall provide to Reseller,
pursuant to Section 251(c)(3) of the Act, 47 U.S.C. Section 251(c)(3),
Reseller Usage Information.
1.3.2 Reseller Usage Information will be available to Reseller through
the following:
(a) Daily Usage File on Data Tape.
(b) Daily Usage File through Network Data Mover ("NDM").
(c) Daily Usage File through Centralized Message Distribution System
("CMDS").
1.3.3.1 Reseller Usage Information will be provided in a Bellcore Exchange
Message Records ("EMR") format.
1.3.3.2 Daily Usage File Data Tapes provided pursuant to Exhibit I,
Section 1.3.2(a) will be issued each day, Monday through Friday, except
holidays observed by Bell Atlantic.
1.3.4 Except as stated in this Exhibit I, Section 1.3, subject to the
requirements of Applicable Law, the manner in which, and the frequency with
which, Reseller Usage Information will be provided to Reseller shall be
determined by Bell Atlantic.
1.4 PRICES
The prices for Bell Atlantic OSS Services shall be as stated in
Exhibit II, Section 2 following.
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1.5 ACCESS TO AND USE OF BELL ATLANTIC OSS FACILITIES
1.5.1 Bell Atlantic OSS Facilities may be accessed and used by Reseller only
to the extent necessary for Reseller's access to and use of Bell Atlantic
OSS Services pursuant to this Agreement.
1.5.2 Bell Atlantic OSS Facilities may be accessed and used by Reseller only
to provide Telecommunications Services to Reseller Customers.
1.5.3 Reseller shall restrict access to and use of Bell Atlantic OSS
Facilities to Reseller. This Agreement does not grant to Reseller any right
or license to grant sublicenses to other persons, or permission to other
persons (except Reseller's employees, Agents and contractors, in accordance
with Exhibit I, Section 1.5.7, below), to access or use Bell Atlantic OSS
Facilities.
1.5.4 Reseller shall not (a) alter, modify or damage the Bell Atlantic OSS
Facilities (including, but not limited to, Bell Atlantic software), (b)
copy, remove, derive, reverse engineer, or decompile, software from the
Bell Atlantic OSS Facilities, or (c) obtain access through Bell Atlantic
OSS Facilities to Bell Atlantic databases, facilities, equipment, software,
or systems, which are not offered for Reseller's use under this Agreement.
1.5.5 Reseller shall comply with all practices and procedures established by
Bell Atlantic for access to and use of Bell Atlantic OSS Facilities
(including, but not limited to, Bell Atlantic practices and procedures with
regard to security and use of access and user identification codes).
1.5.6 All practices and procedures for access to and use of Bell Atlantic
OSS Facilities, and all access and user identification codes for Bell
Atlantic OSS Facilities: (a) shall remain the property of Bell Atlantic;
(b) shall be used by Reseller only in connection with Reseller's use of
Bell Atlantic OSS Facilities permitted by this Agreement; (c) shall be
treated by Reseller as Confidential Information of Bell Atlantic Pursuant
to Section 13; and, (d) shall be destroyed or returned by Reseller to Bell
Atlantic upon the earlier of request by Bell Atlantic or the expiration or
termination of this Agreement.
1.5.7 Reseller's employees, Agents and contractors may access and use Bell
Atlantic OSS Facilities only to the extent necessary for Reseller's access
to and use of the Bell Atlantic OSS Facilities permitted by this Agreement.
Any access to or use of Bell Atlantic OSS Facilities by Reseller's
employees, Agents, or contractors, shall be subject to the provisions of
this Agreement, including, but not limited to, Section 13, Exhibit I,
Section 1.5.6, and Exhibit I, Section 1.6.3.3.
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1.6 BELL ATLANTIC OSS INFORMATION
1.6.1 Subject to the provisions of this Agreement and Applicable Law, Bell
Atlantic grants to Reseller a non-exclusive license to use Bell Atlantic
OSS Information.
1.6.2 All Bell Atlantic OSS Information shall at all times remain the
property of Bell Atlantic. Except as expressly stated in this Agreement,
Reseller shall acquire no rights in or to any Bell Atlantic OSS
Information.
1.6.3.1 The provisions of this Exhibit I, Section 1.6.3 apply to all Bell
Atlantic OSS Information, except (a) Reseller Usage Information, (b) CPNI
of Reseller, and (c) CPNI of a Bell Atlantic Customer or a Reseller
Customer, to the extent the Customer has authorized Reseller to use the
Customer Information.
1.6.3.2 Bell Atlantic OSS Information may be accessed and used by Reseller
only to provide Telecommunications Services to Reseller Customers.
1.6.3.3 Reseller shall treat Bell Atlantic OSS Information that is designated
by Bell Atlantic, through written or electronic notice (including, but not
limited to, through the Bell Atlantic OSS Services), as "Confidential" or
"Proprietary" as Confidential Information of Bell Atlantic pursuant to
Section 13.
1.6.3.4 Except as expressly stated in this Agreement, this Agreement does not
grant to Reseller any right or license to grant sublicenses to other
persons, or permission to other persons (except Reseller's employees,
Agents or contractors, in accordance with Exhibit I, Section 1.6.3.5), to
access, use or disclose Bell Atlantic OSS Information.
1.6.3.5 Reseller's employees, Agents and contractors may access, use and
disclose Bell Atlantic OSS Information only to the extent necessary for
Reseller's access to, and use and disclosure of, Bell Atlantic OSS
Information permitted by this Agreement. Any access to, or use or
disclosure of, Bell Atlantic OSS Information by Reseller's employees,
Agents or contractors, shall be subject to the provisions of this
Agreement, including, but not limited to, Section 13 and Exhibit I, Section
1.6.3.3.
1.6.3.6 Reseller's license to use Bell Atlantic OSS Information shall expire
upon the earliest of- (a) the time when the Bell Atlantic OSS Information
is no longer needed by Reseller to provide Telecommunications Services to
Reseller Customers; (b) termination of the license in accordance with this
Agreement; or (c) expiration or termination of this Agreement.
1.6.3.7 All Bell Atlantic OSS Information Received by Reseller shall be
destroyed or returned by Reseller to Bell Atlantic, upon expiration,
suspension or termination of the license to use such Bell Atlantic OSS
Information.
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1.6.4 Unless sooner terminated or suspended in accordance with this Agreement
(including, but not limited to, Section 17.1 and Exhibit I, Section
1.7.1), Reseller's access to Bell Atlantic OSS Information through
Bell Atlantic OSS Services shall terminate upon the expiration or
termination of this Agreement.
1.6.5.1 Without in any way limiting Section 16.3, Bell Atlantic shall have the
right (but not the obligation) to audit Reseller to ascertain whether
Reseller is complying with the requirements of Applicable Law and this
Agreement, with regard to Reseller's access to, and use and disclosure of,
Bell Atlantic OSS Information.
1.6.5.2 Without in any way limiting Section 16.3, Section 16.4, or Exhibit I,
Section 1.6.5.1, Bell Atlantic shall have the right (but not the
obligation) to monitor Reseller's access to and use of Bell Atlantic OSS
Information which is made available by Bell Atlantic to Reseller pursuant
to this Agreement, to ascertain whether Reseller is complying with the
requirements of Applicable Law and this Agreement, with regard to
Reseller's access to, and use and disclosure of, such Bell Atlantic OSS
Information. The foregoing right shall include, but not be limited to, the
right (but not the obligation) to electronically monitor Reseller's access
to and use of Bell Atlantic OSS Information which is made available by Bell
Atlantic to Reseller through Bell Atlantic OSS Facilities.
1.6.5.3 Information obtained by Bell Atlantic pursuant to this Exhibit I,
Section 1.6.5 shall be treated by Bell Atlantic as Confidential Information
of Reseller pursuant to Section 13; provided that, Bell Atlantic shall have
the right (but not the obligation) to use and disclose information obtained
by Bell Atlantic pursuant to this Exhibit I, Section 1.6.5 to enforce
Applicable Law and/or Bell Atlantic's rights under this Agreement.
1.6.6 Reseller acknowledges that the Bell Atlantic OSS Information, by its
nature, is updated and corrected on a continuous basis by Bell Atlantic,
and therefore that Bell Atlantic OSS Information is subject to change from
time to time.
1.7 LIABILITIES AND REMEDIES
1.7.1 Any breach by Reseller, or Reseller's employees, Agents or
contractors, of the provisions of Exhibit I, Section 1.5 or Exhibit I,
Section 1.6, shall be deemed a material breach of a material provision of
this Agreement by reseller under Section 17.1 of this Agreement. In
addition, if Reseller or an employee, Agent or contractor of Reseller at
any time breaches a provision of Exhibit I, Section 1.5 or Exhibit I,
Section 1.6, and such breach continues for more than ten (10) days after
written notice thereof from Bell Atlantic, then, except as otherwise
required by Applicable Law, Bell Atlantic shall have the right, upon notice
to Reseller, to suspend the license to use Bell Atlantic OSS Information
granted by Exhibit I, Section 1.6.1 and/or the provision of Bell Atlantic
OSS Services, in whole or in part.
1.7.2 Reseller agrees that Bell Atlantic would be irreparably injured by a
breach of Exhibit I, Section 1.5 or Exhibit I, Section 1.6 by Reseller or
the employees, Agents or
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contractors of Reseller, and that Bell Atlantic shall be entitled to seek
equitable relief, including injunctive relief and specific performance, in
the event of any breach of Exhibit I, Section 1.5 or Exhibit I, Section 1.6
by Reseller or the employees, Agents or contractors of Reseller. Such
remedies shall not be deemed to be the exclusive remedies for a breach of
Exhibit I, Section 1.5 or Exhibit I, Section 1.6, but shall be in addition
to any other remedies available under this Agreement or at law or in
equity.
1.8 RELATION TO APPLICABLE LAW
The provisions of Exhibit I, Sections 1.5, 1.6 and 1.7 shall be in
addition to and not in derogation of any provisions of Applicable Law,
including, but not limited to, 47 U.S.C. Section 222, and the FCC rules in
47 CFR Section 64.2001 - Section 64.2009 and are not intended to constitute
a waiver by Bell Atlantic of any right with regard to protection of the
confidentiality of the information of Bell Atlantic or Bell Atlantic
Customers provided by Applicable, Law.
1.9 COOPERATION
Reseller, at Reseller's expense, shall reasonably cooperate with Bell
Atlantic in using Bell Atlantic OSS Services. Such cooperation shall
include, but not be limited to, the following:
1.9.1 Upon request by Bell Atlantic, Reseller shall by no later than the
fifteenth (15th) day of each calendar month submit to Bell Atlantic
reasonable, good faith estimates (by central office or other Bell Atlantic
office or geographic area designated by Bell Atlantic) of the volume of
each Bell Atlantic Retail Telecommunications Service for which Reseller
anticipates submitting Orders in each week of the next calendar month.
1.9.2 Upon request by Bell Atlantic, Reseller shall submit to Bell Atlantic
reasonable, good faith estimates of other types of transactions or use of
Bell Atlantic OSS Services that Reseller anticipates.
1.9.3 Reseller shall reasonably cooperate with Bell Atlantic in submitting
Orders for Bell Atlantic Retail Telecommunications Services and otherwise
using the Bell Atlantic OSS Services, in order to avoid exceeding the
capacity or capabilities of such Bell Atlantic OSS Services.
1.9.4 Reseller shall participate in cooperative testing of Bell Atlantic OSS
Services and shall provide assistance to Bell Atlantic in identifying and
correcting mistakes, omissions, interruptions, delays, errors, defects,
faults, failures, or other deficiencies, in Bell Atlantic OSS Services.
1.10 Bell Atlantic Access to Information Related to Reseller Customers
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1.10.1 Bell Atlantic shall have the right to access, use and disclose
information related to Reseller Customers that is in Bell Atlantic's
possession (including, but not limited to, in Bell Atlantic OSS Facilities)
to the extent such access, use and/or disclosure has been authorized by the
Reseller Customer in the manner required by Applicable Law.
1.10.2 Upon request by Bell Atlantic, Reseller shall negotiate in good faith
and enter into a contract with Bell Atlantic, pursuant to which Bell
Atlantic may obtain access to Reseller's operations support systems
(including, systems for pre-ordering, ordering, provisioning, maintenance
and repair, and billing) and information contained in such systems, to
permit Bell Atlantic to obtain information related to Reseller Customers
(as authorized by the applicable Reseller Customer), to permit Customers to
transfer service from one Telecommunications Carrier to another, and for
such other purposes as may be permitted by Applicable Law.
2. E911/911 SERVICES
2.1 Where and to the extent that Bell Atlantic provides E911/911 call
routing to a Public Safety Answering Point ("PSAP") to Bell Atlantic's own
end user retail Customers, Bell Atlantic will provide to Reseller, for
resold Bell Atlantic Retail Telecommunications Service dial tone lines,
E911/911 call routing to the appropriate PSAP. Bell Atlantic will provide
Reseller Customer information for resold Bell Atlantic Retail
Telecommunications Service dial tone lines to the PSAP as that information
is provided to Bell Atlantic by Reseller where and to the same extent that
Bell Atlantic provides Bell Atlantic end user retail Customer information
to the PSAP. Bell Atlantic will update and maintain, on the same schedule
that Bell Atlantic uses with Bell Atlantic's own end user retail Customers,
for Reseller Customers served by resold Bell Atlantic Retail
Telecommunications Service dial tone lines, the Reseller Customer
information in Bell Atlantic's E911/911 databases.
2.2 Reseller shall provide to Bell Atlantic the name, telephone number and
address, of all Reseller Customers, and such other information as may be
requested by Bell Atlantic, for inclusion in E911/911 databases. Any
change in Reseller Customer name, address or telephone number information
(including addition or deletion of a Reseller Customer, or a change in
Reseller Customer name, telephone number or address), or in other E911/911
information supplied by Reseller to Bell Atlantic, shall be reported to
Bell Atlantic by Reseller within one (1) day after the change.
2.3 To the extent that it is necessary (whether as a requirement of
Applicable Law or otherwise) for Reseller to enter into any agreements or
other arrangements with governmental entities (or governmental entity
contractors) related to E911/911 in order for Reseller to provide
Telecommunications Services, Reseller shall at Reseller's expense enter
into such agreements and arrangements.
3. ROUTING TO DIRECTORY ASSISTANCE AND OPERATOR SERVICES
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3.1 Upon request by Reseller, to the extent technically feasible, Bell
Atlantic will provide to Reseller the capability of rerouting to Reseller's
platforms directory assistance traffic (411 and 555-1212 calls) from
Reseller Customers served by resold Bell Atlantic Retail Telecommunications
Service dial tone line service and operator services traffic (0+ and 0-
intraLATA calls) from Reseller Customers served by resold Bell Atlantic
Retail Telecommunications Service dial tone line service.
3.2 A request for the rerouting service described in Exhibit I, Section
4.1 must be made by Reseller (a) on a Bell Atlantic switch-by-Bell Atlantic
switch basis, and (b) at least ninety (90) days in advance of the date that
the rerouting capability is to be made available in an applicable Bell
Atlantic switch.
3.3 The prices for the rerouting service described in Exhibit I, Section
4.1 shall be as stated in Exhibit II, Section 2.
4. LIDB/BVS
4.1 Upon request by Reseller, Bell Atlantic will maintain information
(including calling card numbers and collect and bill to third party billing
restriction notation) for Reseller Customers who subscribe to resold Bell
Atlantic Retail Telecommunications Service dial tone line service, in Bell
Atlantic's Line Information Database ("LIDB"), where and to the same extent
that Bell Atlantic maintains information in Bell Atlantic's LIDB for Bell
Atlantic's own end-user retail Customers.
4.2 If an end-user terminates Bell Atlantic Retail Telecommunications
Service dial tone line service provided to the end-user by Bell Atlantic
and, in place thereof, subscribes to Reseller for resold Bell Atlantic
Retail Telecommunications Service dial tone line service, Bell Atlantic
will remove from Bell Atlantic's LIDB any Bell Atlantic-assigned telephone
line calling card number (including area code) ("TLN") and Personal
Identification Number ("PIN") associated with the terminated Bell Atlantic
Retail Telecommunications Service dial tone line service. The Bell
Atlantic-assigned TLN and PIN will be removed from Bell Atlantic's LIDB
within twenty-four (24) hours after Bell Atlantic terminates the Bell
Atlantic Retail Telecommunications Service dial tone line service with
which the number was associated. Reseller may issue a new telephone calling
card to such end-user, utilizing the same TLN, and the same or a different
PIN. Upon request by Reseller, Bell Atlantic will enter such TLN and PIN in
Bell Atlantic's LIDB for calling card validation purposes.
4.3 Reseller information which is stored in Bell Atlantic's LIDB will be
subject, to the same extent as Bell Atlantic information stored in Bell
Atlantic's LIDB, to access and use by, and disclosure to, those persons
(including, but not limited to, Bell Atlantic) to whom Bell Atlantic allows
access to information which is stored in Bell Atlantic's LIDB. Reseller
hereby grants to Bell Atlantic and the persons to whom Bell Atlantic allows
access to information which is stored in Bell Atlantic's LIDB, a royalty
free license for such access, use and disclosure.
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4.4 Reseller shall obtain contractual agreements with each of the persons
authorized to have access to Bell Atlantic's LIDB, under which Reseller
will bill Reseller Customers for calling card, third party, collect and
other calls validated by such persons through Bell Atlantic's LIDB.
4.5 Reseller warrants that the information provided by Reseller for
inclusion in Bell Atlantic's LIDB will at all times be current, accurate
and appropriate for use for billing validation services.
4.6 Upon request by Reseller, Bell Atlantic will provide to Reseller Bell
Atlantic Billing Validation Service, in accordance with Bell Atlantic's
Tariffs, for use by Reseller in connection with Bell Atlantic Retail
Telecommunications Services purchased and provided by Reseller pursuant to
this Agreement.
4.7 Information in Bell Atlantic's LIDB provided to Reseller shall be
treated by Reseller as Confidential Information of Bell Atlantic pursuant
to Section 13.
4.8 The prices for the services described in this Exhibit I, Section 5
shall be as stated in Exhibit II, Section 2.
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EXHIBIT II
PRICES FOR BELL ATLANTIC SERVICES
1. BELL ATLANTIC RETAIL TELECOMMUNICATIONS SERVICES
1.1 PRICES
The prices for Bell Atlantic Retail Telecommunications Services shall
be the Retail Prices stated in Bell Atlantic's Tariffs for such Bell Atlantic
Retail Telecommunications Services, less: (a) the applicable discount stated in
Bell Atlantic's Tariffs for Bell Atlantic Retail Telecommunications Services
purchased for resale pursuant to 47 U.S.C. Section 251(c)(4); or, (b) in the
absence of an applicable Bell Atlantic Tariff discount for Bell Atlantic Retail
Telecommunications Services purchased for resale pursuant to 47 U.S.C. Section
251(c)(4), the applicable discount stated in Exhibit II, Attachment 1.
1.2 INAPPLICABILITY OF DISCOUNTS
The discounts provided for in Exhibit II, Section 1.1, shall not be
applied to:
1.2.1 Retail Prices that are in effect for no more than ninety (90) days;
1.2.2 Charges for services and products provided by Bell Atlantic that are
not Bell Atlantic Retail Telecommunications Services, including, but not limited
to, Bell Atlantic Ancillary Services, and exchange access services as defined in
Section 3(16) of the Act, 47 U.S.C. Section 153(16);
1.2.3 Subscriber Line Charges, Federal Line Cost Charges, end user common
line charges, carrier selection and change charges, and Audiotex Service
charges, and to the extent applicable, the Presubscribed Interexchange Carrier
Charge applicable to Reseller Customers who have not presubscribed to an
interexchange carrier for long distance services; and,
1.2.4 Any service or charge which the Commission, the FCC, or other
governmental entity of appropriate jurisdiction, determines is not subject to a
wholesale rate discount under 47 U.S.C. Section 251(c)(4).
1.3 DISCOUNT CHANGES
1.3.1 Bell Atlantic shall change the discounts provided for in Exhibit II,
Section 1.1, above, from time-to-time, to the extent such change is required by
Applicable Law, including, but not limited to, by regulation or order of the
Commission, the FCC, or other governmental entity of appropriate jurisdiction.
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1.3.2 Bell Atlantic shall have the right to change the discounts provided
for in Exhibit II, Section 1.1, above, from time-to-time, to the extent
such change is required, approved or permitted by Applicable Law,
including, but not limited to, by regulation or order of the Commission,
the FCC, or other governmental entity of appropriate jurisdiction.
1.4 Offers of Merchandise and Services which are not Bell Atlantic Retail
Telecommunications Services
Reseller shall not be eligible to participate in any Bell Atlantic
plan or program under which Bell Atlantic end user retail Customers may
obtain products or merchandise, or services which are not Bell Atlantic
Retail Telecommunications Services, in return for trying, agreeing to
purchase, purchasing, or using, Bell Atlantic Retail Telecommunications
Services.
2. BELL ATLANTIC ANCILLARY SERVICES
2.1 PRICES
2.1.1 The prices for Bell Atlantic Ancillary Services shall be as stated:
(a) in Bell Atlantic's Tariffs; or, (b) in the absence of an applicable
Bell Atlantic Tariff price, in Exhibit II, Attachment 1.
2.1.2 If Bell Atlantic at any time offers a Bell Atlantic Ancillary Service
the prices for which are not stated in Bell Atlantic's Tariffs or Exhibit
11, Attachment 1, Bell Atlantic shall have the right to revise Exhibit II,
Attachment 1, to add the prices to Exhibit II, Attachment 1.
2.2 PRICE CHANGES
2.2.1 Bell Atlantic shall change the prices for Bell Atlantic Ancillary
Services, from time-to-time, to the extent such change is required by
Applicable Law, including, but not limited to, by regulation or order of
the Commission, the FCC, or other governmental entity of appropriate
jurisdiction.
2.2.2 Bell Atlantic shall have the right to change the prices for Bell
Atlantic Ancillary Services, from time-to-time, to the extent such change
is required, approved or permitted by Applicable Law, including, but not
limited to, by regulation or order of the Commission, the FCC, or other
governmental entity of appropriate jurisdiction.
2.2.3 Except as otherwise required by Applicable Law, Bell Atlantic shall
give Reseller thirty (30) days advance written notice of any increase in
the prices stated in Exhibit II, Attachment I for Bell Atlantic Ancillary
Services.
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ATTACHMENT 1
TO EXHIBIT II
BELL ATLANTIC -WASHINGTON, D.C., INC.
DETAILED SCHEDULE OF ITEMIZED CHARGES(1)
I. WHOLESALE DISCOUNT FOR RESALE OF BELL ATLANTIC RETAIL TELECOMMUNICATIONS
SERVICES
Resale of Bell Atlantic Retail 24.70% or discount rate as
Telecommunications Services as per established by further
Commission TAC 6 Order Number 6 dated Commission Order.(2)
December 2, 1996. Assumes RESELLER
will provide its own Operator Services.
Resale of Bell Atlantic Retail 16.57% or discount rate as
Telecommunications Services if RESELLER established by Commission
uses Bell Atlantic Operator Services. Order(3)
- -------------------
(1) All rates and charges set forth in this Exhibit II, Attachment 1 are
subject to change from time-to-time as provided in this Agreement, including,
but not limited to, in Section 2.3 and Exhibit II of this Agreement. The rates
and charges set forth in this Exhibit II, Attachment 1 shall apply until such
time as they are replaced by new rates as may be approved or allowed into effect
by the Commission from time to time, subject to a stay or other order issued by
any court of competent jurisdiction. At such time(s) as such new rates have been
approved or allowed into effect by the Commission, the Parties shall amend this
Exhibit II, Attachment 1 to reflect the new approved rates.
Except for citations to generally available services and rates offered
under Bell Atlantic's Tariffs, all services and rates listed in this Exhibit II,
Attachment I are available to Reseller only in connection with the purchase and
resale of Bell Atlantic Retail Telecommunications Services by Reseller under
this Agreement. Adherence to this limitation shall be subject to reasonable
audit by Bell Atlantic.
The rates set forth in Sections II through IV of this Exhibit II,
Attachment 1, are in addition to, and not in lieu of, any other rates set forth
in this Agreement.
In addition to charges for Bell Atlantic Services, Reseller shall pay, or
collect and remit, applicable taxes and surcharges (including, but not limited
to, E911/911, telecommunications relay service, and universal service fund,
surcharges), as required by Applicable Law and this Agreement.
(2) Wholesale discount does not apply to telecommunications relay service
charge embedded in BA's retail rates.
(3) See note 2 above.
<PAGE>
<TABLE>
<CAPTION>
SERVICE OR ELEMENT DESCRIPTION: RECURRING CHARGES: NON-RECURRING
CHARGE:
<S> <C> <C>
II. ACCESS TO OPERATION SUPPORT SYSTEMS
A. Pre-Ordering $.27/Query Not Applicable
B. Ordering $4.65/Transaction Not Applicable
C. Provisioning Included in Ordering Not Applicable
D. Maintenance & Repair
1. ECG Access $.27/Query Not Applicable
2. EB/OSI Access $ 1.26/Trouble Ticket Not Applicable
E. Billing
1. CD-ROM $267.85/CD- Not Applicable
ROM/Month
2. Daily Usage File
a) Existing Message Recording $.000281/Message Not Applicable
b) Delivery of DUF
Data Tape $20.64/Tape $66.66/Programming
Hour
Network Data Mover $.000101/Message Not Applicable
CMDS $.000101/Message $66.66/Programming
Hour
c) DUF Transport
9.6 kb Communications Port $11.13/Month $8,552.71/Port
56 kb Communications Port $30.72/Month $35,394.48/Port
256 kb Communications Port $30.72/Month $58,920.86/Port
T1 Communications Port $390.10/Month $210,246.64/Port
Line Installation Not Applicable $66.66/Programming
Hour/Port
Port Set-up Not Applicable $10.70/Port
Network Control Programming Not Applicable $66.66/Programming
Coding Hour/Port
</TABLE>
2
<PAGE>
<TABLE>
<CAPTION>
SERVICE OR ELEMENT DESCRIPTION: RECURRING CHARGES: NON-RECURRING
CHARGE:
<S> <C> <C>
III. DIRECTORY ASSISTANCE/OPERATOR SERVICES
ROUTING
To RESELLER Platform $.29513/Line/Month $4.52/Line
To BA Platform for Re-Branding $.09838/Call $4.52/Line
Customized Routing Transport Per Bell Atlantic's Tariffs (including, but not
limited to, Bell Atlantic Tariff FCC No. 1)
IV. LIDB Interconnection/Billing Validation
Service
Per Bell Atlantic's Per Bell Atlantic's
Tariffs (including, Tariffs (including,
but not limited to, but not limited to,
Bell Atlantic Tariff Bell Atlantic Tariff
FCC No. 1, Section FCC No. 1, Section
6.9.1M) 6.9.1 M)
Illustrative: Illustrative:
Query validation Originating point
$.04/query code, $125
Query transport
$.0002/query
</TABLE>
3
<PAGE>
APPENDIX 1, ATTACHMENT 19
QUALIFIED BUSINESS LINES FOR VOLUME COMMITMENT
WASHINGTON DC
<TABLE>
- ----------------------------------------------------------------------------------------------------
ACCESS LINES
- ----------------------------------------------------------------------------------------------------
<S> <C> <C> <C>
Message Business Service 1MB WHB
- ----------------------------------------------------------------------------------------------------
Measured Business Service LMB ALM
- ----------------------------------------------------------------------------------------------------
Direct Inward Dial Trunks NDT NDZ NDJ
- ----------------------------------------------------------------------------------------------------
PBX Trunks Message TMB
- ----------------------------------------------------------------------------------------------------
PBX Digital trunks D7Z D7W
- ----------------------------------------------------------------------------------------------------
CENTREX:**
- ----------------------------------------------------------------------------------------------------
**EXCLUDES:
1. Centrex systems priced under a special contract (ICB, FPO, LSO, Custom
Pricing)
2. Centrex systems which serve multiple end user customers
- ----------------------------------------------------------------------------------------------------
CENTREX - CUSTOPAK / CLASS OF SERVICE
- ----------------------------------------------------------------------------------------------------
Message CGC+X
- ----------------------------------------------------------------------------------------------------
CUSTOPAK LINES
- ----------------------------------------------------------------------------------------------------
Unrestricted R3G
- ----------------------------------------------------------------------------------------------------
Restricted R3K
- ----------------------------------------------------------------------------------------------------
Primary Off Prem RX3
- ----------------------------------------------------------------------------------------------------
CENTREX - CUSTOFLEX 2100 / CLASS OF SERVICE
- ----------------------------------------------------------------------------------------------------
Message KGK+X
- ----------------------------------------------------------------------------------------------------
CUSTOFLEX 2100 LINES
- ----------------------------------------------------------------------------------------------------
Unrestricted R4N
- ----------------------------------------------------------------------------------------------------
Restricted RHK
- ----------------------------------------------------------------------------------------------------
Primary Off Prem RX3
- ----------------------------------------------------------------------------------------------------
ISDN - Unrestricted XQA
- ----------------------------------------------------------------------------------------------------
ISDN - Restricted XQK
- ----------------------------------------------------------------------------------------------------
</TABLE>
PAGE 1 OF 1
<PAGE>
APPENDIX 1, ATTACHMENT 20
PRODUCT AND SERVICES ELIGIBLE FOR VTD DISCOUNT
WASHINGTON DC
<TABLE>
- ----------------------------------------------------------------------------------------------------
ACCESS LINES
- ----------------------------------------------------------------------------------------------------
<S> <C> <C> <C>
Message Business Service 1MB WHB
- ----------------------------------------------------------------------------------------------------
Measured Business Service LMB ALM
- ----------------------------------------------------------------------------------------------------
Direct Inward Dial Trunks NDT NDZ NDJ
- ----------------------------------------------------------------------------------------------------
PBX Trunks Message TMB
- ----------------------------------------------------------------------------------------------------
PBX Digital trunks D7Z D7W
- ----------------------------------------------------------------------------------------------------
INTRA-LATA TOLL
#MUST BE ASSOCIATED WITH A RESOLD VTD QUALIFIED BUSINESS LINE
- ----------------------------------------------------------------------------------------------------
Message Rate Service N/A
- ----------------------------------------------------------------------------------------------------
FEATURES
#MUST BE ASSOCIATED WITH A RESOLD VTD QUALIFIED BUSINESS LINE
- ----------------------------------------------------------------------------------------------------
Touch Tone TTB TJB
- ----------------------------------------------------------------------------------------------------
IQ SERVICES:
#MUST BE ASSOCIATED WITH A RESOLD VTD QUALIFIED BUSINESS LINE
- ----------------------------------------------------------------------------------------------------
Call Forwarding ESM
- ----------------------------------------------------------------------------------------------------
Call Waiting ESX
- ----------------------------------------------------------------------------------------------------
Call Waiting ID NWT
- ----------------------------------------------------------------------------------------------------
Speed Dialing 8 ESL
- ----------------------------------------------------------------------------------------------------
Speed Dialing 30 ESF
- ----------------------------------------------------------------------------------------------------
3 Way Calling (per Use or Monthly) ESC
- ----------------------------------------------------------------------------------------------------
*69 (per Use or Monthly) NSS
- ----------------------------------------------------------------------------------------------------
Call Trace (Per Use Charge)
- ----------------------------------------------------------------------------------------------------
Caller ID NSD
- ----------------------------------------------------------------------------------------------------
Caller ID with Name NDF
- ----------------------------------------------------------------------------------------------------
Per Call Blocking (Per Use Charge)
- ----------------------------------------------------------------------------------------------------
Repeat Dialing NSQ
- ----------------------------------------------------------------------------------------------------
Ultra Forward FRM
- ----------------------------------------------------------------------------------------------------
Distinctive Ring DRQ+X
- ----------------------------------------------------------------------------------------------------
Priority Call NSK
- ----------------------------------------------------------------------------------------------------
Select Forward NCE
- ----------------------------------------------------------------------------------------------------
Call Block NSY
- ----------------------------------------------------------------------------------------------------
Call Gate OC4
- ----------------------------------------------------------------------------------------------------
</TABLE>
Page 1 of 1
<PAGE>
RESALE AGREEMENT
(Maryland)
PREFACE
THIS RESALE AGREEMENT (this "Agreement") is made effective as of August 6,
1999 (the "Effective Date") by and between Essential.Com, Inc. ("Reseller"), a
Delaware corporation, with offices at Three Burlington Woods Drive, Burlington,
MA 01803, and Bell Atlantic - Maryland, Inc. ("Bell Atlantic"), a Maryland
corporation, with offices at 1 East Pratt Street, 8th Floor, Baltimore, Maryland
21202.
WHEREAS, pursuant to Section 251(c)(4) of the Act, 47 U.S.C. Section
251(c)(4), Reseller wishes to purchase Bell Atlantic Retail Telecommunications
Services from Bell Atlantic for resale by Reseller as a Telecommunications
Carrier providing Telecommunications Services in the State of Maryland; and
WHEREAS, Bell Atlantic is willing to provide such Bell Atlantic Retail
Telecommunications Services in accordance with this Agreement.
NOW THEREFORE, in consideration of the mutual promises set forth in
this Agreement, Reseller and Bell Atlantic, each on behalf of itself and its
respective successors and assigns, agree as follows:
1. DEFINITIONS
1.1 As used in the Principal Document, the terms listed below shall
have the meanings stated below:
1.1.1 "Act" means the Communications Act of 1934, 47 U.S.C. Section
151, ET SEQ., as amended from time-to-time.
1.1.2 "Agent" means agent or servant.
1.1.3 "Applicable Law" means all applicable laws and government
regulations and orders.
1.1.4 "Bell Atlantic Ancillary Service" means any service offered by
Bell Atlantic to Reseller in Exhibit I.
1.1.5 "Bell Atlantic Retail Telecommunications Service" means any
Telecommunications Service that Bell Atlantic provides at retail to
subscribers who are not Telecommunications Carriers. The term "Bell
Atlantic Retail Telecommunications
1
<PAGE>
Service" does not include any exchange access service (as defined in
Section 3(16) of the Act, 47 U.S.C. Section 153(16)) provided by Bell
Atlantic.
1.1.6 "Bell Atlantic Service" means and includes any Bell Atlantic
Retail Telecommunications Service and any Bell Atlantic Ancillary Service.
1.1.7 "Bell Atlantic's Affiliates" means any corporations, partnerships
or other persons who control, are controlled by, or are under common
control with, Bell Atlantic,
1.1.8 "Bell Atlantic's Tariffs" and "Bell Atlantic Tariff" mean and
include:
(a) Bell Atlantic's effective Federal and state tariffs, as
amended by Bell Atlantic from time-to-time; and,
(b) to the extent Bell Atlantic Services are not subject to Bell
Atlantic tariffs, any standard agreements and other documents, as amended
by Bell Atlantic from time-to-time, that set forth the generally available
terms, conditions and prices under which Bell Atlantic offers such Bell
Atlantic Services.
The terms "Bell Atlantic's Tariffs" and "Bell Atlantic Tariff" do
not include Bell Atlantic's "Statement of Generally Available Terms and
Conditions for Interconnection, Unbundled Network Elements, Ancillary
Services and Resale of Telecommunications Services" which has been approved
by the Commission pursuant to Section 252(f) of the Act, 47 U.S.C. Section
252(f).
1.1.9 "Commission" means the Maryland Public Service Commission.
1.1.10 "Contract Period", as used in Section 1.1.25 and Section 6.2,
means a stated period or minimum period of time for which Reseller is
required by this Agreement to subscribe to, use and/or pay for a Bell
Atlantic Service.
1.1.11 "Customer" means and includes customers, subscribers and patrons,
of a Party, purchasers and users of Telecommunications Services (including,
but not limited to, resold Bell Atlantic Retail Telecommunications
Services) provided by a Party, and purchasers and users of other services
and products provided by a Party. The term "Customer" does not include a
Party.
1.1.12 "Bell Atlantic Customer" means a Customer of Bell Atlantic.
1.1.13 "Customer Information" means CPNI of a Customer and any other
nonpublic, individually identifiable information about a Customer or the
purchase by a Customer of the services or products of a Party.
2
<PAGE>
1.1.14 "Customer Proprietary Network Information" ("CPNI") means
"Customer Proprietary Network Information" as defined in Section 222 of the
Act, 47 U.S.C. Section 222.
1.1.15 "Effective Date" means the date first above written.
1.1.16 "Jurisdiction" means the State of Maryland.
1.1.17 "Operator Services" means: (a) services accessed by dialing 411,
555-1212, 1-555-1212, 0+ local, 0+ intraLATA, and, 0-; and, (b) any other
automated or live operator or directory assistance service.
1.1.18 "Order" means an order or application.
1.1.19 "Principal Document" means this document, including the Preface,
Sections 1 through 39, the signature page, Exhibit I, Exhibit II, and
Exhibit II, Attachment 1.
1.1.20 "Reseller Customer" means a Customer of Reseller.
1.1.21 "Retail Prices" means the prices at which Bell Atlantic Retail
Telecommunications Services are provided by Bell Atlantic at retail to
subscribers who are not Telecommunications Carriers.
1.1.22 "Telecommunications Carrier" means "Telecommunications Carrier"
as defined in Section 3(44) of the Act, 47 U.S.C. Section 153(44).
1.1.23 "Telecommunications Service" means "Telecommunications Service"
as defined in Section 3(46) of the Act, 47 U.S.C. Section 153(46).
1.1.24 "Telephone Exchange Service" means "Telephone Exchange Service"
as defined in Section 3(47) of the Act, 47 U.S.C. Section 153(47).
1.1.25 "Termination Date Bell Atlantic Service" means: (a) any Bell
Atlantic Service being provided by Bell Atlantic under this Agreement at
the time of termination of this Agreement, that at the time of termination
of this Agreement is subject to a Contract Period which is greater than one
(1) month; and, (b) any Bell Atlantic Service requested by Reseller under
this Agreement in an Order accepted by Bell Atlantic prior to termination
of this Agreement but not yet being provided by Bell Atlantic at the time
of termination of this Agreement, that is subject to an initial Contract
Period which is greater than one (1) month.
1.2 Unless the context clearly indicates otherwise, any defined term
which is defined or used in the singular shall include the plural, and any
defined term which is defined or used in the plural shall include the
singular.
3
<PAGE>
2. THE AGREEMENT
2.1 This Agreement includes: (a) the Principal Document; (b) Bell
Atlantic's Tariffs (which Bell Atlantic Tariffs are incorporated into this
Agreement by reference and made a part hereof); and, (c) a Reseller Order
to provide, change or terminate a Bell Atlantic Service, which has been
accepted by Bell Atlantic (including, but not limited to, any Order which
includes a commitment to purchase a stated number or minimum number of
lines or other Bell Atlantic Services, or a commitment to purchase lines or
other Bell Atlantic Services for a stated period or minimum period of
time).
2.2 Conflicts among terms in the Principal Document, Bell Atlantic's
Tariffs, and a Reseller Order which has been accepted by Bell Atlantic,
shall be resolved in accordance with the following order of precedence,
where the document identified in subsection "(a)" shall have the highest
precedence: (a) the Principal Document; (b) Bell Atlantic's Tariffs; and,
(c) a Reseller Order which has been accepted by Bell Atlantic. The fact
that a term appears in the Principal Document but not in a Bell Atlantic
Tariff, or in a Bell Atlantic Tariff but not in the Principal Document,
shall not be interpreted as, or deemed grounds for finding, a conflict for
the purposes of this Section 2.2.
2.3 This Agreement (including the Principal Document, Bell Atlantic's
Tariffs, and Reseller Orders which have been accepted by Bell Atlantic),
constitutes the entire agreement between the Parties on the subject matter
hereof, and supersedes any prior or contemporaneous agreement,
understanding, or representation on the subject matter hereof. Except as
otherwise provided in the Principal Document, the terms in the Principal
Document may not be waived or modified except by a written document which
is signed by the Parties. Subject to the requirements of Applicable Law,
Bell Atlantic shall have the right to add, modify, or withdraw, a Bell
Atlantic Tariff at any time, without the consent of, or notice to,
Reseller.
2.4 A failure or delay of either Party to enforce any of the
provisions of this Agreement, or any right or remedy available under this
Agreement or at law or in equity, or to require performance of any of the
provisions of this Agreement, or to exercise any option provided under this
Agreement, shall in no way be construed to be a waiver of such provisions,
rights, remedies, or options.
3. BELL ATLANTIC SERVICES
3.1 During the term of this Agreement, Reseller, pursuant to Section
251(c)(4) of the Act, 47 U.S.C. Section 251(c)(4) may submit Orders to
Bell Atlantic requesting Bell Atlantic to provide Bell Atlantic Retail
Telecommunications Services for resale by Reseller as a Telecommunications
Carrier providing Telecommunications Services.
4
<PAGE>
3.2 During the term of this Agreement, Reseller may submit Orders to
Bell Atlantic requesting Bell Atlantic to provide Bell Atlantic Ancillary
Services for use by Reseller as a Telecommunications Carrier providing
Telecommunications Services.
3.3 Bell Atlantic may require that Reseller's Orders requesting Bell
Atlantic to provide Bell Atlantic Services be in writing on forms specified
by Bell Atlantic or in an electronic form specified by Bell Atlantic.
3.4 Upon receipt and acceptance by Bell Atlantic of a Reseller Order
requesting Bell Atlantic to provide a Bell Atlantic Service, Bell Atlantic
shall provide, and Reseller shall subscribe to, use and pay for, the Bell
Atlantic Service, in accordance with this Agreement.
3.5 Bell Atlantic Retail Telecommunications Services may be purchased
by Reseller under this Agreement only for the purpose of resale by Reseller
as a Telecommunications Carrier providing Telecommunications Services,
pursuant to Section 251(c)(4) of the Act, 47 U.S.C. Section 251(c)(4). Bell
Atlantic Retail Telecommunications Services to be purchased by Reseller for
other purposes (including, but not limited to, Reseller's own use) must be
purchased by Reseller pursuant to separate written agreements, including,
but not limited to, applicable Bell Atlantic Tariffs. Reseller warrants and
agrees that Reseller will purchase Bell Atlantic Retail Telecommunications
Services from Bell Atlantic under this Agreement only for the purpose of
resale by Reseller as a Telecommunications Carrier providing
Telecommunications Services, pursuant to Section 251(c)(4) of the Act, 47
U.S.C. Section 251(c)(4).
3.6 Bell Atlantic Ancillary Services may be purchased by Reseller
under this Agreement only for use by Reseller as a Telecommunications
Carrier providing Telecommunications Services. Bell Atlantic Ancillary
Services to be purchased by Reseller for other purposes must be purchased
by Reseller pursuant to separate written agreements, including, but not
limited to, applicable Bell Atlantic Tariffs. Reseller warrants and agrees
that Reseller will purchase Bell Atlantic Ancillary Services from Bell
Atlantic under this Agreement only for use by Reseller as a
Telecommunications Carrier providing Telecommunications Services.
3.7 Subject to the requirements of Applicable Law, Bell Atlantic
shall have the right to add, modify, grandfather, discontinue or terminate
Bell Atlantic Services at any time, without the consent of Reseller.
4. PRICES
4.1 Reseller shall pay Bell Atlantic for Bell Atlantic Services at
the prices stated in this Agreement, including, but not limited to, in
Exhibit II, Attachment 1.
5
<PAGE>
4.2 If, prior to establishment of a Bell Atlantic Service, Reseller
cancels or changes its Order for the Bell Atlantic Service, Reseller shall
reimburse Bell Atlantic for the costs associated with such cancellation or
changes as required by this Agreement (including, but not limited to, Bell
Atlantic's Tariffs).
4.3 Upon request by Bell Atlantic, Reseller shall provide to Bell
Atlantic adequate assurance of payment of charges due to Bell Atlantic.
Assurance of payment of charges may be requested by Bell Atlantic: (a) if
Reseller, in Bell Atlantic's reasonable judgment, at the Effective Date or
at any time thereafter, is unable to show itself to be creditworthy; (b) if
Reseller, in, Bell Atlantic's reasonable judgment, at the Effective Date or
at any time thereafter, is not creditworthy; or, (c) if Reseller fails to
timely pay a bill rendered to Reseller by Bell Atlantic. Unless otherwise
agreed by the Parties, the assurance of payment shall be in the form of a
cash deposit and shall be in an amount equal to the charges for Bell
Atlantic Services that Reseller may reasonably be expected to incur during
a period of two (2) months. Bell Atlantic may at any time use the deposit
or other assurance of payment to pay amounts due from Reseller.
5. BILLING AND PAYMENT
5.1 Except as otherwise permitted or required by this Agreement, or
agreed in writing by the Parties, Bell Atlantic shall render bills to
Reseller monthly. Except as otherwise agreed in writing by the Parties,
Bell Atlantic will render bills to Reseller in a paper form.
5.2 Reseller shall pay Bell Atlantic's bills in immediately available
U.S. funds. Except as otherwise agreed in writing by the Parties, payments
shall be transmitted by electronic funds transfer.
5.3 Payment of charges shall be due by the due date stated on Bell
Atlantic's bills. Except as otherwise required by Bell Atlantic's Tariffs
or agreed in writing by the Parties, the due date shall not be sooner than
twenty (20) days after the date the bill is received by Reseller.
5.4 Charges which are not paid by the due date stated on Bell
Atlantic's bill shall be subject to a late payment charge. The late payment
charge shall be in an amount specified by Bell Atlantic, which shall not
exceed a rate of one-and-one-half percent (1.5%) of the over-due amount
(including any unpaid, previously billed late payment charges) per month.
5.5 Reseller acknowledges and agrees that:
5.5.1 During the term of this Agreement, Bell Atlantic will be engaged
in developing and deploying new or modified forms of bills for
Telecommunications Carriers who are engaged in the resale of Bell Atlantic
Retail Telecommunications
6
<PAGE>
Services and new or modified systems and methods for computing and
rendering such bills.
5.5.2 Prior to the completion of deployment of such new or modified
forms of bills and such new or modified systems and methods for computing
and rendering bills, Bell Atlantic's form of bill and systems and methods
for computing and rendering bills may be subject to limitations and
restrictions, including, but not limited to, the limitations stated in
Section 5.5.3, below, the inability to provide Reseller with a single,
consolidated bill for all Bell Atlantic Services purchased by Reseller, and
the unavailability of bills and billing information in an electronic form
(e.g., bills may be rendered in a paper form).
5.5.3 Prior to the completion of deployment of the new or modified
forms of bills and the new or modified systems and methods for computing
and rendering bills, Bell Atlantic may apply the discount identified in
Exhibit II, Section 1.1, in a manner (including, but not limited to, in a
"bottom-of-the-bill" format) that results in the Exhibit II, Section 1.1
discount being applied to charges stated in the bill (including, but not
limited to, Subscriber Line Charges, Federal Line Cost Charges, end user
common line charges, carrier selection and change charges, Audiotex Service
charges, and charges for services which are not Bell Atlantic Retail
Telecommunications Services) which are not subject to the Exhibit II,
Section 1.1 discount. Bell Atlantic will implement a "true-up" process and
within six (6) months after the due date of each monthly bill, issue to
Reseller a "true-up" bill for amounts which were not collected from
Reseller under the monthly bill because of the application of the Exhibit
II, Section 1.1 discount to charges which are not subject to the Exhibit
II, Section 1.1 discount. The "true-up" bill may be issued as a part of or
an entry on a monthly bill, as a bill separate from a monthly bill, or in
such other form as Bell Atlantic may determine.
5.6 Although it is the intent of Bell Atlantic to submit timely and
accurate bills, failure by Bell Atlantic to present bills (including, but
not limited to, monthly bills and "true-up" bills) to Reseller in a timely
or accurate manner shall not constitute a breach or default of this
Agreement, or a waiver of a right of payment of the incurred charges, by
Bell Atlantic. Reseller shall not be entitled to dispute charges for Bell
Atlantic Services provided by Bell Atlantic based on Bell Atlantic's
failure to submit a bill for the charges in a timely fashion.
6. TERM
6.1 The term of this Agreement shall commence on the Effective Date,
and, except as otherwise provided in this Agreement, shall remain in effect
through August 5, 2000 (the "Initial Term Ending Date"). After the Initial
Term Ending Date, this Agreement shall continue in force and effect unless
and until terminated as provided in this Agreement. Following the Initial
Term Ending Date, either Party may terminate this
7
<PAGE>
Agreement by providing written notice of termination to the other Party,
such written notice to be provided at least ninety (90) days in advance of
the date of termination.
6.2 Following termination of this Agreement pursuant to Section 6.1,
this Agreement, as amended from time to time, shall remain in effect as to
any Termination Date Bell Atlantic Service for the remainder of the
Contract Period applicable to such Termination Date Bell Atlantic Service
at the time of the termination of this Agreement. If a Termination Date
Bell Atlantic Service is terminated prior to the expiration of the Contract
Period applicable to such Termination Date Bell Atlantic Service, Reseller
shall pay any termination charge provided for in this Agreement.
7. SERVICE INSTALLATION AND MAINTENANCE
Reseller shall comply with Bell Atlantic's processes and
procedures (including, but not limited to, requirements by Bell Atlantic
that Reseller use Bell Atlantic OSS Services) for the communication to Bell
Atlantic of (a) Reseller's Orders to provide, change or terminate, Bell
Atlantic Services, and (b) Reseller's requests for information about,
assistance in using, or repair or maintenance of, Bell Atlantic Services.
Bell Atlantic may, from time-to-time, upon notice to Reseller, change these
processes and procedures.
8. ASSIGNMENT
8.1 Reseller shall not assign this Agreement or any right or interest
under this Agreement, nor delegate any obligation under this Agreement,
without the prior written approval of Bell Atlantic, which approval shall
not be unreasonably withheld, conditioned or delayed. Any attempted
assignment or delegation in contravention of the foregoing shall be void
and ineffective.
8.2 Bell Atlantic may, without the consent of Reseller, assign this
Agreement or any right or interest under this Agreement, and/or delegate
any obligation under this Agreement, to any of Bell Atlantic's Affiliates,
or to a person with which Bell Atlantic merges or which acquires
substantially all of Bell Atlantic's assets.
9. AVAILABILITY OF SERVICE
9.1 Subject to the requirements of Applicable Law, Bell Atlantic
shall be obligated to provide Bell Atlantic Services to Reseller under this
Agreement only where Bell Atlantic is able, without unreasonable expense
(as determined by Bell Atlantic in its reasonable judgment), (a) to obtain,
retain, install and maintain suitable facilities for the provision of such
Bell Atlantic Services, and (b) to obtain, retain and maintain suitable
rights for the provision of such Bell Atlantic Services.
8
<PAGE>
9.2 Bell Atlantic's obligation to provide a Bell Atlantic Retail
Telecommunications Service to Reseller under this Agreement shall be
limited to providing the Bell Atlantic Retail Telecommunications Service to
Reseller where, and to the same extent, that Bell Atlantic provides such
Bell Atlantic Retail Telecommunications Service to Bell Atlantic's own end
user retail Customers.
10. BRANDING
10.1 Except as stated in Section 10.2, in providing Bell Atlantic
Services to Reseller, Bell Atlantic shall have the right, but not the
obligation, to identify the Bell Atlantic Services with Bell Atlantic's
trade names, trademarks and service marks. Any such identification of the
Bell Atlantic Services shall not constitute the grant of a license or other
right to Reseller to use Bell Atlantic's trade names, trade marks or
service marks.
10.2 To the extent required by Applicable Law, upon request by
Reseller and at prices, terms and conditions to be negotiated by Reseller
and Bell Atlantic, Bell Atlantic shall provide Bell Atlantic Retail
Telecommunications Services that are identified by Reseller's trade name,
or that are not identified by trade name, trademark or service mark.
11. CHOICE OF LAW
11.1 The construction, interpretation and performance of this
Agreement shall be governed by the laws of the United States of America and
the laws of Jurisdiction (without regard to Jurisdiction's conflicts of
laws rules). All disputes relating to this Agreement shall be resolved
through the application of such laws.
11.2 Reseller agrees to submit to the jurisdiction of any court,
commission or other governmental entity in which a claim, suit or
proceeding which arises out of or in connection with this Agreement or Bell
Atlantic Services provided under this Agreement and in which Bell Atlantic
is a party, is brought.
12. COMPLIANCE WITH APPLICABLE LAW
12.1 Each Party shall in its performance of this Agreement comply with
Applicable Law, including, but not limited to, all applicable regulations
and orders of the Commission and the Federal Communications Commission
(hereinafter the "FCC").
12.2 Reseller shall in providing Bell Atlantic Retail
Telecommunications Services to Reseller Customers comply with Applicable
Law, including, but not limited to, all applicable regulations and orders
of the Commission and the FCC.
13. CONFIDENTIAL INFORMATION
9
<PAGE>
13.1 For the purposes of this Section 13, "Confidential Information"
means the following information disclosed by one Party ("Discloser") to the
other Party ("Recipient") in connection with this Agreement:
(a) Customer Information related to a Reseller Customer which is
disclosed by Reseller to Bell Atlantic (except to the extent that (i) the
Customer Information is subject to publication in a directory, (ii) the
Customer Information is subject to disclosure through an Operator Service
or other Telecommunications Service, or in the course of furnishing
Telecommunications Services, or (iii) the Reseller Customer to whom the
Customer Information is, related, in the manner required by Applicable Law,
has given Bell Atlantic permission to use and/or disclose the Customer
Information);
(b) Customer Information related to a Bell Atlantic Customer
which is disclosed by Bell Atlantic to Reseller (except to the extent that
the Bell Atlantic Customer to whom the Customer Information is related, in
the manner required by Applicable Law, has given Reseller permission to use
and/or disclose the Customer Information);
(c) Information related to specific Bell Atlantic facilities and
equipment (including, but not limited to, cable-and-pair information) which
is disclosed by Bell Atlantic to Reseller; and
(d) Any other information which is identified by the Discloser
as Confidential Information in accordance with Section 13.2.
13.2 All information which is to be treated as Confidential
Information under Section 13.1(d) shall:
(a) if in written, graphic, electromagnetic, or other tangible
form, be marked as "Confidential" or "Proprietary"; and
(b) if oral, (i) be identified by the Discloser at the time of
disclosure to be "Confidential' or "Proprietary", and (ii) be set forth in
a written summary which identifies the information as "Confidential" or
"Proprietary" and is delivered by the Discloser to the Recipient within ten
(10) days after the oral disclosure.
Each Party shall have the right to correct an inadvertent failure
to identify information as Confidential Information pursuant to Section
13.1(d) by giving written notification within thirty (30) days after the
information is disclosed. The Recipient shall, from that time forward,
treat such information as Confidential Information.
10
<PAGE>
Notwithstanding any other provision of this Agreement, a Party
shall have the right to refuse to accept receipt of information which the
other Party has identified as Confidential Information pursuant to Section
13.1(d).
13.3 In addition to any requirements imposed by law, including, but
not limited to, 47 U.S.C. Section 222, for a period of five years from the
receipt of Confidential Information from the Discloser, except as otherwise
specified in this Agreement, the Recipient agrees:
(a) to use the Confidential Information only for the purpose of
performing under this Agreement;
(b) using the same degree of care that it uses with similar
confidential information of its own, to hold the Confidential Information
in confidence and restrict disclosure of the Confidential Information
solely to the Recipient's Affiliates, and the directors, officers and
employees of the Recipient and the Recipient's Affiliates, having a need to
know the Confidential Information for the purpose of performing under this
Agreement. The Recipient's Affiliates and the directors, officers and
employees of the Recipient and the Recipient's Affiliates, shall be
required by the Recipient to comply with the provisions of this Section 13
in the same manner as the Recipient. The Recipient shall be liable for any
failure of the Recipient's Affiliates and the directors, officers and
employees of the Recipient and the Recipient's Affiliates, to comply with
the provisions of this Section 13.
13.4 If the Recipient wishes to disclose the Discloser's Confidential
Information to a third party Agent or contractor, such disclosure must be
mutually agreed to in writing by the Parties to this Agreement, and the
Agent or contractor must have executed a written agreement of
non-disclosure and non-use comparable in scope to the terms of this Section
13.
13.5 The Recipient may make copies of Confidential Information only as
reasonably necessary to perform its obligations under this Agreement. All
such copies shall bear the same copyright and proprietary rights notices as
are contained on the original.
13.6 The Recipient shall return or destroy all Confidential
Information received from the Discloser, including any copies made by the
Recipient, within thirty (30) days after a written request by the Discloser
is delivered to the Recipient, except for (a) Confidential Information that
the Recipient reasonably requires to perform its obligations under this
Agreement, and (b) Customer Information related to a Reseller Customer that
is to be treated by Bell Atlantic as Confidential Information pursuant to
Section 13.1(a). If the Recipient loses or makes an unauthorized disclosure
of the Discloser's Confidential Information, it shall notify the Discloser
immediately and use reasonable efforts to retrieve the lost or improperly
disclosed information.
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13.7 The requirements of this Section 13 shall not apply to
Confidential Information:
(a) which was in the possession of the Recipient free of restriction
prior to its receipt from the Discloser;
(b) after it becomes publicly known or available through no
breach of this Agreement by the Recipient, the Recipient's Affiliates, or
the directors, officers, employees, Agents, or contractors, of the
Recipient, or the Recipient's Affiliates;
(c) after it is rightfully acquired by the Recipient free of
restrictions on its disclosure;
(d) after it is independently developed by the Recipient; or
(e) to the extent the disclosure is required by Applicable Law,
a court, or governmental agency; provided, the Discloser has been notified
of the required disclosure promptly after the Recipient becomes aware of
the required disclosure, the Recipient undertakes reasonable lawful
measures to avoid disclosing the Confidential Information until the
Discloser has had reasonable time to seek a protective order, and the
Recipient complies with any protective order that covers the Confidential
Information to be disclosed.
13.8 Each Party's obligations to safeguard Confidential Information
disclosed prior to expiration, cancellation or termination of this
Agreement shall survive such expiration, cancellation or termination.
13.9 Confidential Information shall remain the property of the
Discloser, and the Discloser shall retain all of the Discloser's right,
title and interest in any Confidential Information disclosed by the
Discloser to the Recipient. Except as otherwise expressly provided
elsewhere in this Agreement, no license is granted by this Agreement with
respect to any Confidential Information (including, but not limited to,
under any patent, trademark, or copyright), nor is any such license to be
implied, solely by virtue of the disclosure of any Confidential
Information.
13.10 Each Party agrees that the Discloser would be irreparably injured
by a breach of this Section 13 by the Recipient, the Recipient's
Affiliates, or the directors, officers, employees, Agents or contractors of
the Recipient or the Recipient's Affiliates, and that the Discloser shall
be entitled to seek equitable relief, including injunctive relief and
specific performance, in the event of any breach of the provisions of this
Section 13. Such remedies shall not be deemed to be the exclusive remedies
for a breach of this Section 13, but shall be in addition to any other
remedies available under this Agreement or at law or in equity.
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13.11 The provisions of this Section 13 shall be in addition to and not
in derogation of any provisions of Applicable Law, including, but not
limited to, 47 U.S.C. Section 222, and are not intended to constitute a
waiver by a Party of any right with regard to protection of the
confidentiality of information of the Party or its Customers provided by
Applicable Law. In the event of a conflict between a provision of this
Section 13 and a provision of Applicable Law, the provision of Applicable
Law shall prevail.
14. CONTINGENCIES
Neither Party shall be liable for any delay or failure in
performance by it which results from strikes, labor slowdowns, or other
labor disputes, fires, explosions, floods, earthquakes, volcanic action,
delays in obtaining or inability to obtain necessary services, facilities,
equipment, parts or repairs thereof, power failures, embargoes, boycotts,
unusually severe weather conditions, revolution, riots or other civil
disturbances, war or acts of the public enemy, acts of God, or causes
beyond the Party's reasonable control.
15. COUNTERPARTS
This Agreement may be executed in two or more counterparts, each
of which shall be deemed an original and all of which shall together
constitute one and the same instrument.
16. CUSTOMER INFORMATION
16.1 Without in any way limiting Section 12, each Party shall comply
with Applicable Law with regard to Customer Information, including, but not
limited to, 47 U.S.C. Section 222 and the FCC rules in 47 CFR Section
64.2001 - Section 64.2009.
16.2 A Party ("Accessing Party") shall not access (including, but not
limited to, in the case of Reseller, through Bell Atlantic OSS Services),
use or disclose Customer Information made available to the Accessing Party
by the other Party pursuant to this Agreement unless the Accessing Party,
in the manner required by Applicable Law, has obtained any Customer
authorization for such access, use and/or disclosure required by Applicable
Law. By accessing, using or disclosing Customer Information made available
to the Accessing Party by the other Party pursuant to this Agreement, the
Accessing Party represents and warrants that the Accessing Party has
obtained, in the manner required by Applicable Law, any Customer
authorization for such action required by Applicable Law. The Accessing
Party shall upon request by the other Party provide proof of such
authorization (including, a copy of any written authorization).
16.3 Bell Atlantic shall have the right (but not the obligation) to
audit Reseller to ascertain whether Reseller is complying with the
requirements of Applicable Law and
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this Agreement, with regard to Reseller's access to, and use and disclosure
of, Customer Information which is made available to Reseller by Bell
Atlantic pursuant to this Agreement.
16.4 In addition to Bell Atlantic's audit rights under Section 16.3,
Bell Atlantic shall have the right (but not the obligation) to monitor
Reseller's access to and use of Customer Information which is made
available by Bell Atlantic to Reseller pursuant to this Agreement, to
ascertain whether Reseller is complying with the requirements of Applicable
Law and this Agreement, with regard to Reseller's access to, and use and
disclosure of, such Customer Information. The foregoing right shall
include, but not be limited to, the right (but not the obligation) to
electronically monitor Reseller's access to and use of Customer Information
which is made available by Bell Atlantic to Reseller pursuant to this
Agreement through Bell Atlantic OSS Facilities or other electronic
interfaces or gateways.
16.5 Information obtained by Bell Atlantic pursuant to Section 16.3 or
Section 16.4 shall be treated by Bell Atlantic as Confidential Information
of Reseller pursuant to Section 13; provided that, Bell Atlantic shall have
the right (but not the obligation) to use and disclose information obtained
by Bell Atlantic pursuant to this Section 16 to enforce Applicable Law
and/or Bell Atlantic's rights under this Agreement.
17. DEFAULT
17.1 If Reseller materially breaches a material provision of this
Agreement (other than an obligation to make payment of any amount billed
under this Agreement), and such breach continues for more than thirty (30)
days after written notice thereof from Bell Atlantic, then, except as
otherwise required by Applicable Law, Bell Atlantic shall have the right,
upon notice to Reseller, to terminate or suspend this Agreement and/or
provision of Bell Atlantic Services, in whole or in part.
17.2.1 If Reseller fails to make a payment of any amount billed under
this Agreement by the due date stated on the bill and such failure
continues for more than thirty (30) days after written notice thereof from
Bell Atlantic, then, except as provided in Section 17.2.2, below, or as
otherwise required by Applicable Law, Bell Atlantic shall have the right,
upon notice to Reseller, to terminate or suspend this Agreement and/or
provision of Bell Atlantic Services, in whole or in part.
17.2.2 If a good faith dispute arises between the Parties concerning the
obligation of Reseller to make payment of an amount billed under this
Agreement, the failure to pay the amount in dispute shall not constitute
cause for termination or suspension of this Agreement or provision of Bell
Atlantic Services, if, within thirty (30) days of the date that Bell
Atlantic gives Reseller written notice of the failure to pay the amount in
dispute, Reseller (a) gives Bell Atlantic written notice of the dispute
stating the basis of the dispute, and (b) furnishes to Bell Atlantic an
irrevocable letter of credit in a form
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acceptable to Bell Atlantic or other security arrangement acceptable to
Bell Atlantic, guaranteeing payment to Bell Atlantic of any portion of the
disputed amount (including the whole of the disputed amount) which is
thereafter agreed by Bell Atlantic and Reseller, or determined by a court
or other governmental entity of appropriate jurisdiction, to be due to Bell
Atlantic. The existence of such a dispute shall not relieve Reseller of its
obligations to pay any undisputed amount which is due to Bell Atlantic and
to otherwise comply with this Agreement.
18. FACILITIES
18.1 Bell Atlantic or its suppliers shall retain all right, title and
interest in, and ownership of, all facilities, equipment, software,
information, and wiring, used to provide Bell Atlantic Services. Bell
Atlantic shall have access at all reasonable times to Reseller and Reseller
Customer locations for the purpose of installing, inspecting, maintaining,
repairing, and removing, facilities, equipment, software, and wiring, used
to provide the Bell Atlantic Services. Reseller shall, at Reseller's
expense, obtain any rights and authorizations necessary for such access.
18.2 Except as otherwise agreed to in writing by Bell Atlantic, Bell
Atlantic shall not be responsible for the installation, inspection, repair,
maintenance, or removal, of facilities, equipment, software, or wiring,
provided by Reseller or Reseller Customers for use with Bell Atlantic
Services.
19. INTELLECTUAL PROPERTY
Except as expressly stated in this Agreement, nothing contained
within this Agreement shall be construed as the grant of a license, either
express or implied, with respect to any patent, copyright, trade name,
trade mark, service mark, trade secret, or other proprietary interest or
intellectual property, now or hereafter owned, controlled or licensable by
either Party.
20. JOINT WORK PRODUCT
The Principal Document is the joint work product of the
representatives of the Parties. For convenience, the Principal Document has
been drafted in final form by Bell Atlantic. Accordingly, in the event of
ambiguities, no inferences shall be drawn against either Party solely on
the basis of authorship of the Principal Document.
21. LIABILITY
21.1.1 AS USED IN THIS SECTION 21, "OTHER BELL ATLANTIC PERSONS" MEANS
BELL ATLANTIC'S AFFILIATES, AND THE DIRECTORS, OFFICERS, EMPLOYEES, AGENTS
AND CONTRACTORS, OF BELL ATLANTIC AND BELL ATLANTIC'S AFFILIATES.
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21.1.2 AS USED IN THIS SECTION 21, "BELL ATLANTIC SERVICE FAILURE" MEANS
AND INCLUDES ANY FAILURE TO INSTALL, RESTORE, PROVIDE OR TERMINATE A BELL
ATLANTIC SERVICE, AND ANY MISTAKE, OMISSION, INTERRUPTION, DELAY, ERROR,
DEFECT, FAULT, FAILURE, OR DEFICIENCY, IN A BELL ATLANTIC SERVICE.
21.2 THE LIABILITY, IF ANY, OF BELL ATLANTIC AND OTHER BELL ATLANTIC
PERSONS, TO RESELLER, RESELLER CUSTOMERS AND/OR ANY OTHER PERSON, FOR ANY
CLAIM, LOSS OR DAMAGES ARISING OUT OF OR IN CONNECTION WITH A BELL ATLANTIC
SERVICE FAILURE, SHALL BE LIMITED AND/OR EXCLUDED AS SET FORTH IN BELL
ATLANTIC'S TARIFFS.
21.3.1 TO THE EXTENT THE BELL ATLANTIC TARIFFS APPLICABLE TO A BELL
ATLANTIC SERVICE DO NOT CONTAIN A PROVISION WHICH LIMITS OR EXCLUDES THE
LIABILITY OF BELL ATLANTIC AND/OR OTHER BELL ATLANTIC PERSONS TO RESELLER,
RESELLER CUSTOMERS AND/OR ANY OTHER PERSON, FOR ANY CLAIM, LOSS OR DAMAGES
ARISING OUT OF OR IN CONNECTION WITH A BELL ATLANTIC SERVICE FAILURE,
SECTION 21.3.3 SHALL APPLY.
21.3.2 TO THE EXTENT A BELL ATLANTIC SERVICE IS NOT SUBJECT TO A BELL
ATLANTIC TARIFF, SECTION 21.3.3 SHALL APPLY.
21.3.3 THE LIABILITY, IF ANY, OF BELL ATLANTIC AND OTHER BELL ATLANTIC
PERSONS, TO RESELLER, RESELLER CUSTOMERS AND/OR ANY OTHER PERSON, FOR ANY
CLAIM, LOSS OR DAMAGES ARISING OUT OF OR IN CONNECTION WITH A BELL ATLANTIC
SERVICE FAILURE, SHALL BE LIMITED TO A TOTAL AMOUNT NOT IN EXCESS OF: (a)
TWICE THE PROPORTIONATE CHARGE FOR THE BELL ATLANTIC SERVICE AFFECTED
DURING THE PERIOD OF THE BELL ATLANTIC SERVICE FAILURE; OR, (b) IF THERE IS
NO CHARGE FOR THE BELL ATLANTIC SERVICE AFFECTED, FIVE HUNDRED DOLLARS
($500.00).
21.4 NOTWITHSTANDING ANYTHING CONTAINED IN SECTION 21.2, SECTION
21.3.1, SECTION 21.3.2, OR SECTION 21.3.3, ABOVE, BELL ATLANTIC AND OTHER
BELL ATLANTIC PERSONS SHALL HAVE NO LIABILITY TO RESELLER, RESELLER
CUSTOMERS, AND/OR ANY OTHER PERSON, FOR ANY SPECIAL, INDIRECT, INCIDENTAL,
OR CONSEQUENTIAL, DAMAGES (INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR HARM
TO BUSINESS, LOST REVENUES, LOST PROFITS, LOST SAVINGS, OR OTHER COMMERCIAL
OR ECONOMIC LOSS), ARISING OUT OF OR IN CONNECTION WITH A BELL ATLANTIC
SERVICE
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FAILURE OR ANY BREACH OR FAILURE IN PERFORMANCE OF THIS AGREEMENT BY BELL
ATLANTIC.
21.5 THE LIMITATIONS AND EXCLUSIONS FROM LIABILITY STATED IN SECTIONS
21.2 THROUGH 21.4 SHALL APPLY REGARDLESS OF THE FORM OF A CLAIM OR ACTION,
WHETHER IN CONTRACT, WARRANTY, TORT (INCLUDING, BUT NOT LIMITED T0, THE
NEGLIGENCE OF BELL ATLANTIC AND/OR OTHER BELL ATLANTIC PERSONS), STRICT
LIABILITY, OR OTHERWISE, AND REGARDLESS OF WHETHER BELL ATLANTIC HAS BEEN
ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
21.6 Reseller shall, in its tariffs or other contracts with Reseller
Customers, provide that in no case shall Bell Atlantic or Other Bell
Atlantic Persons be liable to Reseller Customers or to any other third
parties for any indirect, special, incidental, consequential, or other
damages, including, but not limited to, harm to business, lost revenues,
lost profits, lost savings, or other commercial or economic loss, whether
foreseeable or not, and regardless of notification of the possibility of
such damages. Reseller shall indemnify, defend and hold Bell Atlantic and
Other Bell Atlantic Persons harmless from claims by Reseller Customers and
other third parties as provided in Bell Atlantic's Tariffs.
21.7 Bell Atlantic's obligations under this Agreement shall extend
only to Reseller. Bell Atlantic shall have no liability under this
Agreement to Reseller Customers or to any other third party. Nothing in
this Agreement shall be deemed to create a third party beneficiary
relationship between Bell Atlantic and Reseller Customers or any other
third party.
21.8 Reseller shall indemnify, defend and hold harmless Bell
Atlantic, Bell Atlantic's Affiliates, and the directors, officers and
employees of Bell Atlantic and Bell Atlantic's Affiliates, from any claims,
suits, government proceedings, judgments, fines, liabilities, losses,
damages, costs or expenses (including reasonable attorneys fees) arising
out of or in connection with: (a) the failure of Reseller to transmit to
Bell Atlantic a request by a Reseller Customer to install, provide, change
or terminate, a Bell Atlantic Retail Telecommunications Service; (b) the
transmission by Reseller to Bell Atlantic of an Order to install, provide,
change or terminate, a Bell Atlantic Retail Telecommunications Service,
which Order was not authorized by the applicable Reseller Customer; (c)
erroneous or inaccurate information in an Order transmitted by Reseller to
Bell Atlantic; (d) the transmission by Reseller to Bell Atlantic of an
Order to change or terminate a Telecommunications Service provided to an
end user by Bell Atlantic or another Telecommunications Service provider,
or to install or provide a Telecommunications Service for an end user,
which Order was not authorized by the applicable end user, (e) the
transmission by Reseller to Bell Atlantic of an Order to select, change or
reassign a telephone number for an end user, which Order was not authorized
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by the applicable end user; (f) the transmission by Reseller to Bell
Atlantic of an Order to select a Telephone Exchange Service provider for an
end user, or to change or terminate an end user's selection of a Telephone
Exchange Service provider, which Order was not authorized by the applicable
end user in the manner required by Applicable Law (or, in the absence of
such Applicable Law, in the manner required by the rules and procedures in
47 CFR Section 64.1100); (g) access to, or use or disclosure of, Customer
Information or Bell Atlantic OSS Information by Reseller or Reseller's
employees, Agents or contractors; (h) the failure of Reseller to transmit,
or to transmit in a timely manner, E911/911 information to Bell Atlantic;
(i) erroneous or inaccurate E911/911 information transmitted by Reseller to
Bell Atlantic; (j) any information provided by Reseller for inclusion in
Bell Atlantic's LIDB; or, (k) the marketing, advertising or sale of
Reseller's services and/or products (including, but not limited to, resold
Bell Atlantic Retail Telecommunications Services), or the billing or
collection of charges for Reseller's services and/or products (including,
but not limited to, resold Bell Atlantic Retail Telecommunications
Services). For the purposes of Section 21.8(b), (d) and (e), an Order shall
be deemed not to have been authorized by a Reseller Customer or end user if
Applicable Law and/or this Agreement required such authorization to be
obtained in a particular manner, and Reseller did not obtain the
authorization in the manner required by Applicable Law and this Agreement.
22. NON-EXCLUSIVE REMEDIES
Except as otherwise expressly provided in this Agreement, each of
the remedies provided under this Agreement is cumulative and is in addition
to any other remedies that may be available under this Agreement or at law
or in equity.
23. NOTICES
All notices and other communications under this Agreement shall
be deemed effective upon receipt by the Party being notified, provided such
notices or communications are in writing and are sent by certified or
registered mail, return receipt requested, or by a reputable private
delivery service which provides a record of delivery, and addressed as
shown below:
To Bell Atlantic:
Bell Atlantic - Maryland, Inc.
c/o Bell Atlantic Network Services, Inc.
1320 North Courthouse Road,
Arlington, Virginia 22201
Attn.: Director, Resale
Initiatives
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To Reseller: President
Essential.Com, Inc.
3 Burlington Woods Drive
Burlington, MA 01803
Tel: (781) 229-9599
Fax: (781) 229-9499
Either Party may from time-to-time designate another address or
addressee by giving notice in accordance with this Section 23.
24. OPTION TO OBTAIN BELL ATLANTIC SERVICE UNDER OTHER AGREEMENTS
24.1 If, at any time while this Agreement is in effect, Bell Atlantic
is a party to an agreement with a Telecommunications Carrier other than
Reseller ("Third-Person Telecommunications Carrier) to provide Bell
Atlantic Services to the Third-Person Telecommunications Carrier, which
agreement has been approved by the Commission pursuant to 47 U.S.C. Section
252, upon request by Reseller, Bell Atlantic, to the extent required by
Applicable Law (including, but not limited to 47 U.S.C. Section 252(i)),
shall make available to Reseller any Bell Atlantic Service offered by Bell
Atlantic under the agreement with the Third-Person Telecommunications
Carrier upon the same terms and conditions (including prices) provided in
the agreement with the Third-Person Telecommunications Carrier, but (except
as otherwise expressly agreed in writing by the Parties) only on a
prospective basis. Following such request by Reseller and prior to
provision of the Bell Atlantic Service by Bell Atlantic to Reseller
pursuant to the terms and conditions (including prices) of the Third-Person
Telecommunications Carrier agreement, this Agreement shall be amended to
incorporate the terms and conditions (including prices) from the
Third-Person Telecommunications Carrier agreement applicable to the Bell
Atlantic Service Reseller has elected to purchase pursuant to the terms and
conditions (including prices) of the Third-Person Telecommunications
Carrier agreement. Except as otherwise expressly agreed in writing by the
Parties, the amendment shall apply on a prospective basis only and shall
not apply with regard to any Bell Atlantic Service provided by Bell
Atlantic to Reseller prior to the effective date of the amendment.
24.2 To the extent the exercise of the foregoing option requires a
rearrangement of facilities by Bell Atlantic, Reseller shall be liable for
the non-recurring charges associated therewith, as well as for any
termination charges associated with the termination of existing facilities
or Bell Atlantic Services.
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25. REGULATORY APPROVALS
25.1 Within thirty (30) days after execution of this Agreement by the
Parties, Bell Atlantic shall file the Agreement with the Commission for
approval by the Commission.
25.2 Each Party shall exercise reasonable efforts (including
reasonably cooperating with the other Party) to secure approval of this
Agreement, and any amendment to this Agreement agreed to by the Parties,
from the Commission, the FCC, and other applicable governmental entities.
25.3 Upon request by Bell Atlantic, Reseller shall, at Reseller's
expense, provide reasonable, good-faith support and assistance to Bell
Atlantic in obtaining any governmental approvals necessary for (a) this
Agreement and any amendment to this Agreement agreed to by the Parties,
and/or (b) the provision of Bell Atlantic Services by Bell Atlantic to
Reseller. Without in any way limiting the foregoing, upon request by Bell
Atlantic, Reseller shall (a) join in petitions requesting approval of this
Agreement, or an amendment to this Agreement agreed to by the Parties, to
be filed with the Commission, the FCC, or other applicable governmental
entities, and (b) file other documents with and present testimony to the
Commission, the FCC, or other applicable governmental entities, requesting
approval of this Agreement or an amendment to this Agreement agreed to by
the Parties.
26. REGULATORY CONTINGENCIES
26.1 Neither Party shall be liable for any delay or failure in
performance by it which results from requirements of Applicable Law, or
acts or failures to act of any governmental entity or official.
26.2 In the event that any provision of this Agreement shall be
invalid or unenforceable, such invalidity or unenforceability shall not
invalidate or render unenforceable any other provision of this Agreement,
and this Agreement shall be construed as if it did not contain such invalid
or unenforceable provision.
26.3 In the event that any legislative, regulatory, judicial or other
governmental action materially affects any material terms of this
Agreement, the ability of either Party to perform any material terms of
this Agreement, or the rights or obligations of either Party under this
Agreement, the Parties shall take such action as shall be necessary to
conform this Agreement to the governmental action and/or to permit Bell
Atlantic to continue to provide and Reseller to continue to purchase Bell
Atlantic Services, including, but not limited to, conducting good faith
negotiations to enter into a mutually acceptable modified or substitute
agreement, filing tariffs, or additional, supplemental or modified tariffs,
and making other required filings with governmental entities.
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26.4 In the event of a governmental action described in Section 26.3,
above, to the extent permitted by Applicable Law, Bell Atlantic shall
continue to provide and Reseller shall continue to subscribe to, use and
pay for, any Bell Atlantic Services affected by the governmental action
until the action to be taken by Bell Atlantic and Reseller under Section
26.3, above, is taken and becomes effective in accordance with Applicable
Law. Such continued provision of and subscription to, use of and payment
for, the affected Bell Atlantic Services shall be in accordance with the
terms (including prices) of this Agreement, unless other terms, including
but not limited to the terms of a Bell Atlantic Tariff, are required by
Applicable Law.
26.5 If suspension or termination of the provision of any Bell
Atlantic Service is required by or as a result of a governmental action,
such suspension or termination shall not affect Reseller's subscription to,
use or obligation to pay for, other Bell Atlantic Services, unless such
suspension or termination has a material, adverse effect on Reseller's
ability to use the other Bell Atlantic Services.
26.6 If any of the Bell Atlantic Services to be provided by Bell
Atlantic pursuant to a tariff shall at any time become detariffed or
deregulated, Bell Atlantic may transfer the provisions of the tariff
relative to such Bell Atlantic Services to a Bell Atlantic "Guide for
Detariffed Services" or similar document, and such "Guide for Detariffed
Services" or similar document, as amended by Bell Atlantic from time-to-
time, shall become a part of this Agreement.
27. RELATIONSHIP OF THE PARTIES
27.1 The relationship between the Parties under this Agreement shall
be that of independent contractors.
27.2 Nothing contained in this Agreement shall:
(a) make either Party the Agent or employee of the other Party;
(b) grant either Party the authority to enter into a contract on
behalf of, or otherwise legally bind, the other Party in any way;
(c) create a partnership, joint venture or other similar
relationship between the parties; or
(d) grant to Reseller a franchise, distributorship or similar
interest.
27.3 Each Party shall be solely responsible for selection,
supervision, termination, and compensation, of its respective employees,
Agents and contractors.
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27.4 Each Party shall be solely responsible for payment of any Social
Security or other taxes which it is required by Applicable Law to pay in
conjunction with its employees, Agents or contractors, and for collecting
and remitting to applicable taxing authorities any taxes which it is
required by Applicable Law to collect from its employees, Agents or
contractors.
27.5 The relationship of the Parties under this Agreement is a
non-exclusive relationship. Bell Atlantic shall have the right to provide
services offered by Bell Atlantic under this Agreement to persons other
than Reseller. Reseller shall have the right to purchase services that may
be purchased by Reseller under this Agreement from persons other than Bell
Atlantic.
28. RESELLER'S PROVISION OF SERVICE
28.1 Prior to providing Bell Atlantic Retail Telecommunications
Services purchased by Reseller under this Agreement to Reseller Customers,
Reseller shall obtain from the Commission, the FCC, and any other
applicable governmental entities, any certificates or other authorizations
required by Applicable Law for Reseller to provide Telecommunications
Services. Reseller shall promptly notify Bell Atlantic in writing of any
governmental action which suspends, cancels or withdraws any such
certificate or authorization, or otherwise limits or affects Reseller's
right to provide Telecommunications Services.
28.2 To the extent required by Applicable Law, Reseller shall: (a)
file with the Commission, the FCC, and/or other applicable governmental
entities, the tariffs, arrangements and other documents that set forth the
terms, conditions and prices under which Reseller provides
Telecommunications Services; and, (b) make available for public inspection,
the tariffs, arrangements and other documents that set forth the terms,
conditions and prices under which Reseller provides Telecommunications
Services.
29. RESELLER'S RESALE AND USE OF SERVICE
29.1 Reseller shall comply with the provisions of this Agreement
(including, but not limited to, Bell Atlantic's Tariffs) regarding resale
or use of Bell Atlantic Services, including, but not limited to, any
restrictions on resale or use of Bell Atlantic Services.
29.2 Without in any way limiting Section 29.1, (a) Reseller shall not
resell residential service to persons not eligible to subscribe to such
service from Bell Atlantic (including, but not limited to, business
Reseller Customers and other nonresidential Reseller Customers), and (b)
Reseller shall not resell Lifeline or other means-tested service offerings,
or grandfathered or discontinued service offerings, to persons not eligible
to subscribe to such service offerings from Bell Atlantic.
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29.3 Reseller shall undertake in good faith to ensure that Reseller
Customers comply with the provisions of Bell Atlantic's Tariffs applicable
to their use of Bell Atlantic Retail Telecommunications Services.
29.4 Reseller shall comply with Applicable Law, and Bell Atlantic's
procedures, for handling requests from law enforcement and other government
agencies for service termination, assistance with electronic surveillance,
and provision of information.
30. RESPONSIBILITY FOR CHARGES
30.1 Reseller shall be responsible for and pay all charges for any
Bell Atlantic Service provided by Bell Atlantic to Reseller, whether the
Bell Atlantic Service is ordered, activated or used by Reseller, a Reseller
Customer, or another person.
30.2 In addition to the charges for Bell Atlantic Services, Reseller
agrees to pay any charges for Telecommunications Services, facilities,
equipment, software, wiring, or other services or products, provided by
Bell Atlantic, or provided by persons other than Bell Atlantic and billed
for by Bell Atlantic, that are ordered, activated or used by Reseller,
Reseller Customers or other persons, through, by means of, or in
association with, Bell Atlantic Services provided by Bell Atlantic to
Reseller.
30.3 Reseller agrees to indemnify, defend and hold Bell Atlantic
harmless from, any charges for Telecommunications Services, facilities,
equipment, software, wiring, or other services or products, provided by
persons other than Bell Atlantic that are ordered, activated or used by
Reseller, Reseller Customers or other persons, through, by means of, or in
association with, Bell Atlantic Services provided by Bell Atlantic to
Reseller.
30.4 Without in any way limiting Reseller's obligations under Section
30.1, Section 30.2 and Section 30.3, Reseller shall pay, or collect and
remit to Bell Atlantic, without discount, all Subscriber Line Charges,
Federal Line Cost Charges, end user common line charges, carrier selection
and change charges (PIC change charge), and the Presubscribed Interexchange
Carrier Charge applicable to Reseller Customers who have not presubscribed
to an interexchange carrier for long distance services, associated with
Bell Atlantic Services provided by Bell Atlantic to Reseller.
30.5 Upon request by Reseller, Bell Atlantic will provide for use on
resold Bell Atlantic Retail Telecommunications Service dial tone lines
purchased by Reseller such Bell Atlantic Retail Telecommunications Service
call blocking services as Bell Atlantic provides to Bell Atlantic's own end
user retail Customers, where and to the extent Bell Atlantic provides such
Bell Atlantic Retail Telecommunications Service call blocking services to
Bell Atlantic's own end user retail Customers.
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31. SECTION HEADINGS
The section headings in the Principal Document are for
convenience only and are not intended to affect the meaning or
interpretation of the Principal Document.
32. SERVICES NOT COVERED BY THIS AGREEMENT
32.1 This Agreement applies only to Bell Atlantic Services (as the
term "Bell Atlantic Service" is defined in Section 1.1.6) provided, or to
be provided, by Bell Atlantic to Reseller, as specified in Section 3. Any
Telecommunications Services, facilities, equipment, software, wiring, or
other services or products (including, but not limited to,
Telecommunications Services, facilities, equipment, software, wiring, or
other services or products, interconnected or used with Bell Atlantic
Services provided, or to be provided, by Bell Atlantic to Reseller)
provided, or to be provided, by Bell Atlantic to Reseller, which are not
subscribed to by Reseller under this Agreement, must be subscribed to by
Reseller separately, pursuant to other written agreements (including, but
not limited to, applicable Bell Atlantic Tariffs). Reseller shall use and
pay for any Telecommunications Services, facilities, equipment, software,
wiring, or other services or products, provided, or to be provided, by Bell
Atlantic to Reseller, which are not subscribed to by Reseller under this
Agreement, in accordance with such other written agreements (including, but
not limited to, applicable Bell Atlantic Tariffs).
32.2 Without in any way limiting Section 32.1 and without attempting
to list all Bell Atlantic products and services that are not subject to
this Agreement, the Parties agree that this Agreement does not apply to the
purchase by Reseller of the following Bell Atlantic services and products:
except as expressly stated in the Principal Document, exchange access
services as defined in Section 3(16) of the Act, 47 U.S.C. Section 153(16)
(including, but not limited to, primary interLATA toll carrier and primary
intraLATA toll carrier choice or change); Bell Atlantic Answer Call, Bell
Atlantic Answer Call Plus, Bell Atlantic Home Voice Mail, Bell Atlantic
Home Voice Mail Plus, Bell Atlantic Voice Mail, Bell Atlantic Basic
Mailbox, Bell Atlantic OptiMail Service, and other voice mail, fax mail,
voice messaging, and fax messaging, services; Bell Atlantic Optional Wire
Maintenance Plan; Bell Atlantic Guardian Enhanced Maintenance Service; Bell
Atlantic Sentry I Enhanced Maintenance Service; Bell Atlantic Sentry II
Enhanced Maintenance Service; Bell Atlantic Sentry III Enhanced Maintenance
Service; Bell Atlantic Call 54 Service; Bell Atlantic Public Telephone
Service; customer premises equipment; Bell Atlantic telephone directory
listings offered under agreements or arrangements other than Bell Atlantic
Tariffs filed with the Commission; and, Bell Atlantic telephone directory
advertisements.
32.3 Without in any way limiting Section 32.1, the Parties also agree
that this Agreement does not apply to the installation, inspection,
maintenance, repair, removal, or use of any facilities, equipment,
software, or wiring, located on Reseller's side of the Network Rate
Demarcation Point applicable to Reseller and does not grant to Reseller or
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Reseller Customers a right to installation, inspection, maintenance,
repair, or removal, by Bell Atlantic, or use, by Reseller or Reseller
Customers, of any such facilities, equipment, software, or wiring.
32.4 Without in any way limiting Section 32.1, the Parties agree that
this Agreement does not apply to the purchase by Reseller of Audiotex
Services (including, but not limited to, Dial-It, 976, 915 and 556
services) for resale to Audiotex Service providers or other information
service providers. Bell Atlantic shall have the right (but not the
obligation) to block calls made to Audiotex Service numbers (including, but
not limited to, Dial-It numbers and 976, 915 and 556 numbers) through Bell
Atlantic Services purchased by Reseller under this Agreement.
Notwithstanding the foregoing, Reseller shall pay, without discount, any
charges for Audiotex Services (including, but not limited to, Dial-It, 976,
915 and 556 services) that are ordered, activated or used by Reseller,
Reseller Customers or other persons, through, by means of, or in
association with, Bell Atlantic Services provided by Bell Atlantic to
Reseller.
32.5 Nothing contained within this Agreement shall obligate Bell
Atlantic to provide any service or product which is not a Bell Atlantic
Service (including, but not limited to, the services listed in Sections
32.2, 32.3 and 32.4, above) to Reseller.
32.6 Nothing contained within this Agreement shall obligate Bell
Atlantic to provide a Bell Atlantic Service or any other service or product
to a Reseller Customer. Without in any way limiting the foregoing, except
as otherwise required by Applicable Law, Bell Atlantic reserves the right
to terminate provision of services and products (including, but not limited
to, Telecommunications Services and the services listed in Sections 32.2
and 32.3, above) to any person who ceases to purchase Bell Atlantic Retail
Telecommunications Service dial tone line service from Bell Atlantic.
32.7 Nothing contained in this Section 32 shall in any way exclude or
limit Reseller's obligations and liabilities under Section 30, including,
but not limited to Reseller's obligations and liabilities to pay charges
for services and products as required by Section 30.
33. SERVICE QUALITY
Bell Atlantic Services provided by Bell Atlantic to Reseller
under this Agreement shall comply with the quality requirements for such
Bell Atlantic Services specified by Applicable Law (including, but not
limited to, any applicable provisions of 47 CFR Sections 51.311 and
51.603(b)).
34. SINGLE POINT OF CONTACT
34.1 Reseller shall be the single point of contact for Reseller
Customers and other persons with regard to Telecommunications Services and
other services and
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products which they wish to purchase from Reseller or which they have
purchased from Reseller. Communications by Reseller Customers and other
persons with regard to Telecommunications Services and other services and
products which they wish to purchase from Reseller or which they have
purchased from Reseller, shall be made to Reseller, and not to Bell
Atlantic. Reseller shall instruct Reseller Customers and other persons that
such communications shall be directed to Reseller.
34.2 Without in any way limiting Section 34.1, requests by Reseller
Customers for information about or provision of Telecommunications Services
which they wish to purchase from Reseller, requests by Reseller Customers
to change, terminate, or obtain information about, assistance in using, or
repair or maintenance of, Telecommunications Services which they have
purchased from Reseller, and inquiries by Reseller Customers concerning
Reseller's bills, charges for Reseller's Telecommunications Services, and,
if the Reseller Customers receive dial tone line service from Reseller,
annoyance calls, shall be made by the Reseller Customers to Reseller, and
not to Bell Atlantic.
34.3 Reseller shall establish telephone numbers and mailing addresses
at which Reseller Customers and other persons may communicate with Reseller
and shall advise Reseller Customers and other persons who may wish to
communicate with Reseller of these telephone numbers and mailing addresses.
35. SURVIVAL
The liabilities and obligations of a Party for acts or omissions
of the Party prior to the termination, cancellation or expiration of this
Agreement, the rights, liabilities and obligations of a Party under any
provision of this Agreement regarding indemnification or defense, Customer
Information, confidential information, or limitation or exclusion of
liability, the rights of Bell Atlantic and the liabilities and obligations
of Reseller under Section 18.1, and the rights, liabilities and obligations
of a Party under any provision of this Agreement which by its terms is
contemplated to survive (or be performed after) termination, cancellation
or expiration of this Agreement, shall survive termination, cancellation or
expiration of this Agreement.
36. TAXES
36.1 With respect to any purchase of Bell Atlantic Services under this
Agreement, if any Federal, state or local government tax, fee, duty,
surcharge (including, but not limited to any E911/911, telecommunications
relay service, or universal service fund, surcharge), or other tax-like
charge (a "Tax") is required or permitted by Applicable Law to be
collected from Reseller by Bell Atlantic, then (a) to the extent required
by Applicable Law, Bell Atlantic shall bill Reseller for such Tax, (b)
Reseller shall timely remit such Tax to Bell Atlantic (including both Taxes
billed by Bell Atlantic and Taxes Reseller is required by Applicable Law to
remit without billing by Bell
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Atlantic), and (c) Bell Atlantic shall remit such collected Tax to the
applicable taxing authority.
36.2 With respect to any purchase of Bell Atlantic Services under this
Agreement, if any Tax is imposed by Applicable Law on the receipts of Bell
Atlantic, which Applicable Law permits Bell Atlantic to exclude certain
receipts received from sales of Bell Atlantic Services for resale by
Reseller, such exclusion being based on the fact that Reseller is also
subject to a Tax based upon receipts ("Receipts Tax"), then Reseller (a)
shall provide Bell Atlantic with notice in writing in accordance with
Section 36.7 of its intent to pay the Receipts Tax, and (b) shall timely
pay the Receipts Tax to the applicable taxing authority.
36.3 With respect to any purchase of Bell Atlantic Services under this
Agreement, that are resold by Reseller to a Reseller Customer, if any Tax
is imposed by Applicable Law on the Reseller Customer in connection with
the Reseller Customer's purchase of the resold Bell Atlantic Services which
Reseller is required to impose and/or collect from the Reseller Customer,
then Reseller (a) shall impose and/or collect such Tax from the Reseller
Customer, and (b) shall timely remit such Tax to the applicable taxing
authority.
36.4.1 If Bell Atlantic has not received an exemption certificate from
Reseller and fails to bill Reseller for any Tax as required by Section
36.1, then, as between Bell Atlantic and Reseller, (a) Reseller shall
remain liable for such unbilled Tax, and (b) Bell Atlantic shall be liable
for any interest and/or penalty assessed on the unbilled Tax by the
applicable taxing authority.
36.4.2 If Reseller fails to remit any Tax to Bell Atlantic as required
by Section 36.1, then, as between Bell Atlantic and Reseller, Reseller
shall be liable for such uncollected Tax and any interest and/or penalty
assessed on the uncollected Tax by the applicable taxing authority.
36.4.3 If Bell Atlantic does not collect a Tax because Reseller has
provided Bell Atlantic with an exemption certificate which is later found
to be inadequate by the applicable taxing authority, then, as between Bell
Atlantic and Reseller, Reseller shall be liable for such uncollected Tax
and any interest and/or penalty assessed on the uncollected Tax by the
applicable taxing authority.
36.4.4 Except as provided in Section 36.4.5, if Reseller fails to pay
the Receipts Tax as required by Section 36.2, then, as between Bell
Atlantic and Reseller, (a) Bell Atlantic shall be liable for any Tax
imposed on Bell Atlantic's receipts, (b) Reseller shall be liable for any
interest and/or penalty imposed on Bell Atlantic with respect to the Tax on
Bell Atlantic's receipts, and (c) Reseller shall be liable for any Tax
imposed on Reseller's receipts and any interest and/or penalty assessed by
the applicable taxing authority on Reseller with respect to the Tax on
Reseller's receipts.
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36.4.5 If any discount or portion of a discount in price provided to
Reseller under this Agreement (including, but not limited to, a discount
provided for in Exhibit II, Section 1.1) represents Tax savings to Bell
Atlantic which it was anticipated Bell Atlantic would receive, because it
was anticipated that receipts from sales of Bell Atlantic Services, that
would otherwise be subject to a Tax on such receipts, could be excluded
from such Tax under Applicable Law because the Bell Atlantic Services would
be sold to Reseller for resale, and Bell Atlantic is, in fact, required by
Applicable Law to pay such Tax on receipts from sales of Bell Atlantic
Services to Reseller, then, as between Bell Atlantic and Reseller, (a)
Reseller shall be liable for, and shall indemnify and hold harmless, Bell
Atlantic against (on an after-tax basis), any such Tax, and (b) Reseller
shall be liable for, and shall indemnify and hold harmless Bell Atlantic
against (on an after-tax basis), any interest and/or penalty assessed by
the applicable taxing authority on either Reseller or Bell Atlantic with
respect to the Tax on Bell Atlantic's receipts.
36.4.6 If Reseller fails to impose and/or collect any Tax from Reseller
Customers as required by Section 36.3, then, as between Bell Atlantic and
Reseller, Reseller shall remain liable for such uncollected Tax and any
interest and/or penalty assessed on such uncollected Tax by the applicable
taxing authority.
36.4.7 With respect to any Tax that Reseller has agreed to pay, is
responsible for because Reseller received a discount in price on Bell
Atlantic Services attributable to anticipated Tax savings by Bell Atlantic,
or is required to impose on and/or collect from Reseller Customers,
Reseller agrees to indemnify and hold Bell Atlantic harmless on an
after-tax basis for any costs incurred by Bell Atlantic as a result of
actions taken by the applicable taxing authority to recover the Tax from
Bell Atlantic due to failure of Reseller to timely remit the Tax to Bell
Atlantic, or timely pay, or collect and timely remit, the Tax to the taxing
authority.
36.5 If either Party is audited by a taxing authority, the other Party
agrees to reasonably cooperate with the Party being audited in order to
respond to any audit inquiries in a proper and timely manner so that the
audit and/or any resulting controversy may be resolved expeditiously.
36.6.1 If Applicable Law clearly exempts a purchase of Bell Atlantic
Services under this Agreement from a Tax, and if such Applicable Law also
provides an exemption procedure, such as an exemption certificate
requirement, then, if Reseller complies with such procedure, Bell Atlantic
shall not collect such Tax during the effective period of the exemption.
Such exemption shall be effective upon receipt of the exemption certificate
or affidavit in accordance with Section 36.7.
36.6.2 If Applicable Law clearly exempts a purchase of Bell Atlantic
Services under this Agreement from a Tax, but does not also provide an
exemption procedure,
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then Bell Atlantic shall not collect such Tax if Reseller (a) furnishes
Bell Atlantic with a letter signed by an officer of Reseller requesting an
exemption and citing the provision in the Applicable Law which clearly
allows such exemption, and (b) supplies Bell Atlantic with an
indemnification agreement, reasonably acceptable to Bell Atlantic, which
holds Bell Atlantic harmless on an after-tax basis with respect to
forbearing to collect such Tax.
36.7 All notices, affidavits, exemption certificates or other
communications required or permitted to be given by either Party to the
other under this Section 36, shall be made in writing and shall be sent by
certified or registered mail, return receipt requested, or by a reputable
private delivery service which provides a record of delivery, to the
addressee stated in Section 23 at the address stated in Section 23 and to
the following:
To Bell Atlantic:
Tax Administration
Bell Atlantic Corporation
1095 Avenue of the Americas
Room 3109
New York, New York 10036
To Reseller: Controller
Essential.Com, Inc.
3 Burlington Woods Drive
Burlington, MA 01803
Tel: (781) 229-9599
Fax: (781) 229-9499
Either Party may from time-to-time designate another address or
addressee by giving notice in accordance with the terms of this Section
36.7.
Any notice or other communication shall be deemed to be given
when received.
37. TELEPHONE EXCHANGE SERVICE PROVIDER SELECTION
37.1 Without in any way limiting Reseller's obligations under Section
12, Reseller shall comply with Applicable Law with regard to end user
selection of a Telephone Exchange Service provider. Until the Commission or
the FCC adopts regulations and/or orders applicable to end user selection
of a Telephone Exchange Service provider, Reseller shall apply the rules
and procedures set forth in Section 64.1100 of the FCC Rules, 47 CFR
Section 64.1100, to the process for end user selection of a
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Telephone Exchange Service provider (including, to end user selection of a
Telephone Exchange Service provider that occurs during any telemarketing
contact with an end user), and shall comply with such rules and
procedures.
37.2 By submitting to Bell Atlantic an Order to install, provide,
change or terminate a Telecommunications Service, to select, change or
reassign a telephone number, or to select, change or terminate an end
user's Telephone Exchange Service provider, Reseller represents and
warrants: (a) that Reseller has obtained authorization for such action from
the applicable end user; and, (b) that if Applicable Law and/or this
Agreement required such authorization to be obtained in a particular
manner, Reseller obtained the authorization in the manner required by
Applicable Law and this Agreement. Reseller shall upon request by Bell
Atlantic provide proof of such authorization (including, a copy of any
written authorization).
37.3 If Reseller submits an Order to Bell Atlantic to install,
provide, change or terminate a Telecommunications Service, to select,
change or reassign a telephone number, or to select, change or terminate an
end user's Telephone Exchange Service provider, and (a) when requested by
Bell Atlantic to provide a written document signed by the end user stating
the end user's Telephone Exchange Service provider selection, fails to
provide such document to Bell Atlantic, or (b) has not obtained
authorization for such installation, provision, selection, change,
reassignment or termination, from the end user in the manner required by
Applicable Law (or, in the absence of Applicable Law, in the manner
required by the rules and procedures in 47 CFR Section 64.1100), Reseller
shall be liable to Bell Atlantic for all charges that would be applicable
to the end user for the initial installation, provision, selection, change,
reassignment or termination, of the end user's Telecommunications Service,
telephone number, and/or Telephone Exchange Service provider, and any
charges for restoring the end user's Telecommunications Service, telephone
number, and/or Telephone Exchange Service provider selection, to its end
user authorized condition.
38. TELEPHONE NUMBERS
38.1 Reseller's use of telephone numbers shall be subject to
Applicable Law (including, but not limited to, the rules of the FCC, the
North American Numbering Council, and the North American Numbering Plan
Administrator), the applicable provisions of this Agreement (including, but
not limited to, this Section 38), and Bell Atlantic's practices and
procedures for use and assignment of telephone numbers, as amended from
time-to-time.
38.2 Subject to Sections 38.1 and 38.3, if an end user who subscribes
to a Bell Atlantic Retail Telecommunications Service dial tone line from
either Reseller or Bell Atlantic changes the Telecommunications Carrier
from whom the end user subscribes for such dial tone line (including a
change from Bell Atlantic to Reseller, from Reseller to Bell Atlantic, or
from Reseller to a Telecommunications Carrier other than Bell Atlantic),
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after such change, the end user may continue to use with the dial tone line
the telephone numbers which were assigned to the dial tone line by Bell
Atlantic immediately prior to the change.
38.3 Bell Atlantic shall have the right to change the telephone
numbers used by an end user if at any time: (a) the type or class of
service subscribed to by the end user changes; (b) the end user requests
service at a new location, that is not served by the Bell Atlantic switch
and the Bell Atlantic rate center from which the end user previously had
service; or, (c) continued use of the telephone numbers is not technically
feasible.
38.4 If service on a Bell Atlantic Retail Telecommunications Service
dial tone line subscribed to by Reseller from Bell Atlantic under this
Agreement is terminated, the telephone numbers associated with such dial
tone line shall be available for reassignment by Bell Atlantic to any
person to whom Bell Atlantic elects to assign the telephone numbers,
including, but not limited to, Bell Atlantic, Bell Atlantic end user retail
Customers, Reseller, or Telecommunications Carriers other than Bell
Atlantic and Reseller.
39. WARRANTIES
EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, BELL ATLANTIC
MAKES NO WARRANTIES WITH RESPECT TO BELL ATLANTIC SERVICES, WHETHER EXPRESS
OR IMPLIED, WRITTEN OR ORAL, IN FACT OR IN LAW. THE WARRANTIES SET FORTH IN
THIS AGREEMENT ARE BELL ATLANTIC'S EXCLUSIVE WARRANTIES WITH RESPECT TO
BELL ATLANTIC SERVICES AND ARE IN LIEU OF ALL OTHER WARRANTIES, EXPRESS OR
IMPLIED, WRITTEN OR ORAL, IN FACT OR IN LAW. BELL ATLANTIC DISCLAIMS ANY
AND ALL OTHER WARRANTIES, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF
MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, WARRANTIES AGAINST
INFRINGEMENT, AND WARRANTIES ARISING BY TRADE CUSTOM, TRADE USAGE, COURSE
OF DEALING, OR OTHERWISE.
40. PUBLICITY AND USE OF TRADEMARKS OR SERVICE MARKS
40.1.1 Neither Party nor its subcontractors or agents will use the other
Party's trademarks, service marks, logos or other proprietary trade dress
in connection with the sale of products and services, or in any
advertising, press releases, publicity matters or other promotional
materials without such Party's prior written consent.
40.1.2 Neither Party may imply any direct or indirect affiliation with
or sponsorship or endorsement of its company, products and services by the
other Party.
41. AUTHORIZATION
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41.1.1 Bell Atlantic is a corporation duly organized, validly existing
and in good standing under the laws of the State of Maryland and has full
power and authority to execute and deliver this Agreement and to perform
the obligations hereunder on behalf of Bell Atlantic.
41.2 Essential.Com, Inc., a corporation, is duly organized, validly
existing and in good standing under the laws of Delaware, and has full
power and authority to execute and deliver this Agreement and to perform
its obligations hereunder.
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IN WITNESS WHEREOF, intending to be legally bound, Reseller and Bell
Atlantic have caused this Agreement to be executed by their respective
authorized representatives.
ESSENTIAL.COM, INC.
BY: /s/ Akhil Garland
--------------------------------------
Signature
Akhil Garland
--------------------------------------
Name (Printed)
ITS: CEO
--------------------------------------
Title
BY: /s/ Patrick Moran
--------------------------------------
Signature
Patrick Moran
--------------------------------------
Name (Printed)
ITS: Vice President-Operations
--------------------------------------
Title
BY: /s/ John Duffy
--------------------------------------
Signature
John Duffy
--------------------------------------
Name (Printed)
ITS: Vice President -Business Development
--------------------------------------
Title
BELL ATLANTIC - MARYLAND, INC.
BY: /s/ Jeffrey A. Masoner
--------------------------------------
Signature
Jeffrey A. Masoner
--------------------------------------
Name (Printed)
TITLE: Vice President - Telecom Industry Services
--------------------------------------
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EXHIBIT I
BELL ATLANTIC ANCILLARY SERVICES
1. BELL ATLANTIC OSS SERVICES
1.1 DEFINITIONS
As used in the Principal Document, the terms listed below shall
have the meanings stated below:
1.1.1 "Bell Atlantic Operations Support Systems" means Bell Atlantic
systems for pre-ordering, ordering, provisioning, maintenance and repair,
and billing.
1.1.2 "Bell Atlantic OSS Services" means access to Bell Atlantic
Operations Support Systems functions. The term "Bell Atlantic OSS
Services" includes, but is not limited to: (a) Bell Atlantic's provision
of Reseller Usage Information to Reseller pursuant to Exhibit I, Section
1.3, below; and, (b) "Bell Atlantic OSS Information", as defined in
Exhibit I, Section 1.1.4, below.
1.1.3 "Bell Atlantic OSS Facilities" means any gateways, interfaces,
databases, facilities, equipment, software, or systems, used by Bell
Atlantic to provide Bell Atlantic OSS Services to Reseller.
1.1.4 "Bell Atlantic OSS Information" means any information accessed by,
or disclosed or provided to, Reseller through or as a part of Bell
Atlantic OSS Services. The term "Bell Atlantic OSS Information" includes,
but is not limited to: (a) any Customer Information related to a Bell
Atlantic Customer or a Reseller Customer accessed by, or disclosed or
provided to, Reseller through or as a part of Bell Atlantic OSS Services;
and, (b) any Reseller Usage Information (as defined in Exhibit I, Section
1.1.5, below) accessed by, or disclosed or provided to, Reseller.
1.1.5 "Reseller Usage Information" means the usage information for a
Bell Atlantic Retail Telecommunications Service purchased by Reseller
under this Agreement that Bell Atlantic would record if Bell Atlantic
was furnishing such Bell Atlantic Retail Telecommunications Service to
a Bell Atlantic end-user retail Customer.
1.2 BELL ATLANTIC OSS SERVICES
1.2.1 Upon request by Reseller, Bell Atlantic shall provide to
Reseller, pursuant to Section 251(c)(3) of the Act, 47 U.S.C. Section
251(c)(3), Bell Atlantic OSS Services.
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1.2.2 Subject to the requirements of Applicable Law, Bell Atlantic
Operations Support Systems, Bell Atlantic Operations Support Systems
functions, Bell Atlantic OSS Facilities, Bell Atlantic OSS Information,
and the Bell Atlantic OSS Services that will be offered by Bell Atlantic,
shall be as determined by Bell Atlantic. To the extent required by
Applicable Law and technically feasible, Bell Atlantic will offer to
Reseller the Bell Atlantic OSS Services that Bell Atlantic offers, under
agreements approved by the Commission pursuant to 47 U.S.C. Section 252,
to other Telecommunications Carriers that are engaged in the resale of
Bell Atlantic Retail Telecommunications Services pursuant to 47 U.S.C.
Section 251(c)(4). Subject to the requirements of Applicable Law, Bell
Atlantic shall have the right to change Bell Atlantic Operations Support
Systems, Bell Atlantic Operations Support Systems functions, Bell
Atlantic OSS Facilities, Bell Atlantic OSS Information, and the Bell
Atlantic OSS Services, from time-to-time, without the consent of
Reseller.
1.3 Reseller Usage Information
1.3.1 Upon request by Reseller, Bell Atlantic shall provide to Reseller,
pursuant to Section 251(c)(3) of the Act, 47 U.S.C. Section 251(c)(3),
Reseller Usage Information.
1.3.2 Reseller Usage Information will be available to Reseller through
the following:
(a) Daily Usage File on Data Tape.
(b) Daily Usage File through Network Data Mover ("NDM").
(c) Daily Usage File through Centralized Message Distribution System
("CMDS").
1.3.3.1 Reseller Usage Information will be provided in a Bellcore Exchange
Message Records ("EMR") format.
1.3.3.2 Daily Usage File Data Tapes provided pursuant to Exhibit 1,
Section 1.3.2(a) will be issued each day, Monday through Friday, except
holidays observed by Bell Atlantic.
1.3.4 Except as stated in this Exhibit I, Section 1.3, subject to the
requirements of Applicable Law, the manner in which, and the frequency
with which, Reseller Usage Information will be provided to Reseller shall
be determined by Bell Atlantic.
1.4 PRICES
The prices for Bell Atlantic OSS Services shall be as stated in
Exhibit II, Section 2 following.
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1.5 ACCESS TO AND USE OF BELL ATLANTIC OSS FACILITIES
1.5.1 Bell Atlantic OSS Facilities may be accessed and used by Reseller
only to the extent necessary for Reseller's access to and use of Bell
Atlantic OSS Services pursuant to this Agreement.
1.5.2 Bell Atlantic OSS Facilities may be accessed and used by Reseller
only to provide Telecommunications Services to Reseller Customers.
1.5.3 Reseller shall restrict access to and use of Bell Atlantic OSS
Facilities to Reseller. This Agreement does not grant to Reseller any
right or license to grant sublicenses to other persons, or permission to
other persons (except Reseller's employees, Agents and contractors, in
accordance with Exhibit I, Section 1.5.7, below), to access or use Bell
Atlantic OSS Facilities.
1.5.4 Reseller shall not (a) alter, modify or damage the Bell Atlantic
OSS Facilities (including, but not limited to, Bell Atlantic software),
(b) copy, remove, derive, reverse engineer, or decompile, software from
the Bell Atlantic OSS Facilities, or (c) obtain access through Bell
Atlantic OSS Facilities to Bell Atlantic databases, facilities,
equipment, software, or systems, which are not offered for Reseller's use
under this Agreement.
1.5.5 Reseller shall comply with all practices and procedures
established by Bell Atlantic for access to and use of Bell Atlantic OSS
Facilities (including, but not limited to, Bell Atlantic practices and
procedures with regard to security and use of access and user
identification codes).
1.5.6 All practices and procedures for access to and use of Bell
Atlantic OSS Facilities, and all access and user identification codes for
Bell Atlantic OSS Facilities: (a) shall remain the property of Bell
Atlantic; (b) shall be used by Reseller only in connection with
Reseller's use of Bell Atlantic OSS Facilities permitted by this
Agreement; (c) shall be treated by Reseller as Confidential Information
of Bell Atlantic pursuant to Section 13; and, (d) shall be destroyed or
returned by Reseller to Bell Atlantic upon the earlier of request by Bell
Atlantic or the expiration or termination of this Agreement.
1.5.7 Reseller's employees, Agents and contractors may access and use
Bell Atlantic OSS Facilities only to the extent necessary for Reseller's
access to and use of the Bell Atlantic OSS Facilities permitted by this
Agreement. Any access to or use of Bell Atlantic OSS Facilities by
Reseller's employees, Agents, or contractors, shall be subject to the
provisions of this Agreement, including, but not limited to, Section 13,
Exhibit I, Section 1.5.6, and Exhibit I, Section 1.6.3.3.
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1.6 BELL ATLANTIC OSS INFORMATION
1.6.1 Subject to the provisions of this Agreement and Applicable Law,
Bell Atlantic grants to Reseller a non-exclusive license to use Bell
Atlantic OSS Information.
1.6.2 All Bell Atlantic OSS Information shall at all times remain the
property of Bell Atlantic. Except as expressly stated in this Agreement,
Reseller shall acquire no rights in or to any Bell Atlantic OSS
Information.
1.6.3.1 The provisions of this Exhibit I, Section 1.6.3 apply to all Bell
Atlantic OSS Information, except (a) Reseller Usage Information, (b) CPNI
of Reseller, and (c) CPNI of a Bell Atlantic Customer or a Reseller
Customer, to the extent the Customer has authorized Reseller to use the
Customer Information.
1.6.3.2 Bell Atlantic OSS Information may be accessed and used by Reseller
only to provide Telecommunications Services to Reseller Customers.
1.6.3.3 Reseller shall treat Bell Atlantic OSS Information that is
designated by Bell Atlantic, through written or electronic notice
(including, but not limited to, through the Bell Atlantic OSS Services),
as "Confidential" or "Proprietary" as Confidential Information of Bell
Atlantic pursuant to Section 13.
1.6.3.4 Except as expressly stated in this Agreement, this Agreement does
not grant to Reseller any right or license to grant sublicenses to other
persons, or permission to other persons (except Reseller's employees,
Agents or contractors, in accordance with Exhibit I, Section 1.6.3.5), to
access, use or disclose Bell Atlantic OSS Information.
1.6.3.5 Reseller's employees, Agents and contractors may access, use and
disclose Bell Atlantic OSS Information only to the extent necessary for
Reseller's access to, and use and disclosure of, Bell Atlantic OSS
Information permitted by this Agreement. Any access to, or use or
disclosure of, Bell Atlantic OSS Information by Reseller's employees,
Agents or contractors, shall be subject to the provisions of this
Agreement, including, but not limited to, Section 13 and Exhibit I,
Section 1.6.3.3.
1.6.3.6 Reseller's license to use Bell Atlantic OSS Information shall
expire upon the earliest of: (a) the time when the Bell Atlantic OSS
Information is no longer needed by Reseller to provide Telecommunications
Services to Reseller Customers; (b) termination of the license in
accordance with this Agreement; or (c) expiration or termination of this
Agreement.
1.6.3.7 All Bell Atlantic OSS Information received by Reseller shall be
destroyed or returned by Reseller to Bell Atlantic, upon expiration,
suspension or termination of the license to use such Bell Atlantic OSS
Information.
37
<PAGE>
1.6.4 Unless sooner terminated or suspended in accordance with this
Agreement (including, but not limited to, Section 17.1 and Exhibit I,
Section 1.7.1), Reseller's access to Bell Atlantic OSS Information
through Bell Atlantic OSS Services shall terminate upon the expiration or
termination of this Agreement.
1.6.5.1 Without in any way limiting Section 16.3, Bell Atlantic shall have
the right (but not the obligation) to audit Reseller to ascertain whether
Reseller is complying with the requirements of Applicable Law and this
Agreement, with regard to Reseller's access to, and use and disclosure
of, Bell Atlantic OSS Information.
1.6.5.2 Without in any way limiting Section 16.3, Section 16.4, or Exhibit
I, Section 1.6.5.1, Bell Atlantic shall have the right (but not the
obligation) to monitor Reseller's access to and use of Bell Atlantic OSS
Information which is made available by Bell Atlantic to Reseller pursuant
to this Agreement, to ascertain whether Reseller is complying with the
requirements of Applicable Law and this Agreement, with regard to
Reseller's access to, and use and disclosure of, such Bell Atlantic OSS
Information. The foregoing right shall include, but not be limited to,
the right (but not the obligation) to electronically monitor Reseller's
access to and use of Bell Atlantic OSS Information which is made
available by Bell Atlantic to Reseller through Bell Atlantic OSS
Facilities.
1.6.5.3 Information obtained by Bell Atlantic pursuant to this Exhibit I,
Section 1.6.5 shall be treated by Bell Atlantic as Confidential
Information of Reseller pursuant to Section 13; provided that, Bell
Atlantic shall have the right (but not the obligation) to use and
disclose information obtained by Bell Atlantic pursuant to this Exhibit
I, Section 1.6.5 to enforce Applicable Law and/or Bell Atlantic's rights
under this Agreement.
1.6.6 Reseller acknowledges that the Bell Atlantic OSS Information, by
its nature, is updated and corrected on a continuous basis by Bell
Atlantic, and therefore that Bell Atlantic OSS Information is subject to
change from time to time.
1.7 LIABILITIES AND REMEDIES
1.7.1 Any breach by Reseller, or Reseller's employees, Agents or
contractors, of the provisions of Exhibit I, Section 1.5 or Exhibit I,
Section 1.6, shall be deemed a material breach of a material provision of
this Agreement by Reseller under Section 17.1 of this Agreement. In
addition, if Reseller or an employee, Agent or contractor of Reseller at
any time breaches a provision of Exhibit I, Section 1.5 or Exhibit I,
Section 1.6, and such breach continues for more than ten (10) days after
written notice thereof from Bell Atlantic, then, except as otherwise
required by Applicable Law, Bell Atlantic shall have the right, upon
notice to Reseller, to suspend the license to use Bell Atlantic OSS
Information granted by Exhibit I, Section 1.6.1 and/or the provision of
Bell Atlantic OSS Services, in whole or in part.
38
<PAGE>
1.7.2 Reseller agrees that Bell Atlantic would be irreparably injured by
a breach of Exhibit I, Section 1.5 or Exhibit I, Section 1.6 by Reseller
or the employees, Agents or contractors of Reseller, and that Bell
Atlantic shall be entitled to seek equitable relief, including injunctive
relief and specific performance, in the event of any breach of Exhibit I,
Section 1.5 or Exhibit I, Section 1.6 by Reseller or the employees,
Agents or contractors of Reseller. Such remedies shall not be deemed to
be the exclusive remedies for a breach of Exhibit I, Section 1.5 or
Exhibit I, Section 1.6, but shall be in addition to any other remedies
available under this Agreement or at law or in equity.
1.8 RELATION TO APPLICABLE LAW
The provisions of Exhibit I, Sections 1.5, 1.6 and 1.7 shall be in
addition to and not in derogation of any provisions of Applicable Law,
including, but not limited to, 47 U.S.C. Section 222 and the FCC rules in
47 CFR Section 64.2001 - Section 64.2009, and are not intended to
constitute a waiver by Bell Atlantic of any right with regard to
protection of the confidentiality of the information of Bell Atlantic or
Bell Atlantic Customers provided by Applicable Law.
1.9 COOPERATION
Reseller, at Reseller's expense, shall reasonably cooperate with
Bell Atlantic in using Bell Atlantic OSS Services. Such cooperation shall
include, but not be limited to, the following:
1.9.1 Upon request by Bell Atlantic, Reseller shall by no later than the
fifteenth (15th) day of each calendar month submit to Bell Atlantic
reasonable, good faith estimates (by central office or other Bell
Atlantic office or geographic area designated by Bell Atlantic) of the
volume of each Bell Atlantic Retail Telecommunications Service for which
Reseller anticipates submitting Orders in each week of the next
calendar month.
1.9.2 Upon request by Bell Atlantic, Reseller shall submit to Bell
Atlantic reasonable, good faith estimates of other types of transactions
or use of Bell Atlantic OSS Services that Reseller anticipates.
1.9.3 Reseller shall reasonably cooperate with Bell Atlantic in
submitting Orders for Bell Atlantic Retail Telecommunications Services
and otherwise using the Bell Atlantic OSS Services, in order to avoid
exceeding the capacity or capabilities of such Bell Atlantic OSS
Services.
1.9.4 Reseller shall participate in cooperative testing of Bell Atlantic
OSS Services and shall provide assistance to Bell Atlantic in identifying
and correcting mistakes, omissions, interruptions, delays, errors,
defects, faults, failures, or other deficiencies, in Bell Atlantic OSS
Services.
39
<PAGE>
1.10 Bell Atlantic Access to Information Related to Reseller CUSTOMERS
1.10.1 Bell Atlantic shall have the right to access, use and disclose
information related to Reseller Customers that is in Bell Atlantic's
possession (including, but not limited to, in Bell Atlantic OSS
Facilities) to the extent such access, use and/or disclosure has been
authorized by the Reseller Customer in the manner required by Applicable
Law.
1.10.2 Upon request by Bell Atlantic, Reseller shall negotiate in good
faith and enter into a contract with Bell Atlantic, pursuant to which
Bell Atlantic may obtain access to Reseller's operations support systems
(including, systems for pre-ordering, ordering, provisioning, maintenance
and repair, and billing) and information contained in such systems, to
permit Bell Atlantic to obtain information related to Reseller Customers
(as authorized by the applicable Reseller Customer), to permit Customers
to transfer service from one Telecommunications Carrier to another, and
for such other purposes as may be permitted by Applicable Law.
2. E911/911 SERVICES
2.1 Where and to the extent that Bell Atlantic provides E911/911 call
routing to a Public Safety Answering Point ("PSAP") to Bell Atlantic's
own end user retail Customers, Bell Atlantic will provide to Reseller,
for resold Bell Atlantic Retail Telecommunications Service dial tone
lines, E911/911 call routing to the appropriate PSAP. Bell Atlantic will
provide Reseller Customer information for resold Bell Atlantic Retail
Telecommunications Service dial tone lines to the PSAP as that
information is provided to Bell Atlantic by Reseller where and to the
same extent that Bell Atlantic provides Bell Atlantic end user retail
Customer information to the PSAP. Bell Atlantic will update and maintain,
on the same schedule that Bell Atlantic uses with Bell Atlantic's own end
user retail Customers, for Reseller Customers served by resold Bell
Atlantic Retail Telecommunications Service dial tone lines, the Reseller
Customer information in Bell Atlantic's E911/911 databases.
2.2 Reseller shall provide to Bell Atlantic the name, telephone number
and address, of all Reseller Customers, and such other information as may
be requested by Bell Atlantic, for inclusion in E911/911 databases. Any
change in Reseller Customer name, address or telephone number information
(including addition or deletion of a Reseller Customer, or a change in
Reseller Customer name, telephone number or address), or in other
E911/911 information supplied by Reseller to Bell Atlantic, shall be
reported to Bell Atlantic by Reseller within one (1) day after the
change.
2.3 To the extent that it is necessary (whether as a requirement of
Applicable Law or otherwise) for Reseller to enter into any agreements or
other arrangements with governmental entities (or governmental entity
contractors) related to E911/911 in order for Reseller to provide
Telecommunications Services, Reseller shall at Reseller's expense enter
into such agreements and arrangements.
40
<PAGE>
3. ROUTING TO DIRECTORY ASSISTANCE AND OPERATOR SERVICES
3.1 Upon request by Reseller, to the extent technically feasible, Bell
Atlantic will provide to Reseller the capability of rerouting to
Reseller's platforms directory assistance traffic (411 and 555-1212
calls) from Reseller Customers served by resold Bell Atlantic Retail
Telecommunications Service dial tone line service and operator services
traffic (0+ and 0- intraLATA calls) from Reseller Customers served by
resold Bell Atlantic Retail Telecommunications Service dial tone line
service.
3.2 A request for the rerouting service described in Exhibit I,
Section 4.1 must be made by Reseller (a) on a Bell Atlantic
switch-by-Bell Atlantic switch basis, and (b) at least ninety (90) days
in advance of the date that the rerouting capability is to be made
available in an applicable Bell Atlantic switch.
3.3 The prices for the rerouting service described in Exhibit I,
Section 4.1 shall be as stated in Exhibit II, Section 2.
4. LIDB/BVS
4.1 Upon request by Reseller, Bell Atlantic will maintain
information (including calling card numbers and collect and bill to third
party billing restriction notation) for Reseller Customers who subscribe
to resold Bell Atlantic Retail Telecommunications Service dial tone line
service, in Bell Atlantic's Line Information Database ("LIDB"), where
and to the same extent that Bell Atlantic maintains information in Bell
Atlantic's LIDB for Bell Atlantic's own end-user retail Customers.
4.2 If an end-user terminates Bell Atlantic Retail Telecommunications
Service dial tone line service provided to the end-user by Bell Atlantic
and, in place thereof, subscribes to Reseller for resold Bell Atlantic
Retail Telecommunications Service dial tone line service, Bell Atlantic
will remove from Bell Atlantic's LIDB any Bell Atlantic-assigned
telephone line calling card number (including area code) ("TLN") and
Personal Identification Number ("PIN") associated with the terminated
Bell Atlantic Retail Telecommunications Service dial tone line service.
The Bell Atlantic-assigned TLN and PIN will be removed from Bell
Atlantic's LIDB within twenty-four (24) hours after Bell Atlantic
terminates the Bell Atlantic Retail Telecommunications Service dial tone
line service with which the number was associated. Reseller may issue a
new telephone calling card to such end-user, utilizing the same TLN, and
the same or a different PIN. Upon request by Reseller, Bell Atlantic will
enter such TLN and PIN in Bell Atlantic's LIDB for calling card
validation purposes.
4.3 Reseller information which is stored in Bell Atlantic's LIDB will
be subject, to the same extent as Bell Atlantic information stored in
Bell Atlantic's LIDB, to access and use by, and disclosure to, those
persons (including, but not limited to, Bell Atlantic) to
41
<PAGE>
whom Bell Atlantic allows access to information which is stored in Bell
Atlantic's LIDB. Reseller hereby grants to Bell Atlantic and the persons
to whom Bell Atlantic allows access to information which is stored in
Bell Atlantic's LIDB, a royalty free license for such access, use and
disclosure.
4.4 Reseller shall obtain contractual agreements with each of the
persons authorized to have access to Bell Atlantic's LIDB, under which
Reseller will bill Reseller Customers for calling card, third party,
collect and other calls validated by such persons through Bell Atlantic's
LIDB.
4.5 Reseller warrants that the information provided by Reseller for
inclusion in Bell Atlantic's LIDB will at all times be current, accurate
and appropriate for use for billing validation services.
4.6 Upon request by Reseller, Bell Atlantic will provide to Reseller
Bell Atlantic Billing Validation Service, in accordance with Bell
Atlantic's Tariffs, for use by Reseller in connection with Bell Atlantic
Retail Telecommunications Services purchased and provided by Reseller
pursuant to this Agreement.
4.7 Information in Bell Atlantic's LIDB provided to Reseller shall be
treated by Reseller as Confidential Information of Bell Atlantic pursuant
to Section 13.
4.8 The prices for the services described in this Exhibit I, Section 5
shall be as stated in Exhibit II, Section 2.
42
<PAGE>
EXHIBIT II
PRICES FOR BELL ATLANTIC SERVICES
1. BELL ATLANTIC RETAIL TELECOMMUNICATIONS SERVICES
1.1 PRICES
The prices for Bell Atlantic Retail Telecommunications Services
shall be the Retail Prices stated in Bell Atlantic's Tariffs for such Bell
Atlantic Retail Telecommunications Services, less: (a) the applicable discount
stated in Bell Atlantic's Tariffs for Bell Atlantic Retail Telecommunications
Services purchased for resale pursuant to 47 U.S.C. Section 251(c)(4); or, (b)
in the absence of an applicable Bell Atlantic Tariff discount for Bell Atlantic
Retail Telecommunications Services purchased for resale pursuant to 47 U.S.C.
Section 251(c)(4), the applicable discount stated in Exhibit II, Attachment 1.
1.2 INAPPLICABILITY OF DISCOUNTS
The discounts provided for in Exhibit II, Section 1.1, shall not
be applied to:
1.2.1 Retail Prices that are in effect for no more than ninety (90)
days;
1.2.2 Charges for services and products provided by Bell Atlantic that
are not Bell Atlantic Retail Telecommunications Services, including, but not
limited to, Bell Atlantic Ancillary Services, and exchange access services as
defined in Section 3(16) of the Act, 47 U.S.C. Section 153(16);
1.2.3 Subscriber Line Charges, Federal Line Cost Charges, end user
common line charges, carrier selection and change charges, and Audiotex Service
charges, and to the extent applicable, the Presubscribed Interexchange Carrier
Charge applicable to Reseller Customers who have not presubscribed to an
interexchange carrier for long distance services; and,
1.2.4 Any service or charge which the Commission, the FCC, or other
governmental entity of appropriate jurisdiction, determines is not subject to a
wholesale rate discount under 47 U.S.C. Section 251(c)(4).
1.3 DISCOUNT CHANGES
1.3.1 Bell Atlantic shall change the discounts provided for in Exhibit
II, Section 1.1, above, from time-to-time, to the extent such change is required
by Applicable Law, including, but not limited to, by regulation or order of the
Commission, the FCC, or other governmental entity of appropriate jurisdiction.
43
<PAGE>
1.3.2 Bell Atlantic shall have the right to change the discounts
provided for in Exhibit II, Section 1.1, above, from time-to-time, to the extent
such change is required, approved or permitted by Applicable Law, including, but
not limited to, by regulation or order of the Commission, the FCC, or other
governmental entity of appropriate jurisdiction.
1.4 Offers of Merchandise and Services which are not Bell Atlantic
Retail Telecommunications Services
Reseller shall not be eligible to participate in any Bell Atlantic
plan or program under which Bell Atlantic end user retail Customers may obtain
products or merchandise, or services which are not Bell Atlantic Retail
Telecommunications Services, in return for trying, agreeing to purchase,
purchasing, or using, Bell Atlantic Retail Telecommunications Services.
2. BELL ATLANTIC ANCILLARY SERVICES
2.1 PRICES
2.1.1 The prices for Bell Atlantic Ancillary Services shall be as
stated: (a) in Bell Atlantic's Tariffs; or, (b) in the absence of an applicable
Bell Atlantic Tariff price, in Exhibit II, Attachment 1.
2.1.2 If Bell Atlantic at any time offers a Bell Atlantic Ancillary
Service the prices for which are not stated in Bell Atlantic's Tariffs or
Exhibit II, Attachment 1, Bell Atlantic shall have the right to revise Exhibit
II, Attachment 1, to add the prices to Exhibit II, Attachment 1.
2.2 PRICE CHANGES
2.2.1 Bell Atlantic shall change the prices for Bell Atlantic Ancillary
Services, from time-to-time, to the extent such change is required by Applicable
Law, including, but not limited to, by regulation or order of the Commission,
the FCC, or other governmental entity of appropriate jurisdiction.
2.2.2 Bell Atlantic shall have the right to change the prices for Bell
Atlantic Ancillary Services, from time-to-time, to the extent such change is
required, approved or permitted by Applicable Law, including, but not limited
to, by regulation or order of the Commission, the FCC, or other governmental
entity of appropriate jurisdiction.
2.2.3 Except as otherwise required by Applicable Law, Bell Atlantic
shall give Reseller thirty (30) days advance written notice of any increase in
the prices stated in Exhibit II, Attachment 1 for Bell Atlantic Ancillary
Services.
44
<PAGE>
ATTACHMENT 1
TO EXHIBIT II
BELL ATLANTIC - MARYLAND, INC.
DETAILED SCHEDULE OF ITEMIZED CHARGES(1)
I. WHOLESALE DISCOUNT FOR RESALE OF BELL ATLANTIC RETAIL TELECOMMUNICATIONS
SERVICES
Resale of Bell Atlantic Retail 19.87% or discount rate as
Telecommunications Services as per established by further
Commission Order dated November 8, 1996. Commission Order.
Assumes RESELLER will provide its own
operator and directory assistance services.(2)
- ---------------
(1) All rates and charges set forth in this Exhibit II, Attachment 1 are
subject to change from time-to-time as provided in this Agreement, including,
but not limited to, in Section 2.3 and Exhibit II of this Agreement. The rates
and charges set forth in this Exhibit II, Attachment 1 shall apply until such
time as they are replaced by new rates as may be approved or allowed into effect
by the Commission from time to time, subject to a stay or other order issued by
any court of competent jurisdiction. At such time(s) as such new rates have
been approved or allowed into effect by the Commission, the Parties shall amend
this Exhibit II, Attachment 1 to reflect the new approved rates.
Except for citations to generally available services and rates offered
under Bell Atlantic's Tariffs, all services and rates listed in this Exhibit II,
Attachment 1 are available to Reseller only in connection with the purchase and
resale of Bell Atlantic Retail Telecommunications Services by Reseller under
this Agreement. Adherence to this limitation shall be subject to reasonable
audit by Bell Atlantic.
The rates set forth in Sections II through IV of this Exhibit II,
Attachment 1, are in addition to, and not in lieu of, any other rates set forth
in this Agreement.
In addition to charges for Bell Atlantic Services, Reseller shall pay, or
collect and remit, applicable taxes and surcharges (including, but not limited
to, E911/911, telecommunications relay service, and universal service fund,
surcharges), as required by Applicable Law and this Agreement.
(2) Any provision of operator and/or directory assistance services by Bell
Atlantic to Reseller in connection with Reseller's resale of Bell Atlantic
Retail Telecommunications Services shall be in accordance with the terms,
conditions, and rates contained in applicable Bell Atlantic Tariffs.
<PAGE>
<TABLE>
<CAPTION>
SERVICE OR ELEMENT DESCRIPTION: RECURRING CHARGES: NON-RECURRNG
- ------------------------------- ------------------ ------------
CHARGE:
-------
<S> <C> <C>
II. ACCESS TO OPERATION SUPPORT SYSTEMS
A. Pre-Ordering $.26*/Query Not Applicable
B. Ordering $4.22*/Transaction Not Applicable
C. Provisioning Included in Ordering Not Applicable
D. Maintenance & Repair
1. ECG Access $.26*/Query Not Applicable
2. EB/OSI Access $1.20*/Trouble Not Applicable
Ticket
E. Billing
1. CD-ROM $254.11*/CD-ROM/ Not Applicable
Month
2. Daily Usage File
a) Existing Message Recording $.000267*/Message Not Applicable
b) Delivery of DUF
Data Tape $21.46*/Tape $63.27*(3)/Programming
Hour
Network Data Mover $.000096*/Message Not Applicable
CMDS $.0000096*/Message $63.27*/Programming
Hour
c) DUF Transport
9.6 kb Communications Port $10.56*/Month $7,416365*/Port
56 kb Communications Port $29.15*/Month $30,717.61*/Port
256 kb Communications Port $29.15*/Month $51,094.01*/Port
T1 Communications Port $370.26*/Month $182,318.17*/Port
Line Installation Not Applicable $63.27*/Programming
Hour/Port
Port Set-up Not Applicable $10.16*/Port
Network Control Programming Not Applicable $63.27*/Programming
Coding Hour/Port
</TABLE>
- -----------------
(3) Rates accompanied by an asterisk indicate interim rates which will be
replaced by new rates at such time when established by the Maryland PSC in case
No. 8786.
2
<PAGE>
<TABLE>
<CAPTION>
SERVICE OR ELEMENT DESCRIPTION: RECURRING CHARGES: NON-RECURRNG
- ------------------------------- ------------------ ------------
CHARGE:
-------
<S> <C> <C>
III. DIRECTORY ASSISTANCE/OPERATOR SERVICES
ROUTING
Customized Routing $.05939/Call $4.10*/Line
Customized Routing Transport Per Bell Atlantic's Tariffs (including, but not
limited to, Bell Atlantic Tariff FCC No. 1 and
Bell Atlantic--Maryland Tariff P.S.C.-Md.-
No. 217)
IV. LIDB INTERCONNECTION/BILLING VALIDATION Per Bell Atlantic's Per Bell Atlantic's
SERVICE Tariffs (including, but Tariffs (including, but
not limited to, Bell not limited to, Bell
Atlantic Tariff FCC Atlantic Tariff FCC
No. 1, Section 6.9.1M) No. 1, Section 6.9.1M)
Illustrative: Illustrative:
Query validation Originating point
$.04/query code, $125
Query transport
$.0002/query
</TABLE>
3
<PAGE>
APPENDIX 1, ATTACHMENT 13
QUALIFIED BUSINESS LINES FOR VOLUME COMMITMENT
MARYLAND
<TABLE>
<CAPTION>
<S> <C> <C> <C>
- --------------------------------------------------------------------------------
ACCESS LINES
- --------------------------------------------------------------------------------
Message Business Service 1MB ALS WHB
- --------------------------------------------------------------------------------
Measured Business Service LMB ALM
- --------------------------------------------------------------------------------
Direct Inward Dial Trunks NDT NDZ NDJ
- --------------------------------------------------------------------------------
PBX Trunks Message TMB
- --------------------------------------------------------------------------------
PBX Trunks Measured TV1
- --------------------------------------------------------------------------------
PBX Digital trunks D7Z D7W
- --------------------------------------------------------------------------------
CENTREX:**
- --------------------------------------------------------------------------------
**EXCLUDES:
1. Centrex systems priced under a special contract (ICB, FPO, LSO, Custom
Pricing)
2. Centrex systems which serve multiple end user customers
- --------------------------------------------------------------------------------
CENTREX - CUSTOPAK / CLASS OF SERVICE
- --------------------------------------------------------------------------------
Message CGC+X
- --------------------------------------------------------------------------------
Measured CEC+X
- --------------------------------------------------------------------------------
CUSTOPAK LINES
- --------------------------------------------------------------------------------
Unrestricted R3G
- --------------------------------------------------------------------------------
Restricted RX7
- --------------------------------------------------------------------------------
Primary Off Prem RX3
- --------------------------------------------------------------------------------
CENTREX - CUSTOFLEX 2100 / CLASS OF SERVICE RJY
- --------------------------------------------------------------------------------
Message KGK+X
- --------------------------------------------------------------------------------
Measured KEK+X
- --------------------------------------------------------------------------------
CUSTOFLEX 2100 LINES
- --------------------------------------------------------------------------------
Unrestricted R4N
- --------------------------------------------------------------------------------
Restricted RHK
- --------------------------------------------------------------------------------
Primary Off Prem RX3
- --------------------------------------------------------------------------------
ISDN - Unrestricted XQA
- --------------------------------------------------------------------------------
ISDN - Restricted XQK
- --------------------------------------------------------------------------------
</TABLE>
Page 1 of 1
<PAGE>
APPENDIX 1, ATTACHMENT 14
PRODUCT AND SERVICES ELIGIBLE FOR VTD DISCOUNT
MARYLAND
<TABLE>
<CAPTION>
<S> <C> <C> <C>
- --------------------------------------------------------------------------------
ACCESS LINES
- --------------------------------------------------------------------------------
Message Business Service 1MB ALS WHB
- --------------------------------------------------------------------------------
Measured Business Service LMB ALM
- --------------------------------------------------------------------------------
Direct Inward Dial Trunks NDT NDZ NDJ
- --------------------------------------------------------------------------------
PBX Trunks Message TMB
- --------------------------------------------------------------------------------
PBX Trunks Measured TV1
- --------------------------------------------------------------------------------
PBX Digital trunks D7Z D7W
- --------------------------------------------------------------------------------
INTRA-LATA TOLL
*MUST BE ASSOCIATED WITH A RESOLD VTD QUALIFIED BUSINESS LINE
- --------------------------------------------------------------------------------
Message Rate Service N/A
- --------------------------------------------------------------------------------
MTS, including Key Connections Optional Calling Plan BUT VWDK1 WRV
excluding all other Optional Calling Plans
- --------------------------------------------------------------------------------
FEATURES
*MUST BE ASSOCIATED WITH A RESOLD VTD QUALIFIED BUSINESS LINE
- --------------------------------------------------------------------------------
Touch Tone TTV TJB
- --------------------------------------------------------------------------------
IQ SERVICES:
*MUST BE ASSOCIATED WITH A RESOLD VTD QUALIFIED BUSINESS LINE
- --------------------------------------------------------------------------------
Call Forwarding ESM
- --------------------------------------------------------------------------------
Call Waiting ESX
- --------------------------------------------------------------------------------
Call Waiting ID NWT
- --------------------------------------------------------------------------------
Speed Dialing 8 ESL
- --------------------------------------------------------------------------------
Speed Dialing 30 ESF
- --------------------------------------------------------------------------------
3 Way Calling (per Use or Monthly) ESC
- --------------------------------------------------------------------------------
*69 (per Use or Monthly) NSS
- --------------------------------------------------------------------------------
Call Trace (Per Use Charge)
- --------------------------------------------------------------------------------
Caller ID NSD
- --------------------------------------------------------------------------------
Caller ID with Name NDF
- --------------------------------------------------------------------------------
Per Call Blocking (Per Use Charge)
- --------------------------------------------------------------------------------
Repeat Dialing NSQ
- --------------------------------------------------------------------------------
Ultra Forward FRM
- --------------------------------------------------------------------------------
Distinctive Ring DRQ+X
- --------------------------------------------------------------------------------
Priority Call NSK
- --------------------------------------------------------------------------------
Select Forward NCE
- --------------------------------------------------------------------------------
Call Block NSY
- --------------------------------------------------------------------------------
Call Gate OC4
- --------------------------------------------------------------------------------
Anonymous Call Rejection - w/ Caller ID AWY
- --------------------------------------------------------------------------------
Anonymous Call Rejection - w/o Caller ID AYK
- --------------------------------------------------------------------------------
Call Manager PKB3N
- --------------------------------------------------------------------------------
Call Manager Plus PKB3R
- --------------------------------------------------------------------------------
</TABLE>
Page 1 of 1
<PAGE>
RESALE AGREEMENT
(Delaware)
PREFACE
THIS RESALE AGREEMENT (this "Agreement") is made effective as of
August 6, 1999 (the "Effective Date") by and between Essential.Com, Inc.
("Reseller"), a Delaware corporation, with offices at Three Burlington Woods
Drive, Burlington, MA 01803, and Bell Atlantic - Delaware, Inc. ("Bell
Atlantic"), a Delaware corporation, with offices at 901 Tatnall Street, 2nd
Floor, Wilmington, Delaware 19801.
WHEREAS, pursuant to Section 251(c)(4) of the Act, 47
U.S.C. Section 251(c)(4), Reseller wishes to purchase Bell Atlantic
Retail Telecommunications Services from Bell Atlantic for resale by
Reseller as a Telecommunications Carrier providing
Telecommunications Services in the State of Delaware; and
WHEREAS, Bell Atlantic is willing to provide such Bell Atlantic
Retail Telecommunications Services in accordance with this Agreement.
NOW THEREFORE, in consideration of the mutual promises set forth
in this Agreement, Reseller and Bell Atlantic, each on behalf of itself and its
respective successors and assigns, agree as follows:
1. DEFINITIONS
1.1 As used in the Principal Document, the terms listed below shall
have the meanings stated below:
1.1.1 "Act" means the Communications Act of 1934, 47 U.S.C.
Section 151, ET SEQ., as amended from time-to-time.
1.1.2 "Agent" means agent or servant.
1.1.3 "Applicable Law" means all applicable laws and government
regulations and orders.
1.1.4 "Bell Atlantic Ancillary Service" means any service offered by
Bell Atlantic to Reseller in Exhibit I.
1.1.5 "Bell Atlantic Retail Telecommunications Service" means any
Telecommunications Service that Bell Atlantic provides at retail to
subscribers who are not Telecommunications Carriers. The term "Bell
Atlantic Retail Telecommunications
1
<PAGE>
Service" does not include any exchange access service (as defined in
Section 3(16) of the Act, 47 U.S.C. Section 153(16)) provided by Bell
Atlantic.
1.1.6 "Bell Atlantic Service" means and includes any Bell Atlantic
Retail Telecommunications Service and any Bell Atlantic Ancillary
Service.
1.1.7 "Bell Atlantic's Affiliates" means any corporations,
partnerships or other persons who control, are controlled by, or are
under common control with, Bell Atlantic.
1.1.8 "Bell Atlantic's Tariffs" and "Bell Atlantic Tariff" mean and
include:
(a) Bell Atlantic's effective Federal and state tariffs, as
amended by Bell Atlantic from time-to-time; and,
(b) to the extent Bell Atlantic Services are not subject to Bell
Atlantic tariffs, any standard agreements and other documents, as
amended by Bell Atlantic from time-to-time, that set forth the generally
available terms, conditions and prices under which Bell Atlantic offers
such Bell Atlantic Services.
The terms "Bell Atlantic's Tariffs" and "Bell Atlantic Tariff"
do not include Bell Atlantic's "Statement of Generally Available Terms
and Conditions for Interconnection, Unbundled Network Elements,
Ancillary Services and Resale of Telecommunications Services" which has
been approved by the Commission pursuant to Section 252(f) of the Act,
47 U.S.C. Section 252(f).
1.1.9 "Commission" means the Delaware Public Service Commission.
1.1.10 "Contract Period", as used in Section 1.1.25 and Section 6.2,
means a stated period or minimum period of time for which Reseller is
required by this Agreement to subscribe to, use and/or pay for a Bell
Atlantic Service.
1.1.11 "Customer" means and includes customers, subscribers and
patrons, of a Party, purchasers and users of Telecommunications Services
(including, but not limited to, resold Bell Atlantic Retail
Telecommunications Services) provided by a Party, and purchasers and
users of other services and products provided by a Party. The term
"Customer" does not include a Party.
1.1.12 "Bell Atlantic Customer" means a Customer of Bell Atlantic.
1.1.13 "Customer Information" means CPNI of a Customer and any other
non-public, individually identifiable information about a Customer or
the purchase by a Customer of the services or products of a Party.
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1.1.14 "Customer Proprietary Network Information" ("CPNI") means
"Customer Proprietary Network Information" as defined in Section 222 of
the Act, 47 U.S.C. Section 222.
1.1.15 "Effective Date" means the date first above written.
1.1.16 "Jurisdiction" means the State of Delaware.
1.1.17 "Operator Services" means: (a) services accessed by dialing 411,
555-1212, 1-555-1212, 0+ local, 0+ intraLATA, and, 0-; and, (b) any
other automated or live operator or directory assistance service.
1.1.18 "Order" means an order or application.
1.1.19 "Principal Document" means this document, including the Preface,
Sections 1 through 39, the signature page, Exhibit I, Exhibit II, and
Exhibit II, Attachment 1.
1.1.20 "Reseller Customer" means a Customer of Reseller.
1.1.21 "Retail Prices" means the prices at which Bell Atlantic Retail
Telecommunications Services are provided by Bell Atlantic at retail to
subscribers who are not Telecommunications Carriers.
1.1.22 "Telecommunications Carrier" means "Telecommunications Carrier"
as defined in Section 3(44) of the Act, 47 U.S.C. Section 153(44).
1.1.23 "Telecommunications Service" means "Telecommunications Service"
as defined in Section 3(46) of the Act, 47 U.S.C. Section 153(46).
1.1.24 "Telephone Exchange Service" means "Telephone Exchange Service"
as defined in Section 3(47) of the Act, 47 U.S.C. Section 153(47).
1.1.25 "Termination Date Bell Atlantic Service" means: (a) any Bell
Atlantic Service being provided by Bell Atlantic under this Agreement at
the time of termination of this Agreement, that at the time of
termination of this Agreement is subject to a Contract Period which is
greater than one (1) month; and, (b) any Bell Atlantic Service requested
by Reseller under this Agreement in an Order accepted by Bell Atlantic
prior to termination of this Agreement but not yet being provided by
Bell Atlantic at the time of termination of this Agreement, that is
subject to an initial Contract Period which is greater than one (1)
month.
1.2 Unless the context clearly indicates otherwise, any defined term
which is defined or used in the singular shall include the plural, and
any defined term which is defined or used in the plural shall include
the singular.
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2. THE AGREEMENT
2.1 This Agreement includes: (a) the Principal Document; (b) Bell
Atlantic's Tariffs (which Bell Atlantic Tariffs are incorporated into
this Agreement by reference and made a part hereof); and, (c) a Reseller
Order to provide, change or terminate a Bell Atlantic Service, which has
been accepted by Bell Atlantic (including, but not limited to, any Order
which includes a commitment to purchase a stated number or minimum
number of lines or other Bell Atlantic Services, or a commitment to
purchase lines or other Bell Atlantic Services for a stated period or
minimum period of time).
2.2 Conflicts among terms in the Principal Document, Bell Atlantic's
Tariffs, and a Reseller Order which has been accepted by Bell Atlantic,
shall be resolved in accordance with the following order of precedence,
where the document identified in subsection "(a)" shall have the highest
precedence: (a) the Principal Document; (b) Bell Atlantic's Tariffs;
and, (c) a Reseller Order which has been accepted by Bell Atlantic. The
fact that a term appears in the Principal Document but not in a Bell
Atlantic Tariff, or in a Bell Atlantic Tariff but not in the Principal
Document, shall not be interpreted as, or deemed grounds for finding, a
conflict for the purposes of this Section 2.2.
2.3 This Agreement (including the Principal Document, Bell
Atlantic's Tariffs, and Reseller Orders which have been accepted by Bell
Atlantic), constitutes the entire agreement between the Parties on the
subject matter hereof, and supersedes any prior or contemporaneous
agreement, understanding, or representation on the subject matter
hereof. Except as otherwise provided in the Principal Document, the
terms in the Principal Document may not be waived or modified except by
a written document which is signed by the Parties. Subject to the
requirements of Applicable Law, Bell Atlantic shall have the right to
add, modify, or withdraw, a Bell Atlantic Tariff at any time, without
the consent of, or notice to, Reseller.
2.4 A failure or delay of either Party to enforce any of the
provisions of this Agreement, or any right or remedy available under
this Agreement or at law or in equity, or to require performance of any
of the provisions of this Agreement, or to exercise any option provided
under this Agreement, shall in no way be construed to be a waiver of
such provisions, rights, remedies, or options.
3. BELL ATLANTIC SERVICES
3.1 During the term of this Agreement, Reseller, pursuant to Section
251(c)(4) of the Act, 47 U.S.C. Section 251(c)(4), may submit Orders to
Bell Atlantic requesting Bell Atlantic to provide Bell Atlantic Retail
Telecommunications Services for resale by Reseller as a
Telecommunications Carrier providing Telecommunications Services.
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3.2 During the term of this Agreement, Reseller may submit Orders to
Bell Atlantic requesting Bell Atlantic to provide Bell Atlantic
Ancillary Services for use by Reseller as a Telecommunications Carrier
providing Telecommunications Services.
3.3 Bell Atlantic may require that Reseller's Orders requesting Bell
Atlantic to provide Bell Atlantic Services be in writing on forms
specified by Bell Atlantic or in an electronic form specified by Bell
Atlantic.
3.4 Upon receipt and acceptance by Bell Atlantic of a Reseller Order
requesting Bell Atlantic to provide a Bell Atlantic Service, Bell
Atlantic shall provide, and Reseller shall subscribe to, use and pay
for, the Bell Atlantic Service, in accordance with this Agreement.
3.5 Bell Atlantic Retail Telecommunications Services may be
purchased by Reseller under this Agreement only for the purpose of
resale by Reseller as a Telecommunications Carrier providing
Telecommunications Services, pursuant to Section 251(c)(4) of the Act,
47 U.S.C. Section 251(c)(4). Bell Atlantic Retail Telecommunications
Services to be purchased by Reseller for other purposes (including, but
not limited to, Reseller's own use) must be purchased by Reseller
pursuant to separate written agreements, including, but not limited to,
applicable Bell Atlantic Tariffs. Reseller warrants and agrees that
Reseller will purchase Bell Atlantic Retail Telecommunications Services
from Bell Atlantic under this Agreement only for the purpose of resale
by Reseller as a Telecommunications Carrier providing Telecommunications
Services, pursuant to Section 251(c)(4) of the Act, 47 U.S.C. Section
251(c)(4).
3.6 Bell Atlantic Ancillary Services may be purchased by Reseller
under this Agreement only for use by Reseller as a Telecommunications
Carrier providing Telecommunications Services. Bell Atlantic Ancillary
Services to be purchased by Reseller for other purposes must be
purchased by Reseller pursuant to separate written agreements,
including, but not limited to, applicable Bell Atlantic Tariffs.
Reseller warrants and agrees that Reseller will purchase Bell Atlantic
Ancillary Services from Bell Atlantic under this Agreement only for use
by Reseller as a Telecommunications Carrier providing Telecommunications
Services.
3.7 Subject to the requirements of Applicable Law, Bell Atlantic
shall have the right to add, modify, grandfather, discontinue or
terminate Bell Atlantic Services at any time, without the consent of
Reseller.
4. PRICES
4.1 Reseller shall pay Bell Atlantic for Bell Atlantic Services at
the prices stated in this Agreement, including, but not limited to, in
Exhibit II, Attachment 1.
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4.2 If, prior to establishment of a Bell Atlantic Service, Reseller
cancels or changes its Order for the Bell Atlantic Service, Reseller
shall reimburse Bell Atlantic for the costs associated with such
cancellation or changes as required by this Agreement (including, but
not limited to, Bell Atlantic's Tariffs).
4.3 Upon request by Bell Atlantic, Reseller shall provide to Bell
Atlantic adequate assurance of payment of charges due to Bell Atlantic.
Assurance of payment of charges may be requested by Bell Atlantic: (a)
if Reseller, in Bell Atlantic's reasonable judgment, at the Effective
Date or at any time thereafter, is unable to show itself to be
creditworthy; (b) if Reseller, in Bell Atlantic's reasonable judgment,
at the Effective Date or at any time thereafter, is not creditworthy;
or, (c) if Reseller fails to timely pay a bill rendered to Reseller by
Bell Atlantic. Unless otherwise agreed by the Parties, the assurance of
payment shall be in the form of a cash deposit and shall be in an amount
equal to the charges for Bell Atlantic Services that Reseller may
reasonably be expected to incur during a period of two (2) months. Bell
Atlantic may at any time use the deposit or other assurance of payment
to pay amounts due from Reseller.
5. BILLING AND PAYMENT
5.1 Except as otherwise permitted or required by this Agreement, or
agreed in writing by the Parties, Bell Atlantic shall render bills to
Reseller monthly. Except as otherwise agreed in writing by the Parties,
Bell Atlantic will render bills to Reseller in a paper form.
5.2 Reseller shall pay Bell Atlantic's bills in immediately
available U.S. funds. Except as otherwise agreed in writing by the
Parties, payments shall be transmitted by electronic funds transfer.
5.3 Payment of charges shall be due by the due date stated on Bell
Atlantic's bills. Except as otherwise required by Bell Atlantic's
Tariffs or agreed in writing by the Parties, the due date shall not be
sooner than twenty (20) days after the date the bill is received by
Reseller.
5.4 Charges which are not paid by the due date stated on Bell
Atlantic's bill shall be subject to a late payment charge. The late
payment charge shall be in an amount specified by Bell Atlantic, which
shall not exceed a rate of one-and-one-half percent (1.5%) of the
over-due amount (including any unpaid, previously billed late payment
charges) per month.
5.5 Reseller acknowledges and agrees that:
5.5.1 During the term of this Agreement, Bell Atlantic will be engaged
in developing and deploying new or modified forms of bills for
Telecommunications Carriers who are engaged in the resale of Bell
Atlantic Retail Telecommunications
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Services and new or modified systems and methods for computing and
rendering such bills.
5.5.2 Prior to the completion of deployment of such new or modified
forms of bills and such new or modified systems and methods for
computing and rendering bills, Bell Atlantic's form of bill and systems
and methods for computing and rendering bills may be subject to
limitations and restrictions, including, but not limited to, the
limitations stated in Section 5.5.3, below, the inability to provide
Reseller with a single, consolidated bill for all Bell Atlantic Services
purchased by Reseller, and the unavailability of bills and billing
information in an electronic form (e.g., bills may be rendered in a
paper form).
5.5.3 Prior to the completion of deployment of the new or modified
forms of bills and the new or modified systems and methods for computing
and rendering bills, Bell Atlantic may apply the discount identified in
Exhibit II, Section 1.1, in a manner (including, but not limited to, in
a "bottom-of-the-bill" format) that results in the Exhibit II, Section
1.1 discount being applied to charges stated in the bill (including, but
not limited to, Subscriber Line Charges, Federal Line Cost Charges, end
user common line charges, carrier selection and change charges, Audiotex
Service charges, and charges for services which are not Bell Atlantic
Retail Telecommunications Services) which are not subject to the Exhibit
II, Section 1.1 discount. Bell Atlantic will implement a "true-up"
process and within six (6) months after the due date of each monthly
bill, issue to Reseller a "true-up" bill for amounts which were not
collected from Reseller under the monthly bill because of the
application of the Exhibit II, Section 1.1 discount to charges which are
not subject to the Exhibit II, Section 1.1 discount. The "true-up" bill
may be issued as a part of or an entry on a monthly bill, as a bill
separate from a monthly bill, or in such other form as Bell Atlantic may
determine.
5.6 Although it is the intent of Bell Atlantic to submit timely and
accurate bills, failure by Bell Atlantic to present bills (including,
but not limited to, monthly bills and "true-up" bills) to Reseller in a
timely or accurate manner shall not constitute a breach or default of
this Agreement, or a waiver of a right of payment of the incurred
charges, by Bell Atlantic. Reseller shall not be entitled to dispute
charges for Bell Atlantic Services provided by Bell Atlantic based on
Bell Atlantic's failure to submit a bill for the charges in a timely
fashion.
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6. TERM
6.1 The term of this Agreement shall commence on the Effective Date,
and, except as otherwise provided in this Agreement, shall remain in
effect through August 5, 2000 (the "Initial Term Ending Date"). After
the Initial Term Ending Date, this Agreement shall continue in force and
effect unless and until terminated as provided in this Agreement.
Following the Initial Term Ending Date, either Party may terminate this
Agreement by providing written notice of termination to the other Party,
such written notice to be provided at least ninety (90) days in advance
of the date of termination.
6.2 Following termination of this Agreement pursuant to Section 6.1,
this Agreement, as amended from time to time, shall remain in effect as
to any Termination Date Bell Atlantic Service for the remainder of the
Contract Period applicable to such Termination Date Bell Atlantic
Service at the time of the termination of this Agreement. If a
Termination Date Bell Atlantic Service is terminated prior to the
expiration of the Contract Period applicable to such Termination Date
Bell Atlantic Service, Reseller shall pay any termination charge
provided for in this Agreement.
7. SERVICE INSTALLATION AND MAINTENANCE
Reseller shall comply with Bell Atlantic's processes and
procedures (including, but not limited to, requirements by Bell Atlantic
that Reseller use Bell Atlantic OSS Services) for the communication to
Bell Atlantic of (a) Reseller's Orders to provide, change or terminate,
Bell Atlantic Services, and (b) Reseller's requests for information
about, assistance in using, or repair or maintenance of, Bell Atlantic
Services. Bell Atlantic may, from time-to-time, upon notice to Reseller,
change these processes and procedures.
8. ASSIGNMENT
8.1 Reseller shall not assign this Agreement or any right or
interest under this Agreement, nor delegate any obligation under this
Agreement, without the prior written approval of Bell Atlantic, which
approval shall not be unreasonably withheld, conditioned or delayed. Any
attempted assignment or delegation in contravention of the foregoing
shall be void and ineffective.
8.2 Bell Atlantic may, without the consent of Reseller, assign this
Agreement or any right or interest under this Agreement, and/or delegate
any obligation under this Agreement, to any of Bell Atlantic's
Affiliates, or to a person with which Bell Atlantic merges or which
acquires substantially all of Bell Atlantic's assets.
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9. AVAILABILITY OF SERVICE
9.1 Subject to the requirements of Applicable Law, Bell Atlantic
shall be obligated to provide Bell Atlantic Services to Reseller under
this Agreement only where Bell Atlantic is able, without unreasonable
expense (as determined by Bell Atlantic in its reasonable judgment), (a)
to obtain, retain, install and maintain suitable facilities for the
provision of such Bell Atlantic Services, and (b) to obtain, retain and
maintain suitable rights for the provision of such Bell Atlantic
Services.
9.2 Bell Atlantic's obligation to provide a Bell Atlantic Retail
Telecommunications Service to Reseller under this Agreement shall be
limited to providing the Bell Atlantic Retail Telecommunications Service
to Reseller where, and to the same extent, that Bell Atlantic provides
such Bell Atlantic Retail Telecommunications Service to Bell Atlantic's
own end user retail Customers.
10. BRANDING
10.1 Except as stated in Section 10.2, in providing Bell Atlantic
Services to Reseller, Bell Atlantic shall have the right, but not the
obligation, to identify the Bell Atlantic Services with Bell Atlantic's
trade names, trademarks and service marks. Any such identification of
the Bell Atlantic Services shall not constitute the grant of a license
or other right to Reseller to use Bell Atlantic's trade names, trade
marks or service marks.
10.2 To the extent required by Applicable Law, upon request by
Reseller and at prices, terms and conditions to be negotiated by
Reseller and Bell Atlantic, Bell Atlantic shall provide Bell Atlantic
Retail Telecommunications Services that are identified by Reseller's
trade name, or that are not identified by trade name, trademark or
service mark.
11. CHOICE OF LAW
11.1 The construction, interpretation and performance of this
Agreement shall be governed by the laws of the United States of America
and the laws of Jurisdiction (without regard to Jurisdiction's conflicts
of laws rules). All disputes relating to this Agreement shall be
resolved through the application of such laws.
11.2 Reseller agrees to submit to the jurisdiction of any court,
commission or other governmental entity in which a claim, suit or
proceeding which arises out of or in connection with this Agreement or
Bell Atlantic Services provided under this Agreement and in which Bell
Atlantic is a party, is brought.
12. COMPLIANCE WITH APPLICABLE LAW
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12.1 Each Party shall in its performance of this Agreement comply
with Applicable Law, including, but not limited to, all applicable
regulations and orders of the Commission and the Federal Communications
Commission (hereinafter the "FCC").
12.2 Reseller shall in providing Bell Atlantic Retail
Telecommunications Services to Reseller Customers comply with Applicable
Law, including, but not limited to, all applicable regulations and
orders of the Commission and the FCC.
13. CONFIDENTIAL INFORMATION
13.1 For the purposes of this Section 13, "Confidential Information"
means the following information disclosed by one Party ("Discloser") to
the other Party ("Recipient") in connection with this Agreement:
(a) Customer Information related to a Reseller Customer which is
disclosed by Reseller to Bell Atlantic (except to the extent that (i)
the Customer Information is subject to publication in a directory, (ii)
the Customer Information is subject to disclosure through an Operator
Service or other Telecommunications Service, or in the course of
furnishing Telecommunications Services, or (iii) the Reseller Customer
to whom the Customer Information is related, in the manner required by
Applicable Law, has given Bell Atlantic permission to use and/or
disclose the Customer Information);
(b) Customer Information related to a Bell Atlantic Customer
which is disclosed by Bell Atlantic to Reseller (except to the extent
that the Bell Atlantic Customer to whom the Customer Information is
related, in the manner required by Applicable Law, has given Reseller
permission to use and/or disclose the Customer Information);
(c) Information related to specific Bell Atlantic facilities and
equipment (including, but not limited to, cable-and-pair information)
which is disclosed by Bell Atlantic to Reseller, and
(d) Any other information which is identified by the Discloser
as Confidential Information in accordance with Section 13.2.
13.2 All information which is to be treated as Confidential
Information under Section 13.1(d) shall:
(a) if in written, graphic, electromagnetic, or other tangible
form, be marked as "Confidential" or "Proprietary"; and
(b) if oral, (i) be identified by the Discloser at the time of
disclosure to be "Confidential" or "Proprietary", and (ii) be set forth
in a written summary which
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identifies the information as "Confidential" or "Proprietary" and is
delivered by the Discloser to the Recipient within ten (10) days after
the oral disclosure.
Each Party shall have the right to correct an inadvertent
failure to identify information as Confidential Information pursuant to
Section 13.1(d) by giving written notification within thirty (30) days
after the information is disclosed. The Recipient shall, from that time
forward, treat such information as Confidential Information.
Notwithstanding any other provision of this Agreement, a Party
shall have the right to refuse to accept receipt of information which
the other Party has identified as Confidential Information pursuant to
Section 13.1(d).
13.3 In addition to any requirements imposed by law, including, but
not limited to, 47 U.S.C. Section 222, for a period of five years from
the receipt of Confidential Information from the Discloser, except as
otherwise specified in this Agreement, the Recipient agrees:
(a) to use the Confidential Information only for the purpose of
performing under this Agreement;
(b) using the same degree of care that it uses with similar
confidential information of its own, to hold the Confidential
Information in confidence and restrict disclosure of the Confidential
Information solely to the Recipient's Affiliates, and the directors,
officers and employees of the Recipient and the Recipient's Affiliates,
having a need to know the Confidential Information for the purpose of
performing under this Agreement. The Recipient's Affiliates and the
directors, officers and employees of the Recipient and the Recipient's
Affiliates, shall be required by the Recipient to comply with the
provisions of this Section 13 in the same manner as the Recipient. The
Recipient shall be liable for any failure of the Recipient's Affiliates
and the directors, officers and employees of the Recipient and the
Recipient's Affiliates, to comply with the provisions of this Section
13.
13.4 If the Recipient wishes to disclose the Discloser's Confidential
Information to a third party Agent or contractor, such disclosure must
be mutually agreed to in writing by the Parties to this Agreement, and
the Agent or contractor must have executed a written agreement of
non-disclosure and non-use comparable in scope to the terms of this
Section 13.
13.5 The Recipient may make copies of Confidential Information only
as reasonably necessary to perform its obligations under this Agreement.
All such copies shall bear the same copyright and proprietary rights
notices as are contained on the original.
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13.6 The Recipient shall return or destroy all Confidential
Information received from the Discloser, including any copies made by
the Recipient, within thirty (30) days after a written request by the
Discloser is delivered to the Recipient, except for (a) Confidential
Information that the Recipient reasonably requires to perform its
obligations under this Agreement, and (b) Customer Information related
to a Reseller Customer that is to be treated by Bell Atlantic as
Confidential Information pursuant to Section 13.1(a). If the Recipient
loses or makes an unauthorized disclosure of the Discloser's
Confidential Information, it shall notify the Discloser immediately and
use reasonable efforts to retrieve the lost or improperly disclosed
information.
13.7 The requirements of this Section 13 shall not apply to
Confidential Information:
(a) which was in the possession of the Recipient free of
restriction prior to its receipt from the Discloser;
(b) after it becomes publicly known or available through no
breach of this Agreement by the Recipient, the Recipient's Affiliates,
or the directors, officers, employees, Agents, or contractors, of the
Recipient or the Recipient's Affiliates;
(c) after it is rightfully acquired by the Recipient free of
restrictions on its disclosure;
(d) after it is independently developed by the Recipient; or
(e) to the extent the disclosure is required by Applicable Law,
a court, or governmental agency; provided, the Discloser has been
notified of the required disclosure promptly after the Recipient becomes
aware of the required disclosure, the Recipient undertakes reasonable
lawful measures to avoid disclosing the Confidential Information until
the Discloser has had reasonable time to seek a protective order, and
the Recipient complies with any protective order that covers the
Confidential Information to be disclosed.
13.8 Each Party's obligations to safeguard Confidential Information
disclosed prior to expiration, cancellation or termination of this
Agreement shall survive such expiration, cancellation or termination.
13.9 Confidential Information shall remain the property of the
Discloser, and the Discloser shall retain all of the Discloser's right,
title and interest in any Confidential Information disclosed by the
Discloser to the Recipient. Except as otherwise expressly provided
elsewhere in this Agreement, no license is granted by this Agreement
with respect to any Confidential Information (including, but not limited
to, under any patent, trademark, or copyright), nor is any such license
to be implied, solely by virtue of the disclosure of any Confidential
Information.
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13.10 Each Party agrees that the Discloser would be irreparably
injured by a breach of this Section 13 by the Recipient, the Recipient's
Affiliates, or the directors, officers, employees, Agents or contractors
of the Recipient or the Recipient's Affiliates, and that the Discloser
shall be entitled to seek equitable relief, including injunctive relief
and specific performance, in the event of any breach of the provisions
of this Section 13. Such remedies shall not be deemed to be the
exclusive remedies for a breach of this Section 13, but shall be in
addition to any other remedies available under this Agreement or at law
or in equity.
13.11 The provisions of this Section 13 shall be in addition to and
not in derogation of any provisions of Applicable Law, including, but
not limited to, 47 U.S.C. Section 222, and are not intended to
constitute a waiver by a Party of any right with regard to protection
of the confidentiality of information of the Party or its Customers
provided by Applicable Law. In the event of a conflict between a
provision of this Section 13 and a provision of Applicable Law, the
provision of Applicable Law shall prevail.
14. CONTINGENCIES
Neither Party shall be liable for any delay or failure in
performance by it which results from strikes, labor slowdowns, or other
labor disputes, fires, explosions, floods, earthquakes, volcanic action,
delays in obtaining or inability to obtain necessary services,
facilities, equipment, parts or repairs thereof, power failures,
embargoes, boycotts, unusually severe weather conditions, revolution,
riots or other civil disturbances, war or acts of the public enemy, acts
of God, or causes beyond the Party's reasonable control.
15. COUNTERPARTS
This Agreement may be executed in two or more counterparts, each
of which shall be deemed an original and all of which shall together
constitute one and the same instrument.
16. CUSTOMER INFORMATION
16.1 Without in any way limiting Section 12, each Party shall comply
with Applicable Law with regard to Customer Information, including, but
not limited to, 47 U.S.C. Section 222 and the FCC rules in 47 CFR
Section 64.2001 - Section 64.2009.
16.2 A Party ("Accessing Party") shall not access (including, but not
limited to, in the case of Reseller, through Bell Atlantic OSS
Services), use or disclose Customer Information made available to the
Accessing Party by the other Party pursuant to this Agreement unless the
Accessing Party, in the manner required by Applicable Law, has obtained
any Customer authorization for such access, use and/or disclosure
required by
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Applicable Law. By accessing, using or disclosing Customer Information
made available to the Accessing Party by the other Party pursuant to
this Agreement the Accessing Party represents and warrants that the
Accessing Party has obtained, in the manner required by Applicable Law,
any Customer authorization for such action required by Applicable Law.
The Accessing Party shall upon request by the other Party provide proof
of such authorization (including, a copy of any written authorization).
16.3 Bell Atlantic shall have the right (but not the obligation) to
audit Reseller to ascertain whether Reseller is complying with the
requirements of Applicable Law and this Agreement, with regard to
Reseller's access to, and use and disclosure of, Customer Information
which is made available to Reseller by Bell Atlantic pursuant to this
Agreement.
16.4 In addition to Bell Atlantic's audit rights under Section 16.3,
Bell Atlantic shall have the right (but not the obligation) to monitor
Reseller's access to and use of Customer Information which is made
available by Bell Atlantic to Reseller pursuant to this Agreement, to
ascertain whether Reseller is complying with the requirements of
Applicable Law and this Agreement, with regard to Reseller's access to,
and use and disclosure of, such Customer Information. The foregoing
right shall include, but not be limited to, the right (but not the
obligation) to electronically monitor Reseller's access to and use of
Customer Information which is made available by Bell Atlantic to
Reseller pursuant to this Agreement through Bell Atlantic OSS Facilities
or other electronic interfaces or gateways.
16.5 Information obtained by Bell Atlantic pursuant to Section 16.3
or Section 16.4 shall be treated by Bell Atlantic as Confidential
Information of Reseller pursuant to Section 13; provided that, Bell
Atlantic shall have the right (but not the obligation) to use and
disclose information obtained by Bell Atlantic pursuant to this Section
16 to enforce Applicable Law and/or Bell Atlantic's rights under this
Agreement.
17. DEFAULT
17.1 If Reseller materially breaches a material provision of this
Agreement (other than an obligation to make payment of any amount billed
under this Agreement), and such breach continues for more than thirty
(30) days after written notice thereof from Bell Atlantic, then, except
as otherwise required by Applicable Law, Bell Atlantic shall have the
right, upon notice to Reseller, to terminate or suspend this Agreement
and/or provision of Bell Atlantic Services, in whole or in part.
17.2.1 If Reseller fails to make a payment of any amount billed under
this Agreement by the due date stated on the bill and such failure
continues for more than thirty (30) days after written notice thereof
from Bell Atlantic, then, except as provided in Section 17.2.2, below,
or as otherwise required by Applicable Law, Bell Atlantic shall
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have the right, upon notice to Reseller, to terminate or suspend this
Agreement and/or provision of Bell Atlantic Services, in whole or in
part.
17.2.2 If a good faith dispute arises between the Parties concerning
the obligation of Reseller to make payment of an amount billed under
this Agreement, the failure to pay the amount in dispute shall not
constitute cause for termination or suspension of this Agreement or
provision of Bell Atlantic Services, if, within thirty (30) days of the
date that Bell Atlantic gives Reseller written notice of the failure to
pay the amount in dispute, Reseller (a) gives Bell Atlantic written
notice of the dispute stating the basis of the dispute, and (b)
furnishes to Bell Atlantic an irrevocable letter of credit in a form
acceptable to Bell Atlantic or other security arrangement acceptable to
Bell Atlantic, guaranteeing payment to Bell Atlantic of any portion of
the disputed amount (including the whole of the disputed amount) which
is thereafter agreed by Bell Atlantic and Reseller, or determined by a
court or other governmental entity of appropriate jurisdiction, to be
due to Bell Atlantic. The existence of such a dispute shall not relieve
Reseller of its obligations to pay any undisputed amount which is due to
Bell Atlantic and to otherwise comply with this Agreement.
18. FACILITIES
18.1 Bell Atlantic or its suppliers shall retain all right, title and
interest in, and ownership of, all facilities, equipment software,
information, and wiring, used to provide Bell Atlantic Services. Bell
Atlantic shall have access at all reasonable times to Reseller and
Reseller Customer locations for the purpose of installing, inspecting,
maintaining, repairing and removing, facilities, equipment, software,
and wiring, used to provide the Bell Atlantic Services. Reseller shall,
at Reseller's expense, obtain any rights and authorizations necessary
for such access.
18.2 Except as otherwise agreed to in writing by Bell Atlantic, Bell
Atlantic shall not be responsible for the installation, inspection,
repair, maintenance, or removal, of facilities, equipment, software, or
wiring, provided by Reseller or Reseller Customers for use with Bell
Atlantic Services.
19. INTELLECTUAL PROPERTY
Except as expressly stated in this Agreement, nothing contained
within this Agreement shall be construed as the grant of a license,
either express or implied, with respect to any patent, copyright, trade
name, trade mark, service mark, trade secret, or other proprietary
interest or intellectual property, now or hereafter owned, controlled or
licensable by either Party.
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20. JOINT WORK PRODUCT
The Principal Document is the joint work product of the
representatives of the Parties. For convenience, the Principal Document
has been drafted in final form by Bell Atlantic. Accordingly, in the
event of ambiguities, no inferences shall be drawn against either Party
solely on the basis of authorship of the Principal Document.
21. LIABILITY
21.1.1 AS USED IN, THIS SECTION 21, "OTHER BELL ATLANTIC PERSONS"
MEANS BELL ATLANTIC'S AFFILIATES, AND THE DIRECTORS, OFFICERS,
EMPLOYEES, AGENTS AND CONTRACTORS, OF BELL ATLANTIC AND BELL ATLANTIC'S
AFFILIATES.
21.1.2 AS USED IN THIS SECTION 21, "BELL ATLANTIC SERVICE FAILURE"
MEANS AND INCLUDES ANY FAILURE TO INSTALL, RESTORE, PROVIDE OR TERMINATE
A BELL ATLANTIC SERVICE, AND ANY MISTAKE, OMISSION, INTERRUPTION, DELAY,
ERROR, DEFECT, FAULT, FAILURE, OR DEFICIENCY, IN A BELL ATLANTIC
SERVICE.
21.2 THE LIABILITY, IF ANY, OF BELL ATLANTIC AND OTHER BELL ATLANTIC
PERSONS, TO RESELLER, RESELLER CUSTOMERS AND/OR ANY OTHER PERSON, FOR
ANY CLAIM, LOSS OR DAMAGES ARISING OUT OF OR IN CONNECTION WITH A BELL
ATLANTIC SERVICE FAILURE, SHALL BE LIMITED AND/OR EXCLUDED AS SET FORTH
IN BELL ATLANTIC'S TARIFFS.
21.3.1 TO THE EXTENT THE BELL ATLANTIC TARIFFS APPLICABLE TO A BELL
ATLANTIC SERVICE DO NOT CONTAIN A PROVISION WHICH LIMITS OR EXCLUDES THE
LIABILITY OF BELL ATLANTIC AND/OR OTHER BELL ATLANTIC PERSONS TO
RESELLER, RESELLER CUSTOMERS AND/OR ANY OTHER PERSON, FOR ANY CLAIM,
LOSS OR DAMAGES ARISING OUT OF OR IN CONNECTION WITH A BELL ATLANTIC
SERVICE FAILURE, SECTION 21.3.3 SHALL APPLY.
21.3.2 TO THE EXTENT A BELL ATLANTIC SERVICE IS NOT SUBJECT TO A BELL
ATLANTIC TARIFF, SECTION 21.3.3 SHALL APPLY.
21.3.3 THE LIABILITY, IF ANY, OF BELL ATLANTIC AND OTHER BELL ATLANTIC
PERSONS, TO RESELLER, RESELLER CUSTOMERS AND/OR ANY OTHER PERSON, FOR
ANY CLAIM, LOSS OR DAMAGES ARISING OUT OF OR IN CONNECTION WITH A BELL
ATLANTIC SERVICE FAILURE, SHALL BE LIMITED TO A TOTAL AMOUNT NOT IN
EXCESS OF: (a) TWICE THE PROPORTIONATE CHARGE FOR THE BELL ATLANTIC
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SERVICE AFFECTED DURING THE PERIOD OF THE BELL ATLANTIC SERVICE FAILURE;
OR, (b) IF THERE IS NO CHARGE FOR THE BELL ATLANTIC SERVICE AFFECTED,
FIVE HUNDRED DOLLARS ($500.00).
21.4 NOTWITHSTANDING ANYTHING CONTAINED IN SECTION 21.2, SECTION
21.3.1, SECTION 21.3.2, OR SECTION 21.3.3, ABOVE, BELL ATLANTIC AND
OTHER BELL ATLANTIC PERSONS SHALL HAVE NO LIABILITY TO RESELLER,
RESELLER CUSTOMERS, AND/OR ANY OTHER PERSON, FOR ANY SPECIAL, INDIRECT,
INCIDENTAL, OR CONSEQUENTIAL, DAMAGES (INCLUDING, BUT NOT LIMITED TO,
DAMAGES FOR HARM TO BUSINESS, LOST REVENUES, LOST PROFITS, LOST SAVINGS,
OR OTHER COMMERCIAL OR ECONOMIC LOSS), ARISING OUT OF OR IN CONNECTION
WITH A BELL ATLANTIC SERVICE FAILURE OR ANY BREACH OR FAILURE IN
PERFORMANCE OF THIS AGREEMENT BY BELL ATLANTIC.
21.5 THE LIMITATIONS AND EXCLUSIONS FROM LIABILITY STATED IN SECTIONS
21.2 THROUGH 21.4 SHALL APPLY REGARDLESS OF THE FORM OF A CLAIM OR
ACTION, WHETHER IN CONTRACT, WARRANTY, TORT (INCLUDING, BUT NOT LIMITED
TO, THE NEGLIGENCE OF BELL ATLANTIC AND/OR OTHER BELL ATLANTIC PERSONS),
STRICT LIABILITY, OR OTHERWISE, AND REGARDLESS OF WHETHER BELL ATLANTIC
HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
21.6 Reseller shall, in its tariffs or other contracts with Reseller
Customers, provide that in no case shall Bell Atlantic or Other Bell
Atlantic Persons be liable to Reseller Customers or to any other third
parties for any indirect, special, incidental, consequential, or other
damages, including, but not limited to, harm to business, lost revenues,
lost profits, lost savings, or other commercial or economic loss,
whether foreseeable or not, and regardless of notification of the
possibility of such damages. Reseller shall indemnify, defend and hold
Bell Atlantic and Other Bell Atlantic Persons harmless from claim by
Reseller Customers and other third parties as provided in Bell
Atlantic's Tariffs.
21.7 Bell Atlantic's obligations under this Agreement shall extend
only to Reseller. Bell Atlantic shall have no liability under this
Agreement to Reseller Customers or to any other third party. Nothing in
this Agreement shall be deemed to create a third party beneficiary
relationship between Bell Atlantic and Reseller Customers or any other
third party.
21.8 Reseller shall indemnify, defend and hold harmless Bell
Atlantic, Bell Atlantic's Affiliates, and the directors, officers and
employees of Bell Atlantic and Bell Atlantic's Affiliates, from any
claims, suits, government proceedings, judgments, fines,
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liabilities, losses, damages, costs or expenses (including reasonable
attorneys fees) arising out of or in connection with: (a) the failure of
Reseller to transmit to Bell Atlantic a request by a Reseller Customer
to install, provide, change or terminate, a Bell Atlantic Retail
Telecommunications Service; (b) the transmission by Reseller to Bell
Atlantic of an Order to install, provide, change or terminate, a Bell
Atlantic Retail Telecommunications Service, which Order was not
authorized by the applicable Reseller Customer; (c) erroneous or
inaccurate information in an Order transmitted by Reseller to Bell
Atlantic; (d) the transmission by Reseller to Bell Atlantic of an Order
to change or terminate a Telecommunications Service provided to an end
user by Bell Atlantic or another Telecommunications Service provider, or
to install or provide a Telecommunications Service for an end user,
which Order was not authorized by the applicable end user; (e) the
transmission by Reseller to Bell Atlantic of an Order to select, change
or reassign a telephone number for an end user, which Order was not
authorized by the applicable end user; (f) the transmission by Reseller
to Bell Atlantic of an Order to select a Telephone Exchange Service
provider for an end user, or to change or terminate an end user's
selection of a Telephone Exchange Service provider, which Order was not
authorized by the applicable end user in the manner required by
Applicable Law (or, in the absence of such Applicable Law, in the manner
required by the rules and procedures in 47 CFR Section 64.1100); (g)
access to, or use or disclosure of, Customer Information or Bell
Atlantic OSS Information by Reseller or Reseller's employees, Agents or
contractors; (h) the failure of Reseller to transmit, or to transmit in
a timely manner, E911/911 information to Bell Atlantic; (i) erroneous or
inaccurate E911/911 information transmitted by Reseller to Bell
Atlantic; (j) any information provided by Reseller for inclusion in Bell
Atlantic's LIDB; or, (k) the marketing, advertising or sale of
Reseller's services and/or products (including, but not limited to,
resold Bell Atlantic Retail Telecommunications Services), or the billing
or collection of charges for Reseller's services and/or products
(including, but not limited to, resold Bell Atlantic Retail
Telecommunications Services). For the purposes of Section 21.8(b), (d)
and (e), an Order shall be deemed not to have been authorized by a
Reseller Customer or end user if Applicable Law and/or this Agreement
required such authorization to be obtained in a particular manner, and
Reseller did not obtain the authorization in the manner required by
Applicable Law and this Agreement.
22. NON-EXCLUSIVE REMEDIES
Except as otherwise expressly provided in this Agreement, each
of the remedies provided under this Agreement is cumulative and is in
addition to any other remedies that may be available under this
Agreement or at law or in equity.
23. NOTICES
All notices and other communications under this Agreement shall
be deemed effective upon receipt by the Party being notified, provided
such notices or communications are in writing and are sent by certified
or registered mail, return receipt
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requested, or by a reputable private delivery service which provides a
record of delivery, and addressed as shown below:
To Bell Atlantic:
Bell Atlantic - Delaware, Inc.
c/o Bell Atlantic Network Services, Inc.
1320 North Courthouse Road
Arlington, Virginia 22201
Attn.: Director, Resale
Initiatives
To Reseller: President
Essential.Com, Inc.
3 Burlington Woods Drive
Burlington, MA 01803
Tel: (781) 229-9599
Fax: (781) 229-9499
Either Party may from time-to-time designate another address or
addressee by giving notice in accordance with this Section 23.
24. OPTION TO OBTAIN BELL ATLANTIC SERVICE UNDER OTHER AGREEMENTS
24.1 If, at any time while this Agreement is in effect, Bell Atlantic
is a party to an agreement with a Telecommunications Carrier other than
Reseller ("Third-Person Telecommunications Carrier) to provide Bell
Atlantic Services to the Third-Person Telecommunications Carrier, which
agreement has been approved by the Commission pursuant to 47 U.S.C.
Section 252, - upon request by Reseller, Bell Atlantic, to the extent
required by Applicable Law (including, but not limited to 47 U.S.C.
Section 252(i)), shall make available to Reseller any Bell Atlantic
Service offered by Bell Atlantic under the agreement with the
Third-Person Telecommunications Carrier upon the same terms and
conditions (including prices) provided in the agreement with the
Third-Person Telecommunications Carrier, but (except as otherwise
expressly agreed in writing by the Parties) only on a prospective basis.
Following such request by Reseller and prior to provision of the Bell
Atlantic Service by Bell Atlantic to Reseller pursuant to the terms and
conditions (including prices) of the Third-Person Telecommunications
Carrier agreement, this Agreement shall be amended to incorporate the
terms and conditions (including prices) from the Third-Person
Telecommunications Carrier agreement applicable to the Bell Atlantic
Service Reseller has elected to purchase pursuant to the terms and
conditions (including prices) of the Third-Person Telecommunications
Carrier agreement. Except as otherwise expressly agreed in writing by
the Parties, the amendment shall apply on a prospective basis only and
shall not apply with regard to any
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Bell Atlantic Service provided by Bell Atlantic to Reseller prior to the
effective date of the amendment.
24.2 To the extent the exercise of the foregoing option requires a
rearrangement of facilities by Bell Atlantic, Reseller shall be liable
for the non-recurring charges associated therewith, as well as for any
termination charges associated with the termination of existing
facilities or Bell Atlantic Services.
25. REGULATORY APPROVALS
25.1 Within thirty (30) days after execution of this Agreement by the
Parties, Bell Atlantic shall file the Agreement with the Commission for
approval by the Commission.
25.2 Each Party shall exercise reasonable efforts (including
reasonably cooperating with the other Party) to secure approval of this
Agreement, and any amendment to this Agreement agreed to by the Parties,
from the Commission, the FCC, and other applicable governmental
entities.
25.3 Upon request by Bell Atlantic, Reseller shall, at Reseller's
expense, provide reasonable, good-faith support and assistance to Bell
Atlantic in obtaining any governmental approvals necessary for (a) this
Agreement and any amendment to this Agreement agreed to by the Parties,
and/or (b) the provision of Bell Atlantic Services by Bell Atlantic to
Reseller. Without in any way limiting the foregoing, upon request by
Bell Atlantic, Reseller shall (a) join in petitions requesting approval
of this Agreement, or an amendment to this Agreement agreed to by the
Parties, to be filed with the Commission, the FCC, or other applicable
governmental entities, and (b) file other documents with and present
testimony to the Commission, the FCC, or other applicable governmental
entities, requesting approval of this Agreement or an amendment to this
Agreement agreed to by the Parties.
26. REGULATORY CONTINGENCIES
26.1 Neither Party shall be liable for any delay or failure in
performance by it which results from requirements of Applicable Law, or
acts or failures to act of any governmental entity or official.
26.2 In the event that any provision of this Agreement shall be
invalid or unenforceable, such invalidity or unenforceability shall not
invalidate or render unenforceable any other provision of this
Agreement, and this Agreement shall be construed as if it did not
contain such invalid or unenforceable provision.
26.3 In the event that any legislative, regulatory, judicial or other
governmental action materially affects any material terms of this
Agreement, the ability of either Party
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to perform any material terms of this Agreement, or the rights or
obligations of either Party under this Agreement, the Parties shall take
such action as shall be necessary to conform this Agreement to the
governmental action and/or to permit Bell Atlantic to continue to
provide and Reseller to continue to purchase Bell Atlantic Services,
including, but not limited to, conducting good faith negotiations to
enter into a mutually acceptable modified or substitute agreement,
filing tariffs, or additional, supplemental or modified tariffs, and
making other required filings with governmental entities.
26.4 In the event of a governmental action described in Section 26.3,
above, to the extent permitted by Applicable Law, Bell Atlantic shall
continue to provide and Reseller shall continue to subscribe to, use
and pay for, any Bell Atlantic Services affected by the governmental
action until the action to be taken by Bell Atlantic and Reseller under
Section 26.3, above, is taken and becomes effective in accordance with
Applicable Law. Such continued provision of and subscription to, use of
and payment for, the affected Bell Atlantic Services shall be in
accordance with the terms (including prices) of this Agreement, unless
other terms, including but not limited to the terms of a Bell Atlantic
Tariff, are required by Applicable Law.
26.5 If suspension or termination of the provision of any Bell
Atlantic Service is required by or as a result of a governmental action,
such suspension or termination shall not affect Reseller's subscription
to, use or obligation to pay for, other Bell Atlantic Services, unless
such suspension or termination has a material, adverse effect on
Reseller's ability to use the other Bell Atlantic Services.
26.6 If any of the Bell Atlantic Services to be provided by Bell
Atlantic pursuant to a tariff shall at any time become detariffed or
deregulated, Bell Atlantic may transfer the provisions of the tariff
relative to such Bell Atlantic Services to a Bell Atlantic "Guide for
Detariffed Services" or similar document, and such "Guide for Detariffed
Services" or similar document, as amended by Bell Atlantic from
time-to-time, shall become a part of this Agreement.
27. RELATIONSHIP OF THE PARTIES
27.1 The relationship between the Parties under this Agreement shall
be that of independent contractors.
27.2 Nothing contained in this Agreement shall:
(a) make either Party the Agent or employee of the other Party;
(b) grant either Party the authority to enter into a contract on
behalf of, or otherwise legally bind, the other Party in any way;
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(c) create a partnership, joint venture or other similar
relationship between the parties; or
(d) grant to Reseller a franchise, distributorship or similar
interest.
27.3 Each Party shall be solely responsible for selection,
supervision, termination, and compensation, of its respective employees,
Agents and contractors.
27.4 Each Party shall be solely responsible for payment of any Social
Security or other taxes which it is required by Applicable Law to pay
in conjunction with its employees, Agents or contractors, and for
collecting and remitting to applicable taxing authorities any taxes
which it is required by Applicable Law to collect from its employees,
Agents or contractors.
27.5 The relationship of the Parties under this Agreement is a
non-exclusive relationship. Bell Atlantic shall have the right to
provide services offered by Bell Atlantic under this Agreement to
persons other than Reseller. Reseller shall have the right to purchase
services that may be purchased by Reseller under this Agreement from
persons other than Bell Atlantic.
28. RESELLER'S PROVISION OF SERVICE
28.1 Prior to providing Bell Atlantic Retail Telecommunications
Services purchased by Reseller under this Agreement to Reseller
Customers, Reseller shall obtain from the Commission, the FCC, and any
other applicable governmental entities, any certificates or other
authorizations required by Applicable Law for Reseller to provide
Telecommunications Services. Reseller shall promptly notify Bell
Atlantic in writing of any governmental action which suspends, cancels
or withdraws any such certificate or authorization, or otherwise limits
or affects Reseller's right to provide Telecommunications Services.
28.2 To the extent required by Applicable Law, Reseller shall: (a)
file with the Commission, the FCC, and/or other applicable governmental
entities, the tariffs, arrangements and other documents that set forth
the terms, conditions and prices under which Reseller provides
Telecommunications Services; and, (b) make available for public
inspection, the tariffs, arrangements and other documents that set forth
the terms, conditions and prices under which Reseller provides
Telecommunications Services.
29. RESELLER'S RESALE AND USE OF SERVICE
29.1 Reseller shall comply with the provisions of this Agreement
(including, but not limited to, Bell Atlantic's Tariffs) regarding
resale or use of Bell Atlantic Services, including, but not limited to,
any restrictions on resale or use of Bell Atlantic Services.
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29.2 Without in any way limiting Section 29.1, (a) Reseller shall
not resell residential service to persons not eligible to subscribe to
such service from Bell Atlantic (including, but not limited to, business
Reseller Customers and other nonresidential Reseller Customers), and (b)
Reseller shall not resell Lifeline or other means-tested service
offerings, or grandfathered or discontinued service offerings, to
persons not eligible to subscribe to such service offerings from Bell
Atlantic.
29.3 Reseller shall undertake in good faith to ensure that Reseller
Customers comply with the provisions of Bell Atlantic's Tariffs
applicable to their use of Bell Atlantic Retail Telecommunications
Services.
29.4 Reseller shall comply with Applicable Law, and Bell Atlantic's
procedures, for handling requests from law enforcement and other
government agencies for service termination, assistance with electronic
surveillance, and provision of information.
30. RESPONSIBILITY FOR CHARGES
30.1 Reseller shall be responsible for and pay all charges for any
Bell Atlantic Service provided by Bell Atlantic to Reseller, whether the
Bell Atlantic Service is ordered, activated or used by Reseller, a
Reseller Customer, or another person.
30.2 In addition to the charges for Bell Atlantic Services, Reseller
agrees to pay any charges for Telecommunications Services, facilities,
equipment, software, wiring, or other services or products, provided by
Bell Atlantic, or provided by persons other than Bell Atlantic and
billed for by Bell Atlantic, that are ordered, activated or used by
Reseller, Reseller Customers or other persons, through, by means of, or
in association with, Bell Atlantic Services provided by Bell Atlantic to
Reseller.
30.3 Reseller agrees to indemnify, defend and hold Bell Atlantic
harmless from, any charges for Telecommunications Services, facilities,
equipment, software, wiring, or other services or products, provided by
persons other than Bell Atlantic that are ordered, activated or used by
Reseller, Reseller Customers or other persons, through, by means of, or
in association with, Bell Atlantic Services provided by Bell Atlantic to
Reseller.
30.4 Without in any way limiting Reseller's obligations under Section
30.1, Section 30.2 and Section 30.3, Reseller shall pay, or collect
and remit to Bell Atlantic, without discount, all Subscriber Line
Charges, Federal Line Cost Charges, end user common line charges,
carrier selection and change charges (PIC change charge), and the
Presubscribed Interexchange Carrier Charge applicable to Reseller
Customers who have not presubscribed to an interexchange carrier for
long distance services, associated with Bell Atlantic Services provided
by Bell Atlantic to Reseller.
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30.5 Upon request by Reseller, Bell Atlantic will provide for use on
resold Bell Atlantic Retail Telecommunications Service dial tone lines
purchased by Reseller such Bell Atlantic Retail Telecommunications
Service call blocking services as Bell Atlantic provides to Bell
Atlantic's own end user retail Customers, where and to the extent Bell
Atlantic provides such Bell Atlantic Retail Telecommunications Service
call blocking services to Bell Atlantic's own end user retail Customers.
31. SECTION HEADINGS
The section headings in the Principal Document are for
convenience only and are not intended to affect the meaning or
interpretation of the Principal Document.
32. SERVICES NOT COVERED BY THIS AGREEMENT
32.1 This Agreement applies only to Bell Atlantic Services (as the
term "Bell Atlantic Service" is defined in Section 1.1.6) provided, or
to be provided, by Bell Atlantic to Reseller, as specified in Section 3.
Any Telecommunications Services, facilities, equipment, software,
wiring, or other services or products (including, but not limited to,
Telecommunications Services, facilities, equipment, software, wiring, or
other services or products, interconnected or used with Bell Atlantic
Services provided, or to be provided, by Bell Atlantic to Reseller)
provided, or to be provided, by Bell Atlantic to Reseller, which are not
subscribed to by Reseller under this Agreement, must be subscribed to by
Reseller separately, pursuant to other written agreements (including,
but not limited to, applicable-Bell Atlantic Tariffs). Reseller shall
use and pay for any Telecommunications Services, facilities, equipment,
software, wiring, or other services or products, provided, or to be
provided, by Bell Atlantic to Reseller, which are not subscribed to by
Reseller under this Agreement, in accordance with such other written
agreements (including, but not limited to, applicable Bell Atlantic
Tariffs).
32.2 Without in any way limiting Section 32.1 and without attempting
to list all Bell Atlantic products and services that are not subject to
this Agreement, the Parties agree that this Agreement does not apply to
the purchase by Reseller of the following Bell Atlantic services and
products: except as expressly stated in the Principal Document, exchange
access services as defined in Section 3(16) of the Act, 47 U.S.C. ss.
153(16) (including, but not limited to, primary interLATA toll carrier
and primary intraLATA toll carrier choice or change); Bell Atlantic
Answer Call, Bell Atlantic Answer Call Plus, Bell Atlantic Home Voice
Mail, Bell Atlantic Home Voice Mail Plus, Bell Atlantic Voice Mail, Bell
Atlantic Basic Mailbox, Bell Atlantic OptiMail Service, and other voice
mail, fax mail, voice messaging, and fax messaging, services; Bell
Atlantic Optional Wire Maintenance Plan; Bell Atlantic Guardian Enhanced
Maintenance Service; Bell Atlantic Sentry I Enhanced Maintenance
Service; Bell Atlantic Sentry II Enhanced Maintenance Service; Bell
Atlantic Sentry III Enhanced Maintenance Service; Bell Atlantic Call 54
Service; Bell Atlantic Public Telephone Service; customer premises
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equipment; Bell Atlantic telephone directory listings offered under
agreements or arrangements other than Bell Atlantic Tariffs filed with
the Commission; and, Bell Atlantic telephone directory advertisements.
32.3 Without in any way limiting Section 32.1, the Parties also agree
that this Agreement does not apply to the installation, inspection,
maintenance, repair, removal, or use of any facilities, equipment,
software, or wiring, located on Reseller's side of the Network Rate
Demarcation Point applicable to Reseller and does not grant to Reseller
or Reseller Customers a right to installation, inspection, maintenance,
repair, or removal, by Bell Atlantic, or use, by Reseller or Reseller
Customers, of any such facilities, equipment, software, or wiring.
32.4 Without in any way limiting Section 32.1, the Parties agree that
this Agreement does not apply to the purchase by Reseller of Audiotex
Services (including, but not limited to, Dial-It, 976, 915 and 556
services) for resale to Audiotex Service providers or other information
service providers. Bell Atlantic shall have the right (but not the
obligation) to block calls made to Audiotex Service numbers (including,
but not limited to, Dial-It numbers and 976, 915 and 556 numbers)
through Bell Atlantic Services purchased by Reseller under this
Agreement. Notwithstanding the foregoing, Reseller shall pay, without
discount, any charges for Audiotex Services (including, but not limited
to, Dial-It, 976, 915 and 556 services) that are ordered, activated or
used by Reseller, Reseller Customers or other persons, through, by means
of, or in association with, Bell Atlantic Services provided by Bell
Atlantic to Reseller.
32.5 Nothing contained within this Agreement shall obligate Bell
Atlantic to provide any service or product which is not a Bell Atlantic
Service (including, but not limited to, the services listed in Sections
32.2, 32.3 and 32.4, above) to Reseller.
32.6 Nothing contained within this Agreement shall obligate Bell
Atlantic to provide a Bell Atlantic Service or any other service or
product to a Reseller Customer. Without in any way limiting the
foregoing, except as otherwise required by Applicable Law, Bell Atlantic
reserves the right to terminate provision of services and products
(including, but not limited to, Telecommunications Services and the
services listed in Sections 32.2 and 32.3, above) to any person who
ceases to purchase Bell Atlantic Retail Telecommunications Service dial
tone line service from Bell Atlantic.
32.7 Nothing contained in this Section 32 shall in any way exclude or
limit Reseller's obligations and liabilities under Section 30,
including, but not limited to Reseller's obligations and liabilities to
pay charges for services and products as required by Section 30.
33. SERVICE QUALITY
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Bell Atlantic Services provided by Bell Atlantic to Reseller
under this Agreement shall comply with the quality requirements for such
Bell Atlantic Services specified by Applicable Law (including, but not
limited to, any applicable provisions of 47 CFR Sections 51.311 and
51.603(b)).
34. SINGLE POINT OF CONTACT
34.1 Reseller shall be the single point of contact for Reseller
Customers and other persons with regard to Telecommunications Services
and other services and products which they wish to purchase from
Reseller or which they have purchased from Reseller. Communications by
Reseller Customers and other persons with regard to Telecommunications
Services and other services and products which they wish to purchase
from Reseller or which they have purchased from Reseller, shall be made
to Reseller, and not to Bell Atlantic. Reseller shall instruct Reseller
Customers and other persons that such communications shall be directed
to Reseller.
34.2 Without in any way limiting Section 34.1, requests by Reseller
Customers for information about or provision of Telecommunications
Services which they wish to purchase from Reseller, requests by Reseller
Customers to change, terminate, or obtain information about, assistance
in using, or repair or maintenance of, Telecommunications Services which
they have purchased from Reseller, and inquiries by Reseller Customers
concerning Reseller's bills, charges for Reseller's Telecommunications
Services, and, if the Reseller Customers receive dial tone line service
from Reseller, annoyance calls, shall be made by the Reseller Customers
to Reseller, and not to Bell Atlantic.
34.3 Reseller shall establish telephone numbers and mailing addresses
at which Reseller Customers and other persons may communicate with
Reseller and shall advise Reseller Customers and other persons who may
wish to communicate with Reseller of these telephone numbers and mailing
addresses.
35. SURVIVAL
The liabilities and obligations of a Party for acts omissions of
the Party prior to the termination, cancellation or expiration of this
Agreement, the rights, liabilities and obligations of a Party under any
provision of this Agreement regarding indemnification or defense,
Customer Information, confidential information, or limitation or
exclusion of liability, the rights of Bell Atlantic and the liabilities
and obligations of Reseller under Section 18.1, and the rights,
liabilities and obligations of a Party under any provision of this
Agreement which by its terms is contemplated to survive (or be performed
after) termination, cancellation or expiration of this Agreement, shall
survive termination, cancellation or expiration of this Agreement.
36. TAXES
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36.1 With respect to any purchase of Bell Atlantic Services under
this Agreement, if any Federal, state or local government tax, fee,
duty, surcharge (including, but not limited to any E911/911,
telecommunications relay service, or universal service fund, surcharge),
or other tax-like charge (a "Tax") is required or permitted by
Applicable Law to be collected from Reseller by Bell Atlantic, then (a)
to the extent required by Applicable Law, Bell Atlantic shall bill
Reseller for such Tax, (b) Reseller shall timely remit such Tax to Bell
Atlantic (including both Taxes billed by Bell Atlantic and Taxes
Reseller is required by Applicable Law to remit without billing by Bell
Atlantic), and (c) Bell Atlantic shall remit such collected Tax to the
applicable taxing authority.
36.2 With respect to any purchase of Bell Atlantic Services under
this Agreement, if any Tax is imposed by Applicable Law on the receipts
of Bell Atlantic, which Applicable Law permits Bell Atlantic to exclude
certain receipts received from sales of Bell Atlantic Services for
resale by Reseller, such exclusion being based on the fact that Reseller
is also subject to a Tax based upon receipts ("Receipts Tax"), then
Reseller (a) shall provide Bell Atlantic with notice in writing in
accordance with Section 36.7 of its intent to pay the Receipts Tax, and
(b) shall timely pay the Receipts Tax to the applicable taxing
authority.
36.3 With respect to any purchase of Bell Atlantic Services under
this Agreement, that are resold by Reseller to a Reseller Customer, if
any Tax is imposed by Applicable Law on the Reseller Customer in
connection with the Reseller Customer's purchase of the resold Bell
Atlantic Services which Reseller is required to impose and/or collect
from the Reseller Customer, then Reseller (a) shall impose and/or
collect such Tax from the Reseller Customer, and (b) shall timely remit
such Tax to the applicable taxing authority.
36.4.1 If Bell Atlantic has not received an exemption certificate from
Reseller and fails to bill Reseller for any Tax as required by Section
36.1, then, as between Bell Atlantic and Reseller, (a) Reseller shall
remain liable for such unbilled Tax, and (b) Bell Atlantic shall be
liable for any interest and/or penalty assessed on the unbilled Tax by
the applicable taxing authority.
36.4.2 If Reseller fails to remit any Tax to Bell Atlantic as required
by Section 36.1, then, as between Bell Atlantic and Reseller, Reseller
shall be liable for such uncollected Tax and any interest and/or penalty
assessed on the uncollected Tax by the applicable taxing authority.
36.4.3 If Bell Atlantic does not collect a Tax because Reseller has
provided Bell Atlantic with an exemption certificate which is later
found to be inadequate by the applicable taxing authority, then, as
between Bell Atlantic and Reseller, Reseller shall be liable for such
uncollected Tax and any interest and/or penalty assessed on the
uncollected Tax by the applicable taxing authority.
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36.4.4 Except as provided in Section 36.4.5, if Reseller fails to pay
the Receipts Tax as required by Section 36.2, then, as between Bell
Atlantic and Reseller, (a) Bell Atlantic shall be liable for any Tax
imposed on Bell Atlantic's receipts, (b) Reseller shall be liable for
any interest and/or penalty imposed on Bell Atlantic with respect to the
Tax on Bell Atlantic's receipts, and (c) Reseller shall be liable for
any Tax imposed on Reseller's receipts and any interest and/or penalty
assessed by the applicable taxing authority on Reseller with respect to
the Tax on Reseller's receipts.
36.4.5 If any discount or portion of a. discount in price provided to
Reseller under this Agreement (including, but not limited to, a discount
provided for in Exhibit II, Section 1.1) represents Tax savings to Bell
Atlantic which it was anticipated Bell Atlantic would receive, because
it was anticipated that receipts from sales of Bell Atlantic Services,
that would otherwise be subject to a Tax on such receipts, could be
excluded from such Tax under Applicable Law because the Bell Atlantic
Services would be sold to Reseller for resale, and Bell Atlantic is, in
fact, required by Applicable Law to pay such Tax on receipts from sales
of Bell Atlantic Services to Reseller, then, as between Bell Atlantic
and Reseller, (a) Reseller shall be liable for, and shall indemnify and
hold harmless Bell Atlantic against (on an after-tax basis), any such
Tax, and (b) Reseller shall be liable for, and shall indemnify and hold
harmless Bell Atlantic against (on an after-tax basis), any interest
and/or penalty assessed by the applicable taxing authority on either
Reseller or Bell Atlantic with respect to the Tax on Bell Atlantic's
receipts.
36.4.6 If Reseller fails to impose and/or collect any Tax from Reseller
Customers as required by Section 36.3, then, as between Bell Atlantic
and Reseller, Reseller shall remain liable for such uncollected Tax and
any interest and/or penalty assessed on such uncollected Tax by the
applicable taxing authority.
36.4.7 With respect to any Tax that Reseller has agreed to pay, is
responsible for because Reseller received a discount in price on Bell
Atlantic Services attributable to anticipated Tax savings by Bell
Atlantic, or is required to impose on and/or collect from Reseller
Customers, Reseller agrees to indemnify and hold Bell Atlantic harmless
on an after-tax basis for any costs incurred by Bell Atlantic as a
result of actions taken by the applicable taxing authority to recover
the Tax from Bell Atlantic due to failure of Reseller to timely remit
the Tax to Bell Atlantic, or timely pay, or collect and timely remit,
the Tax to the taxing authority.
36.5 If either Party is audited by a taxing authority, the other
Party agrees to reasonably cooperate with the Party being audited in
order to respond to any audit inquiries in a proper and timely manner so
that the audit and/or any resulting controversy may be resolved
expeditiously.
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36.6.1 If Applicable Law clearly exempts a purchase of Bell Atlantic
Services under this Agreement from a Tax, and if such Applicable Law
also provides an exemption procedure, such as an exemption certificate
requirement, then, if Reseller complies with such procedure, Bell
Atlantic shall not collect such Tax during the effective period of the
exemption. Such exemption shall be effective upon receipt of the
exemption certificate or affidavit in accordance with Section 36.7.
36.6.2 If Applicable Law clearly exempts a purchase of Bell Atlantic
Services under this Agreement from a Tax, but does not also provide an
exemption procedure, then Bell Atlantic shall not collect such Tax if
Reseller (a) furnishes Bell Atlantic with a letter signed by an officer
of Reseller requesting an exemption and citing the provision in the
Applicable Law which clearly allows such exemption, and (b) supplies
Bell Atlantic with an indemnification agreement, reasonably acceptable
to Bell Atlantic, which holds Bell Atlantic harmless on an after-tax
basis with respect to forbearing to collect such Tax.
36.7 All notices, affidavits, exemption certificates or other
communications required or permitted to be given by either Party to the
other under this Section 36, shall be made in writing and shall be sent
by certified or registered mail, return receipt requested, or by a
reputable private delivery service which provides a record of delivery,
to the addressee stated in Section 23 at the address stated in Section
23 and to the following:
To Bell Atlantic:
Tax Administration
Bell Atlantic Corporation
1095 Avenue of the Americas
Room 3109
New York, New York 10036
To Reseller: Controller
Essential.Com, Inc.
3 Burlington Woods Drive
Burlington, MA 01803
Tel: (781) 229-9599
Fax: (781) 229-9499
Either Party may from time-to-time designate another address or
addressee by giving notice in accordance with the terms of this Section
36.7.
Any notice or other communication shall be deemed to be given
when received.
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37. TELEPHONE EXCHANGE SERVICE PROVIDER SELECTION
37.1 Without in any way limiting Reseller's obligations under Section
12, Reseller shall comply with Applicable Law with regard to end user
selection of a Telephone Exchange Service provider. Until the Commission
or the FCC adopts regulations and/or orders applicable to end user
selection of a Telephone Exchange Service provider, Reseller shall apply
the rules and procedures set forth in Section 64.1100 of the FCC Rules,
47 CFR Section 64.1100, to the process for end user selection of a
Telephone Exchange Service provider (including, to end user selection
of a Telephone Exchange Service provider that occurs during any,
telemarketing contact with an end user), and shall comply with such
rules and procedures.
37.2 By submitting to Bell Atlantic an Order to install, provide,
change or terminate a Telecommunications Service, to select, change or
reassign a telephone number, or to select, change or terminate an end
user's Telephone Exchange Service provider, Reseller represents and
warrants: (a) that Reseller has obtained authorization for such action
from the applicable end user; and, (b) that if Applicable Law and/or
this Agreement required such authorization to be obtained in a
particular manner, Reseller obtained the authorization in the manner
required by Applicable Law and this Agreement. Reseller shall upon
request by Bell Atlantic provide proof of such authorization (including,
a copy of any written authorization).
37.3 If Reseller submits an Order to Bell Atlantic to install,
provide, change or terminate a Telecommunications Service, to select,
change or reassign a telephone number, or to select, change or terminate
an end user's Telephone Exchange Service provider, and (a) when
requested by Bell Atlantic to provide a written document signed by the
end user stating the end user's Telephone Exchange Service provider
selection, fails to provide such document to Bell Atlantic, or (b) has
not obtained authorization for such installation, provision, selection,
change, reassignment or termination, from the end user in the manner
required by Applicable Law (or, in the absence of Applicable Law, in the
manner required by the rules and procedures in 47 CFR Section 64.1100),
Reseller shall be liable to Bell Atlantic for all charges that would be
applicable to the end user for the initial installation, provision,
selection, change, reassignment or termination, of the end user's
Telecommunications Service, telephone number, and/or Telephone Exchange
Service provider, and any charges for restoring the end user's
Telecommunications Service, telephone number, and/or Telephone Exchange
Service provider selection, to its end user authorized condition.
38. TELEPHONE NUMBERS
38.1 Reseller's use of telephone numbers shall be subject to
Applicable Law (including, but not limited to, the rules of the FCC, the
North American Numbering Council, and the North American Numbering Plan
Administrator), the applicable provisions of this Agreement (including,
but not limited to, this Section 38), and Bell
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Atlantic's practices and procedures for use and assignment of telephone
numbers, as amended from time-to-time.
38.2 Subject to Sections 38.1 and 38.3, if an end user who subscribes
to a Bell Atlantic Retail Telecommunications Service dial tone line from
either Reseller or Bell Atlantic changes the Telecommunications Carrier
from whom the end user subscribes for such dial tone line (including a
change from Bell Atlantic to Reseller, from Reseller to Bell Atlantic,
or from Reseller to a Telecommunications Carrier other than Bell
Atlantic), after such change, the end user may continue to use with the
dial tone line the telephone numbers which were assigned to the dial
tone line by Bell Atlantic immediately prior to the change.
38.3 Bell Atlantic shall have the right to change the telephone
numbers used by an end user if at any time: (a) the type or class of
service subscribed to by the end user changes; (b) the end user requests
service at a new location, that is not served by the Bell Atlantic
switch and the Bell Atlantic rate center from which the end user
previously had service; or, (c) continued use of the telephone numbers
is not technically feasible.
38.4 If service on a Bell Atlantic Retail Telecommunications Service
dial tone line subscribed to by Reseller from Bell Atlantic under this
Agreement is terminated, the telephone numbers associated with such dial
tone line shall be available for reassignment by Bell Atlantic to any
person to whom Bell Atlantic elects to assign the telephone numbers,
including, but not limited to, Bell Atlantic, Bell Atlantic end user
retail Customers, Reseller, or Telecommunications Carriers other than
Bell Atlantic and Reseller.
39. WARRANTIES
EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, BELL ATLANTIC
MAKES NO WARRANTIES WITH RESPECT TO BELL ATLANTIC SERVICES, WHETHER
EXPRESS OR IMPLIED, WRITTEN OR ORAL, IN FACT OR IN LAW. THE WARRANTIES
SET FORTH IN THIS AGREEMENT ARE BELL ATLANTIC'S EXCLUSIVE WARRANTIES
WITH RESPECT TO BELL ATLANTIC SERVICES AND ARE IN LIEU OF ALL OTHER
WARRANTIES, EXPRESS OR IMPLIED, WRITTEN OR ORAL, IN FACT OR IN LAW. BELL
ATLANTIC DISCLAIMS ANY AND ALL OTHER WARRANTIES, INCLUDING, BUT NOT
LIMITED TO, WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR
PURPOSE, WARRANTIES AGAINST INFRINGEMENT, AND WARRANTIES ARISING BY
TRADE CUSTOM, TRADE USAGE, COURSE OF DEALING, OR OTHERWISE.
40. PUBLICITY AND USE OF TRADEMARKS OR SERVICE MARKS
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40.1.1 Neither Party nor its subcontractors or agents will use the
other Party's trademarks, service marks, logos or other proprietary
trade dress in connection with the sale of products and services, or in
any advertising, press releases, publicity matters or other promotional
materials without such Party's prior written consent.
40.1.2 Neither Party may imply any direct or indirect affiliation with
or sponsorship or endorsement of its company, products and services by
the other Party.
41. AUTHORIZATION
41.1.1 Bell Atlantic is a corporation duly organized, validly existing
and in good standing under the laws of the State of Delaware and has
full power and authority to execute and deliver this Agreement and to
perform the obligations hereunder on behalf of Bell Atlantic.
41.2 Essential.Com, Inc., a corporation, is duly organized, validly
existing and in good standing under the laws of Delaware, and has full
power and authority to execute and deliver this Agreement and to perform
its obligations hereunder.
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IN WITNESS WHEREOF, intending to be legally bound, Reseller and Bell
Atlantic have caused this Agreement to be executed by their respective
authorized representatives.
ESSENTIAL.COM, INC.
BY: /s/ Akhil Garland
----------------------------------------
Signature
Akhil Garland
----------------------------------------
Name (Printed)
ITS: CEO
----------------------------------------
Title
BY: /s/ Patrick Moran
----------------------------------------
Signature
Patrick Moran
----------------------------------------
Name (Printed)
ITS: Vice President-Operations
----------------------------------------
Title
BY: /s/ John A. Duffy
----------------------------------------
Signature
John Duffy
----------------------------------------
Name (Printed)
ITS: Vice President-Business Development
----------------------------------------
Title
BELL ATLANTIC - DELAWARE, INC.
BY: /s/ Jeffrey A. Masoner
----------------------------------------
Signature
Jeffrey A. Masoner
----------------------------------------
Name (Printed)
TITLE: Vice President - Telecom Industry Services
----------------------------------------
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EXHIBIT I
BELL ATLANTIC ANCILLARY SERVICES
1. BELL ATLANTIC OSS SERVICES
1.1 DEFINITIONS
As used in the Principal Document, the terms listed below shall
have the meanings stated below:
1.1.1 "Bell Atlantic Operations Support Systems" means Bell Atlantic
systems for pre-ordering, ordering, provisioning, maintenance and
repair, and billing.
1.1.2 "Bell Atlantic OSS Services" means access to Bell Atlantic
Operations Support Systems functions. The term "Bell Atlantic OSS
Services" includes, but is not limited to: (a) Bell Atlantic's provision
of Reseller Usage Information to Reseller pursuant to Exhibit I, Section
1.3, below; and, (b) "Bell Atlantic OSS Information", as defined in
Exhibit I, Section 1.1.4, below.
1.1.3 "Bell Atlantic OSS Facilities" means any gateways, interfaces,
databases, facilities, equipment, software, or systems, used by Bell
Atlantic to provide Bell Atlantic OSS Services to Reseller.
1.1.4 "Bell Atlantic OSS Information" means any information accessed
by, or disclosed or provided to, Reseller through or as a part of Bell
Atlantic OSS Services. The term "Bell Atlantic OSS Information"
includes, but is not limited to: (a) any Customer Information related to
a Bell Atlantic Customer or a Reseller Customer accessed by, or
disclosed or provided to, Reseller through or as a part of Bell Atlantic
OSS Services; and, (b) any Reseller Usage Information (as defined in
Exhibit I, Section 1.1.5, below) accessed by, or disclosed or provided
to, Reseller.
1.1.5 "Reseller Usage Information" means the usage information for a
Bell Atlantic Retail Telecommunications Service purchased by Reseller
under this Agreement that Bell Atlantic would record if Bell Atlantic
was furnishing such Bell Atlantic Retail Telecommunications Service to a
Bell Atlantic end-user retail Customer.
1.2 BELL ATLANTIC OSS SERVICES
1.2.1 Upon request by Reseller, Bell Atlantic shall provide to
Reseller, pursuant to Section 251(c)(3) of the Act, 47 U.S.C. Section
251(c)(3), Bell Atlantic OSS Services.
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1.2.2 Subject to the requirements of Applicable Law, Bell Atlantic
Operations Support Systems, Bell Atlantic Operations Support Systems
functions, Bell Atlantic OSS Facilities, Bell Atlantic OSS Information,
and the Bell Atlantic OSS Services that will be offered by Bell
Atlantic, shall be as determined by Bell Atlantic. To the extent
required by Applicable Law and technically feasible, Bell Atlantic will
offer to Reseller the Bell Atlantic OSS Services that Bell Atlantic
offers, under agreements approved by the Commission pursuant to 47
U.S.C. Section 252, to other Telecommunications Carriers that are
engaged in the resale of Bell Atlantic Retail Telecommunications
Services pursuant to 47 U.S.C. Section 251(c)(4). Subject to the
requirements of Applicable Law, Bell Atlantic shall have the right to
change Bell Atlantic Operations Support Systems, Bell Atlantic
Operations Support Systems functions, Bell Atlantic OSS Facilities, Bell
Atlantic OSS Information, and the Bell Atlantic OSS Services, from
time-to-time, without the consent of Reseller.
1.3 RESELLER USAGE INFORMATION
1.3.1 Upon request by Reseller, Bell Atlantic shall provide to
Reseller, pursuant to Section 251(c)(3) of the Act, 47 U.S.C. Section
251(c)(3), Reseller Usage Information.
1.3.2 Reseller Usage Information will be available to Reseller through
the following:
(a) Daily Usage File on Data Tape.
(b) Daily Usage File through Network Data Mover ("NDM").
(c) Daily Usage File through Centralized Message Distribution System
("CMDS").
1.3.3.1 Reseller Usage Information will be provided in a Bellcore
Exchange Message Records ("EMIV") format.
1.3.3.2 Daily Usage File Data Tapes provided pursuant to Exhibit I,
Section 1.3.2(a) will be issued each day, Monday through Friday, except
holidays observed by Bell Atlantic.
1.3.4 Except as stated in this Exhibit I, Section 1.3, subject to the
requirements of Applicable Law, the manner in which, and the frequency
with which, Reseller Usage Information will be provided to Reseller
shall be determined by Bell Atlantic.
1.4 PRICES
The prices for Bell Atlantic OSS Services shall be as stated in
Exhibit II, Section 2 following.
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1.5 ACCESS TO AND USE OF BELL ATLANTIC OSS FACILITIES
1.5.1 Bell Atlantic OSS Facilities may be accessed and used by
Reseller only to the extent necessary for Reseller's access to and use
of Bell Atlantic OSS Services pursuant to this Agreement.
1.5.2 Bell Atlantic OSS Facilities may be accessed and used by
Reseller only to provide Telecommunications Services to Reseller
Customers.
1.5.3 Reseller shall restrict access to and use of Bell Atlantic OSS
Facilities to Reseller. This Agreement does not grant to Reseller any
right or license to grant sublicenses to other persons, or permission to
other persons (except Reseller's employees, Agents and contractors, in
accordance with Exhibit I, Section 1.5.7, below), to access or use Bell
Atlantic OSS Facilities.
1.5.4 Reseller shall not (a) alter, modify or damage the Bell Atlantic
OSS Facilities (including, but not limited to, Bell Atlantic software),
(b) copy, remove, derive, reverse engineer, or decompile, software from
the Bell Atlantic OSS Facilities, or (c) obtain access through Bell
Atlantic OSS Facilities to Bell Atlantic databases, facilities,
equipment, software, or systems, which are not offered for Reseller's
use under this Agreement.
1.5.5 Reseller shall comply with all practices and procedures
established by Bell Atlantic for access to and use of Bell Atlantic OSS
Facilities (including, but not limited to, Bell Atlantic practices and
procedures with regard to security and use of access and user
identification codes).
1.5.6 All practices and procedures for access to and use of Bell
Atlantic OSS Facilities, and all access and user identification codes
for Bell Atlantic OSS Facilities: (a) shall remain the property of Bell
Atlantic; (b) shall be used by Reseller only in connection with
Reseller's use of Bell Atlantic OSS Facilities permitted by this
Agreement; (c) shall be treated by Reseller as Confidential Information
of Bell Atlantic pursuant to Section 13; and, (d) shall be destroyed or
returned by Reseller to Bell Atlantic upon the earlier of request by
Bell Atlantic or the expiration or termination of this Agreement.
1.5.7 Reseller's employees, Agents and contractors may access and use
Bell Atlantic OSS Facilities only to the extent necessary for Reseller's
access to and use of the Bell Atlantic OSS Facilities permitted by this
Agreement. Any access to or use of Bell Atlantic OSS Facilities by
Reseller's employees, Agents, or contractors, shall be subject to the
provisions of this Agreement, including, but not limited to, Section 13,
Exhibit I, Section 1.5.6, and Exhibit I, Section 1.6.3.3.
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1.6 BELL-ATLANTIC OSS INFORMATION
1.6.1 Subject to the provisions of this Agreement and Applicable Law,
Bell Atlantic grants to Reseller a non-exclusive license to use Bell
Atlantic OSS Information.
1.6.2 All Bell Atlantic OSS Information shall at all times remain the
property of Bell Atlantic. Except as expressly stated in this Agreement,
Reseller shall acquire no rights in or to any Bell Atlantic OSS
Information.
1.6.3.1 The provisions of this Exhibit I, Section 1.6.3 apply to all
Bell Atlantic OSS Information, except (a) Reseller Usage Information,
(b) CPNI of Reseller, and (c) CPNI of a Bell Atlantic Customer or a
Reseller Customer, to the extent the Customer has authorized Reseller to
use the Customer Information.
1.6.3.2 Bell Atlantic OSS Information may be accessed and used by
Reseller only to provide Telecommunications Services to Reseller
Customers.
1.6.3.3 Reseller shall treat Bell Atlantic OSS Information that is
designated by Bell Atlantic, through written or electronic notice
(including, but not limited to, through the Bell Atlantic OSS Services),
as "Confidential" or "Proprietary" as Confidential Information of Bell
Atlantic pursuant to Section 13.
1.6.3.4 Except as expressly stated in this Agreement, this Agreement
does not grant to Reseller any right or license to grant sublicenses to
other persons, or permission to other persons (except Reseller's
employees, Agents or contractors, in accordance with Exhibit I, Section
1.6.3.5), to access, use or disclose Bell Atlantic OSS Information.
1.6.3.5 Reseller's employees, Agents and contractors may access, use and
disclose Bell Atlantic OSS Information only to the extent necessary for
Reseller's access to, and use and disclosure of, Bell Atlantic OSS
Information permitted by this Agreement. Any access to, or use or
disclosure of, Bell Atlantic OSS Information by Reseller's employees,
Agents or contractors, shall be subject to the provisions of this
Agreement, including, but not limited to, Section 13 and Exhibit I,
Section 1.6.3.3.
1.6.3.6 Reseller's license to use Bell Atlantic OSS Information shall
expire upon the earliest of: (a) the time when the Bell Atlantic OSS
Information is no longer needed by Reseller to provide
Telecommunications Services to Reseller Customers; (b) termination of
the license in accordance with this Agreement; or (c) expiration or
termination of this Agreement.
1.6.3.7 All Bell Atlantic OSS Information received by Reseller shall be
destroyed or returned by Reseller to Bell Atlantic, upon expiration,
suspension or termination of the license to use such Bell Atlantic OSS
Information.
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1.6.4 Unless sooner terminated or suspended in accordance with this
Agreement (including, but not limited to, Section 17.1 and Exhibit I,
Section 1.7.1), Reseller's access to Bell Atlantic OSS Information
through Bell Atlantic OSS Services shall terminate upon the expiration
or termination of this Agreement.
1.6.5.1 Without in any way limiting Section 16.3, Bell Atlantic shall
have the right (but not the obligation) to audit Reseller to ascertain
whether Reseller is complying with the requirements of Applicable Law
and this Agreement, with regard to Reseller's access to, and use and
disclosure of, Bell Atlantic OSS Information.
1.6.5.2 Without in any way limiting Section 16.3, Section 16.4, or
Exhibit I, Section 1.6.5.1, Bell Atlantic shall have the right (but not
the obligation) to monitor Reseller's access to and use of Bell Atlantic
OSS Information which is made available by Bell Atlantic to Reseller
pursuant to this Agreement, to ascertain whether Reseller is complying
with the requirements of Applicable Law and this Agreement, with regard
to Reseller's access to, and use and disclosure of, such Bell Atlantic
OSS Information. The foregoing right shall include, but not be limited
to, the right (but not the obligation) to electronically monitor
Reseller's access to and use of Bell Atlantic OSS Information which is
made available by Bell Atlantic to Reseller through Bell Atlantic OSS
Facilities.
1.6.5.3 Information obtained by Bell Atlantic pursuant to this Exhibit
I, Section 1.6.5 shall be treated by Bell Atlantic as Confidential
Information of Reseller pursuant to Section 13; provided that, Bell
Atlantic shall have the right (but not the obligation) to use and
disclose information obtained by Bell Atlantic pursuant to this Exhibit
I, Section 1.6.5 to enforce Applicable Law and/or Bell Atlantic's rights
under this Agreement.
1.6.6 Reseller acknowledges that the Bell Atlantic OSS Information, by
its nature, is updated and corrected on a continuous basis by Bell
Atlantic, and therefore that Bell Atlantic OSS Information is subject to
change from time to time.
1.7 LIABILITIES AND REMEDIES
1.7.1 Any breach by Reseller, or Reseller's employees, Agents or
contractors, of the provisions of Exhibit I, Section 1.5 or Exhibit I,
Section 1.6, shall be deemed a material breach of a material provision
of this Agreement by Reseller under Section 17.1 of this Agreement. In
addition, if Reseller or an employee, Agent or contractor of Reseller at
any time breaches a provision of Exhibit I, Section 1.5 or Exhibit I,
Section 1.6, and such breach continues for more than ten (10) days after
written notice thereof from Bell Atlantic, then, except as otherwise
required by Applicable Law, Bell Atlantic shall have the right, upon
notice to Reseller, to suspend the license to use Bell Atlantic OSS
Information granted by Exhibit I, Section 1.6.1 and/or the provision of
Bell Atlantic OSS Services, in whole or in part.
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1.7.2 Reseller agrees that Bell Atlantic would be irreparably injured
by a breach of Exhibit I, Section 1.5 or Exhibit I, Section 1.6 by
Reseller or the employees, Agents or contractors of Reseller, and that
Bell Atlantic shall be entitled to seek equitable relief, including
injunctive relief and specific performance, in the event of any breach
of Exhibit I, Section 1.5 or Exhibit I, Section 1.6 by Reseller or the
employees, Agents or contractors of Reseller. Such remedies shall not be
deemed to be the exclusive remedies for a breach of Exhibit I, Section
1.5 or Exhibit I, Section 1.6, but shall be in addition to any other
remedies available under this Agreement or at law or in equity.
1.8 RELATION TO APPLICABLE LAW
The provisions of Exhibit I, Sections 1.5, 1.6 and 1.7 shall be
in addition to and not in derogation of any provisions of Applicable
Law, including, but not limited to, 47 U.S.C. Section 222and the FCC
rules in 47 CFR Section 64.2001 - Section 64.2009, and are not intended
to constitute a waiver by Bell Atlantic of any right with regard to
protection of the confidentiality of the information of Bell Atlantic or
Bell Atlantic Customers provided by Applicable Law.
1.9 COOPERATION
Reseller, at Reseller's expense, shall reasonably cooperate with
Bell Atlantic in using Bell Atlantic OSS Services. Such cooperation
shall include, but not be limited to, the following:
1.9.1 Upon request by Bell Atlantic, Reseller shall by no later than
the fifteenth (15th) day of each calendar month submit to Bell Atlantic
reasonable, good faith estimates (by central office or other Bell
Atlantic office or geographic area designated by Bell Atlantic) of the
volume of each Bell Atlantic Retail Telecommunications Service for which
Reseller anticipates submitting Orders in each week of the next calendar
month.
1.9.2 Upon request by Bell Atlantic, Reseller shall submit to Bell
Atlantic reasonable, good faith estimates of other types of transactions
or use of Bell Atlantic OSS Services that Reseller anticipates.
1.9.3 Reseller shall reasonably cooperate with Bell Atlantic in
submitting Orders for Bell Atlantic Retail Telecommunications Services
and otherwise using the Bell Atlantic OSS Services, in order to avoid
exceeding the capacity or capabilities of such Bell Atlantic OSS
Services.
1.9.4 Reseller shall participate in cooperative testing of Bell
Atlantic OSS Services and shall provide assistance to Bell Atlantic in
identifying and correcting mistakes, omissions, interruptions, delays,
errors, defects, faults, failures, or other deficiencies, in Bell
Atlantic OSS Services.
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1.10 Bell Atlantic Access to Information Related to Reseller CUSTOMERS
1.10.1 Bell Atlantic shall have the right to access, use and disclose
information related to Reseller Customers that is in Bell Atlantic's
possession (including, but not limited to, in Bell Atlantic OSS
Facilities) to the extent such access, use and/or disclosure has been
authorized by the Reseller Customer in the manner required by Applicable
Law.
1.10.2 Upon request by Bell Atlantic, Reseller shall negotiate in good
faith and enter into a contract with Bell Atlantic, pursuant to which
Bell Atlantic may obtain access to Reseller's operations support systems
(including, systems for pre-ordering, ordering, provisioning,
maintenance and repair, and billing) and information contained in such
systems, to permit Bell Atlantic to obtain information related to
Reseller Customers (as authorized by the applicable Reseller Customer),
to permit Customers to transfer service from one Telecommunications
Carrier to another, and for such other purposes as may be permitted by
Applicable Law.
2. E911/911 SERVICES
2.1 Where and to the extent that Bell Atlantic provides E911/911
call routing to a Public Safety Answering Point ("PSAP") to Bell
Atlantic's own end user retail Customers, Bell Atlantic will provide to
Reseller, for resold Bell Atlantic Retail Telecommunications Service
dial tone lines, E911/911 call routing to the appropriate PSAP. Bell
Atlantic will provide Reseller Customer information for resold Bell
Atlantic Retail Telecommunications Service dial tone lines to the PSAP
as that information is provided to Bell Atlantic by Reseller where and
to the same extent that Bell Atlantic provides Bell Atlantic end user
retail Customer information to the PSAP. Bell Atlantic will update and
maintain, on the same schedule that Bell Atlantic uses with Bell
Atlantic's own end user retail Customers, for Reseller Customers served
by resold Bell Atlantic Retail Telecommunications Service dial tone
lines, the Reseller Customer information in Bell Atlantic's E911/911
databases.
2.2 Reseller shall provide to Bell Atlantic the name, telephone
number and address, of all Reseller Customers, and such other
information as may be requested by Bell Atlantic, for inclusion in
E911/911 databases. Any change in Reseller Customer name, address or
telephone number information (including addition or deletion of a
Reseller Customer, or a change in Reseller Customer name, telephone
number or address), or in other E911/911 information supplied by
Reseller to Bell Atlantic, shall be reported to Bell Atlantic by
Reseller within one (1) day after the change.
2.3 To the extent that it is necessary (whether as a requirement of
Applicable Law or otherwise) for Reseller to enter into any agreements
or other arrangements with governmental entities (or governmental entity
contractors) related to E911/911 in order for Reseller to provide
Telecommunications Services, Reseller shall at Reseller's expense enter
into such agreements and arrangements.
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3. ROUTING TO DIRECTORY ASSISTANCE AND OPERATOR SERVICES
3.1 Upon request by Reseller, to the extent technically feasible,
Bell Atlantic will provide to Reseller the capability of rerouting to
Reseller's platforms directory assistance traffic (411 and 555-1212
calls) from Reseller Customers served by resold Bell Atlantic Retail
Telecommunications Service dial tone line service and operator services
traffic (0+ and 0- intraLATA calls) from Reseller Customers served by
resold Bell Atlantic Retail Telecommunications Service dial tone line
service.
3.2 A request for the rerouting service described in Exhibit I,
Section 4.1 must be made by Reseller (a) on a Bell Atlantic
switch-by-Bell Atlantic switch basis, and (b) at least ninety (90) days
in advance of the date that the rerouting capability is to be made
available in an applicable Bell Atlantic switch.
3.3 The prices for the rerouting service described in Exhibit I,
Section 4.1 shall be as stated in Exhibit II, Section 2.
4. LIDB/BVS
4.1 Upon request by Reseller, Bell Atlantic will maintain
information (including calling card numbers and collect and bill to
third party billing restriction notation) for Reseller Customers who
subscribe to resold Bell Atlantic Retail Telecommunications Service
dial tone line service, in Bell Atlantic's Line Information Database
("LIDB"), where and to the same extent that Bell Atlantic maintains
information in Bell Atlantic's LIDB for Bell Atlantic's own end-user
retail Customers.
4.2 If an end-user terminates Bell Atlantic Retail
Telecommunications Service dial tone line service provided to the
end-user by Bell Atlantic and, in place thereof, subscribes to Reseller
for resold Bell Atlantic Retail Telecommunications Service dial tone
line service, Bell Atlantic will remove from Bell Atlantic's LIDB any
Bell Atlantic-assigned telephone line calling card number (including
area code) ("TLN") and Personal Identification Number ("PIN") associated
with the terminated Bell Atlantic Retail Telecommunications Service dial
tone line service. The Bell Atlantic-assigned TLN and PIN will be
removed from Bell Atlantic's LIDB within twenty-four (24) hours after
Bell Atlantic terminates the Bell Atlantic Retail Telecommunications
Service dial tone line service with which the number was associated.
Reseller may issue a new telephone calling card to such end-user,
utilizing the same TLN, and the same or a different PIN. Upon request by
Reseller, Bell Atlantic will enter such TLN and PIN in Bell Atlantic's
LIDB for calling card validation purposes.
4.3 Reseller information which is stored in Bell Atlantic's LIDB
will be subject, to the same extent as Bell Atlantic information stored
in Bell Atlantic's LIDB, to access and use by, and disclosure to, those
persons (including, but not limited to, Bell Atlantic) to
41
<PAGE>
whom Bell Atlantic allows access to information which is stored in Bell
Atlantic's LIDB. Reseller hereby grants to Bell Atlantic and the persons
to whom Bell Atlantic allows access to information which is stored in
Bell Atlantic's LIDB, a royalty free license for such access, use and
disclosure.
4.4 Reseller shall obtain contractual agreements with each of the
persons authorized to have access to Bell Atlantic's LIDB, under which
Reseller will bill Reseller Customers for calling card, third party,
collect and other calls validated by such persons through Bell
Atlantic's LIDB.
4.5 Reseller warrants that the information provided by Reseller for
inclusion in Bell Atlantic's LIDB will at all times be current, accurate
and appropriate for use for billing validation services.
4.6 Upon request by Reseller, Bell Atlantic will provide to Reseller
Bell Atlantic Billing Validation Service, in accordance with Bell
Atlantic's Tariffs, for use by Reseller in connection with Bell Atlantic
Retail Telecommunications Services purchased and provided by Reseller
pursuant to this Agreement.
4.7 Information in Bell Atlantic's LIDB provided to Reseller shall
be treated by Reseller as Confidential Information of Bell Atlantic
pursuant to Section 13.
4.8 The prices for the services described in this Exhibit I, Section
5 shall be as stated in Exhibit II, Section 2.
42
<PAGE>
EXHIBIT II
PRICES FOR BELL ATLANTIC SERVICES
1. BELL ATLANTIC RETAIL TELECOMMUNICATIONS SERVICES
1.1 PRICES
The prices for Bell Atlantic Retail Telecommunications Services
shall be the Retail Prices stated in Bell Atlantic's Tariffs for such Bell
Atlantic Retail Telecommunications Services, less: (a) the applicable discount
stated in Bell Atlantic's Tariffs for Bell Atlantic Retail Telecommunications
Services purchased for resale pursuant to 47 U.S.C. Section 251(c)(4); or,
(b) in the absence of an applicable Bell Atlantic Tariff discount for Bell
Atlantic Retail Telecommunications Services purchased for resale pursuant to
47 U.S.C. Section 251(c)(4), the applicable discount stated in Exhibit II,
Attachment 1.
1.2 INAPPLICABILITY OF DISCOUNTS
The discounts provided for in Exhibit II, Section 1.1, shall
not be applied to:
1.2.1 Retail Prices that are in effect for no more than ninety (90)
days;
1.2.2 Charges for services and products provided by Bell Atlantic that
are not Bell Atlantic Retail Telecommunications Services, including, but not
limited to, Bell Atlantic Ancillary Services, and exchange access services as
defined in Section 3(16) of the Act, 47 U.S.C. Section 153(16);
1.2.3 Subscriber Line Charges, Federal Line Cost Charges, end user
common line charges, carrier selection and change charges, and Audiotex Service
charges, and to the extent applicable, the Presubscribed Interexchange Carrier
Charge applicable to Reseller Customers who have not presubscribed to an
interexchange carrier for long distance services; and,
1.2.4 Any service or charge which the Commission, the FCC, or other
governmental entity of appropriate jurisdiction, determines is not subject to a
wholesale rate discount under 47 U.S.C. Section 251(c)(4).
1.3 DISCOUNT CHANGES
1.3.1 Bell Atlantic shall change the discounts provided for in
Exhibit II, Section 1.1, above, from time-to-time, to the extent such change is
required by Applicable Law, including, but not limited to, by regulation or
order of the Commission, the FCC, or other governmental entity of appropriate
jurisdiction.
43
<PAGE>
1.3.2 Bell Atlantic shall have the right to change the discounts
provided for in Exhibit II, Section 1.1, above, from time-to-time, to the extent
such change is required, approved or permitted by Applicable Law, including, but
not limited to, by regulation or order of the Commission, the FCC, or other
governmental entity of appropriate jurisdiction.
1.4 Offers of Merchandise and Services which are not Bell Atlantic
Retail Telecommunications Services
Reseller shall not be eligible to participate in any Bell
Atlantic plan or program under which Bell Atlantic end user retail Customers may
obtain products or merchandise, or services which are not Bell Atlantic Retail
Telecommunications Services, in return for trying, agreeing to purchase,
purchasing, or using, Bell Atlantic Retail Telecommunications Services.
2. BELL ATLANTIC ANCILLARY SERVICES
2.1 PRICES
2.1.1 The prices for Bell Atlantic Ancillary Services shall be as
stated: (a) in Bell Atlantic's Tariffs; or, (b) in the absence of an applicable
Bell Atlantic Tariff price, in Exhibit II, Attachment 1.
2.1.2 If Bell Atlantic at any time offers a Bell Atlantic Ancillary
Service the prices for which are not stated in Bell Atlantic's Tariffs or
Exhibit II, Attachment 1, Bell Atlantic shall have the right to revise Exhibit
II, Attachment 1, to add the prices to Exhibit II, Attachment 1.
2.2 PRICE CHANGES
2.2.1 Bell Atlantic shall change the prices for Bell Atlantic
Ancillary Services, from time-to-time, to the extent such change is required by
Applicable Law, including, but not limited to, by regulation or order of the
Commission, the FCC, or other governmental entity of appropriate jurisdiction.
2.2.2 Bell Atlantic shall have the right to change the prices for Bell
Atlantic Ancillary Services, from time-to-time, to the extent such change is
required, approved or permitted by Applicable Law, including, but not limited
to, by regulation or order of the Commission, the FCC, or other governmental
entity of appropriate jurisdiction.
2.2.3 Except as otherwise required by Applicable Law, Bell Atlantic
shall give Reseller thirty (30) days advance written notice of any increase in
the prices stated in Exhibit II, Attachment 1 for Bell Atlantic Ancillary
Services.
44
<PAGE>
SERVICE OR ELEMENT DESCRIPTION: RECURRING CHARGES: NON-RECURRING
- ------------------------------- ------------------ -------------
CHARGE:
-------
ATTACHMENT I
to EXHIBIT II
BELL ATLANTIC - DELAWARE, INC.
DETAILED SCHEDULE OF ITEMIZED CHARGES(1)
I. WHOLESALE DISCOUNT FOR RESALE OF BELL ATLANTIC RETAIL TELECOMMUNICATIONS
SERVICES
Resale of Bell Atlantic Retail 20.0% or discount rate as
Telecommunications Services if RESELLER established by further Commission
provides its own Operator Services. Order.
Resale of Bell Atlantic Retail 16.0% or discount rate as
Telecommunications Services if RESELLER established by further Commission
uses Bell Atlantic Operator Services. Order.
- ------------------------------
(1) All rates and charges set forth in this Exhibit II, Attachment 1 are
subject to change from time-to-time as provided in this Agreement, including,
but not limited to, in Section 2.3 and Exhibit II of this Agreement. The rates
and charges set forth in this Exhibit II, Attachment 1 shall apply until such
time as they are replaced by new rates as may be approved or allowed into effect
by the Commission from time to time, subject to a stay or other order issued by
any court of competent jurisdiction. At such time(s) as such new rates have been
approved or allowed into effect by the Commission, the Parties shall amend this
Exhibit II, Attachment 1 to reflect the new approved rates.
Except for citations to generally available services and rates offered
under Bell Atlantic's Tariffs, all services and rates listed in this Exhibit II,
Attachment 1 are available to Reseller only in connection with the purchase and
resale of Bell Atlantic Retail Telecommunications Services by Reseller under
this Agreement. Adherence to this limitation shall be subject to reasonable
audit by Bell Atlantic.
The rates set forth in Sections II through IV of this Exhibit II,
Attachment 1, are in addition to, and not in lieu of, any other rates set forth
in this Agreement.
In addition to charges for Bell Atlantic Services, Reseller shall pay,
or collect and remit, applicable taxes and surcharges (including, but not
limited to, E911/911, telecommunications relay service, and universal service
fund, surcharges), as required by Applicable Law and this Agreement.
2
<PAGE>
SERVICE OR ELEMENT DESCRIPTION: RECURRING CHARGES: NON-RECURRING
- ------------------------------- ------------------ -------------
CHARGE:
-------
<TABLE>
<CAPTION>
<S> <C> <C>
II. ACCESS TO OPERATION SUPPORT SYSTEMS
A. Pre-Ordering $.2256/Query Not Applicable
B. Ordering $2.734/Transaction Not Applicable
C. Provisioning Included in Ordering Not Applicable
D. Maintenance & Repair
1. ECG Access $.2256/Query Not Applicable
2. EB/OSI Access $1.18/Trouble Ticket Not Applicable
E. Billing
1. CD-ROM $249.69/CD- Not Applicable
ROM/Month
2. Daily Usage File
a) Existing Message Recording $.0002618/Message Not Applicable
b) Delivery of DUF
Data Tape $17.25/Tape $62.14/Programming
Hour
Network Data Mover $.0000957/Message Not Applicable
CMDS $.0000957/Message $62.14/Programming
Hour
c) DUF Transport
9.6 kb Communications Port $10.37/Month $6,185.60/Port
56 kb Communications Port $28.63/Month $25,600.86/Port
256 kb Communications Port $28.63/Month $42,613.35/Port
T1 Communications Port $363.65/Month $152,056.67/Port
Line Installation Not Applicable $62.14/Programming
Hour/Port
Port Set-up Not Applicable $9.98/Port
Network Control Programming Not Applicable $62.14/Programming
Coding Hour/Port
</TABLE>
3
<PAGE>
SERVICE OR ELEMENT DESCRIPTION: RECURRING CHARGES: NON-RECURRING
- ------------------------------- ------------------ -------------
CHARGE:
-------
<TABLE>
<CAPTION>
<S> <C> <C>
III. DIRECTORY ASSISTANCE/OPERATOR SERVICES
ROUTING
To RESELLER Platform $.073942/Line/Month $3.78/Line
To BA Platform for Re-Branding $.069/Call $3.78/Line
IV. LIDB VALIDATION
LIDB Point Codes Not Applicable $86.88/Point Code
Calling Card $.01551/Query Not Applicable
Billed Number Screening $.01551/Query Not Applicable
Storage of RESELLER's Data in LIDB Not Applicable $1,487.64/Service
Database Establishment
</TABLE>
4
<PAGE>
APPENDIX 1, ATTACHMENT 17
QUALIFIED BUSINESS LINES FOR VOLUME COMMITMENT
DELAWARE
<TABLE>
<S> <C> <C> <C>
- -----------------------------------------------------------------------------------------------------------------------------
ACCESS LINES
- -----------------------------------------------------------------------------------------------------------------------------
Dial Tone Line DTLBX
- -----------------------------------------------------------------------------------------------------------------------------
Message BWL
- -----------------------------------------------------------------------------------------------------------------------------
Flat Rate Business Lines 1FB
- -----------------------------------------------------------------------------------------------------------------------------
Direct Inward Dial Trunks NDT NDN ND4
- -----------------------------------------------------------------------------------------------------------------------------
PBX Trunks TFB
- -----------------------------------------------------------------------------------------------------------------------------
PBX Digital trunks D7Z D7W
- -----------------------------------------------------------------------------------------------------------------------------
CENTREX:**
- -----------------------------------------------------------------------------------------------------------------------------
**EXCLUDES:
1. Centrex systems priced under a special contract (ICB, FPO, LSO, Custom Pricing)
2. Centrex systems which serve multiple end user customers
- -----------------------------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------------------------
CENTREX -- CUSTOPAK / CLASS OF SERVICE
- -----------------------------------------------------------------------------------------------------------------------------
Flat CJE+X
- -----------------------------------------------------------------------------------------------------------------------------
CUSTOPAK LINES
- -----------------------------------------------------------------------------------------------------------------------------
Unrestricted R3G
- -----------------------------------------------------------------------------------------------------------------------------
Restricted R3K
- -----------------------------------------------------------------------------------------------------------------------------
Primary Off Prem RX3
- -----------------------------------------------------------------------------------------------------------------------------
CENTREX - CUSTOFLEX 2100 / CLASS OF SERVICE RJY
- -----------------------------------------------------------------------------------------------------------------------------
Measured KEK+X
- -----------------------------------------------------------------------------------------------------------------------------
CUSTOFLEX 2100 LINES
- -----------------------------------------------------------------------------------------------------------------------------
Unrestricted R4N
- -----------------------------------------------------------------------------------------------------------------------------
Restricted RHK
- -----------------------------------------------------------------------------------------------------------------------------
Primary Off Prem RX3
- -----------------------------------------------------------------------------------------------------------------------------
ISDN - Unrestricted XQA
- -----------------------------------------------------------------------------------------------------------------------------
ISDN - Restricted XQK
- -----------------------------------------------------------------------------------------------------------------------------
</TABLE>
Page 1 of 1
<PAGE>
APPENDIX 1, ATTACHMENT 18
PRODUCT AND SERVICES ELIGIBLE FOR VTD DISCOUNT
DELAWARE
<TABLE>
<S> <C> <C> <C>
- -----------------------------------------------------------------------------------------------------------------------------
ACCESS LINES
- ----------------------------------------------------------------------------------------------------------------------------
Dial Tone Line DTLBX
- ----------------------------------------------------------------------------------------------------------------------------
Message BWL
- ----------------------------------------------------------------------------------------------------------------------------
Flat Rate Business Lines 1FB
- ----------------------------------------------------------------------------------------------------------------------------
Direct Inward Dial Trunks NDT NDN ND4
- ----------------------------------------------------------------------------------------------------------------------------
PBX Trunks TFB
- ----------------------------------------------------------------------------------------------------------------------------
PBX Digital trunks D7Z D7W
- ----------------------------------------------------------------------------------------------------------------------------
INTRA-LATA TOLL
#MUST BE ASSOCIATED WITH A RESOLD VTD QUALIFIED BUSINESS LINE
- ----------------------------------------------------------------------------------------------------------------------------
Message Rate Service N/A
- ----------------------------------------------------------------------------------------------------------------------------
MTS, including Key Connections & Rewarding Connections VWDK1 WRV
-------------------------------------------------
Optional Calling Plan BUT excluding all other OCPs OVSXX OVS2X
- ----------------------------------------------------------------------------------------------------------------------------
FEATURES
#MUST BE ASSOCIATED WITH A RESOLD VTD QUALIFIED BUSINESS LINE
- ----------------------------------------------------------------------------------------------------------------------------
Touch Tone TTB TJB
- ----------------------------------------------------------------------------------------------------------------------------
IQ SERVICES:
#MUST BE ASSOCIATED WITH A RESOLD VTD QUALIFIED BUSINESS LINE
- ----------------------------------------------------------------------------------------------------------------------------
Call Forwarding ESM
- ----------------------------------------------------------------------------------------------------------------------------
Call Waiting ESX
- ----------------------------------------------------------------------------------------------------------------------------
Call Waiting ID NWT
- ----------------------------------------------------------------------------------------------------------------------------
Speed Dialing 8 ESL
- ----------------------------------------------------------------------------------------------------------------------------
Speed Dialing 30 ESF
- ----------------------------------------------------------------------------------------------------------------------------
3 Way Calling (per Use or Monthly) ESC
- ----------------------------------------------------------------------------------------------------------------------------
*69 (per Use or Monthly) NSS
- ----------------------------------------------------------------------------------------------------------------------------
Call Trace (Per Use Charge)
- ----------------------------------------------------------------------------------------------------------------------------
Caller ID NSD
- ----------------------------------------------------------------------------------------------------------------------------
Caller ID with Name NDF
- ----------------------------------------------------------------------------------------------------------------------------
Per Call Blocking (Per Use Charge)
- ----------------------------------------------------------------------------------------------------------------------------
Repeat Dialing NSQ
- ----------------------------------------------------------------------------------------------------------------------------
Ultra Forward FRM
- ----------------------------------------------------------------------------------------------------------------------------
Distinctive Ring DRQ+X
- ----------------------------------------------------------------------------------------------------------------------------
Priority Call NSK
- ----------------------------------------------------------------------------------------------------------------------------
Select Forward NCE
- ----------------------------------------------------------------------------------------------------------------------------
Call Block NSY
- ----------------------------------------------------------------------------------------------------------------------------
Call Gate OC4
- ----------------------------------------------------------------------------------------------------------------------------
Anonymous Call Rejection - w/ Caller ID AWY
- ----------------------------------------------------------------------------------------------------------------------------
Anonymous Call Rejection - w/o Caller ID AYK
- ----------------------------------------------------------------------------------------------------------------------------
Line Blocking NG5
- ----------------------------------------------------------------------------------------------------------------------------
</TABLE>
Page 1 of 1
<PAGE>
RESALE AGREEMENT
(Pennsylvania)
PREFACE
THIS RESALE AGREEMENT (this "Agreement") is made effective as of
August 6, 1999 (the "Effective Date") by and between Essential.Com, Inc.
("Reseller"), a Delaware corporation, with offices at Three Burlington Woods
Drive, Burlington, MA 01803, and Bell Atlantic - Pennsylvania, Inc. ("Bell
Atlantic"), a Pennsylvania corporation, with offices at 1717 Arch Street,
Philadelphia, Pennsylvania 19103.
WHEREAS, pursuant to Section 251(c)(4) of the Act, 47 U.S.C.
Section 251(c)(4), Reseller wishes to purchase Bell Atlantic Retail
Telecommunications Services from Bell Atlantic for resale by Reseller as a
Telecommunications Carrier providing Telecommunications Services in the
Commonwealth of Pennsylvania; and
WHEREAS, Bell Atlantic is willing to provide such Bell Atlantic
Retail Telecommunications Services in accordance with this Agreement.
NOW THEREFORE, in consideration of the mutual promises set forth
in this Agreement, Reseller and Bell Atlantic, each on behalf of itself and its
respective successors and assigns, agree as follows:
1. DEFINITIONS
1.1 As used in the Principal Document, the terms listed below shall
have the meanings stated below:
1.1.1 "Act" means the Communications Act of 1934, 47 U.S.C.
Section 151, ET SEQ., as amended from time-to-time.
1.1.2 "Agent" means agent or servant.
1.1.3 "Applicable Law" means all applicable laws and government
regulations and orders.
1.1.4 "Bell Atlantic Ancillary Service" means any service offered by
Bell Atlantic to Reseller in Exhibit I.
1.1.5 "Bell Atlantic Retail Telecommunications Service" means any
Telecommunications Service that Bell Atlantic provides at retail to
subscribers who are not Telecommunications Carriers. The term "Bell
Atlantic Retail Telecommunications Service" does not include any
exchange access service (as defined in Section 3(16) of the Act, 47
U.S.C. Section 153(16)) provided by Bell Atlantic.
1
<PAGE>
1.1.6 "Bell Atlantic Service" means and includes any Bell Atlantic
Retail Telecommunications Service and any Bell Atlantic Ancillary
Service.
1.1.7 "Bell Atlantic's Affiliates" means any corporations,
partnerships or other persons who control, are controlled by, or are
under common control with, Bell Atlantic.
1.1.8 "Bell Atlantic's Tariffs" and "Bell Atlantic Tariff" mean and
include:
(a) Bell Atlantic's effective Federal and state tariffs, as
amended by Bell Atlantic from time-to-time; and,
(b) to the extent Bell Atlantic Services are not subject to Bell
Atlantic tariffs, any standard agreements and other documents, as
amended by Bell Atlantic from time-to-time, that set forth the generally
available terms, conditions and prices under which Bell Atlantic offers
such Bell Atlantic Services.
The terms "Bell Atlantic's Tariffs" and "Bell Atlantic Tariff"
do not include Bell Atlantic's "Statement of Generally Available Terms
and Conditions for Interconnection, Unbundled Network Elements,
Ancillary Services and Resale of Telecommunications Services" which has
been approved by the Commission pursuant to Section 252(f) of the Act,
47 U.S.C. Section 252(f).
1.1.9 "Commission" means the Pennsylvania Public Utilities Commission.
1.1.10 "Contract Period", as used in Section 1.1.25 and Section 6.2,
means a stated period or minimum period of time for which Reseller is
required by this Agreement to subscribe to, use and/or pay for a Bell
Atlantic Service.
1.1.11 "Customer" means and includes customers, subscribers and
patrons, of a Party, purchasers and users of Telecommunications Services
(including, but not limited to, resold Bell Atlantic Retail
Telecommunications Services) provided by a Party, and purchasers and
users of other services and products provided by a Party. The term
"Customer" does not include a Party.
1.1.12 "Bell Atlantic Customer" means a Customer of Bell Atlantic.
1.1.13 "Customer Information" means CPNI of a Customer and any other
non-public, individually identifiable information about a Customer or
the purchase by a Customer of the services or products of a Party.
1.1.14 "Customer Proprietary Network Information" ("CPNI") means
"Customer Proprietary Network Information" as defined in Section 222 of
the Act, 47 U.S.C. Section 222.
1.1.15 "Effective Date" means the date first above written.
2
<PAGE>
1.1.16 "Jurisdiction" means the Commonwealth of Pennsylvania.
1.1.17 "Operator Services" means: (a) services accessed by dialing 411,
555-1212, 1-555-1212, 0+ local, 0+ intraLATA, and, 0-; and, (b) any
other automated or live operator or directory assistance service.
1.1.18 "Order" means an order or application.
1.1.19 "Principal Document" means this document, including the Preface,
Sections 1 through 39, the signature page, Exhibit I, Exhibit II, and
Exhibit II, Attachment 1.
1.1.20 "Reseller Customer" means a Customer of Reseller.
1.1.21 "Retail Prices" means the prices at which Bell Atlantic Retail
Telecommunications Services are provided by Bell Atlantic at retail to
subscribers who are not Telecommunications Carriers.
1.1.22 "Telecommunications Carrier" means "Telecommunications Carrier"
as defined in Section 3(44) of the Act, 47 U.S.C. Section 153(44).
1.1.23 "Telecommunications Service" means "Telecommunications Service"
as defined in Section 3(46) of the Act, 47 U.S.C. Section 153(46).
1.1.24 "Telephone Exchange Service" means "Telephone Exchange Service"
as defined in Section 3(47) of the Act, 47 U.S.C. Section 153(47).
1.1.25 "Termination Date Bell Atlantic Service" means: (a) any Bell
Atlantic Service being provided by Bell Atlantic under this Agreement at
the time of termination of this Agreement, that at the time of
termination of this Agreement is subject to a Contract Period which is
greater than one (1) month; and, (b) any Bell Atlantic Service requested
by Reseller under this Agreement in an Order accepted by Bell Atlantic
prior to termination of this Agreement but not yet being provided by
Bell Atlantic at the time of termination of this Agreement, that is
subject to an initial Contract Period which is greater than one (1)
month.
1.2 Unless the context clearly indicates otherwise, any defined term
which is defined or used in the singular shall include the plural, and
any defined term which is defined or used in the plural shall include
the singular.
3
<PAGE>
2. THE AGREEMENT
2.1 This Agreement includes: (a) the Principal Document; (b) Bell
Atlantic's Tariffs (which Bell Atlantic Tariffs are incorporated into
this Agreement by reference and made a part hereof); and, (c) a Reseller
Order to provide, change or terminate a Bell Atlantic Service, which has
been accepted by Bell Atlantic (including, but not limited to, any Order
which includes a commitment to purchase a stated number or minimum
number of lines or other Bell Atlantic Services, or a commitment to
purchase lines or other Bell Atlantic Services for a stated period or
minimum period of time).
2.2 Conflicts among terms in the Principal Document, Bell Atlantic's
Tariffs, and a Reseller Order which has been accepted by Bell Atlantic,
shall be resolved in accordance with the following order of precedence,
where the document identified in subsection "(a)" shall have the highest
precedence: (a) the Principal Document; (b) Bell Atlantic's Tariffs;
and, (c) a Reseller Order which has been accepted by Bell Atlantic. The
fact that a term appears in the Principal Document but not in a Bell
Atlantic Tariff, or in a Bell Atlantic Tariff but not in the Principal
Document, shall not be interpreted as, or deemed grounds for finding, a
conflict for the purposes of this Section 2.2.
2.3 This Agreement (including the Principal Document, Bell
Atlantic's Tariffs, and Reseller Orders which have been accepted by Bell
Atlantic), constitutes the entire agreement between the Parties on the
subject matter hereof, and supersedes any prior or contemporaneous
agreement, understanding, or representation on the subject matter
hereof. Except as otherwise provided in the Principal Document, the
terms in the Principal Document may not be waived or modified except by
a written document which is signed by the Parties. Subject to the
requirements of Applicable Law, Bell Atlantic shall have the right to
add, modify, or withdraw, a Bell Atlantic Tariff at any time, without
the consent of, or notice to, Reseller.
2.4 A failure or delay of either Party to enforce any of the
provisions of this Agreement, or any right or remedy available under
this Agreement or at law or in equity, or to require performance of any
of the provisions of this Agreement, or to exercise any option provided
under this Agreement, shall in no way be construed to be a waiver of
such provisions, rights, remedies, or options.
3. BELL ATLANTIC SERVICES
3.1 During the term of this Agreement, Reseller, pursuant to Section
251(c)(4) of the Act, 47 U.S.C. Section 251(c)(4), may submit Orders to
Bell Atlantic requesting Bell Atlantic to provide Bell Atlantic Retail
Telecommunications Services for resale by Reseller as a
Telecommunications Carrier providing Telecommunications Services.
3.2 During the term of this Agreement, Reseller may submit Orders to
Bell Atlantic requesting Bell Atlantic to provide Bell Atlantic
Ancillary Services for use by Reseller as a Telecommunications Carrier
providing Telecommunications Services.
4
<PAGE>
3.3 Bell Atlantic may require that Reseller's Orders requesting Bell
Atlantic to provide Bell Atlantic Services be in writing on forms
specified by Bell Atlantic or in an electronic form specified by Bell
Atlantic.
3.4 Upon receipt and acceptance by Bell Atlantic of a Reseller Order
requesting Bell Atlantic to provide a Bell Atlantic Service, Bell
Atlantic shall provide, and Reseller shall subscribe to, use and pay
for, the Bell Atlantic Service, in accordance with this Agreement.
3.5 Bell Atlantic Retail Telecommunications Services may be
purchased by Reseller under this Agreement only for the purpose of
resale by Reseller as a Telecommunications Carrier providing
Telecommunications Services, pursuant to Section 251(c)(4) of the Act,
47 U.S.C. Section 251(c)(4). Bell Atlantic Retail Telecommunications
Services to be purchased by Reseller for other purposes (including, but
not limited to, Reseller's own use) must be purchased by Reseller
pursuant to separate written agreements, including, but not limited to,
applicable Bell Atlantic Tariffs. Reseller warrants and agrees that
Reseller will purchase Bell Atlantic Retail Telecommunications Services
from Bell Atlantic under this Agreement only for the purpose of resale
by Reseller as a Telecommunications Carrier providing Telecommunications
Services, pursuant to Section 251(c)(4) of the Act, 47 U.S.C.
Section 251(c)(4).
3.6 Bell Atlantic Ancillary Services may be purchased by Reseller
under this Agreement only for use by Reseller as a Telecommunications
Carrier providing Telecommunications Services. Bell Atlantic Ancillary
Services to be purchased by Reseller for other purposes must be
purchased by Reseller pursuant to separate written agreements,
including, but not limited to, applicable Bell Atlantic Tariffs.
Reseller warrants and agrees that Reseller will purchase Bell Atlantic
Ancillary Services from Bell Atlantic under this Agreement only for use
by Reseller as a Telecommunications Carrier providing Telecommunications
Services.
3.7 Subject to the requirements of Applicable Law, Bell Atlantic
shall have the right to add, modify, grandfather, discontinue or
terminate Bell Atlantic Services at any time, without the consent of
Reseller.
4. PRICES
4.1 Reseller shall pay Bell Atlantic for Bell Atlantic Services at
the prices stated in this Agreement, including, but not limited to, in
Exhibit II, Attachment 1.
4.2 If, prior to establishment of a Bell Atlantic Service, Reseller
cancels or changes its Order for the Bell Atlantic Service, Reseller
shall reimburse Bell Atlantic for the costs associated with such
cancellation or changes as required by this Agreement (including, but
not limited to, Bell Atlantic's Tariffs).
5
<PAGE>
4.3 Upon request by Bell Atlantic, Reseller shall provide to Bell
Atlantic adequate assurance of payment of charges due to Bell Atlantic.
Assurance of payment of charges may be requested by Bell Atlantic: (a)
if Reseller, in Bell Atlantic's reasonable judgment, at the Effective
Date or at any time thereafter, is unable to show itself to be
creditworthy; (b) if Reseller, in Bell Atlantic's reasonable judgment,
at the Effective Date or at any time thereafter, is not creditworthy;
or, (c) if Reseller fails to timely pay a bill rendered to Reseller by
Bell Atlantic. Unless otherwise agreed by the Parties, the assurance of
payment shall be in the form of a cash deposit and shall be in an amount
equal to the charges for Bell Atlantic Services that Reseller may
reasonably be expected to incur during a period of two (2) months. Bell
Atlantic may at any time use the deposit or other assurance of payment
to pay amounts due from Reseller.
5. BILLING AND PAYMENT
5.1 Except as otherwise permitted or required by this Agreement, or
agreed in writing by the Parties, Bell Atlantic shall render bills to
Reseller monthly. Except as otherwise agreed in writing by the Parties,
Bell Atlantic will render bills to Reseller in a paper form.
5.2 Reseller shall pay Bell Atlantic's bills in immediately
available U.S. funds. Except as otherwise agreed in writing by the
Parties, payments shall be transmitted by electronic funds transfer.
5.3 Payment of charges shall be due by the due date stated on Bell
Atlantic's bills. Except as otherwise required by Bell Atlantic's
Tariffs or agreed in writing by the Parties, the due date shall not be
sooner than twenty (20) days after the date the bill is received by
Reseller.
5.4 Charges which are not paid by the due date stated on Bell
Atlantic's bill shall be subject to a late payment charge. The late
payment charge shall be in an amount specified by Bell Atlantic, which
shall not exceed a rate of one-and-one-half percent (1.5%) of the
over-due amount (including any unpaid, previously billed late payment
charges) per month.
5.5 Reseller acknowledges and agrees that:
5.5.1 During the term of this Agreement, Bell Atlantic will be engaged
in developing and deploying new or modified forms of bills for
Telecommunications Carriers who are engaged in the resale of Bell
Atlantic Retail Telecommunications Services and new or modified systems
and methods for computing and rendering such bills.
5.5.2 Prior to the completion of deployment of such new or modified
forms of bills and such new or modified systems and methods for
computing and rendering bills, Bell Atlantic's form of bill and systems
and methods for computing and rendering bills may be subject to
limitations and restrictions, including, but not limited to, the
limitations
6
<PAGE>
stated in Section 5.5.3, below, the inability to provide Reseller with a
single, consolidated bill for all Bell Atlantic Services purchased by
Reseller, and the unavailability of bills and billing information in an
electronic form (e.g., bills may be rendered in a paper form).
5.5.3 Prior to the completion of deployment of the new or modified
forms of bills and the new or modified systems and methods for computing
and rendering bills, Bell Atlantic may apply the discount identified in
Exhibit 11, Section 1.1, in a manner (including, but not limited to, in
a "bottom-of-the-bill" format) that results in the Exhibit II, Section
1.1 discount being applied to charges stated in the bill (including, but
not limited to, Subscriber Line Charges, Federal Line Cost Charges, end
user common line charges, carrier selection and change charges, Audiotex
Service charges, and charges for services which are not Bell Atlantic
Retail Telecommunications Services) which are not subject to the Exhibit
II, Section 1.1 discount. Bell Atlantic will implement a "true-up"
process and within six (6) months after the due date of each monthly
bill, issue to Reseller a "true-up" bill for amounts which were not
collected from Reseller under the monthly bill because of the
application of the Exhibit II, Section 1.1 discount to charges which are
not subject to the Exhibit II, Section 1.1 discount. The "true-up" bill
may be issued as a part of or an entry on a monthly bill, as a bill
separate from a monthly bill, or in such other form as Bell Atlantic may
determine.
5.6 Although it is the intent of Bell Atlantic to submit timely and
accurate bills, failure by Bell Atlantic to present bills (including,
but not limited to, monthly bills and "true-up" bills) to Reseller in a
timely or accurate manner shall not constitute a breach or default of
this Agreement, or a waiver of a right of payment of the incurred
charges, by Bell Atlantic. Reseller shall not be entitled to dispute
charges for Bell Atlantic Services provided by Bell Atlantic based on
Bell Atlantic's failure to submit a bill for the charges in a timely
fashion.
6. TERM
6.1 The term of this Agreement shall commence on the Effective Date,
and, except as otherwise provided in this Agreement, shall remain in
effect through August 5, 2000 (the "Initial Term Ending Date"). After
the Initial Term Ending Date, this Agreement shall continue in force and
effect unless and until terminated as provided in this Agreement.
Following the Initial Term Ending Date, either Party may terminate this
Agreement by providing written notice of termination to the other Party,
such written notice to be provided at least ninety (90) days in advance
of the date of termination.
6.2 Following termination of this Agreement pursuant to Section 6.1,
this Agreement, as amended from time to time, shall remain in effect as
to any Termination Date Bell Atlantic Service for the remainder of the
Contract Period applicable to such Termination Date Bell Atlantic
Service at the time of the termination of this Agreement. If a
Termination Date Bell Atlantic Service is terminated prior to the
expiration of the Contract Period applicable to such Termination Date
Bell Atlantic Service, Reseller shall pay any termination charge
provided for in this Agreement
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7. SERVICE INSTALLATION AND MAINTENANCE
Reseller shall comply with Bell Atlantic's processes and
procedures (including, but not limited to, requirements by Bell Atlantic
that Reseller use Bell Atlantic OSS Services) for the communication to
Bell Atlantic of (a) Reseller's Orders to provide, change or terminate,
Bell Atlantic Services, and (b) Reseller's requests for information
about, assistance in using, or repair or maintenance of, Bell Atlantic
Services. Bell Atlantic may, from time-to-time, upon notice to Reseller,
change these processes and procedures.
8. ASSIGNMENT
8.1 Reseller shall not assign this Agreement or any right or
interest under this Agreement, nor delegate any obligation under this
Agreement, without the prior written approval of Bell Atlantic, which
approval shall not be unreasonably withheld, conditioned or delayed. Any
attempted assignment or delegation in contravention of the foregoing
shall be void and ineffective.
8.2 Bell Atlantic may, without the consent of Reseller, assign this
Agreement or any right or interest under this Agreement, and/or delegate
any obligation under this Agreement, to any of Bell Atlantic's
Affiliates, or to a person with which Bell Atlantic merges or which
acquires substantially all of Bell Atlantic's assets.
9. AVAILABILITY OF SERVICE
9.1 Subject to the requirements of Applicable Law, Bell Atlantic
shall be obligated to provide Bell Atlantic Services to Reseller under
this Agreement only where Bell Atlantic is able, without unreasonable
expense (as determined by Bell Atlantic in its reasonable judgment), (a)
to obtain, retain, install and maintain suitable facilities for the
provision of such Bell Atlantic Services, and (b) to obtain, retain and
maintain suitable rights for the provision of such Bell Atlantic
Services.
9.2 Bell Atlantic's obligation to provide a Bell Atlantic Retail
Telecommunications Service to Reseller under this Agreement shall be
limited to providing the Bell Atlantic Retail Telecommunications Service
to Reseller where, and to the same extent, that Bell Atlantic provides
such Bell Atlantic Retail Telecommunications Service to Bell Atlantic's
own end user retail Customers.
10. BRANDING
10.1 Except as stated in Section 10.2, in providing Bell Atlantic
Services to Reseller, Bell Atlantic shall have the right, but not the
obligation, to identify the Bell Atlantic Services with Bell Atlantic's
trade names, trademarks and service marks. Any such identification of
the Bell Atlantic Services shall not constitute the grant of a license
or other right to Reseller to use Bell Atlantic's trade names, trade
marks or service marks.
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10.2 To the extent required by Applicable Law, upon request by
Reseller and at prices, terms and conditions to be negotiated by
Reseller and Bell Atlantic, Bell Atlantic shall provide Bell Atlantic
Retail Telecommunications Services that are identified by Reseller's
trade name, or that are not identified by trade name, trademark or
service mark.
11. CHOICE OF LAW
11.1 The construction, interpretation and performance of this
Agreement shall be governed by the laws of the United States of America
and the laws of Jurisdiction (without regard to Jurisdiction's conflicts
of laws rules). All disputes relating to this Agreement shall be
resolved through the application of such laws.
11.2 Reseller agrees to submit to the jurisdiction of any court,
commission or other governmental entity in which a claim, suit or
proceeding which arises out of or in connection with this Agreement or
Bell Atlantic Services provided under this Agreement and in which Bell
Atlantic is a party, is brought.
12. COMPLIANCE WITH APPLICABLE LAW
12.1 Each Party shall in its performance of this Agreement comply
with Applicable Law, including, but not limited to, all applicable
regulations and orders of the Commission and the Federal Communications
Commission (hereinafter the "FCC").
12.2 Reseller shall in providing Bell Atlantic Retail
Telecommunications Services to Reseller Customers comply with Applicable
Law, including, but not limited to, all applicable regulations and
orders of the Commission and the FCC.
13. CONFIDENTIAL INFORMATION
13.1 For the purposes of this Section 13, "Confidential Information"
means the following information disclosed by one Party ("Discloser") to
the other Party ("Recipient") in connection with this Agreement:
(a) Customer Information related to a Reseller Customer which is
disclosed by Reseller to Bell Atlantic (except to the extent that (i)
the Customer Information is subject to publication in a directory, (ii)
the Customer Information is subject to disclosure through an Operator
Service or other Telecommunications Service, or in the course of
furnishing Telecommunications Services, or (iii) the Reseller Customer
to whom the Customer Information is related, in the manner required by
Applicable Law, has given Bell Atlantic permission to use and/or
disclose the Customer Information);
(b) Customer Information related to a Bell Atlantic Customer
which is disclosed by Bell Atlantic to Reseller (except to the extent
that the Bell Atlantic
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Customer to whom the Customer Information is related, in the manner
required by Applicable Law, has given Reseller permission to use and/or
disclose the Customer Information);
(c) Information related to specific Bell Atlantic facilities and
equipment (including, but not limited to, cable-and-pair information)
which is disclosed by Bell Atlantic to Reseller; and
(d) Any other information which is identified by the Discloser
as Confidential Information in accordance with Section 13.2.
13.2 All information which is to be treated as Confidential
Information under Section 13.1(d) shall:
(a) if in written, graphic, electromagnetic, or other tangible
form, be marked as "Confidential" or "Proprietary"; and
(b) if oral, (i) be identified by the Discloser at the time of
disclosure to be "Confidential" or "Proprietary", and (ii) be set forth
in a written summary which identifies the information as "Confidential"
or "Proprietary" and is delivered by the Discloser to the Recipient
within ten (10) days after the oral disclosure.
Each Party shall have the right to correct an inadvertent
failure to identify information as Confidential Information pursuant to
Section 13.1(d) by giving written notification within thirty (30) days
after the information is disclosed. The Recipient shall, from that time
forward, treat such information as Confidential Information.
Notwithstanding any other provision of this Agreement, a Party
shall have the right to refuse to accept receipt of information which
the other Party has identified as Confidential Information pursuant to
Section 13.1(d).
13.3 In addition to any requirements imposed by law, including, but
not limited to, 47 U.S.C. Section 222, for a period of five years from
the receipt of Confidential Information from the Discloser, except as
otherwise specified in this Agreement, the Recipient agrees:
(a) to use the Confidential Information only for the purpose of
performing under this Agreement;
(b) using the same degree of care that it uses with similar
confidential information of its own, to hold the Confidential
Information in confidence and restrict disclosure of the Confidential
Information solely to the Recipient's Affiliates, and the directors,
officers and employees of the Recipient and the Recipient's Affiliates,
having a need to know the Confidential Information for the purpose of
performing under this Agreement. The Recipient's Affiliates and the
directors, officers and employees of the Recipient and the Recipient's
Affiliates, shall be required by the Recipient to comply
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with the provisions of this Section 13 in the same manner as the
Recipient. The Recipient shall be liable for any failure of the
Recipient's Affiliates and the directors, officers and employees of the
Recipient and the Recipient's Affiliates, to comply with the provisions
of this Section 13.
13.4 If the Recipient wishes to disclose the Discloser's Confidential
Information to a third party Agent or contractor, such disclosure must
be mutually agreed to in writing by the Parties to this Agreement, and
the Agent or contractor must have executed a written agreement of
non-disclosure and non-use comparable in scope to the terms of this
Section 13.
13.5 The Recipient may make copies of Confidential Information only
as reasonably necessary to perform its obligations under this Agreement.
All such copies shall bear the same copyright and proprietary rights
notices as are contained on the original.
13.6 The Recipient shall return or destroy all Confidential
Information received from the Discloser, including any copies made by
the Recipient, within thirty (30) days after a written request by the
Discloser is delivered to the Recipient, except for (a) Confidential
Information that the Recipient reasonably requires to perform its
obligations under this Agreement, and (b) Customer Information related
to a Reseller Customer that is to be treated by Bell Atlantic as
Confidential Information pursuant to Section 13.1(a). If the Recipient
loses or makes an unauthorized disclosure of the Discloser's
Confidential Information, it shall notify the Discloser immediately and
use reasonable efforts to retrieve the lost or improperly disclosed
information.
13.7 The requirements of this Section 13 shall not apply to
Confidential Information:
(a) which was in the possession of the Recipient free of
restriction prior to its receipt from the Discloser;
(b) after it becomes publicly known or available through no
breach of this Agreement by the Recipient, the Recipient's Affiliates,
or the directors, officers, employees, Agents, or contractors, of the
Recipient or the Recipient's Affiliates;
(c) after it is rightfully acquired by the Recipient free of
restrictions on its disclosure;
(d) after it is independently developed by the Recipient; or
(e) to the extent the disclosure is required by Applicable Law,
a court, or governmental agency; provided, the Discloser has been
notified of the required disclosure promptly after the Recipient becomes
aware of the required disclosure, the Recipient undertakes reasonable
lawful measures to avoid disclosing the Confidential Information until
the Discloser has had reasonable time to seek a protective order, and
the
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Recipient complies with any protective order that covers the
Confidential Information to be disclosed.
13.8 Each Party's obligations to safeguard Confidential Information
disclosed prior to expiration, cancellation or termination of this
Agreement shall survive such expiration, cancellation or termination.
13.9 Confidential Information shall remain the property of the
Discloser, and the Discloser shall retain all of the Discloser's right,
title and interest in any Confidential Information disclosed by the
Discloser to the Recipient. Except as otherwise expressly provided
elsewhere in this Agreement, no license is granted by this Agreement
with respect to any Confidential Information (including, but not limited
to, under any patent, trademark, or copyright), nor is any such license
to be implied, solely by virtue of the disclosure of any Confidential
Information.
13.10 Each Party agrees that the Discloser would be irreparably
injured by a breach of this Section 13 by the Recipient, the Recipient's
Affiliates, or the directors, officers, employees, Agents or contractors
of the Recipient or the Recipient's Affiliates, and that the Discloser
shall be entitled to seek equitable relief, including injunctive relief
and specific performance, in the event of any breach of the provisions
of this Section 13. Such remedies shall not be deemed to be the
exclusive remedies for a breach of this Section 13, but shall be in
addition to any other remedies available under this Agreement or at law
or in equity.
13.11 The provisions of this Section 13 shall be in addition to and
not in derogation of any provisions of Applicable Law, including, but
not limited to, 47 U.S.C. Section 222, and are not intended to
constitute a waiver by a Party of any right with regard to protection of
the confidentiality of information of the Party or its Customers
provided by Applicable Law. In the event of a conflict between a
provision of this Section 13 and a provision of Applicable Law, the
provision of Applicable Law shall prevail.
14. CONTINGENCIES
Neither Party shall be liable for any delay or failure in
performance by it which results from strikes, labor slowdowns, or other
labor disputes, fires, explosions, floods, earthquakes, volcanic action,
delays in obtaining or inability to obtain necessary services,
facilities, equipment, parts or repairs thereof, power failures,
embargoes, boycotts, unusually severe weather conditions, revolution,
riots or other civil disturbances, war or acts of the public enemy, acts
of God, or causes beyond the Party's reasonable control.
15. COUNTERPARTS
This Agreement may be executed in two or more counterparts, each
of which shall be deemed an original and all of which shall together
constitute one and the same instrument.
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16. CUSTOMER INFORMATION
16.1 Without in any way limiting Section 12, each Party shall comply
with Applicable Law with regard to Customer Information, including, but
not limited to, 47 U.S.C. Section 222 and the FCC rules in 47 CFR
Section 64.2001 - Section 64.2009.
16.2 A Party ("Accessing Party") shall not access (including, but not
limited to, in the case of Reseller, through Bell Atlantic OSS
Services), use or disclose Customer Information made available to the
Accessing Party by the other Party pursuant to this Agreement unless the
Accessing Party, in the manner required by Applicable Law, has obtained
any Customer authorization for such access, use and/or disclosure
required by Applicable Law. By accessing, using or disclosing Customer
Information made available to the Accessing Party by the other Party
pursuant to this Agreement, the Accessing Party represents and warrants
that the Accessing Party has obtained, in the manner required by
Applicable Law, any Customer authorization for such action required by
Applicable Law. The Accessing Party shall upon request by the other
Party provide proof of such authorization (including, a copy of any
written authorization).
16.3 Bell Atlantic shall have the right (but not the obligation) to
audit Reseller to ascertain whether Reseller is complying with the
requirements of Applicable Law and this Agreement, with regard to
Reseller's access to, and use and disclosure of, Customer Information
which is made available to Reseller by Bell Atlantic pursuant to this
Agreement.
16.4 In addition to Bell Atlantic's audit rights under Section 16.3,
Bell Atlantic shall have the right (but not the obligation) to monitor
Reseller's access to and use of Customer Information which is made
available by Bell Atlantic to Reseller pursuant to this Agreement, to
ascertain whether Reseller is complying with the requirements of
Applicable Law and this Agreement, with regard to Reseller's access to,
and use and disclosure of, such Customer Information. The foregoing
right shall include, but not be limited to, the right (but not the
obligation) to electronically monitor Reseller's access to and use of
Customer Information which is made available by Bell Atlantic to
Reseller pursuant to this Agreement through Bell Atlantic OSS Facilities
or other electronic interfaces or gateways.
16.5 Information obtained by Bell Atlantic pursuant to Section 16.3
or Section 16.4 shall be treated by Bell Atlantic as Confidential
Information of Reseller pursuant to Section 13; provided that, Bell
Atlantic shall have the right (but not the obligation) to use and
disclose information obtained by Bell Atlantic pursuant to this Section
16 to enforce Applicable Law and/or Bell Atlantic's rights under this
Agreement.
17. DEFAULT
17.1 If Reseller materially breaches a material provision of this
Agreement (other than an obligation to make payment of any amount billed
under this Agreement),
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and such breach continues for more than thirty (30) days after written
notice thereof from Bell Atlantic, then, except as otherwise required by
Applicable Law, Bell Atlantic shall have the right, upon notice to
Reseller, to terminate or suspend this Agreement and/or provision of
Bell Atlantic Services, in whole or in part.
17.2.1 If Reseller fails to make a payment of any amount billed under
this Agreement by the due date stated on the bill and such failure
continues for more than thirty (30) days after written notice thereof
from Bell Atlantic, then, except as provided in Section 17.2.2, below,
or as otherwise required by Applicable Law, Bell Atlantic shall have the
right, upon notice to Reseller, to terminate or suspend this Agreement
and/or provision of Bell Atlantic Services, in whole or in part.
17.2.2 If a good faith dispute arises between the Parties concerning
the obligation of Reseller to make payment of an amount billed under
this Agreement, the failure to pay the amount in dispute shall not
constitute cause for termination or suspension of this Agreement or
provision of Bell Atlantic Services, if, within thirty (30) days of the
date that Bell Atlantic gives Reseller written notice of the failure to
pay the amount in dispute, Reseller (a) gives Bell Atlantic written
notice of the dispute stating the basis of the dispute, and (b)
furnishes to Bell Atlantic an irrevocable letter of credit in a form
acceptable to Bell Atlantic or other security arrangement acceptable to
Bell Atlantic, guaranteeing payment to Bell Atlantic of any portion of
the disputed amount (including the whole of the disputed amount) which
is thereafter agreed by Bell Atlantic and Reseller, or determined by a
court or other governmental entity of appropriate jurisdiction, to be
due to Bell Atlantic. The existence of such a dispute shall not relieve
Reseller of its obligations to pay any undisputed amount which is due to
Bell Atlantic and to otherwise comply with this Agreement.
18. FACILITIES
18.1 Bell Atlantic or its suppliers shall retain all right, title and
interest in, and ownership of, all facilities, equipment, software,
information, and wiring, used to provide Bell Atlantic Services. Bell
Atlantic shall have access at all reasonable times to Reseller and
Reseller Customer locations for the purpose of installing, inspecting,
maintaining, repairing, and removing, facilities, equipment, software,
and wiring, used to provide the Bell Atlantic Services. Reseller shall,
at Reseller's expense, obtain any rights and authorizations necessary
for such access.
18.2 Except as otherwise agreed to in writing by Bell Atlantic, Bell
Atlantic shall not be responsible for the installation, inspection,
repair, maintenance, or removal, of facilities, equipment, software, or
wiring, provided by Reseller or Reseller Customers for use with Bell
Atlantic Services.
19. INTELLECTUAL PROPERTY
Except as expressly stated in this Agreement, nothing contained
within this Agreement shall be construed as the grant of a license,
either express or implied, with
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respect to any patent, copyright, trade name, trade mark, service mark,
trade secret, or other proprietary interest or intellectual property,
now or hereafter owned, controlled or licensable by either Party.
20. JOINT WORK PRODUCT
The Principal Document is the joint work product of the
representatives of the Parties. For convenience, the Principal Document
has been drafted in final form by Bell Atlantic. Accordingly, in the
event of ambiguities, no inferences shall be drawn against either Party
solely on the basis of authorship of the Principal Document.
21. LIABILITY
21.1.1 AS USED IN THIS SECTION 21, "OTHER BELL ATLANTIC PERSONS" MEANS
BELL ATLANTIC'S AFFILIATES, AND THE DIRECTORS, OFFICERS, EMPLOYEES,
AGENTS AND CONTRACTORS, OF BELL ATLANTIC AND BELL ATLANTIC'S AFFILIATES.
21.1.2 AS USED IN THIS SECTION 21, "BELL ATLANTIC SERVICE FAILURE"
MEANS AND INCLUDES ANY FAILURE TO INSTALL, RESTORE, PROVIDE OR TERMINATE
A BELL ATLANTIC SERVICE, AND ANY MISTAKE, OMISSION, INTERRUPTION, DELAY,
ERROR, DEFECT, FAULT, FAILURE, OR DEFICIENCY, IN A BELL ATLANTIC
SERVICE.
21.2 THE LIABILITY, IF ANY, OF BELL ATLANTIC AND OTHER BELL ATLANTIC
PERSONS, TO RESELLER, RESELLER CUSTOMERS AND/OR ANY OTHER PERSON, FOR
ANY CLAIM, LOSS OR DAMAGES ARISING OUT OF OR IN CONNECTION WITH A BELL
ATLANTIC SERVICE FAILURE, SHALL BE LIMITED AND/OR EXCLUDED AS SET FORTH
IN BELL ATLANTIC'S TARIFFS.
21.3.1 TO THE EXTENT THE BELL ATLANTIC TARIFFS APPLICABLE TO A BELL
ATLANTIC SERVICE DO NOT CONTAIN A PROVISION WHICH LIMITS OR EXCLUDES THE
LIABILITY OF BELL ATLANTIC AND/OR OTHER BELL ATLANTIC PERSONS TO
RESELLER, RESELLER CUSTOMERS AND/OR ANY OTHER PERSON, FOR ANY CLAIM,
LOSS OR DAMAGES ARISING OUT OF OR IN CONNECTION WITH A BELL ATLANTIC
SERVICE FAILURE, SECTION 21.3.3 SHALL APPLY.
21.3.2 TO THE EXTENT A BELL ATLANTIC SERVICE IS NOT SUBJECT TO A BELL
ATLANTIC TARIFF, SECTION 21.3.3 SHALL APPLY.
21.3.3 THE LIABILITY, IF ANY, OF BELL ATLANTIC AND OTHER BELL ATLANTIC
PERSONS, TO RESELLER, RESELLER CUSTOMERS AND/OR ANY OTHER PERSON, FOR
ANY CLAIM, LOSS OR DAMAGES ARISING OUT OF OR IN CONNECTION WITH A BELL
ATLANTIC SERVICE
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FAILURE, SHALL BE LIMITED TO A TOTAL AMOUNT NOT IN EXCESS OF: (a) TWICE
THE PROPORTIONATE CHARGE FOR THE BELL ATLANTIC SERVICE AFFECTED DURING
THE PERIOD OF THE BELL ATLANTIC SERVICE FAILURE; OR, (b) IF THERE IS NO
CHARGE FOR THE BELL ATLANTIC SERVICE AFFECTED, FIVE HUNDRED DOLLARS
($500.00).
21.4 NOTWITHSTANDING ANYTHING CONTAINED IN SECTION 21.2, SECTION
21.3.1, SECTION 21.3.2, OR SECTION 21.3.3, ABOVE, BELL ATLANTIC AND
OTHER BELL ATLANTIC PERSONS SHALL HAVE NO LIABILITY TO RESELLER,
RESELLER CUSTOMERS, AND/OR ANY OTHER PERSON, FOR ANY SPECIAL, INDIRECT,
INCIDENTAL, OR CONSEQUENTIAL, DAMAGES (INCLUDING, BUT NOT LIMITED TO,
DAMAGES FOR HARM TO BUSINESS, LOST REVENUES, LOST PROFITS, LOST SAVINGS,
OR OTHER COMMERCIAL OR ECONOMIC LOSS), ARISING OUT OF OR IN CONNECTION
WITH A BELL ATLANTIC SERVICE FAILURE OR ANY BREACH OR FAILURE IN
PERFORMANCE OF THIS AGREEMENT BY BELL ATLANTIC.
21.5 THE LIMITATIONS AND EXCLUSIONS FROM LIABILITY STATED IN SECTIONS
21.2 THROUGH 21.4 SHALL APPLY REGARDLESS OF THE FORM OF A CLAIM OR
ACTION, WHETHER IN CONTRACT, WARRANTY, TORT (INCLUDING, BUT NOT LIMITED
TO, THE NEGLIGENCE OF BELL ATLANTIC AND/OR OTHER BELL ATLANTIC PERSONS),
STRICT LIABILITY, OR OTHERWISE, AND REGARDLESS OF WHETHER BELL ATLANTIC
HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
21.6 Reseller shall, in its tariffs or other contracts with Reseller
Customers, provide that in no case shall Bell Atlantic or Other Bell
Atlantic Persons be liable to Reseller Customers or to any other third
parties for any indirect, special, incidental, consequential, or other
damages, including, but not limited to, harm to business, lost revenues,
lost profits, lost savings, or other commercial or economic loss,
whether foreseeable or not, and regardless of notification of the
possibility of such damages. Reseller shall indemnify, defend and hold
Bell Atlantic and Other Bell Atlantic Persons harmless from claims by
Reseller Customers and other third parties as provided in Bell
Atlantic's Tariffs.
21.7 Bell Atlantic's obligations under this Agreement shall extend
only to Reseller. Bell Atlantic shall have no liability under this
Agreement to Reseller Customers or to any other third party. Nothing in
this Agreement shall be deemed to create a third party beneficiary
relationship between Bell Atlantic and Reseller Customers or any other
third party.
21.8 Reseller shall indemnify, defend and hold harmless Bell
Atlantic, Bell Atlantic's Affiliates, and the directors, officers and
employees of Bell Atlantic and Bell Atlantic's Affiliates, from any
claims, suits, government proceedings, judgments, fines,
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liabilities, losses, damages, costs or expenses (including reasonable
attorneys fees) arising out of or in connection with: (a) the failure of
Reseller to transmit to Bell Atlantic a request by a Reseller Customer
to install, provide, change or terminate, a Bell Atlantic Retail
Telecommunications Service; (b) the transmission by Reseller to Bell
Atlantic of an Order to install, provide, change or terminate, a Bell
Atlantic Retail Telecommunications Service, which Order was not
authorized by the applicable Reseller Customer; (c) erroneous or
inaccurate information in an Order transmitted by Reseller to Bell
Atlantic; (d) the transmission by Reseller to Bell Atlantic of an Order
to change or terminate a Telecommunications Service provided to an end
user by Bell Atlantic or another Telecommunications Service provider, or
to install or provide a Telecommunications Service for an end user,
which Order was not authorized by the applicable end user; (e) the
transmission by Reseller to Bell Atlantic of an Order to select, change
or reassign a telephone number for an end user, which Order was not
authorized by the applicable end user; (f) the transmission by Reseller
to Bell Atlantic of an Order to select a Telephone Exchange Service
provider for an end user, or to change or terminate an end user's
selection of a Telephone Exchange Service provider, which Order was not
authorized by the applicable end user in the manner required by
Applicable Law (or, in the absence of such Applicable Law, in the manner
required by the rules and procedures in 47 CFR Section 64.1100); (g)
access to, or use or disclosure of, Customer Information or Bell
Atlantic OSS Information by Reseller or Reseller's employees, Agents or
contractors; (h) the failure of Reseller to transmit, or to transmit in
a timely manner, E911/911 information to Bell Atlantic; (i) erroneous or
inaccurate E911/911 information transmitted by Reseller to Bell
Atlantic; j) any information provided by Reseller for inclusion in Bell
Atlantic's LIDB; or, (k) the marketing, advertising or sale of
Reseller's services and/or products (including, but not limited to,
resold Bell Atlantic Retail Telecommunications Services), or the billing
or collection of charges for Reseller's services and/or products
(including, but not limited to, resold Bell Atlantic Retail
Telecommunications Services). For the purposes of Section 21.8(b), (d)
and (e), an Order shall be deemed not to have been authorized by a
Reseller Customer or end user if Applicable Law and/or this Agreement
required such authorization to be obtained in a particular manner, and
Reseller did not obtain the authorization in the manner required by
Applicable Law and this Agreement.
22. NON-EXCLUSIVE REMEDIES
Except as otherwise expressly provided in this Agreement, each
of the remedies provided under this Agreement is cumulative and is in
addition to any other remedies that may be available under this
Agreement or at law or in equity.
23. NOTICES
All notices and other communications under this Agreement shall
be deemed effective upon receipt by the Party being notified, provided
such notices or communications are in writing and are sent by certified
or registered mail, return receipt requested, or by a reputable private
delivery service which provides a record of delivery, and addressed as
shown below:
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To Bell Atlantic:
Bell Atlantic -Pennsylvania, Inc.
c/o Bell Atlantic Network Services, Inc.
1320 North Courthouse Road
Arlington, Virginia 22201
Attn.: Director, Resale Initiatives
To Reseller: President
Essential.Com, Inc.
3 Burlington Woods Drive
Burlington, MA 01803
Tel: (781) 229-9599
Fax: (781) 229-9499
Either Party may from time-to-time designate another address or
addressee by giving notice in accordance with this Section 23.
24. OPTION TO OBTAIN BELL ATLANTIC SERVICE UNDER OTHER AGREEMENTS
24.1 If, at any time while this Agreement is in effect, Bell Atlantic
is a party to an agreement with a Telecommunications Carrier other than
Reseller ("Third-Person Telecommunications Carrier) to provide Bell
Atlantic Services to the Third-Person Telecommunications Carrier, which
agreement has been approved by the Commission pursuant to 47 U.S.C.
Section 252, upon request by Reseller, Bell Atlantic, to the extent
required by Applicable Law (including, but not limited to 47 U.S.C.
Section 252(i)), shall make available to Reseller any Bell Atlantic
Service offered by Bell Atlantic under the agreement with the
Third-Person Telecommunications Carrier upon the same terms and
conditions (including prices) provided in the agreement with the
Third-Person Telecommunications Carrier, but (except as otherwise
expressly agreed in writing by the Parties) only on a prospective basis.
Following such request by Reseller and prior to provision of the Bell
Atlantic Service by Bell Atlantic to Reseller pursuant to the terms and
conditions (including prices) of the Third-Person Telecommunications
Carrier agreement, this Agreement shall be amended to incorporate the
terms and conditions (including prices) from the Third-Person
Telecommunications Carrier agreement applicable to the Bell Atlantic
Service Reseller has elected to purchase pursuant to the terms and
conditions (including prices) of the Third-Person Telecommunications
Carrier agreement. Except as otherwise expressly agreed in writing by
the Parties, the amendment shall apply on a prospective basis only and
shall not apply with regard to any Bell Atlantic Service provided by
Bell Atlantic to Reseller prior to the effective date of the amendment.
24.2 To the extent the exercise of the foregoing option requires a
rearrangement of facilities by Bell Atlantic, Reseller shall be liable
for the non-recurring charges
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associated therewith, as well as for any termination charges associated
with the termination of existing facilities or Bell Atlantic Services.
25. REGULATORY APPROVALS
25.1 Within thirty (30) days after execution of this Agreement by the
Parties, Bell Atlantic shall file the Agreement with the Commission for
approval by the Commission.
25.2 Each Party shall exercise reasonable efforts (including
reasonably cooperating with the other Party) to secure approval of this
Agreement, and any amendment to this Agreement agreed to by the Parties,
from the Commission, the FCC, and other applicable governmental
entities.
25.3 Upon request by Bell Atlantic, Reseller shall, at Reseller's
expense, provide reasonable, good-faith support and assistance to Bell
Atlantic in obtaining any governmental approvals necessary for (a) this
Agreement and any amendment to this Agreement agreed to by the Parties,
and/or (b) the provision of Bell Atlantic Services by Bell Atlantic to
Reseller. Without in any way limiting the foregoing, upon request by
Bell Atlantic, Reseller shall (a) join in petitions requesting approval
of this Agreement, or an amendment to this Agreement agreed to by the
Parties, to be filed with the Commission, the FCC, or other applicable
governmental entities, and (b) file other documents with and present
testimony to the Commission, the FCC, or other applicable governmental
entities, requesting approval of this Agreement or an amendment to this
Agreement agreed to by the Parties.
26. REGULATORY CONTINGENCIES
26.1 Neither Party shall be liable for any delay or failure in
performance by it which results from requirements of Applicable Law, or
acts or failures to act of any governmental entity or official.
26.2 In the event that any provision of this Agreement shall be
invalid or unenforceable, such invalidity or unenforceability shall not
invalidate or render unenforceable any other provision of this
Agreement, and this Agreement shall be construed as if it did not
contain such invalid or unenforceable provision.
26.3 In the event that any legislative, regulatory, judicial or other
governmental action materially affects any material terms of this
Agreement, the ability of either Party to perform any material terms of
this Agreement, or the rights or obligations of either Party under this
Agreement, the Parties shall take such action as shall be necessary to
conform this Agreement to the governmental action and/or to permit Bell
Atlantic to continue to provide and Reseller to continue to purchase
Bell Atlantic Services, including, but not limited to, conducting good
faith negotiations to enter into a mutually acceptable modified or
substitute agreement, filing tariffs, or additional, supplemental or
modified tariffs, and making other required filings with governmental
entities.
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26.4 In the event of a governmental action described in Section 26.3,
above, to the extent permitted by Applicable Law, Bell Atlantic shall
continue to provide and Reseller shall continue to subscribe to, use and
pay for, any Bell Atlantic Services affected by the governmental action
until the action to be taken by Bell Atlantic and Reseller under
Section 26.3, above, is taken and becomes effective in accordance with
Applicable Law. Such continued provision of and subscription to, use of
and payment for, the affected Bell Atlantic Services shall be in
accordance with the terms (including prices) of this Agreement, unless
other terms, including but not limited to the terms of a Bell Atlantic
Tariff, are required by Applicable Law.
26.5 If suspension or termination of the provision of any Bell
Atlantic Service is required by or as a result of a governmental action,
such suspension or termination shall not affect Reseller's subscription
to, use or obligation to pay for, other Bell Atlantic Services, unless
such suspension or termination has a material, adverse effect on
Reseller's ability to use the other Bell Atlantic Services.
26.6 If any of the Bell Atlantic Services to be provided by Bell
Atlantic pursuant to a tariff shall at any time become detariffed or
deregulated, Bell Atlantic may transfer the provisions of the tariff
relative to such Bell Atlantic Services to a Bell Atlantic "Guide for
Detariffed Services" or similar document, and such "Guide for Detariffed
Services" or similar document, as amended by Bell Atlantic from
time-to-time, shall become a part of this Agreement.
27. RELATIONSHIP OF THE PARTIES
27.1 The relationship between the Parties under this Agreement shall
be that of independent contractors.
27.2 Nothing contained in this Agreement shall:
(a) make either Party the Agent or employee of the other Party;
(b) grant either Party the authority to enter into a contract on
behalf of, or otherwise legally bind, the other Party in any way;
(c) create a partnership, joint venture or other similar
relationship between the parties; or
(d) grant to Reseller a franchise, distributorship or similar
interest.
27.3 Each Party shall be solely responsible for selection,
supervision, termination, and compensation, of its respective employees,
Agents and contractors.
27.4 Each Party shall be solely responsible for payment of any
Social Security or other taxes which it is required by Applicable Law to
pay in conjunction with its
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employees, Agents or contractors, and for collecting and remitting to
applicable taxing authorities any taxes which it is required by
Applicable Law to collect from its employees, Agents or contractors.
27.5 The relationship of the Parties under this Agreement is a
non-exclusive relationship. Bell Atlantic shall have the right to
provide services offered by Bell Atlantic under this Agreement to
persons other than Reseller. Reseller shall have the right to purchase
services that may be purchased by Reseller under this Agreement from
persons other than Bell Atlantic.
28. RESELLER'S PROVISION OF SERVICE
28.1 Prior to providing Bell Atlantic Retail Telecommunications
Services purchased by Reseller under this Agreement to Reseller
Customers, Reseller shall obtain from the Commission, the FCC, and any
other applicable governmental entities, any certificates or other
authorizations required by Applicable Law for Reseller to provide
Telecommunications Services. Reseller shall promptly notify Bell
Atlantic in writing of any governmental action which suspends, cancels
or withdraws any such certificate or authorization, or otherwise limits
or affects Reseller's right to provide Telecommunications Services.
28.2 To the extent required by Applicable Law, Reseller shall: (a)
file with the Commission, the FCC, and/or other applicable governmental
entities, the tariffs, arrangements and other documents that set forth
the terms, conditions and prices under which Reseller provides
Telecommunications Services; and, (b) make available for public
inspection, the tariffs, arrangements and other documents that set forth
the terms, conditions and prices under which Reseller provides
Telecommunications Services.
29. RESELLER'S RESALE AND USE OF SERVICE
29.1 Reseller shall comply with the provisions of this Agreement
(including, but not limited to, Bell Atlantic's Tariffs) regarding
resale or use of Bell Atlantic Services, including, but not limited to,
any restrictions on resale or use of Bell Atlantic Services.
29.2 Without in any way limiting Section 29.1, (a) Reseller shall not
resell residential service to persons not eligible to subscribe to such
service from Bell Atlantic (including, but not limited to, business
Reseller Customers and other nonresidential Reseller Customers), and (b)
Reseller shall not resell Lifeline or other means-tested service
offerings, or grandfathered or discontinued service offerings, to
persons not eligible to subscribe to such service offerings from Bell
Atlantic.
29.3 Reseller shall undertake in good faith to ensure that Reseller
Customers comply with the provisions of Bell Atlantic's Tariffs
applicable to their use of Bell Atlantic Retail Telecommunications
Services.
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29.4 Reseller shall comply with Applicable Law, and Bell Atlantic's
procedures, for handling requests from law enforcement and other
government agencies for service termination, assistance with electronic
surveillance, and provision of information.
30. RESPONSIBILITY FOR CHARGES
30.1 Reseller shall be responsible for and pay all charges for any
Bell Atlantic Service provided by Bell Atlantic to Reseller, whether the
Bell Atlantic Service is ordered, activated or used by Reseller, a
Reseller Customer, or another person.
30.2 In addition to the charges for Bell Atlantic Services, Reseller
agrees to pay any charges for Telecommunications Services, facilities,
equipment, software, wiring, or other services or products, provided by
Bell Atlantic, or provided by persons other than Bell Atlantic and
billed for by Bell Atlantic, that are ordered, activated or used by
Reseller, Reseller Customers or other persons, through, by means of, or
in association with, Bell Atlantic Services provided by Bell Atlantic to
Reseller.
30.3 Reseller agrees to indemnify, defend and hold Bell Atlantic
harmless from, any charges for Telecommunications Services, facilities,
equipment, software, wiring, or other services or products, provided by
persons other than Bell Atlantic that are ordered, activated or used by
Reseller, Reseller Customers or other persons, through, by means of, or
in association with, Bell Atlantic Services provided by Bell Atlantic to
Reseller.
30.4 Without in any way limiting Reseller's obligations under Section
30. 1, Section 30.2 and Section 30.3, Reseller shall pay, or collect and
remit to Bell Atlantic, without discount, all Subscriber Line Charges,
Federal Line Cost Charges, end user common line charges, carrier
selection and change charges (PIC change charge), and the Presubscribed
Interexchange Carrier Charge applicable to Reseller Customers who have
not presubscribed to an interexchange carrier for long distance
services, associated with Bell Atlantic Services provided by Bell
Atlantic to Reseller.
30.5 Upon request by Reseller, Bell Atlantic will provide for use on
resold Bell Atlantic Retail Telecommunications Service dial tone lines
purchased by Reseller such Bell Atlantic Retail Telecommunications
Service call blocking services as Bell Atlantic provides to Bell
Atlantic's own end user retail Customers, where and to the extent Bell
Atlantic provides such Bell Atlantic Retail Telecommunications Service
call blocking services to Bell Atlantic's own end user retail Customers.
31. SECTION HEADINGS
The section headings in the Principal Document are for
convenience only and are not intended to affect the meaning or
interpretation of the Principal Document.
32. SERVICES NOT COVERED BY THIS AGREEMENT
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32.1 This Agreement applies only to Bell Atlantic Services (as the
term "Bell Atlantic Service" is defined in Section 1.1.6) provided, or
to be provided, by Bell Atlantic to Reseller, as specified in Section 3.
Any Telecommunications Services, facilities, equipment, software,
wiring, or other services or products (including, but not limited to,
Telecommunications Services, facilities, equipment, software, wiring, or
other services or products, interconnected or used with Bell Atlantic
Services provided, or to be provided, by Bell Atlantic to Reseller)
provided, or to be provided, by Bell Atlantic to Reseller, which are not
subscribed to by Reseller under this Agreement, must be subscribed to by
Reseller separately, pursuant to other written agreements (including,
but not limited to, applicable Bell Atlantic Tariffs). Reseller shall
use and pay for any Telecommunications Services, facilities, equipment,
software, wiring, or other services or products, provided, or to be
provided, by Bell Atlantic to Reseller, which are not subscribed to by
Reseller under this Agreement, in accordance with such other written
agreements (including, but not limited to, applicable Bell Atlantic
Tariffs).
32.2 Without in any way limiting Section 32.1 and without attempting
to list all Bell Atlantic products and services that are not subject to
this Agreement, the Parties agree that this Agreement does not apply to
the purchase by Reseller of the following Bell Atlantic services and
products: except as expressly stated in the Principal Document, exchange
access services as defined in Section 3(16) of the Act, 47 U.S.C.
Section 153(16) (including, but not limited to, primary interLATA toll
carrier and primary intraLATA toll carrier choice or change); Bell
Atlantic Answer Call, Bell Atlantic Answer Call Plus, Bell Atlantic Home
Voice Mail, Bell Atlantic Home Voice Mail Plus, Bell Atlantic Voice
Mail, Bell Atlantic Basic Mailbox, Bell Atlantic OptiMail Service, and
other voice mail, fax mail, voice messaging, and fax messaging,
services; Bell Atlantic Optional Wire Maintenance Plan; Bell Atlantic
Guardian Enhanced Maintenance Service; Bell Atlantic Sentry I Enhanced
Maintenance Service; Bell Atlantic Sentry II Enhanced Maintenance
Service; Bell Atlantic Sentry III Enhanced Maintenance Service; Bell
Atlantic Call 54 Service; Bell Atlantic Public Telephone Service;
customer premises equipment; Bell Atlantic telephone directory listings
offered under agreements or arrangements other than Bell Atlantic
Tariffs filed with the Commission; and, Bell Atlantic telephone
directory advertisements.
32.3 Without in any way limiting Section 32.1, the Parties also agree
that this Agreement does not apply to the installation, inspection,
maintenance, repair, removal, or use of any facilities, equipment,
software, or wiring, located on Reseller's side of the Network Rate
Demarcation Point applicable to Reseller and does not grant to Reseller
or Reseller Customers a right to installation, inspection, maintenance,
repair, or removal, by Bell Atlantic, or use, by Reseller or Reseller
Customers, of any such facilities, equipment, software, or wiring.
32.4 Without in any way limiting Section 32.1, the Parties agree that
this Agreement does not apply to the purchase by Reseller of Audiotex
Services (including, but not limited to, Dial-It, 976, 915 and 556
services) for resale to Audiotex Service providers or other information
service providers. Bell Atlantic shall have the right (but
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not the obligation) to block calls made to Audiotex Service numbers
(including, but not limited to, Dial-It numbers and 976, 915 and 556
numbers) through Bell Atlantic Services purchased by Reseller under this
Agreement. Notwithstanding the foregoing, Reseller shall pay, without
discount, any charges for Audiotex Services (including, but not limited
to, Dial-It, 976, 915 and 556 services) that are ordered, activated or
used by Reseller, Reseller Customers or other persons, through, by means
of, or in association with, Bell Atlantic Services provided by Bell
Atlantic to Reseller.
32.5 Nothing contained within this Agreement shall obligate Bell
Atlantic to provide any service or product which is not a Bell Atlantic
Service (including, but not limited to, the services listed in Sections
32.2, 32.3 and 32.4, above) to Reseller.
32.6 Nothing contained within this Agreement shall obligate Bell
Atlantic to provide a Bell Atlantic Service or any other service or
product to a Reseller Customer. Without in any way limiting the
foregoing, except as otherwise required by Applicable Law, Bell Atlantic
reserves the right to terminate provision of services and products
(including, but not limited to, Telecommunications Services and the
services listed in Sections 32.2 and 32.3, above) to any person who
ceases to purchase Bell Atlantic Retail Telecommunications Service dial
tone line service from Bell Atlantic.
32.7 Nothing contained in this Section 32 shall in any way exclude or
limit Reseller's obligations and liabilities under Section 30,
including, but not limited to Reseller's obligations and liabilities to
pay charges for services and products as required by Section 30.
33. SERVICE QUALITY
Bell Atlantic Services provided by Bell Atlantic to Reseller
under this Agreement shall comply with the quality requirements for such
Bell Atlantic Services specified by Applicable Law (including, but not
limited to, any applicable provisions of 47 CFR Sections 51.311 and
51.603(b)).
34. SINGLE POINT OF CONTACT
34.1 Reseller shall be the single point of contact for Reseller
Customers and other persons with regard to Telecommunications Services
and other services and products which they wish to purchase from
Reseller or which they have purchased from Reseller. Communications by
Reseller Customers and other persons with regard to Telecommunications
Services and other services and products which they wish to purchase
from Reseller or which they have purchased from Reseller, shall be made
to Reseller, and not to Bell Atlantic. Reseller shall instruct Reseller
Customers and other persons that such communications shall be directed
to Reseller.
34.2 Without in any way limiting Section 34.1, requests by Reseller
Customers for information about or provision of Telecommunications
Services which they wish to purchase from Reseller, requests by Reseller
Customers to change, terminate, or obtain
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information about, assistance in using, or repair or maintenance of,
Telecommunications Services which they have purchased from Reseller, and
inquiries by Reseller Customers concerning Reseller's bills, charges for
Reseller's Telecommunications Services, and, if the Reseller Customers
receive dial tone line service from Reseller, annoyance calls, shall be
made by the Reseller Customers to Reseller, and not to Bell Atlantic.
34.3 Reseller shall establish telephone numbers and mailing addresses
at which Reseller Customers and other persons may communicate with
Reseller and shall advise Reseller Customers and other persons who may
wish to communicate with Reseller of these telephone numbers and mailing
addresses.
35. SURVIVAL
The liabilities and obligations of a Party for acts or omissions
of the Party prior to the termination, cancellation or expiration of
this Agreement, the rights, liabilities and obligations of a Party under
any provision of this Agreement regarding indemnification or defense,
Customer Information, confidential information, or limitation or
exclusion of liability, the rights of Bell Atlantic and the liabilities
and obligations of Reseller under Section 18.1, and the rights,
liabilities and obligations of a Party under any provision of this
Agreement which by its terms is contemplated to survive (or be performed
after) termination, cancellation or expiration of this Agreement, shall
survive termination, cancellation or expiration of this Agreement.
36. TAXES
36.1 With respect to any purchase of Bell Atlantic Services under
this Agreement, if any Federal, state or local government tax, fee,
duty, surcharge (including, but not limited to any E911/911,
telecommunications relay service, or universal service fund, surcharge),
or other tax-like charge (a "Tax") is required or permitted by
Applicable Law to be collected from Reseller by Bell Atlantic, then (a)
to the extent required by Applicable Law, Bell Atlantic shall bill
Reseller for such Tax, (b) Reseller shall timely remit such Tax to Bell
Atlantic (including both Taxes billed by Bell Atlantic and Taxes
Reseller is required by Applicable Law to remit without billing by Bell
Atlantic), and (c) Bell Atlantic shall remit such collected Tax to the
applicable taxing authority.
36.2 With respect to any purchase of Bell Atlantic Services under
this Agreement, if any Tax is imposed by Applicable Law on the receipts
of Bell Atlantic, which Applicable Law permits Bell Atlantic to exclude
certain receipts received from sales of Bell Atlantic Services for
resale by Reseller, such exclusion being based on the fact that Reseller
is also subject to a Tax based upon receipts ("Receipts Tax"), then
Reseller (a) shall provide Bell Atlantic with notice in writing in
accordance with Section 36.7 of its intent to pay the Receipts Tax, and
(b) shall timely pay the Receipts Tax to the applicable taxing
authority.
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36.3 With respect to any purchase of Bell Atlantic Services under
this Agreement, that are resold by Reseller to a Reseller Customer, if
any Tax is imposed by Applicable Law on the Reseller Customer in
connection with the Reseller Customer's purchase of the resold Bell
Atlantic Services which Reseller is required to impose and/or collect
from the Reseller Customer, then Reseller (a) shall impose and/or
collect such Tax from the Reseller Customer, and (b) shall timely remit
such Tax to the applicable taxing authority.
36.4.1 If Bell Atlantic has not received an exemption certificate from
Reseller and fails to bill Reseller for any Tax as required by Section
36.1, then, as between Bell Atlantic and Reseller, (a) Reseller shall
remain liable for such unbilled Tax, and (b) Bell Atlantic shall be
liable for any interest and/or penalty assessed on the unbilled Tax by
the applicable taxing authority.
36.4.2 If Reseller fails to remit any Tax to Bell Atlantic as required
by Section 36.1, then, as between Bell Atlantic and Reseller, Reseller
shall be liable for such uncollected Tax and any interest and/or penalty
assessed on the uncollected Tax by the applicable taxing authority.
36.4.3 If Bell Atlantic does not collect a Tax because Reseller has
provided Bell Atlantic with an exemption certificate which is later
found to be inadequate by the applicable taxing authority, then, as
between Bell Atlantic and Reseller, Reseller shall be liable for such
uncollected Tax and any interest and/or penalty assessed on the
uncollected Tax by the applicable taxing authority.
36.4.4 Except as provided in Section 36.4.5, if Reseller fails to pay
the Receipts Tax as required by Section 36.2, then, as between Bell
Atlantic and Reseller, (a) Bell Atlantic shall be liable for any Tax
imposed on Bell Atlantic's receipts, (b) Reseller shall be liable for
any interest and/or penalty imposed on Bell Atlantic with respect to the
Tax on Bell Atlantic's receipts, and (c) Reseller shall be liable for
any Tax imposed on Reseller's receipts and any interest and/or penalty
assessed by the applicable taxing authority on Reseller with respect to
the Tax on Reseller's receipts.
36.4.5.1 If any discount or portion of a discount in price provided to
Reseller under this Agreement (including, but not limited to, a discount
provided for in Exhibit II, Section 1.1) represents Tax savings to Bell
Atlantic which it was anticipated Bell Atlantic would receive, because
it was anticipated that receipts from sales of Bell Atlantic Services,
that would otherwise be subject to a Tax on such receipts, could be
excluded from such Tax under Applicable Law because the Bell Atlantic
Services would be sold to Reseller for resale, and Bell Atlantic is, in
fact, required by Applicable Law to pay such Tax on receipts from sales
of Bell Atlantic Services to Reseller, then, as between Bell Atlantic
and Reseller, (a) Reseller shall be liable for, and shall indemnify and
hold harmless Bell Atlantic against (on an after-tax basis), any such
Tax, and (b) Reseller shall be liable for, and shall indemnify and hold
harmless Bell Atlantic against (on an after-tax basis), any interest
and/or penalty assessed by the applicable taxing
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authority on either Reseller or Bell Atlantic with respect to the Tax on
Bell Atlantic's receipts.
36.4.5.2 Without in any way limiting Reseller's obligations under
Section 36.4.5.1, in consideration of receiving the Pennsylvania gross
receipts tax related discount specified in Bell Atlantic Tariff PA.
P.U.C.-No. 1, Section 1, Paragraph 8.1.C.1.c, and/or Exhibit II,
Attachment 1, Reseller agrees to reimburse Bell Atlantic for, and to
indemnify and hold harmless Bell Atlantic against any gross receipts tax
imposed on Bell Atlantic with respect to receipts from Bell Atlantic
Retail Telecommunications Services provided by Bell Atlantic to Reseller
under this Agreement.
36.4.6 If Reseller fails to impose and/or collect any Tax from Reseller
Customers as required by Section 36.3, then, as between Bell Atlantic
and Reseller, Reseller shall remain liable for such uncollected Tax and
any interest and/or penalty assessed on such uncollected Tax by the
applicable taxing authority.
36.4.7 With respect to any Tax that Reseller has agreed to pay, is
responsible for because Reseller received a discount in price on Bell
Atlantic Services attributable to anticipated Tax savings by Bell
Atlantic, or is required to impose on and/or collect from Reseller
Customers, Reseller agrees to indemnify and hold Bell Atlantic harmless
on an after-tax basis for any costs incurred by Bell Atlantic as a
result of actions taken by the applicable taxing authority to recover
the Tax from Bell Atlantic due to failure of Reseller to timely remit
the Tax to Bell Atlantic, or timely pay, or collect and timely remit,
the Tax to the taxing authority.
36.5 If either Party is audited by a taxing authority, the other
Party agrees to reasonably cooperate with the Party being audited in
order to respond to any audit inquiries in a proper and timely manner so
that the audit and/or any resulting controversy may be resolved
expeditiously.
36.6.1 If Applicable Law clearly exempts a purchase of Bell Atlantic
Services under this Agreement from a Tax, and if such Applicable Law
also provides an exemption procedure, such as an exemption certificate
requirement, then, if Reseller complies with such procedure, Bell
Atlantic shall not collect such Tax during the effective period of the
exemption. Such exemption shall be effective upon receipt of the
exemption certificate or affidavit in accordance with Section 36.7.
36.6.2 If Applicable Law clearly exempts a purchase of Bell Atlantic
Services under this Agreement from a Tax, but does not also provide an
exemption procedure, then Bell Atlantic shall not collect such Tax if
Reseller (a) furnishes Bell Atlantic with a letter signed by an officer
of Reseller requesting an exemption and citing the provision in the
Applicable Law which clearly allows such exemption, and (b) supplies
Bell Atlantic with an indemnification agreement, reasonably acceptable
to Bell Atlantic, which holds Bell Atlantic harmless on an after-tax
basis with respect to forbearing to collect such Tax.
36.7 All notices, affidavits, exemption certificates or other
communications required or permitted to be given by either Party to the
other under this Section 36, shall
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be made in writing and shall be sent by certified or registered mail,
return receipt requested, or by a reputable private delivery service
which provides a record of delivery, to the addressee stated in Section
23 at the address stated in Section 23 and to the following:
To Bell Atlantic:
Tax Administration
Bell Atlantic Corporation
1095 Avenue of the Americas
Room 3109
New York, New York 10036
To Reseller: Controller
Essential.Com, Inc.
3 Burlington Woods Drive
Burlington, MA 01803
Tel: (781) 229-9599
Fax: (781) 229-9499
Either Party may from time-to-time designate another address or
addressee by giving notice in accordance with the terms of this Section
36.7.
Any notice or other communication shall be deemed to be given
when received.
37. TELEPHONE EXCHANGE SERVICE PROVIDER SELECTION
37.1 Without in any way limiting Reseller's obligations under Section
12, Reseller shall comply with Applicable Law with regard to end user
selection of a Telephone Exchange Service provider. Until the Commission
or the FCC adopts regulations and/or orders applicable to end user
selection of a Telephone Exchange Service provider, Reseller shall apply
the rules and procedures set forth in Section 64.1100 of the FCC Rules,
47 CFR Section 64.1100, to the process for end user selection of a
Telephone Exchange Service provider (including, to end user selection of
a Telephone Exchange Service provider that occurs during any
telemarketing contact with an end user), and shall comply with such
rules and procedures.
37.2 By submitting to Bell Atlantic an Order to install, provide,
change or terminate a Telecommunications Service, to select, change or
reassign a telephone number, or to select, change or terminate an end
user's Telephone Exchange Service provider, Reseller represents and
warrants: (a) that Reseller has obtained authorization for such action
from the applicable end user; and, (b) that if Applicable Law and/or
this Agreement required such authorization to be obtained in a
particular manner, Reseller obtained the authorization in the manner
required by Applicable Law and this
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Agreement. Reseller shall upon request by Bell Atlantic provide proof of
such authorization (including, a copy of any written authorization).
37.3 If Reseller submits an Order to Bell Atlantic to install,
provide, change or terminate a Telecommunications Service, to select,
change or reassign a telephone number, or to select, change or terminate
an end user's Telephone Exchange Service provider, and (a) when
requested by Bell Atlantic to provide a written document signed by the
end user stating the end user's Telephone Exchange Service provider
selection, fails to provide such document to Bell Atlantic, or (b) has
not obtained authorization for such installation, provision, selection,
change, reassignment or termination, from the end user in, the manner
required by Applicable Law (or, in the absence of Applicable Law, in the
manner required by the rules and procedures in 47 CFR Section 64.1100),
Reseller shall be liable to Bell Atlantic for all charges that would be
applicable to the end user for the initial installation, provision,
selection, change, reassignment or termination, of the end user's
Telecommunications Service, telephone number, and/or Telephone Exchange
Service provider, and any charges for restoring the end user's
Telecommunications Service, telephone number, and/or Telephone Exchange
Service provider selection, to its end user authorized condition.
38. TELEPHONE NUMBERS
38.1 Reseller's use of telephone numbers shall be subject to
Applicable Law (including, but not limited to, the rules of the FCC, the
North American Numbering Council, and the North American Numbering Plan
Administrator), the applicable provisions of this Agreement (including,
but not limited to, this Section 38), and Bell Atlantic's practices and
procedures for use and assignment of telephone numbers, as amended from
time-to-time.
38.2 Subject to Sections 38.1 and 38.3, if an end user who subscribes
to a Bell Atlantic Retail Telecommunications Service dial tone line from
either Reseller or Bell Atlantic changes the Telecommunications Carrier
from whom the end user subscribes for such dial tone line (including a
change from Bell Atlantic to Reseller, from Reseller to Bell Atlantic,
or from Reseller to a Telecommunications Carrier other than Bell
Atlantic), after such change, the end user may continue to use with the
dial tone line the telephone numbers which were assigned to the dial
tone line by Bell Atlantic immediately prior to the change.
38.3 Bell Atlantic shall have the right to change the telephone
numbers used by an end user if at any time: (a) the type or class of
service subscribed to by the end user changes; (b) the end user requests
service at a new location, that is not served by the Bell Atlantic
switch and the Bell Atlantic rate center from which the end user
previously had service; or, (c) continued use of the telephone numbers
is not technically feasible.
38.4 If service on a Bell Atlantic Retail Telecommunications Service
dial tone line subscribed to by Reseller from Bell Atlantic under this
Agreement is terminated, the telephone numbers associated with such dial
tone line shall be available for reassignment
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by Bell Atlantic to any person to whom Bell Atlantic elects to assign
the telephone numbers, including, but not limited to, Bell Atlantic,
Bell Atlantic end user retail Customers, Reseller, or Telecommunications
Carriers other than Bell Atlantic and Reseller.
39. WARRANTIES
EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, BELL ATLANTIC
MAKES NO WARRANTIES WITH RESPECT TO BELL ATLANTIC SERVICES, WHETHER
EXPRESS OR IMPLIED, WRITTEN OR ORAL, IN FACT OR IN LAW. THE WARRANTIES
SET FORTH IN THIS AGREEMENT ARE BELL ATLANTIC'S EXCLUSIVE WARRANTIES
WITH RESPECT TO BELL ATLANTIC SERVICES AND ARE IN LIEU OF ALL OTHER
WARRANTIES, EXPRESS OR IMPLIED, WRITTEN OR ORAL, IN FACT OR IN LAW. BELL
ATLANTIC DISCLAIMS ANY AND ALL OTHER WARRANTIES, INCLUDING, BUT NOT
LIMITED TO, WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR
PURPOSE, WARRANTIES AGAINST INFRINGEMENT, AND WARRANTIES ARISING BY
TRADE CUSTOM, TRADE USAGE, COURSE OF DEALING, OR OTHERWISE.
40. PUBLICITY AND USE OF TRADEMARKS OR SERVICE MARKS
40.1.1 Neither Party nor its subcontractors or agents will use the
other Party's trademarks, service marks, logos or other proprietary
trade dress in connection with the sale of products and services, or in
any advertising, press releases, publicity matters or other promotional
materials without such Party's prior written consent.
40.1.2 Neither Party may imply any direct or indirect affiliation with
or sponsorship or endorsement of its company, products and services by
the other Party.
41. AUTHORIZATION
41.1.1 Bell Atlantic is a corporation duly organized, validly existing
and in good standing under the laws of the Commonwealth of Pennsylvania
and has full power and authority to execute and deliver this Agreement
and to perform the obligations hereunder on behalf of Bell Atlantic.
41.2 Essential.Com, Inc., a corporation, is duly organized, validly
existing and in good standing under the laws of Delaware and has full
power and authority to execute and deliver this Agreement and to perform
its obligations hereunder.
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IN WITNESS WHEREOF, intending to be legally bound, Reseller and Bell
Atlantic have caused this Agreement to be executed by their respective
authorized representatives.
ESSENTIAL.COM, INC
BY: /s/ Akhil Garland
-----------------------------------------
Signature
Akhil Garland
-----------------------------------------
Name (Printed)
ITS: CEO
-----------------------------------------
Title
BY: /s/ Patrick Moran
-----------------------------------------
Signature
Patrick Moran
-----------------------------------------
Name (Printed)
ITS: Vice President-Operations
-----------------------------------------
Title
BY: /s/ John A. Duffy
-----------------------------------------
Signature
John Duffy
-----------------------------------------
Name (Printed)
ITS: Vice President-Business Development
-----------------------------------------
Title
BELL ATLANTIC - PENNSYLVANIA, INC.
BY: /s/ Jeffrey A. Masoner
-----------------------------------------
Signature
Jeffrey A. Masoner
-----------------------------------------
Name (Printed)
TITLE: Vice President - Telecom Industry Services
-----------------------------------------
31
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EXHIBIT I
BELL ATLANTIC ANCILLARY SERVICES
1. BELL ATLANTIC OSS SERVICES
1.1 DEFINITIONS
As used in the Principal Document, the terms listed below shall
have the meanings stated below:
1.1.1 "Bell Atlantic Operations Support Systems" means Bell Atlantic
systems for pre-ordering, ordering, provisioning, maintenance and
repair, and billing.
1.1.2 "Bell Atlantic OSS Services" means access to Bell Atlantic
Operations Support Systems functions. The term "Bell Atlantic OSS
Services" includes, but is not limited to: (a) Bell Atlantic's provision
of Reseller Usage Information to Reseller pursuant to Exhibit I, Section
1.3, below; and, (b) "Bell Atlantic OSS Information", as defined in
Exhibit I, Section 1.1.4, below.
1.1.3 "Bell Atlantic OSS Facilities" means any gateways, interfaces,
databases, facilities, equipment, software, or systems, used by Bell
Atlantic to provide Bell Atlantic OSS Services to Reseller.
1.1.4 "Bell Atlantic OSS Information" means any information accessed
by, or disclosed or provided to, Reseller through or as a part of Bell
Atlantic OSS Services. The term "Bell Atlantic OSS Information"
includes, but is not limited to: (a) any Customer Information related
to a Bell Atlantic Customer or a Reseller Customer accessed by, or
disclosed or provided to, Reseller through or as a part of Bell Atlantic
OSS Services; and, (b) any Reseller Usage Information (as defined in
Exhibit I, Section 1.1.5, below) accessed by, or disclosed or provided
to, Reseller.
1.1.5 "Reseller Usage Information" means the usage information for a
Bell Atlantic Retail Telecommunications Service purchased by RESELLER
under this Agreement that Bell Atlantic would record if Bell Atlantic
was furnishing such Bell Atlantic Retail Telecommunications Service to a
Bell Atlantic end-user retail Customer.
1.2 BELL ATLANTIC OSS SERVICES
1.2.1 Upon request by Reseller, Bell Atlantic shall provide to
Reseller, pursuant to Section 251(c)(3) of the Act, 47 U.S.C.
Section 251 (c)(3), Bell Atlantic OSS Services.
1.2.2 Subject to the requirements of Applicable Law, Bell Atlantic
Operations Support Systems, Bell Atlantic Operations Support Systems
functions, Bell Atlantic OSS
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Facilities, Bell Atlantic OSS Information, and the Bell Atlantic OSS
Services that will be offered by Bell Atlantic, shall be as determined
by Bell Atlantic. To the extent required by Applicable Law and
technically feasible, Bell Atlantic will offer to Reseller the Bell
Atlantic OSS Services that Bell Atlantic offers, under agreements
approved by the Commission pursuant to 47 U.S.C. Section 252, to other
Telecommunications Carriers that are engaged in the resale of Bell
Atlantic Retail Telecommunications Services pursuant to 47 U.S.C.
Section 251(c)(4). Subject to the requirements of Applicable Law, Bell
Atlantic shall have the right to change Bell Atlantic Operations Support
Systems, Bell Atlantic Operations Support Systems functions, Bell
Atlantic OSS Facilities, Bell Atlantic OSS Information, and the Bell
Atlantic OSS Services, from time-to-time, without the consent of
reseller.
1.3 Reseller Usage Information
1.3.1 Upon request by Reseller, Bell Atlantic shall provide to
Reseller, pursuant to Section 25 1 (c)(3) of the Act, 47 U.S.C.
Section 251(c)(3), Reseller Usage Information.
1.3.2 Reseller Usage Information will be available to Reseller through
the following:
(a) Daily Usage File on Data Tape.
(b) Daily Usage File through Network Data Mover ("NDM").
(c) Daily Usage File through Centralized Message Distribution System
("CMDS").
1.3.3.1 Reseller Usage Information will be provided in a Bellcore
Exchange Message Records ("EMR") format.
1.3.3.2 Daily Usage File Data Tapes provided pursuant to Exhibit I,
Section 1.3.2(a) will be issued each day, Monday through Friday, except
holidays observed by Bell Atlantic.
1.3.4 Except as stated in this Exhibit I, Section 1.3, subject to the
requirements of Applicable Law, the manner in which, and the frequency
with which, Reseller Usage Information will be provided to Reseller
shall be determined by Bell Atlantic.
1.4 PRICES
The prices for Bell Atlantic OSS Services shall be as stated in
Exhibit II, Section 2 following.
1.5 ACCESS TO AND USE OF BELL ATLANTIC OSS FACILITIES
1.5.1 Bell Atlantic OSS Facilities may be accessed and used by
Reseller only to the extent necessary for Reseller's access to and use
of Bell Atlantic OSS Services pursuant to this Agreement.
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<PAGE>
1.5.2 Bell Atlantic OSS Facilities may be accessed and used by
Reseller only to provide Telecommunications Services to Reseller
Customers.
1.5.3 Reseller shall restrict access to and use of Bell Atlantic OSS
Facilities to Reseller. This Agreement does not grant to Reseller any
right or license to grant sublicenses to other persons, or permission to
other persons (except Reseller's employees, Agents and contractors, in
accordance with Exhibit I, Section 1.5.7, below), to access or use Bell
Atlantic OSS Facilities.
1.5.4 Reseller shall not (a) alter, modify or damage the Bell Atlantic
OSS Facilities (including, but not limited to Bell Atlantic software),
(b) copy, remove, derive, reverse engineer, or decompile, software from
the Bell Atlantic OSS Facilities, or (c) obtain access through Bell
Atlantic OSS Facilities to Bell Atlantic databases, facilities,
equipment, software, or systems, which are not offered for Reseller's
use under this Agreement.
1.5.5 Reseller shall comply with all practices and procedures
established by Bell Atlantic for access to and use of Bell Atlantic OSS
Facilities (including, but not limited to, Bell Atlantic practices and
procedures with regard to security and use of access and user
identification codes).
1.5.6 All practices and procedures for access to and use of Bell
Atlantic OSS Facilities, and all access and user identification codes
for Bell Atlantic OSS Facilities: (a) shall remain the property of Bell
Atlantic; (b) shall be used by Reseller only in connection with
Reseller's use of Bell Atlantic OSS Facilities permitted by this
Agreement; (c) shall be treated by Reseller as Confidential Information
of Bell Atlantic pursuant to Section 13; and, (d) shall be destroyed or
returned by Reseller to Bell Atlantic upon the earlier of request by
Bell Atlantic or the expiration or termination of this Agreement.
1.5.7 Reseller's employees, Agents and contractors may access and use
Bell Atlantic OSS Facilities only to the extent necessary for Reseller's
access to and use of the Bell Atlantic OSS Facilities permitted by this
Agreement. Any access to or use of Bell Atlantic OSS Facilities by
Reseller's employees, Agents, or contractors, shall be subject to the
provisions of this Agreement, including, but not limited to, Section 13,
Exhibit I, Section 1.5.6, and Exhibit I, Section 1.6.3.3.
1.6 BELL ATLANTIC OSS INFORMATION
1.6.1 Subject to the provisions of this Agreement and Applicable Law,
Bell Atlantic grants to Reseller a non-exclusive license to use Bell
Atlantic OSS Information.
1.6.2 All Bell Atlantic OSS Information shall at all times remain the
property of Bell Atlantic. Except as expressly stated in this Agreement,
Reseller shall acquire no rights in or to any Bell Atlantic OSS
Information.
34
<PAGE>
1.6.3.1 The provisions of this Exhibit I, Section 1.6.3 apply to all
Bell Atlantic OSS Information, except (a) Reseller Usage Information,
(b) CPNI of Reseller, and (c) CPNI of a Bell Atlantic Customer or a
Reseller Customer, to the extent the Customer has authorized Reseller to
use the Customer Information.
1.6.3.2 Bell Atlantic OSS Information may be accessed and used by
Reseller only to provide Telecommunications Services to Reseller
Customers.
1.6.3.3 Reseller shall treat Bell Atlantic OSS Information that is
designated by Bell Atlantic, through written or electronic notice
(including, but not limited to, through the Bell Atlantic OSS Services),
as "Confidential" or "Proprietary" as Confidential Information of Bell
Atlantic pursuant to Section 13.
1.6.3.4 Except as expressly stated in this Agreement, this Agreement
does not grant to Reseller any right or license to grant sublicenses to
other persons, or permission to other persons (except Reseller's
employees, Agents or contractors, in accordance with Exhibit I, Section
1.6.3.5), to access, use or disclose Bell Atlantic OSS Information.
1.6.3.5 Reseller's employees, Agents and contractors may access, use and
disclose Bell Atlantic OSS Information only to the extent necessary for
Reseller's access to, and use and disclosure of, Bell Atlantic OSS
Information permitted by this Agreement. Any access to, or use or
disclosure of, Bell Atlantic OSS Information by Reseller's employees,
Agents or contractors, shall be subject to the provisions of this
Agreement, including, but not limited to, Section 13 and Exhibit I,
Section 1.6.3.3.
1.6.3.6 Reseller's license to use Bell Atlantic OSS Information shall
expire upon the earliest of: (a) the time when the Bell Atlantic OSS
Information is no longer needed by Reseller to provide
Telecommunications Services to Reseller Customers; (b) termination of
the license in accordance with this Agreement; or (c) expiration or
termination of this Agreement.
1.6.3.7 All Bell Atlantic OSS Information received by Reseller shall be
destroyed or returned by Reseller to Bell Atlantic, upon expiration,
suspension or termination of the license to use such Bell Atlantic OSS
Information.
1.6.4 Unless sooner terminated or suspended in accordance with this
Agreement (including, but not limited to, Section 17.1 and Exhibit I,
Section 1.7.1), Reseller's access to Bell Atlantic OSS Information
through Bell Atlantic OSS Services shall terminate upon the expiration
or termination of this Agreement.
1.6.5.1 Without in any way limiting Section 16.3, Bell Atlantic shall
have the right (but not the obligation) to audit Reseller to ascertain
whether Reseller is complying with the requirements of Applicable Law
and this Agreement, with regard to Reseller's access to, and use and
disclosure of, Bell Atlantic OSS Information.
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<PAGE>
1.6.5.2 Without in any way limiting Section 16.3, Section 16.4, or
Exhibit I, Section 1.6.5.1, Bell Atlantic shall have the right (but not
the obligation) to monitor Reseller's access to and use of Bell Atlantic
OSS Information which is made available by Bell Atlantic to Reseller
pursuant to this Agreement, to ascertain whether Reseller is complying
with the requirements of Applicable Law and this Agreement, with regard
to Reseller's access to, and use and disclosure of, such Bell Atlantic
OSS Information. The foregoing right shall include, but not be limited
to, the right (but not the obligation) to electronically monitor
Reseller's access to and use of Bell Atlantic OSS Information which is
made available by Bell Atlantic to Reseller through Bell Atlantic OSS
Facilities.
1.6.5.3 Information obtained by Bell Atlantic pursuant to this Exhibit
I, Section 1.6.5 shall be treated by Bell Atlantic as Confidential
Information of Reseller pursuant to Section 13; provided that, Bell
Atlantic shall have the right (but not the obligation) to use and
disclose information obtained by Bell Atlantic pursuant to this
Exhibit I, Section 1.6.5 to enforce Applicable Law and/or Bell
Atlantic's rights under this Agreement.
1.6.6 Reseller acknowledges that the Bell Atlantic OSS Information, by
its nature, is updated and corrected on a continuous basis by Bell
Atlantic, and therefore that Bell Atlantic OSS Information is subject to
change from time to time.
1.7 LIABILITIES AND REMEDIES
1.7.1 Any breach by Reseller, or Reseller's employees, Agents or
contractors, of the provisions of Exhibit I, Section 1.5 or Exhibit I,
Section 1.6, shall be deemed a material breach of a material provision
of this Agreement by Reseller under Section 17.1 of this Agreement. In
addition, if Reseller or an employee, Agent or contractor of Reseller at
any time breaches a provision of Exhibit I, Section 1.5 or Exhibit I,
Section 1.6, and such breach continues for more than ten (10) days after
written notice thereof from Bell Atlantic, then, except as otherwise
required by Applicable Law, Bell Atlantic shall have the right, upon
notice to Reseller, to suspend the license to use Bell Atlantic OSS
Information granted by Exhibit I, Section 1.6.1 and/or the provision of
Bell Atlantic OSS Services, in whole or in part.
1.7.2 Reseller agrees that Bell Atlantic would be irreparably injured
by a breach of Exhibit I, Section 1.5 or Exhibit I, Section 1.6 by
Reseller or the employees, Agents or contractors of Reseller, and that
Bell Atlantic shall be entitled to seek equitable relief, including
injunctive relief and specific performance, in the event of any breach
of Exhibit I, Section 1.5 or Exhibit I, Section 1.6 by Reseller or the
employees, Agents or contractors of Reseller. Such remedies shall not be
deemed to be the exclusive remedies for a breach of Exhibit I, Section
1.5 or Exhibit I, Section 1.6, but shall be in addition to any other
remedies available under this Agreement or at law or in equity.
1.8 RELATION TO APPLICABLE LAW
The provisions of Exhibit I, Sections 1.5, 1.6 and 1.7 shall be
in addition to and not in derogation of any provisions of Applicable
Law, including, but not limited to, 47
36
<PAGE>
U.S.C. Section 222 and the FCC rules in 47 CFR Section 64.2001 -
Section 64.2009, and are not intended to constitute a waiver by Bell
Atlantic of any right with regard to protection of the confidentiality
of the information of Bell Atlantic or Bell Atlantic Customers provided
by Applicable Law.
1.9 COOPERATION
Reseller, at Reseller's expense, shall reasonably cooperate with
Bell Atlantic in using Bell Atlantic OSS Services. Such cooperation
shall include, but not be limited to, the following:
1.9.1 Upon request by Bell Atlantic, Reseller shall by no later than
the fifteenth (15th) day of each calendar month submit to Bell Atlantic
reasonable, good faith estimates (by central office or other Bell
Atlantic office or geographic area designated by Bell Atlantic) of the
volume of each Bell Atlantic Retail Telecommunications Service for which
Reseller anticipates submitting Orders in each week of the next calendar
month.
1.9.2 Upon request by Bell Atlantic, Reseller shall submit to Bell
Atlantic reasonable, good faith estimates of other types of transactions
or use of Bell Atlantic OSS Services that Reseller anticipates.
1.9.3 Reseller shall reasonably cooperate with Bell Atlantic in
submitting Orders for Bell Atlantic Retail Telecommunications Services
and otherwise using the Bell Atlantic OSS Services, in order to avoid
exceeding the capacity or capabilities of such Bell Atlantic OSS
Services.
1.9.4 Reseller shall participate in cooperative testing of Bell
Atlantic OSS Services and shall provide assistance to Bell Atlantic in
identifying and correcting mistakes, omissions, interruptions, delays,
errors, defects, faults, failures, or other deficiencies, in Bell
Atlantic OSS Services.
1.10 BELL ATLANTIC ACCESS TO INFORMATION RELATED TO RESELLER CUSTOMERS
1.10.1 Bell Atlantic shall have the right to access, use and disclose
information related to Reseller Customers that is in Bell Atlantic's
possession (including, but not limited to, in Bell Atlantic OSS
Facilities) to the extent such access, use and/or disclosure has been
authorized by the Reseller Customer in the manner required by Applicable
Law.
1.10.2 Upon request by Bell Atlantic, Reseller shall negotiate in good
faith and enter into a contract with Bell Atlantic, pursuant to which
Bell Atlantic may obtain access to Reseller's operations support systems
(including, systems for pre-ordering, ordering, provisioning,
maintenance and repair, and billing) and information contained in such
systems, to permit Bell Atlantic to obtain information related to
Reseller Customers (as authorized by the applicable Reseller Customer),
to permit Customers to transfer service from one Telecommunications
Carrier to another, and for such other purposes as may be permitted by
Applicable Law.
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2. E911/911 SERVICES
2.1 Where and to the extent that Bell Atlantic provides E911/911
call routing to a Public Safety Answering Point ("PSAP") to Bell
Atlantic's own end user retail Customers, Bell Atlantic will provide to
Reseller, for resold Bell Atlantic Retail Telecommunications Service
dial tone lines, E911/911 call routing to the appropriate PSAP. Bell
Atlantic will provide Reseller Customer information for resold Bell
Atlantic Retail Telecommunications Service dial tone lines to the PSAP
as that information is provided to Bell Atlantic by Reseller where and
to the same extent that Bell Atlantic provides Bell Atlantic end user
retail Customer information to the PSAP. Bell Atlantic will update and
maintain, on the same schedule that Bell Atlantic uses with Bell
Atlantic's own end user retail Customers, for Reseller Customers served
by resold Bell Atlantic Retail Telecommunications Service dial tone
lines, the Reseller Customer information in Bell Atlantic's E911/911
databases.
2.2 Reseller shall provide to Bell Atlantic the name, telephone
number and address, of all Reseller Customers, and such other
information as may be requested by Bell Atlantic, for inclusion in
E911/911 databases. Any change in Reseller Customer name, address or
telephone number information (including addition or deletion of a
Reseller Customer, or a change in Reseller Customer name, telephone
number or address), or in other E911/911 information supplied by
Reseller to Bell Atlantic, shall be reported to Bell Atlantic by
Reseller within one (1) day after the change.
2.3 To the extent that it is necessary (whether as a requirement of
Applicable Law or otherwise) for Reseller to enter into any agreements
or other arrangements with governmental entities (or governmental entity
contractors) related to E911/911 in order for Reseller to provide
Telecommunications Services, Reseller shall at Reseller's expense enter
into such agreements and arrangements.
3. ROUTING TO DIRECTORY ASSISTANCE AND OPERATOR SERVICES
3.1 Upon request by Reseller, to the extent technically feasible,
Bell Atlantic will provide to Reseller the capability of rerouting to
Reseller's platforms directory assistance traffic (411 and 555-1212
calls) from Reseller Customers served by resold Bell Atlantic Retail
Telecommunications Service dial tone line service and operator services
traffic (0+ and 0- intraLATA calls) from Reseller Customers served by
resold Bell Atlantic Retail Telecommunications Service dial tone line
service.
3.2 A request for the rerouting service described in Exhibit I,
Section 4.1 must be made by Reseller (a) on a Bell Atlantic
switch-by-Bell Atlantic switch basis, and (b) at least ninety (90) days
in advance of the date that the rerouting capability is to be made
available in an applicable Bell Atlantic switch.
3.3 The prices for the rerouting service described in Exhibit I,
Section 4.1 shall be as stated in Exhibit II, Section 2.
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4. LIDB/BVS
4.1 Upon request by Reseller, Bell Atlantic will maintain
information (including calling card numbers and collect and bill to
third party billing restriction notation) for Reseller Customers who
subscribe to resold Bell Atlantic Retail Telecommunications Service dial
tone line service, in Bell Atlantic's Line Information Database
("LIDB"), where and to the same extent that Bell Atlantic maintains
information in Bell Atlantic's LIDB for Bell Atlantic's own end-user
retail Customers.
4.2 If an end-user terminates Bell Atlantic Retail
Telecommunications Service dial tone line service provided to the
end-user by Bell Atlantic and, in place thereof, subscribes to Reseller
for resold Bell Atlantic Retail Telecommunications Service dial tone
line service, Bell Atlantic will remove from Bell Atlantic's LIDB any
Bell Atlantic-assigned telephone line calling card number (including
area code) ("TLN") and Personal Identification Number ("PIN") associated
with the terminated Bell Atlantic Retail Telecommunications Service dial
tone line service. The Bell Atlantic-assigned TLN and PIN will be
removed from Bell Atlantic's LIDB within twenty-four (24) hours after
Bell Atlantic terminates the Bell Atlantic Retail Telecommunications
Service dial tone line service with which the number was associated.
Reseller may issue a new telephone calling card to such end-user,
utilizing the same TLN, and the same or a different PIN. Upon request by
Reseller, Bell Atlantic will enter such TLN and PIN in Bell Atlantic's
LIDB for calling card validation purposes.
4.3 Reseller information which is stored in Bell Atlantic's LIDB
will be subject, to the same extent as Bell Atlantic information stored
in Bell Atlantic's LIDB, to access and use by, and disclosure to, those
persons (including, but not limited to, Bell Atlantic) to whom Bell
Atlantic allows access to information which is stored in Bell Atlantic's
LIDB. Reseller hereby grants to Bell Atlantic and the persons to whom
Bell Atlantic allows access to information which is stored in Bell
Atlantic's LIDB, a royalty free license for such access, use and
disclosure.
4.4 Reseller shall obtain contractual agreements with each of the
persons authorized to have access to Bell Atlantic's LIDB, under which
Reseller will bill Reseller Customers for calling card, third party,
collect and other calls validated by such persons through Bell
Atlantic's LIDB.
4.5 Reseller warrants that the information provided by Reseller for
inclusion in Bell Atlantic's LIDB will at all times be current, accurate
and appropriate for use for billing validation services.
4.6 Upon request by Reseller, Bell Atlantic will provide to Reseller
Bell Atlantic Billing Validation Service, in accordance with Bell
Atlantic's Tariffs, for use by Reseller in connection with Bell Atlantic
Retail Telecommunications Services purchased and provided by Reseller
pursuant to this Agreement.
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4.7 Information in Bell Atlantic's LIDB provided to Reseller shall
be treated by Reseller as Confidential Information of Bell Atlantic
pursuant to Section 13.
4.8 The prices for the services described in this Exhibit I, Section
5 shall be as stated in Exhibit II, Section 2.
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EXHIBIT II
PRICES FOR BELL ATLANTIC SERVICES
1. BELL ATLANTIC RETAIL TELECOMMUNICATIONS SERVICES
1.1 PRICES
The prices for Bell Atlantic Retail Telecommunications
Services shall be the Retail Prices stated in Bell Atlantic's Tariffs for
such Bell Atlantic Retail Telecommunications Services, less: (a) the
applicable discount stated in Bell Atlantic's Tariffs for Bell Atlantic
Retail Telecommunications Services purchased for resale pursuant to 47 U.S.C.
Section 251 (c)(4); or, (b) in the absence of an applicable Bell Atlantic
Tariff discount for Bell Atlantic Retail Telecommunications Services
purchased for resale pursuant to 47 U.S.C. Section 251(c)(4), the applicable
discount stated in Exhibit II, Attachment 1.
1.2 INAPPLICABILITY OF DISCOUNTS
The discounts provided for in Exhibit II, Section 1.1, shall
not be applied to:
1.2.1 Retail Prices that are in effect for no more than ninety (90)
days;
1.2.2 Charges for services and products provided by Bell Atlantic that
are not Bell Atlantic Retail Telecommunications Services, including, but not
limited to, Bell Atlantic Ancillary Services, and exchange access services as
defined in Section 3(16) of the Act, 47 U.S.C. Section 153(16);
1.2.3 Subscriber Line Charges, Federal Line Cost Charges, end user
common line charges, carrier selection and change charges, and Audiotex Service
charges, and to the extent applicable, the Presubscribed Interexchange Carrier
Charge applicable to Reseller Customers who have not presubscribed to an
interexchange carrier for long distance services; and,
1.2.4 Any service or charge which the Commission, the FCC, or other
governmental entity of appropriate jurisdiction, determines is not subject to a
wholesale rate discount under 47 U.S.C. Section 251(C)(4).
1.3 DISCOUNT CHANGES
1.3.1 Bell Atlantic shall change the discounts provided for in Exhibit
II, Section 1.1, above, from time-to-time, to the extent such change is required
by Applicable Law, including, but not limited to, by regulation or order of the
Commission, the FCC, or other governmental entity of appropriate jurisdiction.
1.3.2 Bell Atlantic shall have the right to change the discounts
provided for in Exhibit II, Section 1.1, above, from time-to-time, to the extent
such change is required, approved or
41
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permitted by Applicable Law, including, but not limited to, by regulation or
order of the Commission, the FCC, or other governmental entity of appropriate
jurisdiction.
1.4 OFFERS OF MERCHANDISE AND SERVICES WHICH ARE NOT BELL ATLANTIC RETAIL
TELECOMMUNICATIONS SERVICES
Reseller shall not be eligible to participate in any Bell
Atlantic plan or program under which Bell Atlantic end user retail Customers may
obtain products or merchandise, or services which are not Bell Atlantic Retail
Telecommunications Services, in return for trying, agreeing to purchase,
purchasing, or using, Bell Atlantic Retail Telecommunications Services.
2. BELL ATLANTIC ANCILLARY SERVICES
2.1 PRICES
2.1.1 The prices for Bell Atlantic Ancillary Services shall be as
stated: (a) in Bell Atlantic's Tariffs; or, (b) in the absence of an applicable
Bell Atlantic Tariff price, in Exhibit II, Attachment 1.
2.1.2 If Bell Atlantic at any time offers a Bell Atlantic Ancillary
Service the prices for which are not stated in Bell Atlantic's Tariffs or
Exhibit II, Attachment 1, Bell Atlantic shall have the right to revise Exhibit
II, Attachment 1, to add the prices to Exhibit II, Attachment 1.
2.2 PRICE CHANGES
2.2.1 Bell Atlantic shall change the prices for Bell Atlantic
Ancillary Services, from time-to-time, to the extent such change is required by
Applicable Law, including, but not limited to, by regulation or order of the
Commission, the FCC, or other governmental entity of appropriate jurisdiction.
2.2.2 Bell Atlantic shall have the right to change the prices for Bell
Atlantic Ancillary Services, from time-to-time, to the extent such change is
required, approved or permitted by Applicable Law, including, but not limited
to, by regulation or order of the Commission, the FCC, or other governmental
entity of appropriate jurisdiction.
2.2.3 Except as otherwise required by Applicable Law, Bell Atlantic
shall give Reseller thirty (30) days advance written notice of any increase in
the prices stated in Exhibit II, Attachment 1 for Bell Atlantic Ancillary
Services.
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ATTACHMENT I
TO EXHIBIT II
BELL ATLANTIC - PENNSYLVANIA, INC.
DETAILED SCHEDULE OF ITEMIZED CHARGES(1)
I. WHOLESALE DISCOUNT FOR RESALE OF BELL ATLANTIC RETAIL TELECOMMUNICATIONS
SERVICES
Resale of Bell Atlantic Retail 20.69% or discount rate as
Telecommunications Services if RESELLER established by Commission Order.
provides its own Operator Services.
Resale of Bell Atlantic Retail 18.43% or discount rate as
Telecommunications Services if RESELLER established by Commission Order.
uses Bell Atlantic Operator Services.
Pennsylvania Gross Receipts Tax Discount as per Bell Atlantic--
Pennsylvania Tariff Pa.
P.U.C.-No. 1, Section 1,
PARA 8.1
- --------------------------
(1) All rates and charges set forth in this Exhibit II, Attachment 1 are
subject to change from time-to-time as provided in this Agreement, including,
but not limited to, in Section 2.3 and Exhibit II of this Agreement. The rates
and charges set forth in this Exhibit II, Attachment 1 shall apply until such
time as they are replaced by new rates as may be approved or allowed into effect
by the Commission from time to time, subject to a stay or other order issued by
any court of competent jurisdiction. At such time(s) as such new rates have been
approved or allowed into effect by the Commission, the Parties shall amend this
Exhibit II, Attachment 1 to reflect the new approved rates.
Except for citations to generally available services and rates offered
under Bell Atlantic's Tariffs, all services and rates listed in this Exhibit II,
Attachment 1 are available to Customer only in connection with the purchase and
resale of Bell Atlantic Retail Telecommunications Services by Customer under
this Agreement. Adherence to this limitation shall be subject to reasonable
audit by Bell Atlantic.
The rates set forth in Sections II through IV of this Exhibit II,
Attachment 1, are in addition to, and not in lieu of, any other rates set forth
in this Agreement.
In addition to charges for Bell Atlantic Services, Reseller shall pay,
or collect and remit, applicable taxes and surcharges (including, but not
limited to, E911/911, telecommunications relay service, and universal service
fund, surcharges), as required by Applicable Law and this Agreement.
<PAGE>
<TABLE>
<CAPTION>
SERVICE OR ELEMENT DESCRIPTION: RECURRING CHARGES: NON-RECURRING
- ------------------------------- ------------------ -------------
CHARGE:
-------
<S> <C> <C>
II. ACCESS TO OPERATION SUPPORT SYSTEMS
A. PRE-ORDERING $.22/Query Not Applicable
B. ORDERING $3.34/Transaction Not Applicable
C. PROVISIONING Included in Ordering Not Applicable
D. MAINTENANCE & REPAIR
1. ECG ACCESS $.22/Query Not Applicable
2. EB/OSI ACCESS $1.16/Trouble Ticket Not Applicable
E. BILLING
1. CD-ROM $246.59/CD-ROM Not Applicable
2. DAILY USAGE FILE
a. EXISTING MESSAGE RECORDING $.000258/Message Not Applicable
b. DELIVERY OF DUF
Data Tape $17.18/Tape $61.39/Programming
Hour
Network Data Mover $.000094/Message Not Applicable
CMDS $.000094/Message $61.39/Programming
Hour
C. DUF TRANSPORT
9.6 kb Communications Port $10.24/Month $7,437.36/Port
56 kb Communications Port $28.29/Month $30,778.91/Port
256 kb Communications Port $28.29/Month $51,236.88/Port
T1 Communications Port $359.31/Month $182,827.99/Port
Line Installation Not Applicable $61.39/Programming
Hour/Port
Port Set-up Not Applicable $9.85/Port
Network Control Programming Not Applicable $61.39/Programming
Coding Hour/Port
</TABLE>
2
<PAGE>
<TABLE>
<CAPTION>
SERVICE OR ELEMENT DESCRIPTION: RECURRING CHARGES: NON-RECURRING
- ------------------------------- ------------------ -------------
CHARGE:
-------
<S> <C> <C>
III. DIRECTORY ASSISTANCE/OPERATOR SERVICES
ROUTING
To RESELLER Platform $.142360/Line/Month $3.84/Line
To BA Platform for Re-Branding $.083300/Call $3.84/Line
IV. LIDB INTERCONNECTION/BILLING VALIDATION
SERVICE
LIDB Point Codes Not Applicable $85.84/Point Code
Calling Card $.015542/Query Not Applicable
Billed Number Screening $.015542/Query Not Applicable
Storage of RESELLER's Data in LIDB Not Applicable $1,469.92 Service
Database Establishment
</TABLE>
3
<PAGE>
APPENDIX 1, ATTACHMENT 15
QUALIFIED BUSINESS LINES FOR VOLUME COMMITMENT
PENNSYLVANIA
<TABLE>
<S> <C> <C> <C>
- -----------------------------------------------------------------------------------------------------------------------------
ACCESS LINES
- -----------------------------------------------------------------------------------------------------------------------------
Dial Tone Line DTL DTLBX
- -----------------------------------------------------------------------------------------------------------------------------
Message BWL 1MB B1M
- -----------------------------------------------------------------------------------------------------------------------------
Direct Inward Dial Trunks NDT NDN ND4
- -----------------------------------------------------------------------------------------------------------------------------
PBX Trunks Message BWT TV1++ TKG
- -----------------------------------------------------------------------------------------------------------------------------
PBX Digital trunks D7Z D7W
- -----------------------------------------------------------------------------------------------------------------------------
CENTREX:**
- -----------------------------------------------------------------------------------------------------------------------------
**EXCLUDES:
1 Centrex systems priced under a special contract (ICB, FPO, LSO, Custom Pricing)
2. Centrex systems which serve multiple end user customers
- -----------------------------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------------------------
CENTREX - CUSTOPAK / CLASS OF SERVICE
- -----------------------------------------------------------------------------------------------------------------------------
Measured CEC+X
- -----------------------------------------------------------------------------------------------------------------------------
CUSTOPAK LINES
- -----------------------------------------------------------------------------------------------------------------------------
Unrestricted R3G
- -----------------------------------------------------------------------------------------------------------------------------
Restricted R3K
- -----------------------------------------------------------------------------------------------------------------------------
Primary Off Prem RX3
- -----------------------------------------------------------------------------------------------------------------------------
CENTREX - CUSTOFLEX 2100 / CLASS OF SERVICE RJY
- -----------------------------------------------------------------------------------------------------------------------------
Measured KEK+X
- -----------------------------------------------------------------------------------------------------------------------------
CUSTOFLEX 2100 LINES
- -----------------------------------------------------------------------------------------------------------------------------
Unrestricted R4N
- -----------------------------------------------------------------------------------------------------------------------------
Restricted RHK
- -----------------------------------------------------------------------------------------------------------------------------
ISDN - Unrestricted XQA
- -----------------------------------------------------------------------------------------------------------------------------
ISDN - Restricted XQK
- -----------------------------------------------------------------------------------------------------------------------------
</TABLE>
PAGE 1 OF 1
<PAGE>
APPENDIX 1, ATTACHMENT 16
PRODUCT AND SERVICES ELIGIBLE FOR VTD DISCOUNT
PENNSYLVANIA
<TABLE>
<S> <C> <C> <C>
- ----------------------------------------------------------------------------------------------------------------------------
ACCESS LINES
- ----------------------------------------------------------------------------------------------------------------------------
Dial Tone Line DTL DTLBX
- ----------------------------------------------------------------------------------------------------------------------------
Message BWL 1MB BIM
- ----------------------------------------------------------------------------------------------------------------------------
Direct Inward Dial Trunks NDT NDN ND4
- ----------------------------------------------------------------------------------------------------------------------------
PBX Trunks Message BWT TV1++ TKG
- ----------------------------------------------------------------------------------------------------------------------------
PBX Digital trunks D7Z D7W
- ----------------------------------------------------------------------------------------------------------------------------
INTRA-LATA TOLL
#MUST BE ASSOCIATED WITH A RESOLD VTD QUALIFIED BUSINESS LINE
- ----------------------------------------------------------------------------------------------------------------------------
Message Rate Service NIA
- ----------------------------------------------------------------------------------------------------------------------------
MTS, including Key Connections & Rewarding Connections VWDK1 WRV
--------------------------------------------------
Optional Calling Plan BUT excluding all other OCPs OVSXX OVS3X
- ----------------------------------------------------------------------------------------------------------------------------
FEATURES
#MUST BE ASSOCIATED WITH A RESOLD VTD QUALIFIED BUSINESS LINE
- ----------------------------------------------------------------------------------------------------------------------------
Touch Tone TTV TJB
- ----------------------------------------------------------------------------------------------------------------------------
IQ SERVICES:
#MUST BE ASSOCIATED WITH A RESOLD VTD QUALIFIED BUSINESS LINE
- ----------------------------------------------------------------------------------------------------------------------------
Call Forwarding ESM
- ----------------------------------------------------------------------------------------------------------------------------
Call Waiting ESX
- ----------------------------------------------------------------------------------------------------------------------------
Call Waiting ID NWT
- ----------------------------------------------------------------------------------------------------------------------------
Speed Dialing 8 ESL
- ----------------------------------------------------------------------------------------------------------------------------
Speed Dialing 30 ESF
- ----------------------------------------------------------------------------------------------------------------------------
3 Way Calling (per Use or Monthly) ESC
- ----------------------------------------------------------------------------------------------------------------------------
*69 (per Use or Monthly) NSS
- ----------------------------------------------------------------------------------------------------------------------------
Call Trace (Per Use Charge)
- ----------------------------------------------------------------------------------------------------------------------------
Caller ID NSD
- ----------------------------------------------------------------------------------------------------------------------------
Caller ID with Name NDF
- ----------------------------------------------------------------------------------------------------------------------------
Per Call Blocking (Per Use Charge)
- ----------------------------------------------------------------------------------------------------------------------------
Repeat Dialing NSQ
- ----------------------------------------------------------------------------------------------------------------------------
Ultra Forward FRM
- ----------------------------------------------------------------------------------------------------------------------------
Distinctive Ring DRQ+X
- ----------------------------------------------------------------------------------------------------------------------------
Priority Call NSK
- ----------------------------------------------------------------------------------------------------------------------------
Select Forward NCE
- ----------------------------------------------------------------------------------------------------------------------------
Call Block NSY
- ----------------------------------------------------------------------------------------------------------------------------
Call Gate OC4
- ----------------------------------------------------------------------------------------------------------------------------
Anonymous Call Rejection - w/ Caller ID AWY
- ----------------------------------------------------------------------------------------------------------------------------
Line Blocking NG5
- ----------------------------------------------------------------------------------------------------------------------------
</TABLE>
PAGE 1 OF 1
<PAGE>
RESALE AGREEMENT
(New Jersey)
PREFACE
THIS RESALE AGREEMENT (this "Agreement") is made effective as of
August 6, 1999 (the "Effective Date") by and between Essential.Com, Inc.
("Reseller"), a Delaware corporation, with offices at Three Burlington Woods
Drive, Burlington, MA 01803, and Bell Atlantic - New Jersey, Inc. ("Bell
Atlantic"), a New Jersey corporation, with offices at 540 Broad Street, 20th
Floor, Newark, New Jersey 07101.
WHEREAS, pursuant to Section 251(c)(4) of the Act, 47 U.S.C. Section
251(c)(4), Reseller wishes to purchase Bell Atlantic Retail Telecommunications
Services from Bell Atlantic for resale by Reseller as a Telecommunications
Carrier providing Telecommunications Services in the State of New Jersey; and
WHEREAS, Bell Atlantic is willing to provide such Bell Atlantic Retail
Telecommunications Services in accordance with this Agreement.
NOW THEREFORE, in consideration of the mutual promises set forth in
this Agreement, Reseller and Bell Atlantic, each on behalf of itself and its
respective successors and assigns, agree as follows:
I. DEFINITIONS
1.1 As used in the Principal Document, the terms listed below shall have
the meanings stated below:
1.1.1 "Act" means the Communications Act of 1934, 47 U.S.C. Section 151,
ET SEQ., as amended from time-to-time.
1.1.2 "Agent" means agent or servant.
1.1.3 "Applicable Law" means all applicable laws and government regulations
and orders.
1.1.4 "Bell Atlantic Ancillary Service" means any service offered by Bell
Atlantic to Reseller in Exhibit I.
1.1.5 "Bell Atlantic Retail Telecommunications Service" means any
Telecommunications Service that Bell Atlantic provides at retail to
subscribers who are not Telecommunications Carriers. The term "Bell
Atlantic Retail Telecommunications
1
<PAGE>
Service" does not include any exchange access service (as defined in
Section 3(16) of the Act, 47 U.S.C. Section 153(16)) provided by Bell
Atlantic.
1.1.6 "Bell Atlantic Service" means and includes any Bell Atlantic Retail
Telecommunications Service and any Bell Atlantic Ancillary Service.
1.1.7 "Bell Atlantic's Affiliates" means any corporations, partnerships or
other persons who control, are controlled by, or are under common control
with, Bell Atlantic.
1.1.8 "Bell Atlantic's Tariffs" and "Bell Atlantic Tariff" mean and
include:
(a) Bell Atlantic's effective Federal and state tariffs, as amended by
Bell Atlantic from time-to-time; and,
(b) to the extent Bell Atlantic Services are not subject to Bell
Atlantic tariffs, any standard agreements and other documents, as amended
by Bell Atlantic from time-to-time, that set forth the generally available
terms, conditions and prices under which Bell Atlantic offers such Bell
Atlantic Services.
The terms "Bell Atlantic's Tariffs" and "Bell Atlantic Tariff" do not
include Bell Atlantic's "Statement of Generally Available Terms and
Conditions for Interconnection, Unbundled Network Elements, Ancillary
Services and Resale of Telecommunications Services" which has been approved
by the Board pursuant to Section 252(f) of the Act, 47 U.S.C. Section
252(f).
1.1.9 "Board" means the New Jersey Board of Public Utilities.
1.1.10 "Contract Period", as used in Section 1.1.25 and Section 6.2, means
a stated period or minimum period of time for which Reseller is required by
this Agreement to subscribe to, use and/or pay for a Bell Atlantic Service.
1.1.11 "Customer", means and includes customers, subscribers and patrons,
of a Party, purchasers and users of Telecommunications Services (including,
but not limited to, resold Bell Atlantic Retail Telecommunications
Services) provided by a Party, and purchasers and users of other services
and products provided by a Party. The term "Customer" does not include a
Party.
1.1.12 "Bell Atlantic Customer" means a Customer of Bell Atlantic.
1.1.13 "Customer Information" means CPNI of a Customer and any other
nonpublic, individually identifiable information about a Customer or the
purchase by a Customer of the services or products of a Party.
1.1.14 "Customer Proprietary Network Information" ("CPNI") means "Customer
Proprietary Network Information" as defined in Section 222 of the Act, 47
U.S.C. Section 222.
2
<PAGE>
1.1.15 "Effective Date" means the date first above written.
1.1.16 "Jurisdiction" means the State of New Jersey.
1.1.17 "Operator Services" means: (a) services accessed by dialing 411,
555-1212, 1-555-1212, 0+ local, 0+ intraLATA, and, 0-; and, (b) any other
automated or live operator or directory assistance service.
1.1.18 "Order" means an order or application.
1.1.19 "Principal Document" means this document, including the Preface,
Sections 1 through 39, the signature page, Exhibit I, Exhibit II, and
Exhibit II, Attachment I.
1.1.20 "Reseller Customer" means a Customer of Reseller.
1.1.21 "Retail Prices" means the prices at which Bell Atlantic Retail
Telecommunications Services are provided by Bell Atlantic at retail to
subscribers who are not Telecommunications Carriers.
1.1.22 "Telecommunications Carrier" means "Telecommunications Carrier" as
defined in Section 3(44) of the Act, 47 U.S.C. Section 153(44).
1.1.23 "Telecommunications Service" means "Telecommunications Service" as
defined in Section 3(46) of the Act, 47 U.S.C. Section 153(46).
1.1.24 "Telephone Exchange Service" means "Telephone Exchange Service" as
defined in Section 3(47) of the Act, 47 U.S.C. Section 153(47).
1.1.25 "Termination Date Bell Atlantic Service" means: (a) any Bell
Atlantic Service being provided by Bell Atlantic under this Agreement at
the time of termination of this Agreement, that at the time of termination
of this Agreement is subject to a Contract Period which is greater than one
(1) month; and, (b) any Bell Atlantic Service requested by Reseller under
this Agreement in an Order accepted by Bell Atlantic prior to termination
of this Agreement but not yet being provided by Bell Atlantic at the time
of termination of this Agreement, that is subject to an initial Contract
Period which is greater than one (1) month.
1.2 Unless the context clearly indicates otherwise, any defined term
which is defined or used in the singular shall include the plural, and any
defined term which is defined or used in the plural shall include the
singular.
3
<PAGE>
2. THE AGREEMENT
2.1 This Agreement includes: (a) the Principal Document; (b) Bell
Atlantic's Tariffs (which Bell Atlantic Tariffs are incorporated into this
Agreement by reference and made a part hereof); and, (c) a Reseller Order
to provide, change or terminate a Bell Atlantic Service, which has been
accepted by Bell Atlantic (including, but not limited to, any Order which
includes a commitment to purchase a stated number or minimum number of
lines or other Bell Atlantic Services, or a commitment to purchase lines or
other Bell Atlantic Services for a stated period or minimum period of
time).
2.2 Conflicts among terms in the Principal Document, Bell Atlantic's
Tariffs, and a Reseller Order which has been accepted by Bell Atlantic,
shall be resolved in accordance with the following order of precedence,
where the document identified in subsection "(a)" shall have the highest
precedence: (a) the Principal Document; (b) Bell Atlantic's Tariffs; and,
(c) a Reseller Order which has been accepted by Bell Atlantic. The fact
that a term appears in the Principal Document but not in a Bell Atlantic
Tariff, or in a Bell Atlantic Tariff but not in the Principal Document,
shall not be interpreted as, or deemed grounds for finding, a conflict for
the purposes of this Section 2.2.
2.3 This Agreement (including the Principal Document, Bell Atlantic's
Tariffs, and Reseller Orders which have been accepted by Bell Atlantic),
constitutes the entire agreement between the Parties on the subject matter
hereof, and supersedes any prior or contemporaneous agreement,
understanding, or representation on the subject matter hereof. Except as
otherwise provided in the Principal Document, the terms in the Principal
Document may not be waived or modified except by a written document which
is signed by the Parties. Subject to the requirements of Applicable Law,
Bell Atlantic shall have the right to add, modify, or withdraw, a Bell
Atlantic Tariff at any time, without the consent of, or notice to,
Reseller.
2.4 A failure or delay of either Party to enforce any of the provisions of
this Agreement, or any right or remedy available under this Agreement or at
law or in equity, or to require performance of any of the provisions of
this Agreement, or to exercise any option provided under this agreement,
shall in no way be construed to be a waiver of such provisions, rights,
remedies, or options.
3. BELL ATLANTIC SERVICES
3.1 During the term of this Agreement, Reseller, pursuant to Section 251
(c)(4) of the Act, 47 U.S.C. Section 251(c)(4), may submit Orders to Bell
Atlantic requesting Bell Atlantic to provide Bell Atlantic Retail
Telecommunications Services for resale by Reseller as a Telecommunications
Carrier providing Telecommunications Services.
3.2 During the term of this Agreement, Reseller may submit Orders to Bell
Atlantic requesting Bell Atlantic to provide Bell Atlantic Ancillary
Services for use by Reseller as a Telecommunications Carrier providing
Telecommunications Services.
4
<PAGE>
3.3 Bell Atlantic may require that Reseller's Orders requesting Bell
Atlantic to provide Bell Atlantic Services be in writing on forms specified
by Bell Atlantic or in an electronic form specified by Bell Atlantic.
3.4 Upon receipt and acceptance by Bell Atlantic of a Reseller Order
requesting Bell Atlantic to provide a Bell Atlantic Service, Bell Atlantic
shall provide, and Reseller shall subscribe to, use and pay for, the Bell
Atlantic Service, in accordance with this Agreement.
3.5 Bell Atlantic Retail Telecommunications Services may be purchased by
Reseller under this Agreement only for the purpose of resale by Reseller as
a Telecommunications Carrier providing Telecommunications Services,
pursuant to Section 251(c)(4) of the Act, 47 U.S.C. Section 251(c)(4). Bell
Atlantic Retail Telecommunications Services to be purchased by Reseller for
other purposes (including, but not limited to, Reseller's own use) must be
purchased by Reseller pursuant to separate written agreements, including,
but not limited to, applicable Bell Atlantic Tariffs. Reseller warrants and
agrees that Reseller will purchase Bell Atlantic Retail Telecommunications
Services from Bell Atlantic under this Agreement only for the purpose of
resale by Reseller as a Telecommunications Carrier providing
Telecommunications Services, pursuant to Section 251(c)(4) of the Act, 47
U.S.C. Section 251(c)(4).
3.6 Bell Atlantic Ancillary Services may be purchased by Reseller under
this Agreement only for use by Reseller as a Telecommunications Carrier
providing Telecommunications Services. Bell Atlantic Ancillary Services to
be purchased by Reseller for other purposes must be purchased by Reseller
pursuant to separate written agreements, including, but not limited to,
applicable Bell Atlantic Tariffs. Reseller warrants and agrees that
Reseller will purchase Bell Atlantic Ancillary Services from Bell Atlantic
under this Agreement only for use by Reseller as a Telecommunications
Carrier providing Telecommunications Services.
3.7 Subject to the requirements of Applicable Law, Bell Atlantic shall have
the right to add, modify, grandfather, discontinue or terminate Bell
Atlantic Services at any time, without the consent of Reseller.
4. PRICES
4.1 Reseller shall pay Bell Atlantic for Bell Atlantic Services at the
prices stated in this Agreement, including, but not limited to, in
Exhibit II, Attachment 1.
4.2 If, prior to establishment of a Bell Atlantic Service, Reseller cancels
or changes its Order for the Bell Atlantic Service, Reseller shall
reimburse Bell Atlantic for the costs associated with such cancellation or
changes as required by this Agreement (including, but not limited to, Bell
Atlantic's Tariffs).
5
<PAGE>
4.3 Upon request by Bell Atlantic, Reseller shall provide to Bell Atlantic
adequate assurance of payment of charges due to Bell Atlantic. Assurance of
payment of charges may be requested by Bell Atlantic: (a) if Reseller, in
Bell Atlantic's reasonable judgment, at the Effective Date or at any time
thereafter, is unable to show itself to be creditworthy; (b) if Reseller,
in Bell Atlantic's reasonable judgment, at the Effective Date or at any
time thereafter, is not creditworthy; or, (c) if Reseller fails to timely
pay a bill rendered to Reseller by Bell Atlantic. Unless otherwise agreed
by the Parties, the assurance of payment shall be in the form of a cash
deposit and shall be in an amount equal to the charges for Bell Atlantic
Services that Reseller may reasonably be expected to incur during a period
of two (2) months. Bell Atlantic may at any time use the deposit or other
assurance of payment to pay amounts due from Reseller.
5. BILLING AND PAYMENT
5.1 Except as otherwise permitted or required by this Agreement, or agreed
in writing by the Parties, Bell Atlantic shall render bills to Reseller
monthly. Except as otherwise agreed in writing by the Parties, Bell
Atlantic will render bills to Reseller in a paper form.
5.2 Reseller shall pay Bell Atlantic's bills in immediately available U.S.
funds. Except as otherwise agreed in writing by the Parties, payments shall
be transmitted by electronic funds transfer.
5.3 Payment of charges shall be due by the due date stated on Bell
Atlantic's bills. Except as otherwise required by Bell Atlantic's Tariffs
or agreed in writing by the Parties, the due date shall not be sooner than
twenty (20) days after the date the bill is received by Reseller.
5.4 Charges which are not paid by the due date stated on Bell Atlantic's
bill shall be subject to a late payment charge. The late payment charge
shall be in an amount specified by Bell Atlantic, which shall not exceed a
rate of one-and-one-half percent (1.5%) of the over-due amount (including
any unpaid, previously billed late payment charges) per month.
5.5 Reseller acknowledges and agrees that:
5.5.1 During the term of this Agreement, Bell Atlantic will be engaged in
developing and deploying new or modified forms of bills for
Telecommunications Carriers who are engaged in the resale of Bell Atlantic
Retail Telecommunications Services and new or modified systems and methods
for computing and rendering such bills.
5.5.2 Prior to the completion of deployment of such new or modified forms
of bills and such new or modified systems and methods for computing and
rendering bills,
6
<PAGE>
Bell Atlantic's form of bill and systems and methods for computing and
rendering bills may be subject to limitations and restrictions, including,
but not limited to, the limitations stated in Section 5.5.3, below, the
inability to provide Reseller with a single, consolidated bill for all Bell
Atlantic Services purchased by Reseller, and the unavailability of bills
and billing information in an electronic form (e.g., bills may be rendered
in a paper form).
5.5.3 Prior to the completion of deployment of the new or modified forms of
bills and the new or modified systems and methods for computing and
rendering bills, Bell Atlantic may apply the discount identified in Exhibit
II, Section 1.1, in a manner (including, but not limited to, in a "bottom-
of-the-bill" format) that results in the Exhibit II, Section 1.1 discount
being applied to charges stated in the bill (including, but not limited to,
Subscriber Line Charges, Federal Line Cost Charges, end user common line
charges, carrier selection and change charges, Audiotex Service charges,
and charges for services which are not Bell Atlantic Retail
Telecommunications Services) which are not subject to the Exhibit II,
Section 1.1 discount. Bell Atlantic will implement a "true-up" process and
within six (6) months after the due date of each monthly bill, issue to
Reseller a "true-up" bill for amounts which were not collected from
Reseller under the monthly bill because of the application of the
Exhibit II, Section 1.1 discount to charges which are not subject to the
Exhibit II, Section 1.1 discount. The "true-up" bill may be issued as a
part of or an entry on a monthly bill, as a bill separate from a monthly
bill, or in such other form as Bell Atlantic may determine.
5.6 Although it is the intent of Bell Atlantic to submit timely and
accurate bills, failure by Bell Atlantic to present bills (including,
but not limited to, monthly bills and "true-up" bills) to Reseller in a
timely or accurate manner shall not constitute a breach or default of
this Agreement, or a waiver of a right of payment of the incurred
charges, by Bell Atlantic. Reseller shall not be entitled to dispute
charges for Bell Atlantic Services provided by Bell Atlantic based on
Bell Atlantic's failure to submit a bill for the charges in a timely
fashion.
6. TERM
6.1 The term of this Agreement shall commence on the Effective Date, and,
except as otherwise provided in this Agreement, shall remain in effect
through August 5, 2000 (the "Initial Term Ending Date). After the Initial
Term Ending Date, this Agreement shall continue in force and effect unless
and until terminated as provided in this Agreement. Following the Initial
Term Ending Date, either Party may terminate this Agreement by providing
written notice of termination to the other Party, such written notice to be
provided at least ninety (90) days in advance of the date of termination.
6.2 Following termination of this Agreement pursuant to Section 6.1, this
Agreement, as amended from time to time, shall remain in effect as to any
Termination Date Bell Atlantic Service for the remainder of the Contract
Period applicable to such Termination Date Bell Atlantic Service at the
time of the termination of this Agreement.
7
<PAGE>
If a Termination Date Bell Atlantic Service is terminated prior to the
expiration of the Contract Period applicable to such Termination Date Bell
Atlantic Service, Reseller shall pay any termination charge provided for in
this Agreement.
7. SERVICE INSTALLATION AND MAINTENANCE
Reseller shall comply with Bell Atlantic's processes and procedures
(including, but not limited to, requirements by Bell Atlantic that Reseller
use Bell Atlantic OSS Services) for the communication to Bell Atlantic of
(a) Reseller's Orders to provide, change or terminate, Bell Atlantic
Services, and (b) Reseller's requests for information about, assistance in
using, or repair or maintenance of, Bell Atlantic Services. Bell Atlantic
may, from time-to-time, upon notice to Reseller, change these processes and
procedures.
8. ASSIGNMENT
8.1 Reseller shall not assign this Agreement or any right or interest under
this Agreement, nor delegate any obligation under this Agreement, without
the prior written approval of Bell Atlantic, which approval shall not be
unreasonably withheld, conditioned or delayed. Any attempted assignment or
delegation in contravention of the foregoing shall be void and ineffective.
8.2 Bell Atlantic may, without the consent of Reseller, assign this
Agreement or any right or interest under this Agreement, and/or delegate
any obligation under this Agreement, to any of Bell Atlantic's Affiliates,
or to a person with which Bell Atlantic merges or which acquires
substantially all of Bell Atlantic's assets.
9. AVAILABILITY OF SERVICE
9.1 Subject to the requirements of Applicable Law, Bell Atlantic shall be
obligated to provide Bell Atlantic Services to Reseller under this
Agreement only where Bell Atlantic is able, without unreasonable expense
(as determined by Bell Atlantic in its reasonable judgment), (a) to obtain,
retain, install and maintain suitable facilities for the provision of such
Bell Atlantic Services, and (b) to obtain, retain and maintain suitable
rights for the provision of such Bell Atlantic Services.
9.2 Bell Atlantic's obligation to provide a Bell Atlantic Retail
Telecommunications Service to Reseller under this Agreement shall be
limited to providing the Bell Atlantic Retail Telecommunications Service to
Reseller where, and to the same extent, that Bell Atlantic provides such
Bell Atlantic Retail Telecommunications Service to Bell Atlantic's own end
user retail Customers.
10. BRANDING
8
<PAGE>
10.1 Except as stated in Section 10.2, in providing Bell Atlantic Services
to Reseller, Bell Atlantic shall have the right, but not the obligation, to
identify the Bell Atlantic Services with Bell Atlantic's trade names,
trademarks and service marks. Any such identification of the Bell Atlantic
Services shall not constitute the grant of a license or other right to
Reseller to use Bell Atlantic's trade names, trade marks or service marks.
10.2 To the extent required by Applicable Law, upon request by Reseller and
at prices, terms and conditions to be negotiated by Reseller and Bell
Atlantic, Bell Atlantic shall provide Bell Atlantic Retail
Telecommunications Services that are identified by Reseller's trade name,
or that are not identified by trade name, trademark or service mark.
11. CHOICE OF LAW
11.1 The construction, interpretation and performance of this Agreement
shall be governed by the laws of the United States of America and the laws
of Jurisdiction (without regard to Jurisdiction's conflicts of laws rules).
All disputes relating to this Agreement shall be resolved through the
application of such laws.
11.2 Reseller agrees to submit to the jurisdiction of any court, commission
or other governmental entity in which a claim, suit or proceeding which
arises out of or in connection with this Agreement or Bell Atlantic
Services provided under this Agreement and in which Bell Atlantic is a
party, is brought.
12. COMPLIANCE WITH APPLICABLE LAW
12.1 Each Party shall in its performance of this Agreement comply with
Applicable Law, including, but not limited to, all applicable regulations
and orders of the Board and the Federal Communications Commission
(hereinafter the "FCC").
12.2 Reseller shall in providing Bell Atlantic Retail Telecommunications
Services to Reseller Customers comply with Applicable Law, including, but
not limited to, all applicable regulations and orders of the Board and the
FCC.
13. CONFIDENTIAL INFORMATION
13.1 For the purposes of this Section 13, "Confidential Information" means
the following information disclosed by one Party ("Discloser") to the other
Party ("Recipient") in connection with this Agreement:
(a) Customer Information related to a Reseller Customer which is
disclosed by Reseller to Bell Atlantic (except to the extent that (i) the
Customer Information is subject to publication in a directory, (ii) the
Customer Information is subject to disclosure through an Operator Service
or other Telecommunications Service, or in the course of furnishing
Telecommunications Services, or (iii) the Reseller
9
<PAGE>
Customer to whom the Customer Information is related, in the manner
required by Applicable Law, has given Bell Atlantic permission to use
and/or disclose the Customer Information);
(b) Customer Information related to a Bell Atlantic Customer which is
disclosed by Bell Atlantic to Reseller (except to the extent that the Bell
Atlantic Customer to whom the Customer Information is related, in the
manner required by Applicable Law, has given Reseller permission to use
and/or disclose the Customer Information);
(c) Information related to specific Bell Atlantic facilities and
equipment (including, but not limited to, cable-and-pair information) which
is disclosed by Bell Atlantic to Reseller; and
(d) Any other information which is identified by the Discloser as
Confidential Information in accordance with Section 13.2.
13.2 All information which is to be treated as Confidential Information
under Section 13.1(d) shall:
(a) if in written, graphic, electromagnetic, or other tangible form,
be marked as "Confidential" or "Proprietary"; and
(b) if oral, (i) be identified by the Discloser at the time of
disclosure to be "Confidential" or "Proprietary", and (ii) be set forth in
a written summary which identifies the information as "Confidential" or
"Proprietary" and is delivered by the Discloser to the Recipient within ten
(10) days after the oral disclosure.
Each Party shall have the right to correct an inadvertent failure to
identify information as Confidential Information pursuant to Section
13.1(d) by giving written notification within thirty (30) days after the
information is disclosed. The Recipient shall, from that time forward,
treat such information as Confidential Information.
Notwithstanding any other provision of this Agreement, a Party shall
have the right to refuse to accept receipt of information which the other
Party has identified as Confidential Information pursuant to Section
13.1(d).
13.3 In addition to any requirements imposed by law, including, but not
limited to, 47 U.S.C. Section 222, for a period of five years from the
receipt of Confidential Information from the Discloser, except as otherwise
specified in this Agreement, the Recipient agrees:
(a) to use the Confidential Information only for the purpose of
performing under this Agreement;
10
<PAGE>
(b) using the same degree of care that it uses with similar
confidential information of its own, to hold the Confidential Information
in confidence and restrict disclosure of the Confidential Information
solely to the Recipient's Affiliates, and the directors, officers and
employees of the Recipient and the Recipient's Affiliates, having a need to
know the Confidential Information for the purpose of performing under this
Agreement. The Recipient's Affiliates and the directors, officers and
employees of the Recipient and the Recipient's Affiliates, shall be
required by the Recipient to comply with the provisions of this Section 13
in the same manner as the Recipient. The Recipient shall be liable for any
failure of the Recipient's Affiliates and the directors, officers and
employees of the Recipient and the Recipient's Affiliates, to comply with
the provisions of this Section 13.
13.4 If the Recipient wishes to disclose the Discloser's Confidential
Information to a third party Agent or contractor, such disclosure must be
mutually agreed to in writing by the Parties to this Agreement, and the
Agent or contractor must have executed a written agreement of
non-disclosure and non-use comparable in scope to the terms of this Section
13.
13.5 The Recipient may make copies of Confidential Information only as
reasonably necessary to perform its obligations under this Agreement. All
such copies shall bear the same copyright and proprietary rights notices as
are contained on the original.
13.6 The Recipient shall return or destroy all Confidential Information
received from the Discloser, including any copies made by the Recipient,
within thirty (30) days after a written request by the Discloser is
delivered to the Recipient, except for (a) Confidential Information that
the Recipient reasonably requires to perform its obligations under this
Agreement, and (b) Customer Information related to a Reseller Customer that
is to be treated by Bell Atlantic as Confidential Information pursuant to
Section 13.1(a). If the Recipient loses or makes an unauthorized disclosure
of the Discloser's Confidential Information, it shall notify the Discloser
immediately and use reasonable efforts to retrieve the lost or improperly
disclosed information.
13.7 The requirements of this Section 13 shall not apply to Confidential
Information:
(a) which was in the possession of the Recipient free of restriction
prior to its receipt from the Discloser;
(b) after it becomes publicly known or available through no breach of
this Agreement by the Recipient, the Recipient's Affiliates, or the
directors, officers, employees, Agents, or contractors, of the Recipient or
the Recipient's Affiliates;
(c) after it is rightfully acquired by the Recipient free of
restrictions on its disclosure;
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(d) after it is independently developed by the Recipient; or
(e) to the extent the disclosure is required by Applicable Law, a
court, or governmental agency; provided, the Discloser has been notified of
the required disclosure promptly after the Recipient becomes aware of the
required disclosure, the Recipient undertakes reasonable lawful measures to
avoid disclosing the Confidential Information until the Discloser has had
reasonable time to seek a protective order, and the Recipient complies with
any protective order that covers the Confidential Information to be
disclosed.
13.8 Each Party's obligations to safeguard Confidential Information
disclosed prior to expiration, cancellation or termination of this
Agreement shall survive such expiration, cancellation or termination.
13.9 Confidential Information shall remain the property of the Discloser,
and the Discloser shall retain all of the Discloser's right, title and
interest in any Confidential Information disclosed by the Discloser to the
Recipient. Except as otherwise expressly provided elsewhere in this
Agreement, no license is granted by this Agreement with respect to any
Confidential Information (including, but not limited to, under any patent,
trademark, or copyright), nor is any such license to be implied, solely by
virtue of the disclosure of any Confidential Information.
13.10 Each Party agrees that the Discloser would be irreparably injured by
a breach of this Section 13 by the Recipient, the Recipient's Affiliates,
or the directors, officers, employees, Agents or contractors of the
Recipient or the Recipient's Affiliates, and that the Discloser shall be
entitled to seek equitable relief, including injunctive relief and specific
performance, in the event of any breach of the provisions of this Section
13. Such remedies shall not be deemed to be the exclusive remedies for a
breach of this Section 13, but shall be in addition to any other remedies
available under this Agreement or at law or in equity.
13.11 The provisions of this Section 13 shall be in addition to and not in
derogation of any provisions of Applicable Law, including, but not limited
to, 47 U.S.C. Section 222, and are not intended to constitute a waiver by a
Party of any right with regard to protection of the confidentiality of
information of the Party or its Customers provided by Applicable Law. In
the event of a conflict between a provision of this Section 13 and a
provision of Applicable Law, the provision of Applicable Law shall prevail.
14. CONTINGENCIES
Neither Party shall be liable for any delay or failure in performance
by it which results from strikes, labor slowdowns, or other labor disputes,
fires, explosions, floods, earthquakes, volcanic action, delays in
obtaining or inability to obtain necessary services, facilities, equipment,
parts or repairs thereof, power failures, embargoes,
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boycotts, unusually severe weather conditions, revolution, riots or other
civil disturbances, war or acts of the public enemy, acts of God, or causes
beyond the Party's reasonable control.
15. COUNTERPARTS
This Agreement may be executed in two or more counterparts, each of
which shall be deemed an original and all of which shall together
constitute one and the same instrument.
16. CUSTOMER INFORMATION
16.1 Without in any way limiting Section 12, each Party shall comply with
Applicable Law with regard to Customer Information, including, but not
limited to, 47 U.S.C. Section 222 and the FCC rules in 47 CFR Section
64.2001 - Section 64.2009.
16.2 A Party ("Accessing Party") shall not access (including, but not
limited to, in the case of Reseller, through Bell Atlantic OSS Services),
use or disclose Customer Information made available to the Accessing Party
by the other Party pursuant to this Agreement unless the Accessing Party,
in the manner required by Applicable Law, has obtained any Customer
authorization for such access, use and/or disclosure required by Applicable
Law. By accessing, using or disclosing Customer Information made available
to the Accessing Party by the other Party pursuant to this Agreement, the
Accessing Party represents and warrants that the Accessing Party has
obtained, in the manner required by Applicable Law, any Customer
authorization for such action required by Applicable Law. The Accessing
Party shall upon request by the other Party provide proof of such
authorization (including, a copy of any written authorization).
16.3 Bell Atlantic shall have the right (but not the obligation) to audit
Reseller to ascertain whether Reseller is complying with the requirements
of Applicable Law and this Agreement, with regard to Reseller's access to,
and use and disclosure of, Customer Information which is made available to
Reseller by Bell Atlantic pursuant to this Agreement.
16.4 In addition to Bell Atlantic's audit rights under Section 16.3, Bell
Atlantic shall have the right (but not the obligation) to monitor
Reseller's access to and use of Customer Information which is made
available by Bell Atlantic to Reseller pursuant to this Agreement, to
ascertain whether Reseller is complying with the requirements of Applicable
Law and this Agreement, with regard to Reseller's access to, and use and
disclosure of, such Customer Information. The foregoing right shall
include, but not be limited to, the right (but not the obligation) to
electronically monitor Reseller's access to and use of Customer Information
which is made available by Bell Atlantic to Reseller pursuant to this
Agreement through Bell Atlantic OSS Facilities or other electronic
interfaces or gateways.
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16.5 Information obtained by Bell Atlantic pursuant to Section 16.3 or
Section 16.4 shall be treated by Bell Atlantic as Confidential Information
of Reseller pursuant to Section 13; provided that, Bell Atlantic shall have
the right (but not the obligation) to use and disclose information obtained
by Bell Atlantic pursuant to this Section 16 to enforce Applicable Law
and/or Bell Atlantic's rights under this Agreement.
17. DEFAULT
17.1 If Reseller materially breaches a material provision of this Agreement
(other than an obligation to make payment of any amount billed under this
Agreement), and such breach continues for more than thirty (30) days after
written notice thereof from Bell Atlantic, then, except as otherwise
required by Applicable Law, Bell Atlantic shall have the right, upon notice
to Reseller, to terminate or suspend this Agreement and/or provision of
Bell Atlantic Services, in whole or in part.
17.2.1 If Reseller fails to make a payment of any amount billed under this
Agreement by the due date stated on the bill and such failure continues for
more than thirty (30) days after written notice thereof from Bell Atlantic,
then, except as provided in Section 17.2.2, below, or as otherwise required
by Applicable Law, Bell Atlantic shall have the right, upon notice to
Reseller, to terminate or suspend this Agreement and/or provision of Bell
Atlantic Services, in whole or in part.
17.2.2 If a good faith dispute arises between the Parties concerning the
obligation of Reseller to make payment of an amount billed under this
Agreement, the failure to pay the amount in dispute shall not constitute
cause for termination or suspension of this Agreement or provision of Bell
Atlantic Services, if, within thirty (30) days of the date that Bell
Atlantic gives Reseller written notice of the failure to pay the amount in
dispute, Reseller (a) gives Bell Atlantic written notice of the dispute
stating the basis of the dispute, and (b) furnishes to Bell Atlantic an
irrevocable letter of credit in a form acceptable to Bell Atlantic or other
security arrangement acceptable to Bell Atlantic, guaranteeing payment to
Bell Atlantic of any portion of the disputed amount (including the whole of
the disputed amount) which is thereafter agreed by Bell Atlantic and
Reseller, or determined by a court or other governmental entity of
appropriate jurisdiction, to be due to Bell Atlantic. The existence of such
a dispute shall not relieve Reseller of its obligations to pay any
undisputed amount which is due to Bell Atlantic and to otherwise comply
with this Agreement.
18. FACILITIES
18.1 Bell Atlantic or its suppliers shall retain all right, title and
interest in, and ownership of, all facilities, equipment, software,
information, and wiring, used to provide Bell Atlantic Services. Bell
Atlantic shall have access at all reasonable times to Reseller and Reseller
Customer locations for the purpose of installing, inspecting, maintaining,
repairing, and removing, facilities, equipment, software, and wiring, used
to provide the
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Bell Atlantic Services. Reseller shall, at Reseller's expense, obtain any
rights and authorizations necessary for such access.
18.2 Except as otherwise agreed to in writing by Bell Atlantic, Bell
Atlantic shall not be responsible for the installation, inspection, repair,
maintenance, or removal, of facilities, equipment, software, or wiring,
provided by Reseller or Reseller Customers for use with Bell Atlantic
Services.
19. INTELLECTUAL PROPERTY
Except as expressly stated in this Agreement, nothing contained
within this Agreement shall be construed as the grant of a license, either
express or implied, with respect to any patent, copyright, trade name,
trade mark, service mark, trade secret, or other proprietary interest or
intellectual property, now or hereafter owned, controlled or licensable by
either Party.
20. JOINT WORK PRODUCT
The Principal Document is the joint work product of the
representatives of the Parties. For convenience, the Principal Document has
been drafted in final form by Bell Atlantic. Accordingly, in the event of
ambiguities, no inferences shall be drawn against either Party solely on
the basis of authorship of the Principal Document.
21. LIABILITY
21.1.1 AS USED IN THIS SECTION 21, "OTHER BELL ATLANTIC PERSONS" MEANS BELL
ATLANTIC'S AFFILIATES, AND THE DIRECTORS, OFFICERS, EMPLOYEES, AGENTS AND
CONTRACTORS, OF BELL ATLANTIC AND BELL ATLANTIC'S AFFILIATES.
21.1.2 AS USED IN THIS SECTION 21, "BELL ATLANTIC SERVICE FAILURE" MEANS
AND INCLUDES ANY FAILURE TO INSTALL, RESTORE, PROVIDE OR TERMINATE A BELL
ATLANTIC SERVICE, AND ANY MISTAKE, OMISSION, INTERRUPTION, DELAY, ERROR,
DEFECT, FAULT, FAILURE, OR DEFICIENCY, IN A BELL ATLANTIC SERVICE.
21.2 THE LIABILITY, IF ANY, OF BELL ATLANTIC AND OTHER BELL ATLANTIC
PERSONS, TO RESELLER, RESELLER CUSTOMERS AND/OR ANY OTHER PERSON, FOR ANY
CLAIM, LOSS OR DAMAGES ARISING OUT OF OR IN CONNECTION WITH A BELL
ATLANTIC SERVICE FAILURE, SHALL BE LIMITED AND/OR EXCLUDED AS SET FORTH IN
BELL ATLANTIC'S TARIFFS.
21.3.1 TO THE EXTENT THE BELL ATLANTIC TARIFFS APPLICABLE TO A BELL
ATLANTIC SERVICE DO NOT CONTAIN A
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PROVISION WHICH LIMITS OR EXCLUDES THE LIABILITY OF BELL ATLANTIC AND/OR
OTHER BELL ATLANTIC PERSONS TO RESELLER, RESELLER CUSTOMERS AND/OR ANY
OTHER PERSON, FOR ANY CLAIM, LOSS OR DAMAGES ARISING OUT OF OR IN
CONNECTION WITH A BELL ATLANTIC SERVICE FAILURE, SECTION 21.3.3 SHALL
APPLY.
21.3.2 TO THE EXTENT A BELL ATLANTIC SERVICE IS NOT SUBJECT TO A BELL
ATLANTIC TARIFF, SECTION 21.3.3 SHALL APPLY.
21.3.3 THE LIABILITY, IF ANY, OF BELL ATLANTIC AND OTHER BELL ATLANTIC
PERSONS, TO RESELLER, RESELLER CUSTOMERS AND/OR ANY OTHER PERSON, FOR ANY
CLAIM, LOSS OR DAMAGES ARISING OUT OF OR IN CONNECTION WITH A BELL ATLANTIC
SERVICE FAILURE, SHALL BE LIMITED TO A TOTAL AMOUNT NOT IN EXCESS OF: (a)
TWICE THE PROPORTIONATE CHARGE FOR THE BELL ATLANTIC SERVICE AFFECTED
DURING THE PERIOD OF THE BELL ATLANTIC SERVICE FAILURE; OR, (b) IF THERE IS
NO CHARGE FOR THE BELL ATLANTIC SERVICE AFFECTED, FIVE HUNDRED DOLLARS
($500.00).
21.4 NOTWITHSTANDING ANYTHING CONTAINED IN SECTION 21.2, SECTION 21.3.1,
SECTION 21.3.2, OR SECTION 21.3.3, ABOVE, BELL ATLANTIC AND OTHER BELL
ATLANTIC PERSONS SHALL HAVE NO LIABILITY TO RESELLER, RESELLER CUSTOMERS,
AND/OR ANY OTHER PERSON, FOR ANY SPECIAL, INDIRECT, INCIDENTAL, OR
CONSEQUENTIAL, DAMAGES (INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR HARM TO
BUSINESS, LOST REVENUES, LOST PROFITS, LOST SAVINGS, OR OTHER COMMERCIAL OR
ECONOMIC LOSS), ARISING OUT OF OR IN CONNECTION WITH A BELL ATLANTIC
SERVICE FAILURE OR ANY BREACH OR FAILURE IN PERFORMANCE OF THIS AGREEMENT
BY BELL ATLANTIC.
21.5 THE LIMITATIONS AND EXCLUSIONS FROM LIABILITY STATED IN SECTIONS 21.2
THROUGH 21.4 SHALL APPLY REGARDLESS OF THE FORM OF A CLAIM OR ACTION,
WHETHER IN CONTRACT, WARRANTY, TORT (INCLUDING, BUT NOT LIMITED TO, THE
NEGLIGENCE OF BELL ATLANTIC AND/OR OTHER BELL ATLANTIC PERSONS), STRICT
LIABILITY, OR OTHERWISE, AND REGARDLESS OF WHETHER BELL ATLANTIC HAS BEEN
ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
21.6 Reseller shall, in its tariffs or other contracts with Reseller
Customers, provide that in no case shall Bell Atlantic or Other Bell
Atlantic Persons be liable to Reseller Customers or to any other third
parties for any indirect, special, incidental, consequential, or other
damages, including, but not limited to, harm to business, lost revenues,
lost profits, lost savings, or other commercial or economic loss, whether
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foreseeable or not, and regardless of notification of the possibility of
such damages. Reseller shall indemnify, defend and hold Bell Atlantic and
Other Bell Atlantic Persons harmless from claims by Reseller Customers and
other third parties as provided in Bell Atlantic's Tariffs.
21.7 Bell Atlantic's obligations under this Agreement shall extend only to
Reseller. Bell Atlantic shall have no liability under this Agreement to
Reseller Customers or to any other third party. Nothing in this Agreement
shall be deemed to create a third party beneficiary relationship between
Bell Atlantic and Reseller Customers or any other third party.
21.8 Reseller shall indemnify, defend and hold harmless Bell Atlantic, Bell
Atlantic's Affiliates, and the directors, officers and employees of Bell
Atlantic and Bell Atlantic's Affiliates, from any claims, suits, government
proceedings, judgments, fines, liabilities, losses, damages, costs or
expenses (including reasonable attorneys fees) arising out of or in
connection with: (a) the failure of Reseller to transmit to Bell Atlantic a
request by a Reseller Customer to install, provide, change or terminate, a
Bell Atlantic Retail Telecommunications Service; (b) the transmission by
Reseller to Bell Atlantic of an Order to install, provide, change or
terminate, a Bell Atlantic Retail Telecommunications Service, which Order
was not authorized by the applicable Reseller Customer; (c) erroneous or
inaccurate information in an Order transmitted by Reseller to Bell
Atlantic; (d) the transmission by Reseller to Bell Atlantic of an Order to
change or terminate a Telecommunications Service provided to an end user by
Bell Atlantic or another Telecommunications Service provider, or to install
or provide a Telecommunications Service for an end user, which Order was
not authorized by the applicable end user; (e) the transmission by Reseller
to Bell Atlantic of an Order to select, change or reassign a telephone
number for an end user, which Order was not authorized by the applicable
end user; (f) the transmission by Reseller to Bell Atlantic of an Order to
select a Telephone Exchange Service provider for an end user, or to change
or terminate an end user's selection of a Telephone Exchange Service
provider, which Order was not authorized by the applicable end user in the
manner required by Applicable Law (or, in the absence of such Applicable
Law, in the manner required by the rules and procedures in 47 CFR Section
64.1100); (g) access to, or use or disclosure of, Customer Information or
Bell Atlantic OSS Information by Reseller or Reseller's employees, Agents
or contractors; (h) the failure of Reseller to transmit, or to transmit in
a timely manner, E911/911 information to Bell Atlantic; (i) erroneous or
inaccurate E911/911 information transmitted by Reseller to Bell Atlantic;
(j) any information provided by Reseller for inclusion in Bell Atlantic's
LIDB; or, (k) the marketing, advertising or sale of Reseller's services
and/or products (including, but not limited to, resold Bell Atlantic Retail
Telecommunications Services), or the billing or collection of charges for
Reseller's services and/or products (including, but not limited to, resold
Bell Atlantic Retail Telecommunications Services). For the purposes of
Section 21.8(b), (d) and (e), an Order shall be deemed not to have been
authorized by a Reseller Customer or end user if Applicable Law and/or this
Agreement required such authorization to be obtained in a
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particular manner, and Reseller did not obtain the authorization in the
manner required by Applicable Law and this Agreement.
22. NON-EXCLUSIVE REMEDIES
Except as otherwise expressly provided in this Agreement, each of the
remedies provided under this Agreement is cumulative and is in addition to
any other remedies that may be available under this Agreement or at law or
in equity.
23. NOTICES
All notices and other communications under this Agreement shall be
deemed effective upon receipt by the Party being notified, provided such
notices or communications are in writing and are sent by certified or
registered mail, return receipt requested, or by a reputable private
delivery service which provides a record of delivery, and addressed as
shown below:
To Bell Atlantic: Bell Atlantic-New Jersey, Inc.
c/o Bell Atlantic Network Services, Inc.
1320 North Courthouse Road
Arlington, Virginia 22201
Attn.: Director, Resale Initiatives
To Reseller: President
Essential.Com, Inc.
3 Burlington Woods Drive
Burlington, MA 01803
Tel: (781) 229-9599
Fax: (781) 229-9499
Either Party may from time-to-time designate another address or
addressee by giving notice in accordance with this Section 23.
24. OPTION TO OBTAIN BELL ATLANTIC SERVICE UNDER OTHER AGREEMENTS
24.1 If, at any time while this Agreement is in effect, Bell Atlantic is a
party to an agreement with a Telecommunications Carrier other than Reseller
("Third-Person Telecommunications Carrier") to provide Bell Atlantic
Services to the Third-Person Telecommunications Carrier, which agreement
has been approved by the Board pursuant to 47 U.S.C. Section 252, upon
request by Reseller, Bell Atlantic, to the extent required by Applicable
Law (including, but not limited to 47 U.S.C. Section 252(i)), shall make
available to Reseller any Bell Atlantic Service offered by Bell Atlantic
under the agreement with the Third-Person Telecommunications Carrier upon
the same terms and conditions (including prices) provided in the agreement
with the Third-Person Telecommunications Carrier, but
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(except as otherwise expressly agreed in writing by the Parties) only on a
prospective basis. Following such request by Reseller and prior to
provision of the Bell Atlantic Service by Bell Atlantic to Reseller
pursuant to the terms and conditions (including prices) of the Third-Person
Telecommunications Carrier agreement, this Agreement shall be amended to
incorporate the terms and conditions (including prices) from the
Third-Person Telecommunications Carrier agreement applicable to the Bell
Atlantic Service Reseller has elected to purchase pursuant to the terms and
conditions (including prices) of the Third-Person Telecommunications
Carrier agreement. Except as otherwise expressly agreed in writing by the
Parties, the amendment shall apply on a prospective basis only and shall
not apply with regard to any Bell Atlantic Service provided by Bell
Atlantic to Reseller prior to the effective date of the amendment.
24.2 To the extent the exercise of the foregoing option requires a
rearrangement of facilities by Bell Atlantic, Reseller shall be liable for
the non-recurring charges associated therewith, as well as for any
termination charges associated with the termination of existing facilities
or Bell Atlantic Services.
25. REGULATORY APPROVALS
25.1 Within thirty (30) days after execution of this Agreement by the
Parties, Bell Atlantic shall file the Agreement with the Board for approval
by the Board.
25.2 Each Party shall exercise reasonable efforts (including reasonably
cooperating with the other Party) to secure approval of this Agreement, and
any amendment to this Agreement agreed to by the Parties, from the Board,
the FCC, and other applicable governmental entities.
25.3 Upon request by Bell Atlantic, Reseller shall, at Reseller's expense,
provide reasonable, good-faith support and assistance to Bell Atlantic in
obtaining any governmental approvals necessary for (a) this Agreement and
any amendment to this Agreement agreed to by the Parties, and/or (b) the
provision of Bell Atlantic Services by Bell Atlantic to Reseller. Without
in any way limiting the foregoing, upon request by Bell Atlantic, Reseller
shall (a) join in petitions requesting approval of this Agreement, or an
amendment to this Agreement agreed to by the Parties, to be filed with the
Board, the FCC, or other applicable governmental entities, and (b) file
other documents with and present testimony to the Board, the FCC, or other
applicable governmental entities, requesting approval of this Agreement or
an amendment to this Agreement agreed to by the Parties.
26. REGULATORY CONTINGENCIES
26.1 Neither Party shall be liable for any delay or failure in performance
by it which results from requirements of Applicable Law, or acts or
failures to act of any governmental entity or official.
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26.2 In the event that any provision of this Agreement shall be invalid or
unenforceable, such invalidity or unenforceability shall not invalidate or
render unenforceable any other provision of this Agreement, and this
Agreement shall be construed as if it did not contain such invalid or
unenforceable provision.
26.3 In the event that any legislative, regulatory, judicial or other
governmental action materially affects any material terms of this
Agreement, the ability of either Party to perform any material terms of
this Agreement, or the rights or obligations of either Party under this
Agreement, the Parties shall take such action as shall be necessary to
conform this Agreement to the governmental action and/or to permit Bell
Atlantic to continue to provide and Reseller to continue to purchase Bell
Atlantic Services, including, but not limited to, conducting good faith
negotiations to enter into a mutually acceptable modified or substitute
agreement, filing tariffs, or additional, supplemental or modified tariffs,
and making other required filings with governmental entities.
26.4 In the event of a governmental action described in Section 26.3,
above, to the extent permitted by Applicable Law, Bell Atlantic shall
continue to provide and Reseller shall continue to subscribe to, use and
pay for, any Bell Atlantic Services affected by the governmental action
until the action to be taken by Bell Atlantic and Reseller under Section
26.3, above, is taken and becomes effective in accordance with Applicable
Law. Such continued provision of and subscription to, use of and payment
for, the affected Bell Atlantic Services shall be in accordance with the
terms (including prices) of this Agreement, unless other terms, including
but not limited to the terms of a Bell Atlantic Tariff, are required by
Applicable Law.
26.5 If suspension or termination of the provision of any Bell Atlantic
Service is required by or as a result of a governmental action, such
suspension or termination shall not affect Reseller's subscription to, use
or obligation to pay for, other Bell Atlantic Services, unless such
suspension or termination has a material, adverse effect on Reseller's
ability to use the other Bell Atlantic Services.
26.6 If any of the Bell Atlantic Services to be provided by Bell Atlantic
pursuant to a tariff shall at any time become detariffed or deregulated,
Bell Atlantic may transfer the provisions of the tariff relative to such
Bell Atlantic Services to a Bell Atlantic "Guide for Detariffed Services"
or similar document, and such "Guide for Detariffed Services" or similar
document, as amended by Bell Atlantic from time-to time, shall become a
part of this Agreement.
27. RELATIONSHIP OF THE PARTIES
27.1 The relationship between the Parties under this Agreement shall be
that of independent contractors.
27.2 Nothing contained in this Agreement shall:
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(a) make either Party the Agent or employee of the other Party;
(b) grant either Party the authority to enter into a contract on
behalf of, or otherwise legally bind, the other Party in any way;
(c) create a partnership, joint venture or other similar relationship
between the parties; or
(d) grant to Reseller a franchise, distributorship or similar
interest.
27.3 Each Party shall be solely responsible for selection, supervision,
termination, and compensation, of its respective employees, Agents and
contractors.
27.4 Each Party shall be solely responsible for payment of any Social
Security or other taxes which it is required by Applicable Law to pay in
conjunction with its employees, Agents or contractors, and for collecting
and remitting to applicable taxing authorities any taxes which it is
required by Applicable Law to collect from its employees, Agents or
contractors.
27.5 The relationship of the Parties under this Agreement is a
non-exclusive relationship. Bell Atlantic shall have the right to provide
services offered by Bell Atlantic under this Agreement to persons other
than Reseller. Reseller shall have the right to purchase services that may
be purchased by Reseller under this Agreement from persons other than Bell
Atlantic.
28. RESELLER'S PROVISION OF SERVICE
28.1 Prior to providing Bell Atlantic Retail Telecommunications Services
purchased by Reseller under this Agreement to Reseller Customers, Reseller
shall obtain from the Board, the FCC, and any other applicable governmental
entities, any certificates or other authorizations required by Applicable
Law for Reseller to provide Telecommunications Services. Reseller shall
promptly notify Bell Atlantic in writing of any governmental action which
suspends, cancels or withdraws any such certificate or authorization, or
otherwise limits or affects Reseller's right to provide Telecommunications
Services.
28.2 To the extent required by Applicable Law, Reseller shall: (a) file
with the Board, the FCC, and/or other applicable governmental entities, the
tariffs, arrangements and other documents that set forth the terms,
conditions and prices under which Reseller provides Telecommunications
Services; and, (b) make available for public inspection, the tariffs,
arrangements and other documents that set forth the terms, conditions and
prices under which Reseller provides Telecommunications Services.
29. RESELLER'S RESALE AND USE OF SERVICE
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29.1 Reseller shall comply with the provisions of this Agreement
(including, but not limited to, Bell Atlantic's Tariffs) regarding resale
or use of Bell Atlantic Services, including, but not limited to, any
restrictions on resale or use of Bell Atlantic Services.
29.2 Without in any way limiting Section 29.1, (a) Reseller shall not
resell residential service to persons not eligible to subscribe to such
service from Bell Atlantic (including, but not limited to, business
Reseller Customers and other nonresidential Reseller Customers), and (b)
Reseller shall not resell Lifeline or other means-tested service offerings,
or grandfathered or discontinued service offerings, to persons not eligible
to subscribe to such service offerings from Bell Atlantic.
29.3 Reseller shall undertake in good faith to ensure that Reseller
Customers comply with the provisions of Bell Atlantic's Tariffs applicable
to their use of Bell Atlantic Retail Telecommunications Services.
29.4 Reseller shall comply with Applicable Law, and Bell Atlantic's
procedures, for handling requests from law enforcement and other government
agencies for service termination, assistance with electronic surveillance,
and provision of information.
30. RESPONSIBILITY FOR CHARGES
30.1 Reseller shall be responsible for and pay all charges for any Bell
Atlantic Service provided by Bell Atlantic to Reseller, whether the Bell
Atlantic Service is ordered, activated or used by Reseller, a Reseller
Customer, or another person.
30.2 In addition to the charges for Bell Atlantic Services, Reseller agrees
to pay any charges for Telecommunications Services, facilities, equipment,
software, wiring, or other services or products, provided by Bell Atlantic,
or provided by persons other than Bell Atlantic and billed for by Bell
Atlantic, that are ordered, activated or used by Reseller, Reseller
Customers or other persons, through, by means of, or in association with,
Bell Atlantic Services provided by Bell Atlantic to Reseller.
30.3 Reseller agrees to indemnify, defend and hold Bell Atlantic harmless
from, any charges for Telecommunications Services, facilities, equipment,
software, wiring, or other services or products, provided by persons other
than Bell Atlantic that are ordered, activated or used by Reseller,
Reseller Customers or other persons, through, by means of, or in
association with, Bell Atlantic Services provided by Bell Atlantic to
Reseller.
30.4 Without in any way limiting Reseller's obligations under Section 30.1,
Section 30.2 and Section 30.3, Reseller shall pay, or collect and remit to
Bell Atlantic, without discount, all Subscriber Line Charges, Federal Line
Cost Charges, end user common line charges, carrier selection and change
charges (PIC change charge), and the
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Presubscribed Interexchange Carrier Charge applicable to Reseller Customers
who have not presubscribed to an interexchange carrier for long distance
services, associated with Bell Atlantic Services provided by Bell Atlantic
to Reseller.
30.5 Upon request by Reseller, Bell Atlantic will provide for use on resold
Bell Atlantic Retail Telecommunications Service dial tone lines purchased
by Reseller such Bell Atlantic Retail Telecommunications Service call
blocking services as Bell Atlantic provides to Bell Atlantic's own end user
retail Customers, where and to the extent Bell Atlantic provides such Bell
Atlantic Retail Telecommunications Service call blocking services to Bell
Atlantic's own end user retail Customers.
31. SECTION HEADINGS
The section headings in the Principal Document are for convenience
only and are not intended to affect the meaning or interpretation of the
Principal Document.
32. SERVICES NOT COVERED BY THIS AGREEMENT
32.1 This Agreement applies only to Bell Atlantic Services (as the term
"Bell Atlantic Service" is defined in Section 1.1.6) provided, or to be
provided, by Bell Atlantic to Reseller, as specified in Section 3. Any
Telecommunications Services, facilities, equipment, software, wiring, or
other services or products (including, but not limited to,
Telecommunications Services, facilities, equipment, software, wiring, or
other services or products, interconnected or used with Bell Atlantic
Services provided, or to be provided, by Bell Atlantic to Reseller)
provided, or to be provided, by Bell Atlantic to Reseller, which are not
subscribed to by Reseller under this Agreement, must be subscribed to by
Reseller separately, pursuant to other written agreements (including, but
not limited to, applicable Bell Atlantic Tariffs). Reseller shall use and
pay for any Telecommunications Services, facilities, equipment, software,
wiring, or other services or products, provided, or to be provided, by
Bell Atlantic to Reseller, which are not subscribed to by Reseller under
this Agreement, in accordance with such other written agreements
(including, but not limited to, applicable Bell Atlantic Tariffs).
32.2 Without in any way limiting Section 32.1 and without attempting to
list all Bell Atlantic products and services that are not subject to this
Agreement, the Parties agree that this Agreement does not apply to the
purchase by Reseller of the following Bell Atlantic services and products:
except as expressly stated in the Principal Document, exchange access
services as defined in Section 3(16) of the Act, 47 U.S.C. Section 153(16)
(including, but not limited to, primary interLATA toll carrier and primary
intraLATA toll carrier choice or change); Bell Atlantic Answer Call, Bell
Atlantic Answer Call Plus, Bell Atlantic Home Voice Mail, Bell Atlantic
Home Voice Mail Plus, Bell Atlantic Voice Mail, Bell Atlantic Basic
Mailbox, Bell Atlantic OptiMail Service, and other voice mail, fax mail,
voice messaging, and fax messaging, services; Bell Atlantic Optional Wire
Maintenance Plan; Bell Atlantic Guardian Enhanced Maintenance Service; Bell
Atlantic Sentry I Enhanced Maintenance Service; Bell Atlantic Sentry II
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Enhanced Maintenance Service; Bell Atlantic Sentry III Enhanced Maintenance
Service; Bell Atlantic Call 54 Service; Bell Atlantic Public Telephone
Service; customer premises equipment; Bell Atlantic telephone directory
listings offered under agreements or arrangements other than Bell Atlantic
Tariffs filed with the Board; and, Bell Atlantic telephone directory
advertisements.
32.3 Without in any way limiting Section 32.1, the Parties also agree that
this Agreement does not apply to the installation, inspection, maintenance,
repair, removal, or use of any facilities, equipment, software, or wiring,
located on Reseller's side of the Network Rate Demarcation Point applicable
to Reseller and does not grant to Reseller or Reseller Customers a right to
installation, inspection, maintenance, repair, or removal, by Bell
Atlantic, or use, by Reseller or Reseller Customers, of any such
facilities, equipment, software, or wiring.
32.4 Without in any way limiting Section 32.1, the Parties agree that this
Agreement does not apply to the purchase by Reseller of Audiotex Services
(including, but not limited to, Dial-It, 976, 915 and 556 services) for
resale to Audiotex Service providers or other information service
providers. Bell Atlantic shall have the right (but not the obligation) to
block calls made to Audiotex Service numbers (including, but not limited
to, Dial-It numbers and 976, 915 and 556 numbers) through Bell Atlantic
Services purchased by Reseller under this Agreement. Notwithstanding the
foregoing, Reseller shall pay, without discount, any charges for Audiotex
Services (including, but not limited to, Dial-It, 976, 915 and 556
services) that are ordered, activated or used by Reseller, Reseller
Customers or other persons, through, by means of, or in association with,
Bell Atlantic Services provided by Bell Atlantic to Reseller.
32.5 Nothing contained within this Agreement shall obligate Bell Atlantic
to provide any service or product which is not a Bell Atlantic Service
(including, but not limited to, the services listed in Sections 32.2, 32.3
and 32.4, above) to Reseller.
32.6 Nothing contained within this Agreement shall obligate Bell Atlantic
to provide a Bell Atlantic Service or any other service or product to a
Reseller Customer. Without in any way limiting the foregoing, except as
otherwise required by Applicable Law, Bell Atlantic reserves the right to
terminate provision of services and products (including, but not limited
to, Telecommunications Services and the services listed in Sections 32.2
and 32.3, above) to any person who ceases to purchase Bell Atlantic Retail
Telecommunications Service dial tone line service from Bell Atlantic.
32.7 Nothing contained in this Section 32 shall in any way exclude or limit
Reseller's obligations and liabilities under Section 30, including, but not
limited to Reseller's obligations and liabilities to pay charges for
services and products as required by Section 30.
33. SERVICE QUALITY
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Bell Atlantic Services provided by Bell Atlantic to Reseller under
this Agreement shall comply with the quality requirements for such Bell
Atlantic Services specified by Applicable Law (including, but not limited
to, any applicable provisions of 47 CFR Sections 51.311 and 51.603(b)).
34. SINGLE POINT OF CONTACT
34.1 Reseller shall be the single point of contact for Reseller Customers
and other persons with regard to Telecommunications Services and other
services and products which they wish to purchase from Reseller or which
they have purchased from Reseller. Communications by Reseller Customers and
other persons with regard to Telecommunications Services and other services
and products which they wish to purchase from Reseller or which they have
purchased from Reseller, shall be made to Reseller, and not to Bell
Atlantic. Reseller shall instruct Reseller Customers and other persons that
such communications shall be directed to Reseller.
34.2 Without in any way limiting Section 34.1, requests by Reseller
Customers for information about or provision of Telecommunications Services
which they wish to purchase from Reseller, requests by Reseller Customers
to change, terminate, or obtain information about, assistance in using, or
repair or maintenance of, Telecommunications Services which they have
purchased from Reseller, and inquiries by Reseller Customers concerning
Reseller's bills, charges for Reseller's Telecommunications Services, and,
if the Reseller Customers receive dial tone line service from Reseller,
annoyance calls, shall be made by the Reseller Customers to Reseller, and
not to Bell Atlantic.
34.3 Reseller shall establish telephone numbers and mailing addresses at
which Reseller Customers and other persons may communicate with Reseller
and shall advise Reseller Customers and other persons who may wish to
communicate with Reseller of these telephone numbers and mailing
addresses.
35. SURVIVAL
The liabilities and obligations of a Party for acts or omissions of
the Party prior to the termination, cancellation or expiration of this
Agreement, the rights, liabilities and obligations of a Party under any
provision of this Agreement regarding indemnification or defense, Customer
Information, confidential information, or limitation or exclusion of
liability, the rights of Bell Atlantic and the liabilities and obligations
of Reseller under Section 18.1, and the rights, liabilities and
obligations of a Party under any provision of this Agreement which by its
terms is contemplated to survive (or be performed after) termination,
cancellation or expiration of this Agreement, shall survive termination,
cancellation or expiration of this Agreement.
36. TAXES
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36.1 With respect to any purchase of Bell Atlantic Services under this
Agreement, if any Federal, state or local government tax, fee, duty,
surcharge (including, but not limited to any E911/911, telecommunications
relay service, or universal service fund, surcharge), or other tax-like
charge (a "Tax") is required or permitted by Applicable Law to be collected
from Reseller by Bell Atlantic, then (a) to the extent required by
Applicable Law, Bell Atlantic shall bill Reseller for such Tax, (b)
Reseller shall timely remit such Tax to Bell Atlantic (including both Taxes
billed by Bell Atlantic and Taxes Reseller is required by Applicable Law to
remit without billing by Bell Atlantic), and (c) Bell Atlantic shall remit
such collected Tax to the applicable taxing authority.
36.2 With respect to any purchase of Bell Atlantic Services under this
Agreement, if any Tax is imposed by Applicable Law on the receipts of Bell
Atlantic, which Applicable Law permits Bell Atlantic to exclude certain
receipts received from sales of Bell Atlantic Services for resale by
Reseller, such exclusion being based on the fact that Reseller is also
subject to a Tax based upon receipts ("Receipts Tax"), then Reseller (a)
shall provide Bell Atlantic with notice in writing in accordance with
Section 36.7 of its intent to pay the Receipts Tax, and (b) shall timely
pay the Receipts Tax to the applicable taxing authority.
36.3 With respect to any purchase of Bell Atlantic Services under this
Agreement, that are resold by Reseller to a Reseller Customer, if any Tax
is imposed by Applicable Law on the Reseller Customer in connection with
the Reseller Customer's purchase of the resold Bell Atlantic Services which
Reseller is required to impose and/or collect from the Reseller Customer,
then Reseller (a) shall impose and/or collect such Tax from the Reseller
Customer, and (b) shall timely remit such Tax to the applicable taxing
authority.
36.4.1 If Bell Atlantic has not received an exemption certificate from
Reseller and fails to bill Reseller for any Tax as required by Section
36.1, then, as between Bell Atlantic and Reseller, (a) Reseller shall
remain liable for such unbilled Tax, and (b) Bell Atlantic shall be liable
for any interest and/or penalty assessed on the unbilled Tax by the
applicable taxing authority.
36.4.2 If Reseller fails to remit any Tax to Bell Atlantic as required by
Section 36.1, then, as between Bell Atlantic and Reseller, Reseller shall
be liable for such uncollected Tax and any interest and/or penalty assessed
on the uncollected Tax by the applicable taxing authority.
36.4.3 If Bell Atlantic does not collect a Tax because Reseller has
provided Bell Atlantic with an exemption certificate which is later found
to be inadequate by the applicable taxing authority, then, as between Bell
Atlantic and Reseller, Reseller shall be liable for such uncollected Tax
and any interest and/or penalty assessed on the uncollected Tax by the
applicable taxing authority.
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36.4.4 Except as provided in Section 36.4.5, if Reseller fails to pay the
Receipts Tax as required by Section 36.2, then, as between Bell Atlantic
and Reseller, (a) Bell Atlantic shall be liable for any Tax imposed on Bell
Atlantic's receipts, (b) Reseller shall be liable for any interest and/or
penalty imposed on Bell Atlantic with respect to the Tax on Bell Atlantic's
receipts, and (c) Reseller shall be liable for any Tax imposed on
Reseller's receipts and any interest and/or penalty assessed by the
applicable taxing authority on Reseller with respect to the Tax on
Reseller's receipts.
36.4.5 If any discount or portion of a discount in price provided to
Reseller under this Agreement (including, but not limited to, a discount
provided for in Exhibit II, Section 1.1) represents Tax savings to Bell
Atlantic which it was anticipated Bell Atlantic would receive, because it
was anticipated that receipts from sales of Bell Atlantic Services, that
would otherwise be subject to a Tax on such receipts, could be excluded
from such Tax under Applicable Law because the Bell Atlantic Services would
be sold to Reseller for resale, and Bell Atlantic is, in fact, required by
Applicable Law to pay such Tax on receipts from sales of Bell Atlantic
Services to Reseller, then, as between Bell Atlantic and Reseller, (a)
Reseller shall be liable for, and shall indemnify and hold harmless Bell
Atlantic against (on an after-tax basis), any such Tax, and (b) Reseller
shall be liable for, and shall indemnify and hold harmless Bell Atlantic
against (on an after-tax basis), any interest and/or penalty assessed by
the applicable taxing authority on either Reseller or Bell Atlantic with
respect to the Tax on Bell Atlantic's receipts.
36.4.6 If Reseller fails to impose and/or collect any Tax from Reseller
Customers as required by Section 36.3, then, as between Bell Atlantic and
Reseller, Reseller shall remain liable for such uncollected Tax and any
interest and/or penalty assessed on such uncollected Tax by the applicable
taxing authority.
36.4.7 With respect to any Tax that Reseller has agreed to pay, is
responsible for because Reseller received a discount in price on Bell
Atlantic Services attributable to anticipated Tax savings by Bell Atlantic,
or is required to impose on and/or collect from Reseller Customers,
Reseller agrees to indemnify and hold Bell Atlantic harmless on an
after-tax basis for any costs incurred by Bell Atlantic as a result of
actions taken by the applicable taxing authority to recover the Tax from
Bell Atlantic due to failure of Reseller to timely remit the Tax to Bell
Atlantic, or timely pay, or collect and timely remit, the Tax to the
taxing authority.
36.5 If either Party is audited by a taxing authority, the other Party
agrees to reasonably cooperate with the Party being audited in order to
respond to any audit inquiries in a proper and timely manner so that the
audit and/or any resulting controversy may be resolved expeditiously.
36.6.1 If Applicable Law clearly exempts a purchase of Bell Atlantic
Services under this Agreement from a Tax, and if such Applicable Law also
provides an exemption procedure, such as an exemption certificate
requirement, then, if Reseller
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complies with such procedure, Bell Atlantic shall not collect such Tax
during the effective period of the exemption. Such exemption shall be
effective upon receipt of the exemption certificate or affidavit in
accordance with Section 36.7.
36.6.2 If Applicable Law clearly exempts a purchase of Bell Atlantic
Services under this Agreement from a Tax, but does not also provide an
exemption procedure, then Bell Atlantic shall not collect such Tax if
Reseller (a) furnishes Bell Atlantic with a letter signed by an officer of
Reseller requesting an exemption and citing the provision in the Applicable
Law which clearly allows such exemption, and (b) supplies Bell Atlantic
with an indemnification agreement, reasonably acceptable to Bell Atlantic,
which holds Bell Atlantic harmless on an after-tax basis with respect to
forbearing to collect such Tax.
36.7 All notices, affidavits, exemption certificates or other
communications required or permitted to be given by either Party to the
other under this Section 36, shall be made in writing and shall be sent by
certified or registered mail, return receipt requested, or by a reputable
private delivery service which provides a record of delivery, to the
addressee stated in Section 23 at the address stated in Section 23 and to
the following:
To Bell Atlantic: Tax Administration
Bell Atlantic Corporation
1095 Avenue of the Americas
Room 3109
New York, New York 10036
To Reseller: Controller
Essential.Com, Inc.
3 Burlington Woods Drive
Burlington, MA 01803
Tel: (781) 229-9599
Fax: (781) 229-9499
Either Party may from time-to-time designate another address or
addressee by giving notice in accordance with the terms of this Section
36.7.
Any notice or other communication shall be deemed to be given when
received.
37. TELEPHONE EXCHANGE SERVICE PROVIDER SELECTION
37.1 Without in any way limiting Reseller's obligations under Section 12,
Reseller shall comply with Applicable Law with regard to end user selection
of a Telephone Exchange Service provider. Until the Board or the FCC adopts
regulations and/or orders applicable to end user selection of a Telephone
Exchange Service provider, Reseller shall apply the rules and procedures
set forth in Section 64.1100 of the FCC
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Rules, 47 CFR Section 64.1100, to the process for end user selection of a
Telephone Exchange Service provider (including, to end user selection of a
Telephone Exchange Service provider that occurs during any telemarketing
contact with an end user), and shall comply with such rules and procedures.
37.2 By submitting to Bell Atlantic an Order to install, provide, change or
terminate a Telecommunications Service, to select, change or reassign a
telephone number, or to select, change or terminate an end user's Telephone
Exchange Service provider, Reseller represents and warrants: (a) that
Reseller has obtained authorization for such action from the applicable end
user; and, (b) that if Applicable Law and/or this Agreement required such
authorization to be obtained in a particular manner, Reseller obtained the
authorization in the manner required by Applicable Law and this Agreement.
Reseller shall upon request by Bell Atlantic provide proof of such
authorization (including, a copy of any written authorization).
37.3 If Reseller submits an Order to Bell Atlantic to install, provide,
change or terminate a Telecommunications Service, to select, change or
reassign a telephone number, or to select, change or terminate an end
user's Telephone Exchange Service provider, and (a) when requested by Bell
Atlantic to provide a written document signed by the end user stating the
end user's Telephone Exchange Service provider selection, fails to provide
such document to Bell Atlantic, or (b) has not obtained authorization for
such installation, provision, selection, change, reassignment or
termination, from the end user in the manner required by Applicable Law
(or, in the absence of Applicable Law, in the manner required by the rules
and procedures in 47 CFR Section 64.1100), Reseller shall be liable to Bell
Atlantic for all charges that would be applicable to the end user for the
initial installation, provision, selection, change, reassignment or
termination, of the end user's Telecommunications Service, telephone
number, and/or Telephone Exchange Service provider, and any charges for
restoring the end user's Telecommunications Service, telephone number,
and/or Telephone Exchange Service provider selection, to its end user
authorized condition.
38. TELEPHONE NUMBERS
38.1 Reseller's use of telephone numbers shall be subject to Applicable Law
(including, but not limited to, the rules of the FCC, the North American
Numbering Council, and the North American Numbering Plan Administrator),
the applicable provisions of this Agreement (including, but not limited to,
this Section 38), and Bell Atlantic's practices and procedures for use and
assignment of telephone numbers, as amended from time-to-time.
38.2 Subject to Sections 38.1 and 38.3, if an end user who subscribes to a
Bell Atlantic Retail Telecommunications Service dial tone line from either
Reseller or Bell Atlantic changes the Telecommunications Carrier from whom
the end user subscribes for such dial tone line (including a change from
Bell Atlantic to Reseller, from Reseller to Bell Atlantic, or from Reseller
to a Telecommunications Carrier other than Bell Atlantic),
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after such change, the end user may continue to use with the dial tone line
the telephone numbers which were assigned to the dial tone line by Bell
Atlantic immediately prior to the change.
38.3 Bell Atlantic shall have the right to change the telephone numbers
used by an end user if at any time: (a) the type or class of service
subscribed to by the end user changes; (b) the end user requests service at
a new location, that is not served by the Bell Atlantic switch and the
Bell Atlantic rate center from which the end user previously had service;
or, (c) continued use of the telephone numbers is not technically feasible.
38.4 If service on a Bell Atlantic Retail Telecommunications Service dial
tone line subscribed to by Reseller from Bell Atlantic under this Agreement
is terminated, the telephone numbers associated with such dial tone line
shall be available for reassignment by Bell Atlantic to any person to whom
Bell Atlantic elects to assign the telephone numbers, including, but not
limited to, Bell Atlantic, Bell Atlantic end user retail Customers,
Reseller, or Telecommunications Carriers other than Bell Atlantic and
Reseller.
39. WARRANTIES
EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, BELL ATLANTIC MAKES
NO WARRANTIES WITH RESPECT TO BELL ATLANTIC SERVICES, WHETHER EXPRESS OR
IMPLIED, WRITTEN OR ORAL, IN FACT OR IN LAW. THE WARRANTIES SET FORTH IN
THIS AGREEMENT ARE BELL ATLANTIC'S EXCLUSIVE WARRANTIES WITH RESPECT TO
BELL ATLANTIC SERVICES AND ARE IN LIEU OF ALL OTHER WARRANTIES, EXPRESS OR
IMPLIED, WRITTEN OR ORAL, IN FACT OR IN LAW. BELL ATLANTIC DISCLAIMS ANY
AND ALL OTHER WARRANTIES, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF
MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, WARRANTIES AGAINST
INFRINGEMENT, AND WARRANTIES ARISING BY TRADE CUSTOM, TRADE USAGE, COURSE
OF DEALING, OR OTHERWISE.
40. PUBLICITY AND USE OF TRADEMARKS OR SERVICE MARKS
40.1.1 Neither Party nor its subcontractors or agents will use the other
Party's trademarks, service marks, logos or other proprietary trade dress
in connection with the sale of products and services, or in any
advertising, press releases, publicity matters or other promotional
materials without such Party's prior written consent.
40.1.2 Neither Party may imply any direct or indirect affiliation with or
sponsorship or endorsement of its company, products and services by the
other Party.
41. AUTHORIZATION
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41.1.1 Bell Atlantic is a corporation duly organized, validly existing and
in good standing under the laws of the State of New Jersey and has full
power and authority to execute and deliver this Agreement and to perform
the obligations hereunder on behalf of Bell Atlantic.
41.2 Essential.Com, Inc. a corporation, is duly organized, validly existing
and in good standing under the laws of Delaware, and has full power and
authority to execute and deliver this Agreement and to perform its
obligations hereunder.
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IN WITNESS WHEREOF, intending to be legally bound, Reseller
and Bell Atlantic have caused this Agreement to be executed by their respective
authorized representatives.
ESSENTIAL.COM,INC.
BY: /s/ Akhil Garland
------------------------------------
Signature
Akhil Garland
------------------------------------
Name (Printed)
ITS: CEO
------------------------------------
Title
BY: /s/ Patrick Moran
------------------------------------
Signature
Patrick Moran
------------------------------------
Name (Printed)
ITS: Vice President-Operations
------------------------------------
Title
BY: /s/ John Duffy
------------------------------------
Signature
John Duffy
------------------------------------
Name (Printed)
ITS: Vice President-Business Development
------------------------------------
Title
BELL ATLANTIC - NEW JERSEY, INC.
BY: /s/ Jeffrey A. Masoner
------------------------------------
Signature
Jeffrey A. Masoner
------------------------------------
Name (Printed)
TITLE: Vice President-Telecom Industry Services
-------------------------------------------
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EXHIBIT I
BELL ATLANTIC ANCILLARY SERVICES
1. BELL ATLANTIC OSS SERVICES
1.1 DEFINITIONS
As used in the Principal Document, the terms listed below shall
have the meanings stated below:
1.1.1 "Bell Atlantic Operations Support Systems" means Bell Atlantic
systems for pre-ordering, ordering, provisioning, maintenance and
repair, and billing.
1.1.2 "Bell Atlantic OSS Services" means access to Bell Atlantic
Operations Support Systems functions. The term "Bell Atlantic OSS
Services" includes, but is not limited to: (a) Bell Atlantic's
provision of Reseller Usage Information to Reseller pursuant to
Exhibit I, Section 1.3, below; and, (b) "Bell Atlantic OSS
Information", as defined in Exhibit I, Section 1.1.4, below.
1.1.3 "Bell Atlantic OSS Facilities" means any gateways, interfaces,
databases, facilities, equipment, software, or systems, used by Bell
Atlantic to provide Bell Atlantic OSS Services to Reseller.
1.1.4 "Bell Atlantic OSS Information" means any information accessed
by, or disclosed or provided to, Reseller through or as a part of
Bell Atlantic OSS Services. The term "Bell Atlantic OSS Information"
includes, but is not limited to: (a) any Customer Information related
to a Bell Atlantic Customer or a Reseller Customer accessed by, or
disclosed or provided to, Reseller through or as a part of Bell
Atlantic OSS Services; and, (b) any Reseller Usage Information (as
defined in Exhibit I, Section 1.1.5, below) accessed by, or disclosed
or provided to, Reseller.
1.1.5 "Reseller Usage Information" means the usage information for a
Bell Atlantic Retail Telecommunications Service purchased by Reseller
under this Agreement that Bell Atlantic would record if Bell Atlantic
was furnishing such Bell Atlantic Retail Telecommunications Service to
a Bell Atlantic end-user retail Customer.
1.2 BELL ATLANTIC OSS SERVICES
1.2.1 Upon request by Reseller, Bell Atlantic shall provide to
Reseller, pursuant to Section 251(c)(3) of the Act, 47 U.S.C.
Section 251(c)(3), Bell Atlantic OSS Services.
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1.2.2 Subject to the requirements of Applicable Law, Bell Atlantic
Operations Support Systems, Bell Atlantic Operations Support Systems
functions, Bell Atlantic OSS Facilities, Bell Atlantic OSS
Information, and the Bell Atlantic OSS Services that will be offered
by Bell Atlantic, shall be as determined by Bell Atlantic. To the
extent required by Applicable Law and technically feasible, Bell
Atlantic will offer to Reseller the Bell Atlantic OSS Services that
Bell Atlantic offers, under agreements approved by the Board pursuant
to 47 U.S.C. Section 252, to other Telecommunications Carriers that
are engaged in the resale of Bell Atlantic Retail Telecommunications
Services pursuant to 47 U.S.C. Section 251(c)(4). Subject to the
requirements of Applicable Law, Bell Atlantic shall have the right to
change Bell Atlantic Operations Support Systems, Bell Atlantic
Operations Support Systems functions, Bell Atlantic OSS Facilities,
Bell Atlantic OSS Information, and the Bell Atlantic OSS Services,
from time-to-time, without the consent of Reseller.
1.3 RESELLER USAGE INFORMATION
1.3.1 Upon request by Reseller, Bell Atlantic shall provide to
Reseller, pursuant to Section 251(c)(3) of the Act, 47 U.S.C.
Section 251(c)(3), Reseller Usage Information.
1.3.2 Reseller Usage Information will be available to Reseller through
the following:
(a) Daily Usage File on Data Tape.
(b) Daily Usage File through Network Data Mover ("NDM").
(c) Daily Usage File through Centralized Message Distribution System
("CMDS").
1.3.3.1 Reseller Usage Information will be provided in a Bellcore
Exchange Message Records ("EMR") format.
1.3.3.2 Daily Usage File Data Tapes provided pursuant to Exhibit I,
Section 1.3.2(a) will be issued each day, Monday through Friday,
except holidays observed by Bell Atlantic.
1.3.4 Except as stated in this Exhibit I, Section 1.3, subject to the
requirements of Applicable Law, the manner in which, and the frequency
with which, Reseller Usage Information will be provided to Reseller
shall be determined by Bell Atlantic.
1.4 PRICES
The prices for Bell Atlantic OSS Services shall be as stated in
Exhibit II, Section 2 following.
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1.5 ACCESS TO AND USE OF BELL ATLANTIC OSS FACILITIES
1.5.1 Bell Atlantic OSS Facilities may be accessed and used by
Reseller only to the extent necessary for Reseller's access to and
use of Bell Atlantic OSS Services pursuant to this Agreement.
1.5.2 Bell Atlantic OSS Facilities may be accessed and used by
Reseller only to provide Telecommunications Services to Reseller
Customers.
1.5.3 Reseller shall restrict access to and use of Bell Atlantic OSS
Facilities to Reseller. This Agreement does not grant to Reseller any
right or license to grant sublicenses to other persons, or permission
to other persons (except Reseller's employees, Agents and contractors,
in accordance with Exhibit I, Section 1.5.7, below), to access or use
Bell Atlantic OSS Facilities.
1.5.4 Reseller shall not (a) alter, modify or damage the Bell Atlantic
OSS Facilities (including, but not limited to, Bell Atlantic
software), (b) copy, remove, derive, reverse engineer, or decompile,
software from the Bell Atlantic OSS Facilities, or (c) obtain access
through Bell Atlantic OSS Facilities to Bell Atlantic databases,
facilities, equipment, software, or systems, which are not offered
for Reseller's use under this Agreement.
1.5.5 Reseller shall comply with all practices and procedures
established by Bell Atlantic for access to and use of Bell Atlantic
OSS Facilities (including, but not limited to, Bell Atlantic
practices and procedures with regard to security and use of access
and user identification codes).
1.5.6 All practices and procedures for access to and use of Bell
Atlantic OSS Facilities, and all access and user identification
codes for Bell Atlantic OSS Facilities: (a) shall remain the property
of Bell Atlantic; (b) shall be used by Reseller only in connection
with Reseller's use of Bell Atlantic OSS Facilities permitted by
this Agreement; (c) shall be treated by Reseller as Confidential
Information of Bell Atlantic pursuant to Section 13; and, (d) shall
be destroyed or returned by Reseller to Bell Atlantic upon the
earlier of request by Bell Atlantic or the expiration or termination
of this Agreement.
1.5.7 Reseller's employees, Agents and contractors may access and use
Bell Atlantic OSS Facilities only to the extent necessary for
Reseller's access to and use of the Bell Atlantic OSS Facilities
permitted by this Agreement. Any access to or use of Bell Atlantic
OSS Facilities by Reseller's employees, Agents, or contractors, shall
be subject to the provisions of this Agreement, including, but not
limited to, Section 13, Exhibit I, Section 1.5.6, and Exhibit I,
Section 1.6.3.3.
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1.6 BELL ATLANTIC OSS INFORMATION
1.6.1 Subject to the provisions of this Agreement and Applicable Law,
Bell Atlantic grants to Reseller a non-exclusive license to use Bell
Atlantic OSS Information.
1.6.2 All Bell Atlantic OSS Information shall at all times remain the
property of Bell Atlantic. Except as expressly stated in this
Agreement, Reseller shall acquire no rights in or to any Bell Atlantic
OSS Information.
1.6.3.1 The provisions of this Exhibit I, Section 1.6.3 apply to all
Bell Atlantic OSS Information, except (a) Reseller Usage Information,
(b) CPNI of Reseller, and (c) CPNI of a Bell Atlantic Customer or a
Reseller Customer, to the extent the Customer has authorized Reseller
to use the Customer Information.
1.6.3.2 Bell Atlantic OSS Information may be accessed and used by
Reseller only to provide Telecommunications Services to Reseller
Customers.
1.6.3.3 Reseller shall treat Bell Atlantic OSS Information that is
designated by Bell Atlantic, through written or electronic notice
(including, but not limited to, through the Bell Atlantic OSS
Services), as "Confidential" or "Proprietary" as Confidential
Information of Bell Atlantic pursuant to Section 13.
1.6.3.4 Except as expressly stated in this Agreement, this Agreement
does not grant to Reseller any right or license to grant sublicenses
to other persons, or permission to other persons (except Reseller's
employees, Agents or contractors, in accordance with Exhibit I,
Section 1.6.3.5), to access, use or disclose Bell Atlantic OSS
Information.
1.6.3.5 Reseller's employees, Agents and contractors may access, use and
disclose Bell Atlantic OSS Information only to the extent necessary
for Reseller's access to, and use and disclosure of, Bell Atlantic
OSS Information permitted by this Agreement. Any access to, or use or
disclosure of, Bell Atlantic OSS Information by Reseller's employees,
Agents or contractors, shall be subject to the provisions of this
Agreement, including, but not limited to, Section 13 and Exhibit I,
Section 1.6.3.3.
1.6.3.6 Reseller's license to use Bell Atlantic OSS Information shall
expire upon the earliest of: (a) the time when the Bell Atlantic OSS
Information is no longer needed by Reseller to provide
Telecommunications Services to Reseller Customers; (b) termination of
the license in accordance with this Agreement; or (c) expiration or
termination of this Agreement.
1.6.3.7 All Bell Atlantic OSS Information received by Reseller shall be
destroyed or returned by Reseller to Bell Atlantic, upon expiration,
suspension or termination of the license to use such Bell Atlantic OSS
Information.
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1.6.4 Unless sooner terminated or suspended in accordance with this
Agreement (including, but not limited to, Section 17.1 and Exhibit I,
Section 1.7. 1), Reseller's access to Bell Atlantic OSS Information
through Bell Atlantic OSS Services shall terminate upon the expiration
or termination of this Agreement.
1.6.5.1 Without in any way limiting Section 16.3, Bell Atlantic shall
have the right (but not the obligation) to audit Reseller to as
certain whether Reseller is complying with the requirements of
Applicable Law and this Agreement, with regard to Reseller's access
to, and use and disclosure of, Bell Atlantic OSS Information.
1.6.5.2 Without in any way limiting Section 16.3, Section 16.4, or
Exhibit I, Section 1.6.5.1, Bell Atlantic shall have the right (but
not the obligation) to monitor Reseller's access to and use of Bell
Atlantic OSS Information which is made available by Bell Atlantic to
Reseller pursuant to this Agreement, to ascertain whether Reseller is
complying with the requirements of Applicable Law and this Agreement,
with regard to Reseller's access to, and use and disclosure of, such
Bell Atlantic OSS Information. The foregoing right shall include, but
not be limited to, the right (but not the obligation) to
electronically monitor Reseller's access to and use of Bell Atlantic
OSS Information which is made available by Bell Atlantic to Reseller
through Bell Atlantic OSS Facilities.
1.6.5.3 Information obtained by Bell Atlantic pursuant to this
Exhibit I, Section 1.6.5 shall be treated by Bell Atlantic as
Confidential Information of Reseller pursuant to Section 13; provided
that, Bell Atlantic shall have the right (but not the obligation) to
use and disclose information obtained by Bell Atlantic pursuant to
this Exhibit I, Section 1.6.5 to enforce Applicable Law and/or Bell
Atlantic's rights under this Agreement.
1.6.6 Reseller acknowledges that the Bell Atlantic OSS Information, by
its nature, is updated and corrected on a continuous basis by Bell
Atlantic, and therefore that Bell Atlantic OSS Information is subject
to change from time to time.
1.7 LIABILITIES AND REMEDIES
1.7.1 Any breach by Reseller, or Reseller's employees, Agents or
contractors, of the provisions of Exhibit I, Section 1.5 or
Exhibit I, Section 1.6, shall be deemed a material breach of a
material provision of this Agreement by Reseller under Section 17.1
of this Agreement. In addition, if Reseller or an employee, Agent or
contractor of Reseller at any time breaches a provision of Exhibit I,
Section 1.5 or Exhibit I, Section 1.6, and such breach continues for
more than ten (10) days after written notice thereof from Bell
Atlantic, then, except as otherwise required by Applicable Law, Bell
Atlantic shall have the right, upon notice to Reseller, to suspend
the license to use Bell Atlantic OSS Information granted by
Exhibit I, Section 1.6.1 and/or the provision of Bell Atlantic OSS
Services, in whole or in part.
1.7.2 Reseller agrees that Bell Atlantic would be irreparably injured
by a breach of Exhibit I, Section 1.5 or Exhibit I, Section 1.6 by
Reseller or the employees, Agents or
37
<PAGE>
contractors of Reseller, and that Bell Atlantic shall be entitled to
seek equitable relief, including injunctive relief and specific
performance, in the event of any breach of Exhibit I, Section 1.5 or
Exhibit I, Section 1.6 by Reseller or the employees, Agents or
contractors of Reseller. Such remedies shall not be deemed to be the
exclusive remedies for a breach of Exhibit I, Section 1.5 or Exhibit
I, Section 1.6, but shall be in addition to any other remedies
available under this Agreement or at law or in equity.
1.8 RELATION TO APPLICABLE LAW
The provisions of Exhibit I, Sections 1.5, 1.6 and 1.7 shall be
in addition to and not in derogation of any provisions of Applicable
Law, including, but not limited to, 47 U.S.C. Section 222 and the FCC
rules in 47 CFR Section 64.2001 - Section 64.2009, and are not
intended to constitute a waiver by Bell Atlantic of any right with
regard to protection of the confidentiality of the information of Bell
Atlantic or Bell Atlantic Customers provided by Applicable Law.
1.9 COOPERATION
Reseller, at Reseller's expense, shall reasonably cooperate with
Bell Atlantic in using Bell Atlantic OSS Services. Such cooperation
shall include, but not be limited to, the following:
1.9.1 Upon request by Bell Atlantic, Reseller shall by no later than
the fifteenth (15th) day of each calendar month submit to Bell
Atlantic reasonable, good faith estimates (by central office or other
Bell Atlantic office or geographic area designated by Bell Atlantic)
of the volume of each Bell Atlantic Retail Telecommunications Service
for which Reseller anticipates submitting Orders in each week of the
next calendar month.
1.9.2 Upon request by Bell Atlantic, Reseller shall submit to Bell
Atlantic reasonable, good faith estimates of other types of
transactions or use of Bell Atlantic OSS Services that Reseller
anticipates.
1.9.3 Reseller shall reasonably cooperate with Bell Atlantic in
submitting Orders for Bell Atlantic Retail Telecommunications
Services and otherwise using the Bell Atlantic OSS Services, in
order to avoid exceeding the capacity or capabilities of such Bell
Atlantic OSS Services.
1.9.4 Reseller shall participate in cooperative testing of Bell
Atlantic OSS Services and shall provide assistance to Bell Atlantic
in identifying and correcting mistakes, omissions, interruptions,
delays, errors, defects, faults, failures, or other deficiencies, in
Bell Atlantic OSS Services.
1.10 Bell Atlantic Access to Information Related to Reseller
CUSTOMERS
38
<PAGE>
1.10.1 Bell Atlantic shall have the right to access, use and disclose
information related to Reseller Customers that is in Bell Atlantic's
possession (including, but not limited to, in Bell Atlantic OSS
Facilities) to the extent such access, use and/or disclosure has been
authorized by the Reseller Customer in the manner required by
Applicable Law.
1.10.2 Upon request by Bell Atlantic, Reseller shall negotiate in good
faith and enter into a contract with Bell Atlantic, pursuant to which
Bell Atlantic may obtain access to Reseller's operations support
systems (including, systems for pre-ordering, ordering, provisioning,
maintenance and repair, and billing) and information contained in such
systems, to permit Bell Atlantic to obtain information related to
Reseller Customers (as authorized by the applicable Reseller
Customer), to permit Customers to transfer service from one
Telecommunications Carrier to another, and for such other purposes as
may be permitted by Applicable Law.
2. E911/911 SERVICES
2.0 Reseller acknowledges and agrees that, prior to initiating any
911/E911 service hereunder, Reseller has sole responsibility for
notifying and complying with regulations and requirements of the State
of New Jersey. This includes prior notification to the State of New
Jersey Director of 911/E911 Services of Reseller's intent to perform
and the scope of such 911/E911 services. The State of New Jersey
Director of 911/E911 Services may be contacted at:
New Jersey Office of Emergency Telecommunications Services
New Jersey State Police Headquarters
P. 0. Box 7068
West Trenton, New Jersey 08628 - 0068
Attn: S. Robert Miller, Executive Director
Telephone: (609) 882-2000, Extension 2970
Facsimile: (609) 882-1463
39
<PAGE>
2.1 Where and to the extent that Bell Atlantic provides E911/911
call routing to a Public Safety Answering Point ("PSAP") to Bell
Atlantic's own end user retail Customers, Bell Atlantic will provide
to Reseller, for resold Bell Atlantic Retail Telecommunications
Service dial tone lines, E911/911 call routing to the appropriate
PSAP. Bell Atlantic will provide Reseller Customer information for
resold Bell Atlantic Retail Telecommunications Service dial tone
lines to the PSAP as that information is provided to Bell Atlantic
by Reseller where and to the same extent that Bell Atlantic provides
Bell Atlantic end user retail Customer information to the PSAP. Bell
Atlantic will update and maintain, on the same schedule that Bell
Atlantic uses with Bell Atlantic's own end user retail Customers, for
Reseller Customers served by resold Bell Atlantic Retail
Telecommunications Service dial tone lines, the Reseller Customer
information in Bell Atlantic's E911/911 databases.
2.2 Reseller shall provide to Bell Atlantic the name, telephone
number and address, of all Reseller Customers, and such other
information as may be requested by Bell Atlantic, for inclusion in
E911/911 databases. Any change in Reseller Customer name, address or
telephone number information (including addition or deletion of a
Reseller Customer, or a change in Reseller Customer name, telephone
number or address), or in other E911/911 information supplied by
Reseller to Bell Atlantic, shall be reported to Bell Atlantic by
Reseller within one (1) day after the change.
2.3 To the extent that it is necessary (whether as a requirement of
Applicable Law or otherwise) for Reseller to enter into any agreements
or other arrangements with governmental entities (or governmental
entity contractors) related to E911/911 in order for Reseller to
provide Telecommunications Services, Reseller shall at Reseller's
expense enter into such agreements and arrangements.
3. ROUTING TO DIRECTORY ASSISTANCE AND OPERATOR SERVICES
3.1 Upon request by Reseller, to the extent technically feasible,
Bell Atlantic will provide to Reseller the capability of rerouting to
Reseller's platforms directory assistance traffic (411 and 555-1212
calls) from Reseller Customers served by resold Bell Atlantic Retail
Telecommunications Service dial tone line service and operator
services traffic (0+ and 0- intraLATA calls) from Reseller Customers
served by resold Bell Atlantic Retail Telecommunications Service dial
tone line service.
3.2 A request for the rerouting service described in Exhibit I,
Section 4.1 must be made by Reseller (a) on a Bell Atlantic
switch-by-Bell Atlantic switch basis, and (b) at least ninety (90)
days in advance of the date that the rerouting capability is to be
made available in an applicable Bell Atlantic switch.
3.3 The prices for the rerouting service described in Exhibit I,
Section 4.1 shall be as stated in Exhibit II, Section 2.
40
<PAGE>
4. LIDB/BVS
4.1 Upon request by Reseller, Bell Atlantic will maintain information
(including calling card numbers and collect and bill to third party
billing restriction notation) for Reseller Customers who subscribe to
resold Bell Atlantic Retail Telecommunications Service dial tone line
service, in Bell Atlantic's Line Information Database ("LIDB"), where
and to the same extent that Bell Atlantic maintains information in
Bell Atlantic's LIDB for Bell Atlantic's own end-user retail
Customers.
4.2 If an end-user terminates Bell Atlantic Retail Telecommunications
Service dial tone line service provided to the end-user by Bell
Atlantic and, in place thereof, subscribes to Reseller for resold Bell
Atlantic Retail Telecommunications Service dial tone line service,
Bell Atlantic will remove from Bell Atlantic's LIDB any Bell Atlantic
assigned telephone line calling card number (including area code)
("TLN") and Personal Identification Number ("PIN") associated with the
terminated Bell Atlantic Retail Telecommunications Service dial tone
line service. The Bell Atlantic-assigned TLN and PIN will be removed
from Bell Atlantic's LIDB within twenty-four (24) hours after Bell
Atlantic terminates the Bell Atlantic Retail Telecommunications
Service dial tone line service with which the number was associated.
Reseller may issue a new telephone calling card to such end-user,
utilizing the same TLN, and the same or a different PIN. Upon request
by Reseller, Bell Atlantic will enter such TLN and PIN in Bell
Atlantic's LIDB for calling card validation purposes.
4.3 Reseller information which is stored in Bell Atlantic's LIDB will
be subject, to the same extent as Bell Atlantic information stored
in Bell Atlantic's LIDB, to access and use by, and disclosure to,
those persons (including, but not limited to, Bell Atlantic) to
whom Bell Atlantic allows access to information which is stored in
Bell Atlantic's LIDB. Reseller hereby grants to Bell Atlantic and
the persons to whom Bell Atlantic allows access to information
which is stored in Bell Atlantic's LIDB, a royalty free license for
such access, use and disclosure.
4.4 Reseller shall obtain contractual agreements with each of the persons
authorized to have access to Bell Atlantic's LIDB, under which
Reseller will bill Reseller Customers for calling card, third party,
collect and other calls validated by such persons through Bell
Atlantic's LIDB.
4.5 Reseller warrants that the information provided by Reseller for
inclusion in Bell Atlantic's LIDB will at all times be current,
accurate and appropriate for use for billing validation services.
4.6 Upon request by Reseller, Bell Atlantic will provide to Reseller
Bell Atlantic Billing Validation Service, in accordance with Bell
Atlantic's Tariffs, for use by Reseller in connection with Bell
Atlantic Retail Telecommunications Services purchased and provided by
Reseller pursuant to this Agreement.
41
<PAGE>
4.7 Information in Bell Atlantic's LIDB provided to Reseller shall be
treated by Reseller as Confidential Information of Bell Atlantic
pursuant to Section 13.
4.8 The prices for the services described in this Exhibit I, Section 5
shall be as stated in Exhibit II, Section 2.
42
<PAGE>
EXHIBIT II
PRICES FOR BELL ATLANTIC SERVICES
1. BELL ATLANTIC RETAIL TELECOMMUNICATIONS SERVICES
1.1 PRICES
The prices for Bell Atlantic Retail Telecommunications Services
shall be the Retail Prices stated in Bell Atlantic's Tariffs for such Bell
Atlantic Retail Telecommunications Services, less: (a) the applicable discount
stated in Bell Atlantic's Tariffs for Bell Atlantic Retail Telecommunications
Services purchased for resale pursuant to 47 U.S.C. Section 251(c)(4); or, (b)
in the absence of an applicable Bell Atlantic Tariff discount for Bell Atlantic
Retail Telecommunications Services purchased for resale pursuant to 47 U.S.C.
Section 251(c)(4), the applicable discount stated in Exhibit II, Attachment 1.
1.2 INAPPLICABILITY OF DISCOUNTS
The discounts provided for in Exhibit II, Section 1.1, shall not be
applied to:
1.2.1 Retail Prices that are in effect for no more than ninety (90) days;
1.2.2 Charges for services and products provided by Bell Atlantic that are not
Bell Atlantic Retail Telecommunications Services, including, but not limited
to, Bell Atlantic Ancillary Services, and exchange access services as defined in
Section 3(16) of the Act, 47 U.S.C. Section 153(16);
1.2.3 Subscriber Line Charges, Federal Line Cost Charges, end user common line
charges, carrier selection and change charges, and Audiotex Service charges,
and to the extent applicable, the Presubscribed Interexchange Carrier Charge
applicable to Reseller Customers who have not presubscribed to an interexchange
carrier for long distance services; and,
1.2.4 Any service or charge which the Board, the FCC, or other governmental
entity of appropriate jurisdiction, determines is not subject to a wholesale
rate discount under 47 U.S.C. Section 251(c)(4).
1.3 DISCOUNT CHANGES
1.3.1 Bell Atlantic shall change the discounts provided for in Exhibit II,
Section 1.1, above, from time-to-time, to the extent such change is required by
Applicable Law, including, but not limited to, by regulation or order of the
Board, the FCC, or other governmental entity of appropriate jurisdiction.
43
<PAGE>
1.3.2 Bell Atlantic shall have the right to change the discounts provided for
in Exhibit II, Section 1.1, above, from time-to-time, to the extent such change
is required, approved or permitted by Applicable Law, including, but not limited
to, by regulation or order of the Board, the FCC, or other governmental entity
of appropriate jurisdiction.
1.4 Offers of Merchandise and Services which are not Bell Atlantic Retail
Telecommunications Services.
Reseller shall not be eligible to participate in any Bell Atlantic
plan or program under which Bell Atlantic end user retail Customers may obtain
products or merchandise, or services which are not Bell Atlantic Retail
Telecommunications Services, in return for trying, agreeing to purchase,
purchasing, or using, Bell Atlantic Retail Telecommunications Services.
2. BELL ATLANTIC ANCILLARY SERVICES
2.1 PRICES
2.1.1 The prices for Bell Atlantic Ancillary Services shall be as stated: (a) in
Bell Atlantic's Tariffs; or, (b) in the absence of an applicable Bell Atlantic
Tariff price, in Exhibit II, Attachment 1.
2.1.2 If Bell Atlantic at any time offers a Bell Atlantic Ancillary Service the
prices for which are not stated in Bell Atlantic's Tariffs or Exhibit II,
Attachment 1, Bell Atlantic shall have the right to revise Exhibit II,
Attachment 1, to add the prices to Exhibit II, Attachment 1.
2.2 PRICE CHANGES
2.2.1 Bell Atlantic shall change the prices for Bell Atlantic Ancillary
Services, from time-to-time, to the extent such change is required by Applicable
Law, including, but not limited to, by regulation or order of the Board, the
FCC, or other governmental entity of appropriate jurisdiction.
2.2.2 Bell Atlantic shall have the right to change the prices for Bell Atlantic
Ancillary Services, from time-to-time, to the extent such change is required,
approved or permitted by Applicable Law, including, but not limited to, by
regulation or order of the Board, the FCC, or other governmental entity of
appropriate jurisdiction.
2.2.3 Except as otherwise required by Applicable Law, Bell Atlantic shall give
Reseller thirty (30) days advance written notice of any increase in the prices
stated in Exhibit II, Attachment I for Bell Atlantic Ancillary Services.
44
<PAGE>
ATTACHMENT I
TO EXHIBIT II
BELL ATLANTIC - NEW JERSEY, INC.
DETAILED SCHEDULE OF ITEMIZED CHARGES(1)
1. WHOLESALE DISCOUNT FOR RESALE OF RETAIL TELECOMMUNICATIONS SERVICES
Resale of retail services if Reseller provides 20.03%
own operator services platform
Resale of retail services if Reseller uses Bell 17.04%
Atlantic operator services platform
- ----------
1 All rates and charges set forth in this Exhibit II, Attachment 1 are
subject to change from time-to-time as provided in this Agreement, including,
but not limited to, in Section 2.3 and Exhibit II of this Agreement. The rates
and charges, including interim rates, set forth in this Exhibit II, Attachment 1
shall apply until such time as they are replaced by new rates as may be approved
or allowed into effect by the Board from time to time, subject to a stay or
other order issued by any court of competent jurisdiction. At such time(s) as
such new rates have been approved or allowed into effect by the Board, the
Parties shall amend this Exhibit II, Attachment 1 to reflect the new approved
rates.
Except for citations to generally available services and rates offered
under Bell Atlantic's Tariffs, all services and rates listed in this Exhibit II,
Attachment 1 are available to Reseller only in connection with the purchase and
resale of Bell Atlantic Retail Telecommunications Services by Reseller under
this Agreement. Adherence to this limitation shall be subject to reasonable
audit by Bell Atlantic.
The rates set forth in Sections 11 through IV of this Exhibit II,
Attachment 1, are in addition to, and not in lieu of, any other rates set forth
in this Agreement.
In addition to charges for Bell Atlantic Services, Reseller shall pay,
or collect and remit, applicable taxes and surcharges (including, but not
limited to, E911/911, telecommunications relay service, and universal service
fund, surcharges), as required by Applicable Law and this Agreement.
<PAGE>
<TABLE>
<CAPTION>
SERVICE OR ELEMENT DESCRIPTION: RECURRING CHARGES: NON-RECURRING
CHARGE:
<S> <C> <C>
II. ACCESS TO OPERATION SUPPORT SYSTEMS
A. PRE-ORDERING $.26/Query Not Applicable
B. ORDERING $4.22/Transaction Not Applicable
C. PROVISIONING Included in Ordering Not Applicable
D. MAINTENANCE & REPAIR
1. ECG ACCESS $.26/Query Not Applicable
2. EB/OSI ACCESS $1.18/Trouble Ticket Not Applicable
E. BILLING
1. CD-ROM $249.57/CD-ROM Not Applicable
2. DAILY USAGE FILE
a. EXISTING MESSAGE RECORDING $.000262/Message Not Applicable
b. DELIVERY OF DUF
Data Tape $17.40/Tape $62.14/Programming
Hour
Network Data Mover $.000101/Message Not Applicable
CMDS $.000101/Message $62.14/Programming
Hour
c. DUF TRANSPORT
9.6 kb Communications Port $10.37/Month $7,660.42/Port
56 kb Communications Port $28.63/Month $31,727.40/Port
256 kb Communications Port $28.63/Month $52,773.67/Port
T1 Communications Port $363.65/Month $188,311.65/Port
Line Installation Not Applicable $62.14/Programming
Hour
Port Set-up Not Applicable $9.98/Port
Network Control Programming Not Applicable $62.14/Programming
Coding Hour
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
SERVICE OR ELEMENT DESCRIPTION: RECURRING CHARGES: NON-RECURRING
CHARGE:
<S> <C> <C>
111. DIRECTORY ASSISTANCE/OPERATOR SERVICES
ROUTING
To Reseller Platform $.31086/Line/Month $4.83/Line
To BA Platform for Re-Branding(2) .077715/Call $4.83/Line
IV. LIDB INTERCONNECTION/BILLING VALIDATION
SERVICE
Calling Card $.016280/Query Not Applicable
Billed Number Screening $.016280/Query Not Applicable
LIDB Point Codes(3) Not Applicable $86.88/Point Code
Storage of Requesting Resellers' Data in
LIDB Database(4) Not Applicable $1,487.64 Service
Establishment
</TABLE>
- ---------
INTERIM RATES UNTIL PERMANENT RATES ARE ESTABLISHED BY THE COMMISSION
SEE NOTE 2 ABOVE.
SEE NOTE 2 ABOVE.
<PAGE>
APPENDIX 1, ATTACHMENT 23
QUALIFIED BUSINESS LINES FOR VOLUME COMMITMENT
NEW JERSEY
<TABLE>
- ------------------------------------------------------------------------------
<S> <C> <C>
ACCESS LINES
- ------------------------------------------------------------------------------
Message Business Service 1MB ALS
- ------------------------------------------------------------------------------
Measured Business Service LMB ALM
- ------------------------------------------------------------------------------
Flat Rate 1FB AFK
- ------------------------------------------------------------------------------
Direct Inward Dial Trunks TDD NDT
- ------------------------------------------------------------------------------
Direct Inward Dial Blocks ND8 NDJ
- ------------------------------------------------------------------------------
PBX Trunks Flat TFB TFR
- ------------------------------------------------------------------------------
PBX Trunks Measured TMB TM2
- ------------------------------------------------------------------------------
PBX Digital trunks D7Z D7W
- ------------------------------------------------------------------------------
</TABLE>
CENTREX:**
- ------------------------------------------------------------------------------
**EXCLUDES:
1. Centrex systems priced under a special contract (ICB, FPO, LSO, Custom
Pricing)
2. Centrex systems which serve multiple end user customers
- ------------------------------------------------------------------------------
<TABLE>
CENTREX - CUSTOPAK/CLASS OF SERVICE
- ------------------------------------------------------------------------------
<S> <C>
Message CGC+X
- ------------------------------------------------------------------------------
CUSTOPAK LINES
- ------------------------------------------------------------------------------
Unrestricted R3G
- ------------------------------------------------------------------------------
Restricted R3K
- ------------------------------------------------------------------------------
Primary Off Prem RX3
- ------------------------------------------------------------------------------
CENTREX - CUSTOFLEX 2100/CLASS OF SERVICE
- ------------------------------------------------------------------------------
Message KGK+X
- ------------------------------------------------------------------------------
CUSTOFLEX 2100 LINES
- ------------------------------------------------------------------------------
Unrestricted R4N
- ------------------------------------------------------------------------------
Restricted RHK
- ------------------------------------------------------------------------------
Primary Off Prem RX3
- ------------------------------------------------------------------------------
ISDN - Unrestricted XQA
- ------------------------------------------------------------------------------
ISDN - Restricted XQK
</TABLE>
- ------------------------------------------------------------------------------
Page 1 of 1
<PAGE>
APPENDIX 1, ATTACHMENT 24
PRODUCT AND SERVICES ELIGIBLE FOR VTD DISCOUNT
NEW JERSEY
<TABLE>
- --------------------------------------------------------------------------------------------
<S> <C> <C>
ACCESS LINES
- --------------------------------------------------------------------------------------------
Message Business Service 1MB ALS
- --------------------------------------------------------------------------------------------
Measured Business Service LMB ALM
- --------------------------------------------------------------------------------------------
Flat Rate 1FB AFK
- --------------------------------------------------------------------------------------------
Direct Inward Dial Trunks TDD NDT
- --------------------------------------------------------------------------------------------
Direct Inward Dial Blocks ND8 NDJ
- --------------------------------------------------------------------------------------------
PBX Trunks Flat TFB TFR
- --------------------------------------------------------------------------------------------
PBX Trunks Measured TMB TM2
- --------------------------------------------------------------------------------------------
PBX Digital trunks D7Z D7W
- --------------------------------------------------------------------------------------------
</TABLE>
<TABLE>
INTRA-LATA TOLL
# MUST BE ASSOCIATED WITH A RESOLD VTD QUALIFIED BUSINESS LINE
- --------------------------------------------------------------------------------------------
<S> <C> <C>
Message Rate Service N/A
- --------------------------------------------------------------------------------------------
MTS, including Key Connections & Rewarding Connections VWDK1 WRV
------------------------------
Optional Calling Plan but excluding all other OCPs OVSXX OVS4X
- --------------------------------------------------------------------------------------------
</TABLE>
<TABLE>
FEATURES
# MUST BE ASSOCIATED WITH A RESOLD VTD QUALIFIED BUSINESS LINE
- --------------------------------------------------------------------------------------------
<S> <C> <C>
Touch Tone TTB TJB
- --------------------------------------------------------------------------------------------
</TABLE>
<TABLE>
IQ SERVICES:
# MUST BE ASSOCIATED WITH A RESOLD VTD QUALIFIED BUSINESS LINE
- --------------------------------------------------------------------------------------------
<S> <C>
Call Forwarding ESM
- --------------------------------------------------------------------------------------------
Call Waiting ESX
- --------------------------------------------------------------------------------------------
Call Waiting ID NWT
- --------------------------------------------------------------------------------------------
Speed Dialing 8 ESL
- --------------------------------------------------------------------------------------------
Speed Dialing 30 ESF
- --------------------------------------------------------------------------------------------
3 Way Calling (per Use or Monthly) ESC
- --------------------------------------------------------------------------------------------
*69 (per Use or Monthly) NSS
- --------------------------------------------------------------------------------------------
Call Trace (Per Use Charge)
- --------------------------------------------------------------------------------------------
Caller ID NSD
- --------------------------------------------------------------------------------------------
Caller ID with Name NDF
- --------------------------------------------------------------------------------------------
Per Call Blocking (Per Use Charge)
- --------------------------------------------------------------------------------------------
Repeat Dialing NSQ
- --------------------------------------------------------------------------------------------
Ultra Forward FRM
- --------------------------------------------------------------------------------------------
Distinctive Ring DRQ+X
- --------------------------------------------------------------------------------------------
Priority Call NSK
- --------------------------------------------------------------------------------------------
Select Forward NCE
- --------------------------------------------------------------------------------------------
Call Block NSY
- --------------------------------------------------------------------------------------------
Call Gate OC4
- --------------------------------------------------------------------------------------------
Anonymous Call Rejection - w/Caller ID AWY
- --------------------------------------------------------------------------------------------
</TABLE>
Page 1 of 1
<PAGE>
RESALE AGREEMENT
(Virginia)
PREFACE
THIS RESALE AGREEMENT (this "Agreement") is made effective as of August
6, 1999 (the "Effective Date") by and between Essential.Com, Inc. "Reseller"), a
Delaware corporation, with offices at Three Burlington Woods Drive, Burlington,
MA 01803, and Bell Atlantic - Virginia, Inc. ("Bell Atlantic"), a Virginia
corporation, with offices at 600 East Main Street, 24th Floor, Richmond,
Virginia 23261.
WHEREAS, pursuant to Section 251(c)(4) of the Act, 47 U.S.C. Section
251(c)(4), Reseller wishes to purchase Bell Atlantic Retail Telecommunications
Services from Bell Atlantic for resale by Reseller as a Telecommunications
Carrier providing Telecommunications Services in the Commonwealth of Virginia;
and
WHEREAS, Bell Atlantic is willing to provide such Bell Atlantic Retail
Telecommunications Services in accordance with this Agreement.
NOW THEREFORE, in consideration of the mutual promises set forth in this
Agreement, Reseller and Bell Atlantic, each on behalf of itself and its
respective successors and assigns, agree as follows:
1. DEFINITIONS
1.1 As used in the Principal Document, the terms listed below shall
have the meanings stated below:
1.1.1 "Act" means the Communications Act of 1934, 47 U.S.C. Section
151, ET SEQ., as amended from time-to-time.
1.1.2 "Agent" means agent or servant.
1.1.3 "Applicable Law" means all applicable laws and government
regulations and orders.
1.1.4 "Bell Atlantic Ancillary Service" means any service offered by
Bell Atlantic to Reseller in Exhibit I.
1.1.5 "Bell Atlantic Retail Telecommunications Service" means any
Telecommunications Service that Bell Atlantic provides at retail to
subscribers who are not Telecommunications Carriers. The term "Bell
Atlantic Retail Telecommunications
1
<PAGE>
Service does not include any exchange access service (as defined in
Section 3(16) of the Act, 47 U.S.C. Section 153(16)) provided by Bell
Atlantic.
1.1.6 "Bell Atlantic Service" means and includes any Bell Atlantic
Retail Telecommunications Service and any Bell Atlantic Ancillary
Service.
1.1.7 "Bell Atlantic's Affiliates" means any corporations,
partnerships or other persons who control, are controlled by, or are
under common control with, Bell Atlantic.
1.1.8 "Bell Atlantic's Tariffs" and "Bell Atlantic Tariff" mean and
include:
(a) Bell Atlantic's effective Federal and state tariffs, as
amended by Bell Atlantic from time-to-time; and,
(b) to the extent Bell Atlantic Services are not subject to Bell
Atlantic tariffs, any standard agreements and other documents, as amended
by Bell Atlantic from time-to-time, that set forth the generally
available terms, conditions and prices under which Bell Atlantic offers
such Bell Atlantic Services.
The terms "Bell Atlantic's Tariffs" and "Bell Atlantic Tariff"
do not include Bell Atlantic's "Statement of Generally Available Terms
and Conditions for Interconnection, Unbundled Network Elements, Ancillary
Services and Resale of Telecommunications Services" which has been
approved by the Commission pursuant to Section 252(f) of the Act, 47
U.S.C. Section 252(f).
1.1.9 "Commission" means the Virginia State Corporation Commission.
1.1.10 "Contract Period", as used in Section 1.1.25 and Section 6.2,
means a stated period or minimum period of time for which Reseller
is required by this Agreement to subscribe to, use and/or pay for
a Bell Atlantic Service.
1.1.11 "Customer" means and includes customers, subscribers and
patrons, of a Party, purchasers and users of Telecommunications Services
(including, but not limited to, resold Bell Atlantic Retail
Telecommunications Services) provided by a Party, and purchasers and
users of other services and products provided by a Party. The term
"Customer" does not include a Party.
1.1.12 "Bell Atlantic Customer" means a Customer of Bell Atlantic.
1.1.13 "Customer Information" means CPNI of a Customer and any other
nonpublic, individually identifiable information about a Customer or the
purchase by a Customer of the services or products of a Party.
2
<PAGE>
1.1.14 "Customer Proprietary Network Information" ("CPNI") means
"Customer Proprietary Network Information" as defined in Section 222 of
the Act, 47 U.S.C. Section 222.
1.1.15 "Effective Date" means the date first above written.
1.1.16 "Jurisdiction" means the Commonwealth of Virginia.
1.1.17 "Operator Services" means: (a) services accessed by dialing 411,
555-1212, 1-555-1212, 0+ local, 0+ intraLATA, and, 0-; and, (b) any other
automated or live operator or directory assistance service.
1.1.18 "Order" means an order or application.
1.1.19 "Principal Document" means this document, including the Preface,
Sections 1 through 39, the signature page, Exhibit I, Exhibit II, and
Exhibit II, Attachment 1.
1.1.20 "Reseller Customer" means a Customer of Reseller.
1.1.21 "Retail Prices" means the prices at which Bell Atlantic Retail
Telecommunications Services are provided by Bell Atlantic at retail to
subscribers who are not Telecommunications Carriers.
1.1.22 "Telecommunications Carrier" means "Telecommunications Carrier"
as defined in Section 3(44) of the Act, 47 U.S.C. Section 153(44).
1.1.23 "Telecommunications Service" means "Telecommunications Service"
as defined in Section 3(46) of the Act, 47 U.S.C. Section 153(46).
1.1.24 "Telephone Exchange Service" means "Telephone Exchange Service"
as defined in Section 3(47) of the Act, 47 U.S.C. Section 153(47).
1.1.25 "Termination Date Bell Atlantic Service" means: (a) any Bell
Atlantic Service being provided by Bell Atlantic under this Agreement at
the time of termination of this Agreement, that at the time of
termination of this Agreement is subject to a Contract Period which is
greater than one (1) month; and, (b) any Bell Atlantic Service requested
by Reseller under this Agreement in an Order accepted by Bell Atlantic
prior to termination of this Agreement but not yet being provided by Bell
Atlantic at the time of termination of this Agreement, that is subject to
an initial Contract Period which is greater than one (1) month.
1.2 Unless the context clearly indicates otherwise, any defined term
which is deemed or used in the singular shall include the plural, and any
defined term which is defined or used in the plural shall include the
singular.
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2. THE AGREEMENT
2.1 This Agreement includes: (a) the Principal Document; (b) Bell
Atlantic's Tariffs (which Bell Atlantic Tariffs are incorporated into
this Agreement by reference and made a part hereof); and, (c) a Reseller
Order to provide, change or terminate a Bell Atlantic Service, which has
been accepted by Bell Atlantic (including, but not limited to, any Order
which includes a commitment to purchase a stated number or minimum number
of lines or other Bell Atlantic Services, or a commitment to purchase
lines or other Bell Atlantic Services for a stated period or minimum
period of time).
2.2 Conflicts among terms in the Principal Document, Bell Atlantic's
Tariffs, and a Reseller Order which has been accepted by Bell Atlantic,
shall be resolved in accordance with the following order of precedence,
where the document identified in subsection "(a)" shall have the highest
precedence: (a) the Principal Document; (b) Bell Atlantic's Tariffs; and,
(c) a Reseller Order which has been accepted by Bell Atlantic. The fact
that a term appears in the Principal Document but not in a Bell Atlantic
Tariff, or in a Bell Atlantic Tariff but not in the Principal Document,
shall not be interpreted as, or deemed grounds for finding, a conflict
for the purposes of this Section 2.2.
2.3 This Agreement (including the Principal Document, Bell
Atlantic's Tariffs, and Reseller Orders which have been accepted by Bell
Atlantic), constitutes the entire agreement between the Parties on the
subject matter hereof, and supersedes any prior or contemporaneous
agreement, understanding, or representation on the subject matter hereof.
Except as otherwise provided in the Principal Document, the terms in the
Principal Document may not be waived or modified except by a written
document which is signed by the Parties. Subject to the requirements of
Applicable Law, Bell Atlantic shall have the right to add, modify, or
withdraw, a Bell Atlantic Tariff at any time, without the consent of, or
notice to, Reseller.
2.4 A failure or delay of either Party to enforce any of the
provisions of this Agreement, or any right or remedy available under this
Agreement or at law or in equity, or to require performance of any of the
provisions of this Agreement, or to exercise any option provided under
this Agreement, shall in no way be construed to be a waiver of such
provisions, rights, remedies, or options.
3. BELL ATLANTIC SERVICES
3.1 During the term of this Agreement, Reseller, pursuant to
Section 251(c)(4) of the Act, 47 U.S.C. Section 251(c)(4), may submit
Orders to Bell Atlantic requesting Bell Atlantic to provide Bell
Atlantic Retail Telecommunications Services for resale by Reseller as
a Telecommunications Carrier providing Telecommunications Services.
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3.2 During the term of this Agreement, Reseller may submit Orders to
Bell Atlantic requesting Bell Atlantic to provide Bell Atlantic Ancillary
Services for use by Reseller as a Telecommunications Carrier providing
Telecommunications Services.
3.3 Bell Atlantic may require that Reseller's Orders requesting Bell
Atlantic to provide Bell Atlantic Services be in writing on forms
specified by Bell Atlantic or in an electronic form specified by Bell
Atlantic.
3.4 Upon receipt and acceptance by Bell Atlantic of a Reseller Order
requesting Bell Atlantic to provide a Bell Atlantic Service, Bell
Atlantic shall provide, and Reseller shall subscribe to, use and pay for,
the Bell Atlantic Service, in accordance with this Agreement.
3.5 Bell Atlantic Retail Telecommunications Services may be purchased
by Reseller under this Agreement only for the purpose of resale by
Reseller as a Telecommunications Carrier providing Telecommunications
Services, pursuant to Section 251(c)(4) of the Act, 47 U.S.C. Section
251(c)(4). Bell Atlantic Retail Telecommunications Services to be
purchased by Reseller for other purposes (including, but not limited to,
Reseller's own use) must be purchased by Reseller pursuant to separate
written agreements, including, but not limited to, applicable Bell
Atlantic Tariffs. Reseller warrants and agrees that Reseller will
purchase Bell Atlantic Retail Telecommunications Services from Bell
Atlantic under this Agreement only for the purpose of resale by Reseller
as a Telecommunications Carrier providing Telecommunications Services,
pursuant to Section 251(c)(4) of the Act, 47 U.S.C. Section 251(c)(4).
3.6 Bell Atlantic Ancillary Services may be purchased by Reseller
under this Agreement only for use by Reseller as a Telecommunications
Carrier providing Telecommunications Services. Bell Atlantic Ancillary
Services to be purchased by Reseller for other purposes must be
purchased by Reseller pursuant to separate written agreements,
including, but not limited to, applicable Bell Atlantic Tariffs.
Reseller warrants and agrees that Reseller will purchase Bell Atlantic
Ancillary Services from Bell Atlantic under this Agreement only for
use by Reseller as a Telecommunications Carrier providing
Telecommunications Services.
3.7 Subject to the requirements of Applicable Law, Bell Atlantic
shall have the right to add, modify, grandfather, discontinue or
terminate Bell Atlantic Services at any time, without the consent of
Reseller.
4. PRICES
4.1 Reseller shall pay Bell Atlantic for Bell Atlantic Services at
the prices stated in this Agreement, including, but not limited to, in
Exhibit II, Attachment 1.
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4.2 If, prior to establishment of a Bell Atlantic Service, Reseller
cancels or changes its Order for the Bell Atlantic Service, Reseller
shall reimburse Bell Atlantic for the costs associated with such
cancellation or changes as required by this Agreement (including, but not
limited to, Bell Atlantic's Tariffs).
4.3 Upon request by Bell Atlantic, Reseller shall provide to Bell
Atlantic adequate assurance of payment of charges due to Bell Atlantic.
Assurance of payment of charges may be requested by Bell Atlantic: (a) if
Reseller, in Bell Atlantic's reasonable judgment, at the Effective Date
or at any time thereafter, is unable to show itself to be creditworthy;
(b) if Reseller, in Bell Atlantic's reasonable judgment, at the Effective
Date or at any time thereafter, is not creditworthy; or, (c) if Reseller
fails to timely pay a bill rendered to Reseller by Bell Atlantic. Unless
otherwise agreed by the Parties, the assurance of payment shall be in the
form of a cash deposit and shall be in an amount equal to the charges for
Bell Atlantic Services that Reseller may reasonably be expected to incur
during a period of two (2) months. Bell Atlantic may at any time use the
deposit or other assurance of payment to pay amounts due from Reseller.
5. BILLING AND PAYMENT
5.1 Except as otherwise permitted or required by this Agreement, or
agreed in writing by the Parties, Bell Atlantic shall render bills to
Reseller monthly. Except as otherwise agreed in writing by the Parties,
Bell Atlantic will render bills to Reseller in a paper form.
5.2 Reseller shall pay Bell Atlantic's bills in immediately
available U.S. funds. Except as otherwise agreed in writing by the
Parties, payments shall be transmitted by electronic funds transfer.
5.3 Payment of charges shall be due by the due date stated on Bell
Atlantic's bills. Except as otherwise required by Bell Atlantic's Tariffs
or agreed in writing by the Parties, the due date shall not be sooner
than twenty (20) days after the date the bill is received by Reseller.
5.4 Charges which are not paid by the due date stated on Bell
Atlantic's bill shall be subject to a late payment charge. The late
payment charge shall be in an amount specified by Bell Atlantic, which
shall not exceed a rate of one-and-one-half percent (1.5%) of the
over-due amount (including any unpaid, previously billed late payment
charges) per month.
5.5 Reseller acknowledges and agrees that:
5.5.1 During the term of this Agreement, Bell Atlantic will be engaged
in developing and deploying new or modified forms of bills for
Telecommunications Carriers who are engaged in the resale of Bell
Atlantic Retail Telecommunications
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Services and new or modified systems and methods for computing and
rendering such bills.
5.5.2 Prior to the completion of deployment of such new or modified
forms of bills and such new or modified systems and methods for computing
and rendering bills, Bell Atlantic's form of bill and systems and methods
for computing and rendering bills may be subject to limitations and
restrictions, including, but not limited to, the limitations stated in
Section 5.5.3, below, the inability to provide Reseller with a single,
consolidated bill for all Bell Atlantic Services purchased by Reseller,
and the unavailability of bills and billing information in an electronic
form (e.g., bills may be rendered in a paper form).
5.5.3 Prior to the completion of deployment of the new or modified
forms of bills and the new or modified systems and methods for computing
and rendering bills, Bell Atlantic may apply the discount identified in
Exhibit II, Section 1.1, in a manner (including, but not limited to, in a
"bottom-of-the-bill" format) that results in the Exhibit II, Section 1.1
discount being applied to charges stated in the bill (including, but not
limited to, Subscriber Line Charges, Federal Line Cost Charges, end user
common line charges, carrier selection and change charges, Audiotex
Service charges, and charges for services which are not Bell Atlantic
Retail Telecommunications Services) which are not subject to the Exhibit
II, Section 1.1 discount. Bell Atlantic will implement a "true-up"
process and within six (6) months after the due date of each monthly
bill, issue to Reseller a "true-up" bill for amounts which were not
collected from Reseller under the monthly bill because of the application
of the Exhibit II, Section 1.1 discount to charges which are not subject
to the Exhibit II, Section 1.1 discount. The "true-up" bill may be
issued as a part of or an entry on a monthly bill, as a bill separate
from a monthly bill, or in such other form as Bell Atlantic may
determine.
5.6 Although it is the intent of Bell Atlantic to submit timely and
accurate bills, failure by Bell Atlantic to present bills (including, but
not limited to, monthly bills and "true-up" bills) to Reseller in a
timely or accurate manner shall not constitute a breach or default of
this Agreement, or a waiver of a right of payment of the incurred
charges, by Bell Atlantic. Reseller shall not be entitled to dispute
charges for Bell Atlantic Services provided by Bell Atlantic based on
Bell Atlantic's failure to submit a bill for the charges in a timely
fashion.
6. TERM
6.1 The term of this Agreement shall commence on the Effective Date,
and, except as otherwise provided in this Agreement, shall remain in
effect through August 5, 2000 (the "Initial Term Ending Date"). After the
Initial Term Ending Date, this Agreement shall continue in force and
effect unless and until terminated as provided in this Agreement.
Following the Initial Term Ending Date, either Party may terminate this
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Agreement by providing written notice of termination to the other Party,
such written notice to be provided at least ninety (90) days in advance
of the date of termination.
6.2 Following termination of this Agreement pursuant to Section 6.1,
this Agreement, as amended from time to time, shall remain in effect as
to any Termination Date Bell Atlantic Service for the remainder of the
Contract Period applicable to such Termination Date Bell Atlantic Service
at the time of the termination of this Agreement. If a Termination Date
Bell Atlantic Service is terminated prior to the expiration of the
Contract Period applicable to such Termination Date Bell Atlantic
Service, Reseller shall pay any termination charge provided for in this
Agreement.
7. SERVICE INSTALLATION AND MAINTENANCE
Reseller shall comply with Bell Atlantic's processes and
procedures (including, but not limited to, requirements by Bell Atlantic
that Reseller use Bell Atlantic OSS Services) for the communication to
Bell Atlantic of (a) Reseller's Orders to provide, change or terminate,
Bell Atlantic Services, and (b) Reseller's requests for information
about, assistance in using, or repair or maintenance of, Bell Atlantic
Services. Bell Atlantic may, from time-to-time, upon notice to Reseller,
change these processes and procedures.
8. ASSIGNMENT
8.1 Reseller shall not assign this Agreement or any right or
interest under Us Agreement, nor delegate any obligation under this
Agreement, without the prior written approval of Bell Atlantic, which
approval shall not be unreasonably withheld, conditioned or delayed. Any
attempted assignment or delegation in contravention of the foregoing
shall be void and ineffective.
8.2 Bell Atlantic may, without the consent of Reseller, assign this
Agreement or any right or interest under this Agreement, and/or delegate
any obligation under this Agreement, to any of Bell Atlantic's
Affiliates, or to a person with which Bell Atlantic merges or which
acquires substantially all of Bell Atlantic's assets.
9. AVAILABILITY OF SERVICE
9.1 Subject to the requirements of Applicable Law, Bell Atlantic
shall be obligated to provide Bell Atlantic Services to Reseller under
this Agreement only where Bell Atlantic is able, without unreasonable
expense (as determined by Bell Atlantic in its reasonable judgment), (a)
to obtain, retain, install and maintain suitable facilities for the
provision of such Bell Atlantic Services, and (b) to obtain, retain and
maintain suitable rights for the provision of such Bell Atlantic
Services.
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9.2 Bell Atlantic's obligation to provide a Bell Atlantic Retail
Telecommunications Service to Reseller under this Agreement shall be
limited to providing the Bell Atlantic Retail Telecommunications Service
to Reseller where, and to the same extent, that Bell Atlantic provides
such Bell Atlantic Retail Telecommunications Service to Bell Atlantic's
own end user retail Customers.
10. BRANDING
10.1 Except as stated in Section 10.2, in providing Bell Atlantic
Services to Reseller, Bell Atlantic shall have the right, but not the
obligation, to identify the Bell Atlantic Services with Bell Atlantic's
trade names, trademarks and service marks. Any such identification of the
Bell Atlantic Services shall not constitute the grant of a license or
other right to Reseller to use Bell Atlantic's trade names, trade marks
or service marks.
10.2 To the extent required by Applicable Law, upon request by
Reseller and at prices, terms and conditions to be negotiated by Reseller
and Bell Atlantic, Bell Atlantic shall provide Bell Atlantic Retail
Telecommunications Services that are identified by Reseller's trade name,
or that are not identified by trade name, trademark or service mark.
11. CHOICE OF LAW
11.1 The construction, interpretation and performance of this
Agreement shall be governed by the laws of the United States of America
and the laws of Jurisdiction (without regard to Jurisdiction's conflicts
of laws rules). All disputes relating to this Agreement shall be resolved
through the application of such laws.
11.2 Reseller agrees to submit to the jurisdiction of any court,
commission or other governmental entity in which a claim, suit or
proceeding which arises out of or in connection with this Agreement or
Bell Atlantic Services provided under this Agreement and in which Bell
Atlantic is a party, is brought.
12. COMPLIANCE WITH APPLICABLE LAW
12.1 Each Party shall in its performance of this Agreement comply
with Applicable Law, including, but not limited to, all applicable
regulations and orders of the Commission and the Federal Communications
Commission (hereinafter the "FCC").
12.2 Reseller shall in providing Bell Atlantic Retail
Telecommunications Services to Reseller Customers comply with Applicable
Law, including, but not limited to, all applicable regulations and orders
of the Commission and the FCC.
13. CONFIDENTIAL INFORMATION
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13.1 For the purposes of this Section 13, "Confidential Information"
means the following information disclosed by one Party ("Discloser") to
the other Party ("Recipient") in connection with this Agreement:
(a) Customer Information related to a Reseller Customer which
is disclosed by Reseller to Bell Atlantic (except to the extent that (i)
the Customer Information is subject to publication in a directory, (ii)
the Customer Information is subject to disclosure through an Operator
Service or other Telecommunications Service, or in the course of
furnishing Telecommunications Services, or (iii) the Reseller Customer to
whom the Customer Information is related, in the manner required by
Applicable Law, has given Bell Atlantic permission to use and/or disclose
the Customer Information);
(b) Customer Information related to a Bell Atlantic Customer
which is disclosed by Bell Atlantic to Reseller (except to the extent
that the Bell Atlantic Customer to whom the Customer Information is
related, in the manner required by Applicable Law, has given Reseller
permission to use and/or disclose the Customer Information);
(c) Information related to specific Bell Atlantic facilities
and equipment (including, but not limited to, cable-and-pair information)
which is disclosed by Bell Atlantic to Reseller; and
(d) Any other information which is identified by the
Discloser as Confidential Information in accordance with Section 13.2.
13.2 All information which is to be treated as Confidential
Information under Section 13.1(d) shall:
(a) if in written, graphic, electromagnetic, or other
tangible form, be marked as "Confidential" or "Proprietary"; and
(b) if oral, (i) be identified by the Discloser at the time
of disclosure to be "Confidential" or "Proprietary", and (ii) be set
forth in a written summary which identifies the information as
"Confidential" or "Proprietary" and is delivered by the Discloser to the
Recipient within ten (10) days after the oral disclosure.
Each Party shall have the right to correct an inadvertent
failure to identify information as Confidential Information pursuant to
Section 13.1(d) by giving written notification within thirty (30) days
after the information is disclosed. The Recipient shall, from that time
forward, treat such information as Confidential Information.
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Notwithstanding any other provision of this Agreement, a Party
shall have the right to refuse to accept receipt of information which the
other Party has identified as Confidential Information pursuant to
Section 13.1(d).
13.3 In addition to any requirements imposed by law, including,
but not limited to, 47 U.S.C. Section 222, for a period of five years
from the receipt of Confidential Information from the Discloser,
except as otherwise specified in this Agreement, the Recipient agrees:
(a) to use the Confidential Information only for the purpose
of performing under this Agreement;
(b) using the same degree of care that it uses with similar
confidential information of its own, to hold the Confidential Information
in confidence and restrict disclosure of the Confidential Information
solely to the Recipient's Affiliates, and the directors, officers and
employees of the Recipient and the Recipient's Affiliates, having a need
to know the Confidential Information for the purpose of performing under
this Agreement. The Recipient's Affiliates and the directors, officers
and employees of the Recipient and the Recipient's Affiliates, shall
be required by the Recipient to comply with the provisions of this
Section 13 in the same manner as the Recipient. The Recipient shall be
liable for any failure of the Recipient's Affiliates and the
directors, officers and employees of the Recipient and the Recipient's
Affiliates, to comply with the provisions of this Section 13.
13.4 If the Recipient wishes to disclose the Discloser's Confidential
Information to a third party Agent or contractor, such disclosure must be
mutually agreed to in writing by the Parties to this Agreement, and the
Agent or contractor must have executed a written agreement of
non-disclosure and non-use comparable in scope to the terms of this
Section 13.
13.5 The Recipient may make copies of Confidential Information only
as reasonably necessary to perform its obligations under this Agreement.
All such copies shall bear the same copyright and proprietary rights
notices as are contained on the original.
13.6 The Recipient shall return or destroy all Confidential
Information received from the Discloser, including any copies made by the
Recipient, within thirty (30) days after a written request by the
Discloser is delivered to the Recipient, except for (a) Confidential
Information that the Recipient reasonably requires to perform its
obligations under this Agreement, and (b) Customer Information related to
a Reseller Customer that is to be treated by Bell Atlantic as
Confidential Information pursuant to Section 13.1(a). If the Recipient
loses or makes an unauthorized disclosure of the Discloser's Confidential
Information, it shall notify the Discloser immediately and use reasonable
efforts to retrieve the lost or improperly disclosed information.
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13.7 The requirements of this Section 13 shall not apply to
Confidential Information:
(a) which was in the possession of the Recipient free of
restriction prior to its receipt from the Discloser;
(b) after it becomes publicly known or available through no
breach of this Agreement by the Recipient, the Recipient's Affiliates, or
the directors, officers, employees, Agents, or contractors, of the
Recipient or the Recipient's Affiliates;
(c) after it is rightfully acquired by the Recipient free of
restrictions on its disclosure;
(d) after it is independently developed by the Recipient; or
(e) to the extent the disclosure is required by Applicable
Law, a court, or governmental agency; provided, the Discloser has been
notified of the required disclosure promptly after the Recipient becomes
aware of the required disclosure, the Recipient undertakes reasonable
lawful measures to avoid disclosing the Confidential Information until
the Discloser has had reasonable time to seek a protective order, and the
Recipient complies with any protective order that covers the Confidential
Information to be disclosed.
13.8 Each Party's obligations to safeguard Confidential Information
disclosed prior to expiration, cancellation or termination of this
Agreement shall survive such expiration, cancellation or termination.
13.9 Confidential Information shall remain the property of the
Discloser, and the Discloser shall retain all of the Discloser's right,
title and interest in any Confidential Information disclosed by the
Discloser to the Recipient. Except as otherwise expressly provided
elsewhere in this Agreement, no license is granted by this Agreement
with respect to any Confidential Information (including, but not limited
to, under any patent, trademark, or copyright), nor is any such license
to be implied, solely by virtue of the disclosure of any Confidential
Information.
13.10 Each Party agrees that the Discloser would be irreparably
injured by a breach of this Section 13 by the Recipient, the Recipient's
Affiliates, or the directors, officers, employees, Agents or contractors
of the Recipient or the Recipient's Affiliates, and that the Discloser
shall be entitled to seek equitable relief, including injunctive relief
and specific performance, in the event of any breach of the provisions of
this Section 13. Such remedies shall not be deemed to be the exclusive
remedies for a breach of this Section 13, but shall be in addition to any
other remedies available under this Agreement or at law or in equity.
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13.11 The provisions of this Section 13 shall be in addition to and
not in derogation of any provisions of Applicable Law, including, but not
limited to, 47 U.S.C. Section 222, and are not intended to constitute a
waiver by a Party of any right with regard to protection of the
confidentiality of information of the Party or its Customers provided by
Applicable Law. In the event of a conflict between a provision of this
Section 13 and a provision of Applicable Law, the provision of Applicable
Law shall prevail.
14. CONTINGENCIES
Neither Party shall be liable for any delay or failure in
performance by it which results from strikes, labor slowdowns, or other
labor disputes, fires, explosions, floods, earthquakes, volcanic action,
delays in obtaining or inability to obtain necessary services,
facilities, equipment, parts or repairs thereof, power failures,
embargoes, boycotts, unusually severe weather conditions, revolution,
riots or other civil disturbances, war or acts of the public enemy, acts
of God, or causes beyond the Party's reasonable control.
15. COUNTERPARTS
This Agreement may be executed in two or more counterparts, each
of which shall be deemed an original and all of which shall together
constitute one and the same instrument.
16. CUSTOMER INFORMATION
16.1 Without in any way limiting Section 12, each Party shall comply
with Applicable Law with regard to Customer Information, including, but
not limited to, 47 U.S.C. Section 222 and the FCC rules in 47 CFR Section
64.2001 - Section 64.2009.
16.2 A Party ("Accessing Party") shall not access (including, but not
limited to, in the case of Reseller, through Bell Atlantic OSS Services),
use or disclose Customer Information made available to the Accessing
Party by the other Party pursuant to this Agreement unless the Accessing
Party, in the manner required by Applicable Law, has obtained any
Customer authorization for such access, use and/or disclosure required by
Applicable Law. By accessing, using or disclosing Customer Information
made available to the Accessing Party by the other Party pursuant to this
Agreement, the Accessing Party represents and warrants that the Accessing
Party has obtained, in the manner required by Applicable Law, any
Customer authorization for such action required by Applicable Law. The
Accessing Party shall upon request by the other Party provide proof of
such authorization (including, a copy of any written authorization).
16.3 Bell Atlantic shall have the right (but not the obligation) to
audit Reseller to ascertain whether Reseller is complying with the
requirements of Applicable Law and
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this Agreement, with regard to Reseller's access to, and use and
disclosure of, Customer Information which is made available to Reseller
by Bell Atlantic pursuant to this Agreement.
16.4 In addition to Bell Atlantic's audit rights under Section 16.3,
Bell Atlantic shall have the right (but not the obligation) to monitor
Reseller's access to and use of Customer Information which is made
available by Bell Atlantic to Reseller pursuant to this Agreement, to
ascertain whether Reseller is complying with the requirements of
Applicable Law and this Agreement, with regard to Reseller's access to,
and use and disclosure of, such Customer Information. The foregoing right
shall include, but not be limited to, the right (but not the obligation)
to electronically monitor Reseller's access to and use of Customer
Information which is made available by Bell Atlantic to Reseller pursuant
to this Agreement through Bell Atlantic OSS Facilities or other
electronic interfaces or gateways.
16.5 Information obtained by Bell Atlantic pursuant to Section 16.3
or Section 16.4 shall be treated by Bell Atlantic as Confidential
Information of Reseller pursuant to Section 13; provided that, Bell
Atlantic shall have the right (but not the obligation) to use and
disclose information obtained by Bell Atlantic pursuant to this Section
16 to enforce Applicable Law and/or Bell Atlantic's rights under this
Agreement.
17. DEFAULT
17.1 If Reseller materially breaches a material provision of this
Agreement (other than an obligation to make payment of any amount billed
under this Agreement), and such breach continues for more than thirty
(30) days after written notice thereof from Bell Atlantic, then, except
as otherwise required by Applicable Law, Bell Atlantic shall have the
right, upon notice to Reseller, to terminate or suspend this Agreement
and/or provision of Bell Atlantic Services, in whole or in part.
17.2.1 If Reseller fails to make a payment of any amount billed under
this Agreement by the due date stated on the bill and such failure
continues for more than thirty (30) days after written notice thereof
from Bell Atlantic, then, except as provided in Section 17.2.2, below, or
as otherwise required by Applicable Law, Bell Atlantic shall have the
right, upon notice to Reseller, to terminate or suspend this Agreement
and/or provision of Bell Atlantic Services, in whole or in part.
17.2.2 If a good faith dispute arises between the Parties concerning
the obligation of Reseller to make payment of an amount billed under this
Agreement, the failure to pay the amount in dispute shall not constitute
cause for termination or suspension of this Agreement or provision of
Bell Atlantic Services, if, within thirty (30) days of the date that Bell
Atlantic gives Reseller written notice of the failure to pay the amount
in dispute, Reseller (a) gives Bell Atlantic written notice of the
dispute stating the basis of the dispute, and (b) furnishes to Bell
Atlantic an irrevocable letter of credit in a form
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acceptable to Bell Atlantic or other security arrangement acceptable to
Bell Atlantic, guaranteeing payment to Bell Atlantic of any portion of
the disputed amount (including the whole of the disputed amount) which is
thereafter agreed by Bell Atlantic and Reseller, or determined by a court
or other governmental entity of appropriate jurisdiction, to be due to
Bell Atlantic. The existence of such a dispute shall not relieve Reseller
of its obligations to pay any undisputed amount which is due to Bell
Atlantic and to otherwise comply with this Agreement.
18. FACILITIES
18.1 Bell Atlantic or its suppliers shall retain all right, title and
interest in, and ownership of, all facilities, equipment, software,
information, and wiring, used to provide Bell Atlantic Services. Bell
Atlantic shall have access at all reasonable times to Reseller and
Reseller Customer locations for the purpose of installing, inspecting,
maintaining, repairing, and removing, facilities, equipment, software,
and wiring, used to provide the Bell Atlantic Services. Reseller shall,
at Reseller's expense, obtain any rights and authorizations necessary for
such access.
18.2 Except as otherwise agreed to in writing by Bell Atlantic, Bell
Atlantic shall not be responsible for the installation, inspection,
repair, maintenance, or removal, of facilities, equipment, software, or
wiring, provided by Reseller or Reseller Customers for use with Bell
Atlantic Services.
19. INTELLECTUAL PROPERTY
Except as expressly stated in this Agreement, nothing contained
within this Agreement shall be construed as the grant of a license,
either express or implied, with respect to any patent, copyright, trade
name, trade mark, service mark, trade secret, or other proprietary
interest or intellectual property, now or hereafter owned, controlled or
licensable by either Party.
20. JOINT WORK PRODUCT
The Principal Document is the joint work product of the
representatives of the Parties. For convenience, the Principal Document
has been drafted in final form by Bell Atlantic. Accordingly, in the
event of ambiguities, no inferences shall be drawn against either Party
solely on the basis of authorship of the Principal Document.
21. LIABILITY
21.1.1 AS USED IN THIS SECTION 21, "OTHER BELL ATLANTIC PERSONS" MEANS
BELL ATLANTIC'S AFFILIATES, AND THE DIRECTORS, OFFICERS, EMPLOYEES,
AGENTS AND CONTRACTORS, OF BELL ATLANTIC AND BELL ATLANTIC'S AFFILIATES.
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21.1.2 AS USED IN THIS SECTION 21, "BELL ATLANTIC SERVICE FAILURE"
MEANS AND INCLUDES ANY FAILURE TO INSTALL, RESTORE, PROVIDE OR TERMINATE
A BELL ATLANTIC SERVICE, AND ANY MISTAKE, OMISSION, INTERRUPTION, DELAY,
ERROR, DEFECT, FAULT, FAILURE, OR DEFICIENCY, IN A BELL ATLANTIC SERVICE.
21.2 THE LIABILITY, IF ANY, OF BELL ATLANTIC AND OTHER BELL ATLANTIC
PERSONS, TO RESELLER, RESELLER CUSTOMERS AND/OR ANY OTHER PERSON, FOR ANY
CLAIM, LOSS OR DAMAGES ARISING OUT OF OR IN CONNECTION WITH A BELL
ATLANTIC SERVICE FAILURE, SHALL BE LIMITED AND/OR EXCLUDED AS SET FORTH
IN BELL ATLANTIC'S TARIFFS.
21.3.1 TO THE EXTENT THE BELL ATLANTIC TARIFFS APPLICABLE TO A BELL
ATLANTIC SERVICE DO NOT CONTAIN A PROVISION WHICH LIMITS OR EXCLUDES THE
LIABILITY OF BELL ATLANTIC AND/OR OTHER BELL ATLANTIC PERSONS TO
RESELLER, RESELLER CUSTOMERS AND/OR ANY OTHER PERSON, FOR ANY CLAIM,
LOSS OR DAMAGES ARISING OUT OF OR IN CONNECTION WITH A BELL ATLANTIC
SERVICE FAILURE, SECTION 21.3.3 SHALL APPLY.
21.3.2 TO THE EXTENT A BELL ATLANTIC SERVICE IS NOT SUBJECT TO A BELL
ATLANTIC TARIFF, SECTION 21.3.3 SHALL APPLY.
21.3.3 THE LIABILITY, IF ANY, OF BELL ATLANTIC AND OTHER BELL ATLANTIC
PERSONS, TO RESELLER, RESELLER CUSTOMERS AND/OR ANY OTHER PERSON, FOR ANY
CLAIM, LOSS OR DAMAGES ARISING OUT OF OR IN CONNECTION WITH A BELL
ATLANTIC SERVICE FAILURE, SHALL BE LIMITED TO A TOTAL AMOUNT NOT IN
EXCESS OF: (a) TWICE THE PROPORTIONATE CHARGE FOR THE BELL ATLANTIC
SERVICE AFFECTED DURING THE PERIOD OF THE BELL ATLANTIC SERVICE FAILURE;
OR, (b) ]IF THERE IS NO CHARGE FOR THE BELL ATLANTIC SERVICE AFFECTED,
FIVE HUNDRED DOLLARS ($500.00). -
21.4 NOTWITHSTANDING ANYTHING CONTAINED IN SECTION 21.2, SECTION
21.3.1, SECTION 21.3.2, OR SECTION 21.3.3, ABOVE, BELL ATLANTIC AND OTHER
BELL ATLANTIC PERSONS SHALL HAVE NO LIABILITY TO RESELLER, RESELLER
CUSTOMERS, AND/OR ANY OTHER PERSON, FOR ANY SPECIAL, INDIRECT,
INCIDENTAL, OR CONSEQUENTIAL, DAMAGES (INCLUDING, BUT NOT LIMITED TO,
DAMAGES FOR HARM TO BUSINESS, LOST REVENUES, LOST PROFITS, LOST SAVINGS,
OR OTHER COMMERCIAL OR ECONOMIC LOSS), ARISING OUT OF OR IN CONNECTION
WITH A BELL ATLANTIC SERVICE
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FAILURE OR ANY BREACH OR FAILURE IN PERFORMANCE OF THIS AGREEMENT BY BELL
ATLANTIC.
21.5 THE LIMITATIONS AND EXCLUSIONS FROM LIABILITY STATED IN SECTIONS
21.2 THROUGH 21.4 SHALL APPLY REGARDLESS OF THE FORM OF A CLAIM OR
ACTION, WHETHER IN CONTRACT, WARRANTY, TORT (INCLUDING, BUT NOT LIMITED
TO, THE NEGLIGENCE OF BELL ATLANTIC AND/OR OTHER BELL ATLANTIC
PERSONS), STRICT LIABILITY, OR OTHERWISE, AND REGARDLESS OF WHETHER BELL
ATLANTIC HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
21.6 Reseller shall, in its tariffs or other contracts with Reseller
Customers, provide that in no case shall Bell Atlantic or Other Bell
Atlantic Persons be liable to Reseller Customers or to any other third
parties for any indirect, special, incidental, consequential, or other
damages, including, but not limited to, harm to business, lost revenues,
lost profits, lost savings, or other commercial or economic loss, whether
foreseeable or not, and regardless of notification of the possibility of
such damages. Reseller shall indemnify, defend and hold Bell Atlantic and
Other Bell Atlantic Persons harmless from claims by Reseller Customers
and other third parties as provided in Bell Atlantic's Tariffs.
21.7 Bell Atlantic's obligations under this Agreement shall extend only
to Reseller. Bell Atlantic shall have no liability under this Agreement
to Reseller Customers or to any other third party. Nothing in this
Agreement shall be deemed to create a third party beneficiary
relationship between Bell Atlantic and Reseller Customers or any other
third party.
21.8 Reseller shall indemnify, defend and hold harmless Bell Atlantic,
Bell Atlantic's Affiliates, and the directors, officers and employees of
Bell Atlantic and Bell Atlantic's Affiliates, from any claims, suits,
government proceedings, judgments, fines, liabilities, losses, damages,
costs or expenses (including reasonable attorneys fees) arising out of or
in connection with: (a) the failure of Reseller to transmit to Bell
Atlantic a request by a Reseller Customer to install, provide, change or
terminate, a Bell Atlantic Retail Telecommunications Service; (b) the
transmission by Reseller to Bell Atlantic of an Order to install,
provide, change or terminate, a Bell Atlantic Retail Telecommunications
Service, which Order was not authorized by the applicable Reseller
Customer; (c) erroneous or inaccurate information in an Order transmitted
by Reseller to Bell Atlantic; (d) the transmission by Reseller to Bell
Atlantic of an Order to change or terminate a Telecommunications Service
provided to an end user by Bell Atlantic or another Telecommunications
Service provider, or to install or provide a Telecommunications Service
for an end user, which Order was not authorized by the applicable end
user; (e) the transmission by Reseller to Bell Atlantic of an Order to
select, change or reassign a telephone number for an end user, which
Order was not authorized
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by the applicable end user; (f) the transmission by Reseller to Bell
Atlantic of an Order to select a Telephone Exchange Service provider for
an end user, or to change or terminate an end user's selection of a
Telephone Exchange Service provider, which Order was not authorized by
the applicable end user in the manner required by Applicable Law (or, in
the absence of such Applicable Law, in the manner required by the rules
and procedures in 47 CFR Section 64.1100); (g) access to, or use or
disclosure of, Customer Information or Bell Atlantic OSS Information by
Reseller or Reseller's employees, Agents or contractors; (h) the failure
of Reseller to transmit, or to transmit in a timely manner, E911/911
information to Bell Atlantic; (i) erroneous or inaccurate E911/911
information transmitted by Reseller to Bell Atlantic; (j) any information
provided by Reseller for inclusion in Bell Atlantic's LIDB; or, (k) the
marketing, advertising or sale of Reseller's services and/or products
(including, but not limited to, resold Bell Atlantic Retail
Telecommunications Services), or the billing or collection of charges for
Reseller's services and/or products (including, but not limited to,
resold Bell Atlantic Retail Telecommunications Services). For the
purposes of Section 21.8(b), (d) and (e), an Order shall be deemed not to
have been authorized by a Reseller Customer or end user if Applicable Law
and/or this Agreement required such authorization to be obtained in a
particular manner, and Reseller did not obtain the authorization in the
manner required by Applicable Law and this Agreement.
22. NON-EXCLUSIVE REMEDIES
Except as otherwise expressly provided in this Agreement, each
of the remedies provided under this Agreement is cumulative and is in
addition to any other remedies that may be available under this Agreement
or at law or in equity.
23. NOTICES
All notices and other communications under this Agreement shall
be deemed effective upon receipt by the Party being notified, provided
such notices or communications are in writing and are sent by certified
or registered mail, return receipt requested, or by a reputable private
delivery service which provides a record of delivery, and addressed as
shown below:
To Bell Atlantic:
Bell Atlantic - Virginia, Inc.
c/o Bell Atlantic Network Services, Inc.
1320 North Courthouse Road
Arlington, Virginia 22201
Attn.: Director, Resale
Initiatives
To Reseller President
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Essential.Com, Inc.
3 Burlington Woods Drive
Burlington, MA 01803
Tel: (781) 229-9599
Fax: (781) 229-9499
Either Party may from time-to-time designate another
address or addressee by giving notice in accordance with this Section 23.
24. OPTION TO OBTAIN BELL ATLANTIC SERVICE UNDER OTHER AGREEMENTS
24.1 If, at any time while this Agreement is in effect, Bell Atlantic
is a party to an agreement with a Telecommunications Carrier other than
Reseller ("Third-Person Telecommunications Carrier) to provide Bell
Atlantic Services to the Third-Person Telecommunications Carrier,
which agreement has been approved by the Commission pursuant to 47
U.S.C. Section 252, upon request by Reseller, Bell Atlantic, to the
extent required by Applicable Law (including, but not limited to 47
U.S.C. Section 252(i)), shall make available to Reseller any Bell
Atlantic Service offered by Bell Atlantic under the agreement with the
Third-Person Telecommunications Carrier upon the same terms and
conditions (including prices) provided in the agreement with the
Third-Person Telecommunications Carrier, but (except as otherwise
expressly agreed in writing by the Parties) only on a prospective
basis. Following such request by Reseller and prior to provision of
the Bell Atlantic Service by Bell Atlantic to Reseller pursuant to the
terms and conditions (including prices) of the Third-Person
Telecommunications Carrier agreement, this Agreement shall be amended
to incorporate the terms and conditions (including prices) from the
Third-Person Telecommunications Carrier agreement applicable to the
Bell Atlantic Service Reseller has elected to purchase pursuant to the
terms and conditions (including prices) of the Third-Person
Telecommunications Carrier agreement. Except as otherwise expressly
agreed in writing by the Parties, the amendment shall apply on a
prospective basis only and shall not apply with regard to any Bell
Atlantic Service provided by Bell Atlantic to Reseller prior to the
effective date of the amendment.
24.2 To the extent the exercise of the foregoing option requires a
rearrangement of facilities by Bell Atlantic, Reseller shall be liable
for the non-recurring charges associated therewith, as well as for any
termination charges associated with the termination of existing
facilities or Bell Atlantic Services.
25. REGULATORY APPROVALS
25.1 Within thirty (30) days after execution of this Agreement by the
Parties, Bell Atlantic shall file the Agreement with the Commission for
approval by the Commission.
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25.2 Each Party shall exercise reasonable efforts (including
reasonably cooperating with the other Party) to secure approval of this
Agreement, and any amendment to this Agreement agreed to by the Parties,
from the Commission, the FCC, and other applicable governmental entities.
25.3 Upon request by Bell Atlantic, Reseller shall, at Reseller's
expense, provide reasonable, good-faith support and assistance to Bell
Atlantic in obtaining any governmental approvals necessary for (a) this
Agreement and any amendment to this Agreement agreed to by the Parties,
and/or (b) the provision of Bell Atlantic Services by Bell Atlantic to
Reseller. Without in any way limiting the foregoing, upon request by
Bell Atlantic, Reseller shall (a) join in petitions requesting approval
of this Agreement, or an amendment to this Agreement agreed to by the
Parties, to be filed with the Commission, the FCC, or other applicable
governmental entities, and (b) file other documents with and present
testimony to the Commission, the FCC, or other applicable governmental
entities, requesting approval of this Agreement or an amendment to this
Agreement agreed to by the Parties.
26. REGULATORY CONTINGENCIES
26.1 Neither Party shall be liable for any delay or failure in
performance by it which results from requirements of Applicable Law, or
acts or failures to act of any governmental entity or official.
26.2 In the event that any provision of this Agreement shall be
invalid or unenforceable, such invalidity or unenforceability shall not
invalidate or render unenforceable any other provision of this Agreement,
and this Agreement shall be construed as if it did not contain such
invalid or unenforceable provision.
26.3 In the event that any legislative, regulatory, judicial or other
governmental action materially affects any material terms of this
Agreement, the ability of either Party to perform any material terms of
this Agreement, or the rights or obligations of either Party under this
Agreement, the Parties shall take such action as shall be necessary to
conform this Agreement to the governmental action and/or to permit Bell
Atlantic to continue to provide and Reseller to continue to purchase Bell
Atlantic Services, including, but not limited to, conducting good faith
negotiations to enter into a mutually acceptable modified or substitute
agreement, filing tariffs, or additional, supplemental or modified
tariffs, and making other required filings with governmental entities.
26.4 In the event of a governmental action described in Section 26.3,
above, to the extent permitted by Applicable Law, Bell Atlantic shall
continue to provide and Reseller shall continue to subscribe to, use and
pay for, any Bell Atlantic Services affected by the governmental action
until the action to be taken by Bell Atlantic and Reseller under Section
26.3, above, is taken and becomes effective in accordance with Applicable
Law. Such continued provision of and subscription to, use of and payment
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for, the affected Bell Atlantic Services shall be in accordance with the
terms (including prices) of this Agreement, unless other terms, including
but not limited to the terms of a Bell Atlantic Tariff, are required by
Applicable Law.
26.5 If suspension or termination of the provision of any Bell
Atlantic Service is required by or as a result of a governmental action,
such suspension or termination shall not affect Reseller's subscription
to, use or obligation to pay for, other Bell Atlantic Services, unless
such suspension or termination has a material, adverse effect on
Reseller's ability to use the other Bell Atlantic Services.
26.6 If any of the Bell Atlantic Services to be provided by Bell
Atlantic pursuant to a tariff shall at any time become detariffed or
deregulated, Bell Atlantic may transfer the provisions of the tariff
relative to such Bell Atlantic Services to a Bell Atlantic "Guide for
Detariffed Services" or similar document, and such "Guide for Detariffed
Services" or similar document, as amended by Bell Atlantic from time-to-
time, shall become a part of this Agreement.
27. RELATIONSHIP OF THE PARTIES
27.1 The relationship between the Parties under this Agreement shall
be that of independent contractors.
27.2 Nothing contained in this Agreement shall:
(a) make either Party the Agent or employee of the other
Party;
(b) grant either Party the authority to enter into a contract
on behalf of, or otherwise legally bind, the other Party in any way;
(c) create a partnership, joint venture or other similar
relationship between the parties; or
(d) grant to Reseller a franchise, distributorship or similar
interest.
27.3 Each Party shall be solely responsible for selection,
supervision, termination, and compensation, of its respective employees,
Agents and contractors.
27.4 Each Party shall be solely responsible for payment of any Social
Security or other taxes which it is required by Applicable Law to pay in
conjunction with its employees, Agents or contractors, and for collecting
and remitting to applicable taxing authorities any taxes which it is
required by Applicable Law to collect from its employees, Agents or
contractors.
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27.5 The relationship of the Parties under this Agreement is a
non-exclusive relationship. Bell Atlantic shall have the right to provide
services offered by Bell Atlantic under this Agreement to persons other
than Reseller. Reseller shall have the right to purchase services that
may be purchased by Reseller under this Agreement from persons other than
Bell Atlantic.
28. RESELLER'S PROVISION OF SERVICE
28.1 Prior to providing Bell Atlantic Retail Telecommunications
Services purchased by Reseller under this Agreement to Reseller
Customers, Reseller shall obtain from the Commission, the FCC, and any
other applicable governmental entities, any certificates or other
authorizations required by Applicable Law for Reseller to provide
Telecommunications Services. Reseller shall promptly notify Bell Atlantic
in writing of any governmental action which suspends, cancels or
withdraws any such certificate or authorization, or otherwise limits or
affects Reseller's right to provide Telecommunications Services.
28.2 To the extent required by Applicable Law, Reseller shall: (a) file
with the Commission, the FCC, and/or other applicable governmental
entities, the tariffs, arrangements and other documents that set forth
the terms, conditions and prices under which Reseller provides
Telecommunications Services; and, (b) make available for public
inspection, the tariffs, arrangements and other documents that set forth
the terms, conditions and prices under which Reseller provides
Telecommunications Services.
29. RESELLER'S RESALE AND USE OF SERVICE
29.1 Reseller shall comply with the provisions of this Agreement
(including, but not limited to, Bell Atlantic's Tariffs) regarding resale
or use of Bell Atlantic Services, including, but not limited to, any
restrictions on resale or use of Bell Atlantic Services.
29.2 Without in any way limiting Section 29.1, (a) Reseller shall
not resell residential service to persons not eligible to subscribe to
such service from Bell Atlantic (including, but not limited to, business
Reseller Customers and other nonresidential Reseller Customers), and (b)
Reseller shall not resell Lifeline or other means-tested service
offerings, or grandfathered or discontinued service offerings, to persons
not eligible to subscribe to such service offerings from Bell Atlantic.
29.3 Reseller shall undertake in good faith to ensure that Reseller
Customers comply with the provisions of Bell Atlantic's Tariffs
applicable to their use of Bell Atlantic Retail Telecommunications
Services.
29.4 Reseller shall comply with Applicable Law, and Bell Atlantic's
procedures, for handling requests from law enforcement and other
government agencies
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for service termination, assistance with electronic surveillance, and
provision of information.
30. RESPONSIBILITY FOR CHARGES
30.1 Reseller shall be responsible for and pay all charges for any
Bell Atlantic Service provided by Bell Atlantic to Reseller, whether the
Bell Atlantic Service is ordered, activated or used by Reseller, a
Reseller Customer, or another person.
30.2 In addition to the charges for Bell Atlantic Services, Reseller
agrees to pay any charges for Telecommunications Services, facilities,
equipment, software, wiring, or other services or products, provided by
Bell Atlantic, or provided by persons other than Bell Atlantic and billed
for by Bell Atlantic, that are ordered, activated or used by Reseller,
Reseller Customers or other persons, through, by means of, or in
association with, Bell Atlantic Services provided by Bell Atlantic to
Reseller.
30.3 Reseller agrees to indemnify, defend and hold Bell Atlantic
harmless from, any charges for Telecommunications Services, facilities,
equipment, software, wiring, or other services or products, provided by
persons other than Bell Atlantic that are ordered, activated or used by
Reseller, Reseller Customers or other persons, through, by means of, or
in association with, Bell Atlantic Services provided by Bell Atlantic to
Reseller.
30.4 Without in any way limiting Reseller's obligations under Section
30.1, Section 30.2 and Section 30.3, Reseller shall pay, or collect and
remit to Bell Atlantic, without discount, all Subscriber Line Charges,
Federal Line Cost Charges, end user common line charges, carrier
selection and change charges (PIC change charge), and the Presubscribed
Interexchange Carrier Charge applicable to Reseller Customers who have
not presubscribed to an interexchange carrier for long distance services,
associated with Bell Atlantic Services provided by Bell Atlantic to
Reseller.
30.5 Upon request by Reseller, Bell Atlantic will provide for use on
resold Bell Atlantic Retail Telecommunications Service dial tone lines
purchased by Reseller such Bell Atlantic Retail Telecommunications
Service call blocking services as Bell Atlantic provides to Bell
Atlantic's own end user retail Customers, where and to the extent Bell
Atlantic provides such Bell Atlantic Retail Telecommunications Service
call blocking services to Bell Atlantic's own end user retail Customers.
31. SECTION HEADINGS
The section headings in the Principal Document are for
convenience only and are not intended to affect the meaning or
interpretation of the Principal Document.
32. SERVICES NOT COVERED BY THIS AGREEMENT
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32.1 This Agreement applies only to Bell Atlantic Services (as the
term "Bell Atlantic Service" is defined in Section 1.1.6) provided, or
to be provided, by Bell Atlantic to Reseller, as specified in Section 3.
Any Telecommunications Services, facilities, equipment, software, wiring,
or other services or products (including, but not limited to,
Telecommunications Services, facilities, equipment, software, wiring, or
other services or products, interconnected or used with Bell Atlantic
Services provided, or to be provided, by Bell Atlantic to Reseller)
provided, or to be provided, by Bell Atlantic to Reseller, which are not
subscribed to by Reseller under this Agreement, must be subscribed to by
Reseller separately, pursuant to other written agreements (including,
but not limited to, applicable Bell Atlantic Tariffs). Reseller shall use
and pay for any Telecommunications Services, facilities, equipment,
software, wiring, or other services or products, provided, or to be
provided, by Bell Atlantic to Reseller, which are not subscribed to by
Reseller under this Agreement, in accordance with such other written
agreements (including, but not limited to, applicable Bell Atlantic
Tariffs).
32.2 Without in any way limiting Section 32.1 and without attempting
to list all Bell Atlantic products and services that are not subject to
this Agreement, the Parties agree that this Agreement does not apply to
the purchase by Reseller of the following Bell Atlantic services and
products: except as expressly stated in the Principal Document, exchange
access services as defined in Section 3(16) of the Act, 47 U.S.C. Section
153(16) (including, but not limited to, primary interLATA toll carrier
and primary intraLATA toll carrier choice or change); Bell Atlantic
Answer Call, Bell Atlantic Answer Call Plus, Bell Atlantic Home Voice
Mail, Bell Atlantic Home Voice Mail Plus, Bell Atlantic Voice Mail, Bell
Atlantic Basic Mailbox, Bell Atlantic OptiMail Service, and other voice
mail, fax mail, voice messaging, and fax messaging, services; Bell
Atlantic Optional Wire Maintenance Plan; Bell Atlantic Guardian Enhanced
Maintenance Service; Bell Atlantic Sentry I Enhanced Maintenance Service;
Bell Atlantic Sentry II Enhanced Maintenance Service; Bell Atlantic
Sentry III Enhanced Maintenance Service; Bell Atlantic Call 54 Service;
Bell Atlantic Public Telephone Service; customer premises equipment; Bell
Atlantic telephone directory listings offered under agreements or
arrangements other than Bell Atlantic Tariffs filed with the Commission;
and, Bell Atlantic telephone directory advertisements.
32.3 Without in any way limiting Section 32.1, the Parties also agree
that this Agreement does not apply to the installation, inspection,
maintenance, repair, removal, or use of any facilities, equipment,
software, or wiring, located on Reseller's side of the Network Rate
Demarcation Point applicable to Reseller and does not grant to Reseller
or Reseller Customers a right to installation, inspection, maintenance,
repair, or removal, by Bell Atlantic, or use, by Reseller or Reseller
Customers, of any such facilities, equipment, software, or wiring.
32.4 Without in any way limiting Section 32.1, the Parties agree that
this Agreement does not apply to the purchase by Reseller of Audiotex
Services (including,
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but not limited to, Dial-It, 976, 915 and 556 services) for resale to
Audiotex Service providers or other information service providers. Bell
Atlantic shall have the right (but not the obligation) to block calls
made to Audiotex Service numbers (including, but not limited to, Dial-It
numbers and 976, 915 and 556 numbers) through Bell Atlantic Services
purchased by Reseller under this Agreement. Notwithstanding the
foregoing, Reseller shall pay, without discount, any charges for Audiotex
Services (including, but not limited to, Dial-It, 976, 915 and 556
services) that are ordered, activated or used by Reseller, Reseller
Customers or other persons, through, by means of, or in association with,
Bell Atlantic Services provided by Bell Atlantic to Reseller.
32.5 Nothing contained within this Agreement shall obligate Bell
Atlantic to provide any service or product which is not a Bell Atlantic
Service (including, but not limited to, the services listed in Sections
32.2, 32.3 and 32.4, above) to Reseller.
32.6 Nothing contained within this Agreement shall obligate Bell
Atlantic to provide a Bell Atlantic Service or any other service or
product to a Reseller Customer. Without in any way limiting the
foregoing, except as otherwise required by Applicable Law, Bell Atlantic
reserves the right to terminate provision of services and products
(including, but not limited to, Telecommunications Services and the
services listed in Sections 32.2 and 32.3, above) to any person who
ceases to purchase Bell Atlantic Retail Telecommunications Service dial
tone line service from Bell Atlantic.
32.7 Nothing contained in this Section 32 shall in any way exclude or
limit Reseller's obligations and liabilities under Section 30, including,
but not limited to Reseller's obligations and liabilities to pay charges
for services and products as required by Section 30.
33. SERVICE QUALITY
Bell Atlantic Services provided by Bell Atlantic to Reseller
under this Agreement shall comply with the quality requirements for such
Bell Atlantic Services specified by Applicable Law (including, but not
limited to, any applicable provisions of 47 CFR Sections 51.311 and
51.603(b)).
34. SINGLE POINT OF CONTACT
34.1 Reseller shall be the single point of contact for Reseller
Customers and other persons with regard to Telecommunications Services
and other services and products which they wish to purchase from Reseller
or which they have purchased from Reseller. Communications by Reseller
Customers and other persons with regard to Telecommunications Services
and other services and products which they wish to purchase from Reseller
or which they have purchased from Reseller, shall be made to Reseller,
and not to Bell Atlantic. Reseller shall instruct Reseller Customers and
other persons that such communications shall be directed to Reseller.
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34.2 Without in any way limiting Section 34.1, requests by Reseller
Customers for information about or provision of Telecommunications
Services which they wish to purchase from Reseller, requests by Reseller
Customers to change, terminate, or obtain information about, assistance
in using, or repair or maintenance of, Telecommunications Services which
they have purchased from Reseller, and inquiries by Reseller Customers
concerning Reseller's bills, charges for Reseller's Telecommunications
Services, and, if the Reseller Customers receive dial tone line service
from Reseller, annoyance calls, shall be made by the Reseller Customers
to Reseller, and not to Bell Atlantic.
34.3 Reseller shall establish telephone numbers and mailing addresses
at which Reseller Customers and other persons may communicate with
Reseller and shall advise Reseller Customers and other persons who may
wish to communicate with Reseller of these telephone numbers and mailing
addresses.
35. SURVIVAL
The liabilities and obligations of a Party for acts or omissions
of the Party prior to the termination, cancellation or expiration of this
Agreement, the rights, liabilities and obligations of a Party under any
provision of this Agreement regarding indemnification or defense,
Customer Information, confidential information, or limitation or
exclusion of liability, the rights of Bell Atlantic and the liabilities
and obligations of Reseller under Section 18.1, and the rights,
liabilities and obligations of a Party under any provision of this
Agreement which by its terms is contemplated to survive (or be performed
after) termination, cancellation or expiration of this Agreement, shall
survive termination, cancellation or expiration of this Agreement.
36. TAXES
36.1 With respect to any purchase of Bell Atlantic Services under
this Agreement, if any Federal, state or local government tax, fee, duty,
surcharge (including, but not limited to any E911/911, telecommunications
relay service, or universal service fund, surcharge), or other
tax-like charge (a "Tax") is required or permitted by Applicable Law
to be collected from Reseller by Bell Atlantic, then (a) to the extent
required by Applicable Law, Bell Atlantic shall bill Reseller for such
Tax, (b) Reseller shall timely remit such Tax to Bell Atlantic
(including both Taxes billed by Bell Atlantic and Taxes Reseller is
required by Applicable Law to remit without billing by Bell Atlantic),
and (c) Bell Atlantic shall remit such collected Tax to the applicable
taxing authority.
36.2 With respect to any purchase of Bell Atlantic Services under
this Agreement, if any Tax is imposed by Applicable Law on the receipts
of Bell Atlantic, which Applicable Law permits Bell Atlantic to exclude
certain receipts received from sales of Bell Atlantic Services for resale
by Reseller, such exclusion being based on the
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fact that Reseller is also subject to a Tax based upon receipts
("Receipts Tax"), then Reseller (a) shall provide Bell Atlantic with
notice in writing in accordance with Section 36.7 of its intent to pay
the Receipts Tax, and (b) shall timely pay the Receipts Tax to the
applicable taxing authority.
36.3 With respect to any purchase of Bell Atlantic Services under
this Agreement, that are resold by Reseller to a Reseller Customer, if
any Tax is imposed by Applicable Law on the Reseller Customer in
connection with the Reseller Customer's purchase of the resold Bell
Atlantic Services which Reseller is required to impose and/or collect
from the Reseller Customer, then Reseller (a) shall impose and/or collect
such Tax from the Reseller Customer, and (b) shall timely remit such Tax
to the applicable taxing authority.
36.4.1 If Bell Atlantic has not received an exemption certificate from
Reseller and fails to bill Reseller for any Tax as required by Section
36.1, then, as between Bell Atlantic and Reseller, (a) Reseller shall
remain liable for such unbilled Tax, and (b) Bell Atlantic shall be
liable for any interest and/or penalty assessed on the unbilled Tax by
the applicable taxing authority.
36.4.2 If Reseller fails to remit any Tax to Bell Atlantic as required
by Section 36. 1, then, as between Bell Atlantic and Reseller, Reseller
shall be liable for such uncollected Tax and any interest and/or penalty
assessed on the uncollected Tax by the applicable taxing authority.
36.4.3 If Bell Atlantic does not collect a Tax because Reseller has
provided Bell Atlantic with an exemption certificate which is later found
to be inadequate by the applicable taxing authority, then, as between
Bell Atlantic and Reseller, Reseller shall be liable for such uncollected
Tax and any interest and/or penalty assessed on the uncollected Tax by
the Applicable taxing authority.
36.4.4 Except as provided in Section 36.4.5, if Reseller fails to pay
the Receipts Tax as required by Section 36.2, then, as between Bell
Atlantic and Reseller, (a) Bell Atlantic shall be liable for any Tax
imposed on Bell Atlantic's receipts, (b) Reseller shall be liable for any
interest and/or penalty imposed on Bell Atlantic with respect to the Tax
on Bell Atlantic's receipts, and (c) Reseller shall be liable for any Tax
imposed on Reseller's receipts and any interest and/or penalty assessed
by the applicable taxing authority on Reseller with respect to the Tax on
Reseller's receipts.
36.4.5 If any discount or portion of a discount in price provided to
Reseller under this Agreement (including, but not limited to a discount
provided for in Exhibit II, Section 1.1) represents Tax savings to Bell
Atlantic which it was anticipated Bell Atlantic would receive, because it
was anticipated that receipts from sales of Bell Atlantic Services, that
would otherwise be subject to a Tax on such receipts, could be excluded
from such Tax under Applicable Law because the Bell Atlantic Services
would be sold to
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Reseller for resale, and Bell Atlantic is, in fact, required by
Applicable Law to pay such Tax on receipts from sales of Bell Atlantic
Services to Reseller, then, as between Bell Atlantic and Reseller, (a)
Reseller shall be liable for, and shall indemnify and hold harmless Bell
Atlantic against (on an after-tax basis), any such Tax, and (b) Reseller
shall be liable for, and shall indemnify and hold harmless Bell Atlantic
against (on an after-tax basis), any interest and/or penalty assessed by
the applicable taxing authority on either Reseller or Bell Atlantic with
respect to the Tax on Bell Atlantic's receipts.
36.4.6 If Reseller fails to impose and/or collect any Tax from Reseller
Customers as required by Section 36.3, then, as between Bell Atlantic and
Reseller, Reseller shall remain liable for such uncollected Tax and any
interest and/or penalty assessed on such uncollected Tax by the
applicable taxing authority.
36.4.7 With respect to any Tax that Reseller has agreed to pay, is
responsible for because Reseller received a discount in price on Bell
Atlantic Services attributable to anticipated Tax savings by Bell
Atlantic, or is required to impose on and/or collect from Reseller
Customers, Reseller agrees to indemnify and hold Bell Atlantic harmless
on an after-tax basis for any costs incurred by Bell Atlantic as a result
of actions taken by the applicable taxing authority to recover the Tax
from Bell Atlantic due to failure of Reseller to timely remit the Tax to
Bell Atlantic, or timely pay, or collect and timely remit, the Tax to the
taxing authority.
36.5 If either Party is audited by a taxing authority, the other
Party agrees to reasonably cooperate with the Party being audited in
order to respond to any audit inquiries in a proper and timely manner so
that the audit and/or any resulting controversy may be resolved
expeditiously.
36.6.1 If Applicable Law clearly exempts a purchase of Bell Atlantic
Services under this Agreement from a Tax, and if such Applicable Law also
provides an exemption procedure, such as an exemption certificate
requirement, then, if Reseller complies with such procedure, Bell
Atlantic shall not collect such Tax during the effective period of the
exemption. Such exemption shall be effective upon receipt of the
exemption certificate or affidavit in accordance with Section 36.7.
36.6.2 If Applicable Law clearly exempts a purchase of Bell Atlantic
Services under this Agreement from a Tax, but does not also provide an
exemption procedure, then Bell Atlantic shall not collect such Tax if
Reseller (a) furnishes Bell Atlantic with a letter signed by an officer
of Reseller requesting an exemption and citing the provision in the
Applicable Law which clearly allows such exemption, and (b) supplies Bell
Atlantic with an indemnification agreement, reasonably acceptable to Bell
Atlantic, which holds Bell Atlantic harmless on an after-tax basis with
respect to forbearing to collect such Tax.
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36.7 All notices, affidavits, exemption certificates or other
communications required or permitted to be given by either Party to the
other under this Section 36, shall be made in writing and shall be sent
by certified or registered mail, return receipt requested, or by a
reputable private delivery service which provides a record of delivery,
to the addressee stated in Section 23 at the address stated in Section 23
and to the following:
To Bell Atlantic:
Tax Administration
Bell Atlantic Corporation
1095 Avenue of the Americas
Room 3109
New York, New York 10036
To Reseller: Controller
Essential.Com, Inc.
3 Burlington Woods Drive
Burlington, MA 01803
TEL: (781) 229-9599
Fax: (781) 229-9499
Either Party may from time-to-time designate another address or
addressee by giving notice in accordance with the terms of this Section
36.7.
Any notice or other communication shall be deemed to be given
when received.
37. TELEPHONE EXCHANGE SERVICE PROVIDER SELECTION
37.1 Without in any way limiting Reseller's obligations under Section
12, Reseller shall comply with Applicable Law with regard to end user
selection of a Telephone Exchange Service provider. Until the Commission
or the FCC adopts regulations and/or orders applicable to end user
selection of a Telephone Exchange Service provider, Reseller shall apply
the rules and procedures set forth in Section 64.1100 of the FCC
Rules, 47 CFR Section 64.1100, to the process for end user selection
of a Telephone Exchange Service provider (including, to end user
selection of a Telephone Exchange Service provider that occurs during
any telemarketing contact with an end user), and shall comply with
such rules and procedures.
37.2 By submitting to Bell Atlantic an Order to install, provide,
change or terminate a Telecommunications Service, to select, change or
reassign a telephone number, or to select, change or terminate an end
user's Telephone Exchange Service provider, Reseller represents and
warrants: (a) that Reseller has obtained authorization for
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such action from the applicable end user; and, (b) that if Applicable Law
and/or this Agreement required such authorization to be obtained in a
particular manner, Reseller obtained the authorization in the manner
required by Applicable Law and this Agreement. Reseller shall upon
request by Bell Atlantic provide proof of such authorization (including,
a copy of any written authorization).
37.3 If Reseller submits an Order to Bell Atlantic to install,
provide, change or terminate a Telecommunications Service, to select,
change or reassign a telephone number, or to select, change or terminate
an end user's Telephone Exchange Service provider, and (a) when requested
by Bell Atlantic to provide a written document signed by the end user
stating the end user's Telephone Exchange Service provider selection,
fails to provide such document to Bell Atlantic, or (b) has not obtained
authorization for such installation, provision, selection, change,
reassignment or termination, from the end user in the manner required by
Applicable Law (or, in the absence of Applicable Law, in the manner
required by the rules and procedures in 47 CFR Section 64.1100), Reseller
shall be liable to Bell Atlantic for all charges that would be applicable
to the end user for the initial installation, provision, selection,
change, reassignment or termination, of the end user's Telecommunications
Service, telephone number, and/or Telephone Exchange Service provider,
and any charges for restoring the end user's Telecommunications Service,
telephone number, and/or Telephone Exchange Service provider selection,
to its end user authorized condition.
38. TELEPHONE NUMBERS
38.1 Reseller's use of telephone numbers shall be subject to
Applicable Law (including, but not limited to, the rules of the FCC, the
North American Numbering Council, and the North American Numbering Plan
Administrator), the applicable provisions of this Agreement (including,
but not limited to, this Section 38), and Bell Atlantic's practices and
procedures for use and assignment of telephone numbers, as amended from
time-to-time.
38.2 Subject to Sections 38.1 and 38.3, if an end user who subscribes
to a Bell Atlantic Retail Telecommunications Service dial tone line from
either Reseller or Bell Atlantic changes the Telecommunications Carrier
from whom the end user subscribes for such dial tone line (including a
change from Bell Atlantic to Reseller, from Reseller to Bell Atlantic, or
from Reseller to a Telecommunications Carrier other than Bell Atlantic),
after such change, the end user may continue to use with the dial tone
line the telephone numbers which were assigned to the dial tone line by
Bell Atlantic immediately prior to the change.
38.3 Bell Atlantic shall have the right to change the telephone
numbers used by an end user if at any time: (a) the type or class of
service subscribed to by the end user changes; (b) the end user requests
service at a new location, that is not served by the Bell
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Atlantic switch and the Bell Atlantic rate center from which the end user
previously had service; or, (c) continued use of the telephone numbers is
not technically feasible.
38.4 If service on a Bell Atlantic Retail Telecommunications Service
dial tone line subscribed to by Reseller from Bell Atlantic under this
Agreement is terminated, the telephone numbers associated with such dial
tone line shall be available for reassignment by Bell Atlantic to any
person to whom Bell Atlantic elects to assign the telephone numbers,
including, but not limited to, Bell Atlantic, Bell Atlantic end user
retail Customers, Reseller, or Telecommunications Carriers other than
Bell Atlantic and Reseller.
39. WARRANTIES
EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, BELL ATLANTIC
MAKES NO WARRANTIES WITH RESPECT TO BELL ATLANTIC SERVICES, WHETHER
EXPRESS OR IMPLIED, WRITTEN OR ORAL, IN FACT OR IN LAW. THE WARRANTIES
SET FORTH IN THIS AGREEMENT ARE BELL ATLANTIC'S EXCLUSIVE WARRANTIES WITH
RESPECT TO BELL ATLANTIC SERVICES AND ARE IN LIEU OF ALL OTHER
WARRANTIES, EXPRESS OR IMPLIED, WRITTEN OR ORAL, IN FACT OR IN LAW. BELL
ATLANTIC DISCLAIMS ANY AND ALL OTHER WARRANTIES, INCLUDING, BUT NOT
LIMITED TO, WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR
PURPOSE, WARRANTIES AGAINST INFRINGEMENT, AND WARRANTIES ARISING BY TRADE
CUSTOM, TRADE USAGE, COURSE OF DEALING, OR OTHERWISE.
40. PUBLICITY AND USE OF TRADEMARKS OR SERVICE MARKS
40.1.1 Neither Party nor its subcontractors or agents will use the
other Party's trademarks, service marks, logos or other proprietary trade
dress in connection with the sale of products and services, or in any
advertising, press releases, publicity matters or other promotional
materials without such Party's prior written consent.
40.1.2 Neither Party may imply any direct or indirect affiliation with
or sponsorship or endorsement of its company, products and services by
the other Party.
41. AUTHORIZATION
41.1.1 Bell Atlantic is a corporation duly organized, validly existing
and in good standing under the laws of the Commonwealth of Virginia and
has full power and authority to execute and deliver this Agreement and to
perform the obligations hereunder on behalf of Bell Atlantic.
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41.2 Essential.Com, Inc., a corporation, is duly organized, validly
existing and in good standing under the laws of Delaware, and has full
power and authority to execute and deliver this Agreement and to perform
its obligations hereunder.
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IN WITNESS WHEREOF, intending to be legally bound, Reseller and
Bell Atlantic have caused this Agreement to be executed by their
respective authorized representatives.
ESSENTIAL.COM, INC.
BY: /s/ Akhil Garland
--------------------------------------------
Signature
Akhil Garland
--------------------------------------------
Name (Printed)
ITS: CEO
--------------------------------------------
Title
BY: /s/ Patrick Moran
--------------------------------------------
Signature
Patrick Moran
--------------------------------------------
Name (Printed)
ITS: Vice President-Operations
--------------------------------------------
Title
BY: /s/ John A. Duffy
--------------------------------------------
Signature
John Duffy
--------------------------------------------
Name (Printed)
ITS: Vice President--Business Development
--------------------------------------------
Title
BELL ATLANTIC - VIRGINIA, INC.
BY: /s/ Jeffrey A. Masoner
--------------------------------------------
Signature
Jeffrey A. Masoner
--------------------------------------------
Name (Printed)
TITLE: Vice President -- Telecom Industry Services
--------------------------------------------
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EXHIBIT I
BELL ATLANTIC ANCILLARY SERVICES
1. BELL ATLANTIC OSS SERVICES
1.1 DEFINITIONS
As used in the Principal Document, the terms listed below shall have the
meanings stated below:
1.1.1 "Bell Atlantic Operations Support Systems" means Bell Atlantic systems
for pre-ordering, ordering, provisioning, maintenance and repair, and
billing.
1.1.2 "Bell Atlantic OSS Services" means access to Bell Atlantic Operations
Support Systems functions. The term "Bell Atlantic OSS Services"
includes, but is not limited to: (a) Bell Atlantic's provision of
Reseller Usage Information to Reseller pursuant to Exhibit I, Section
1.3, below; and, (b) "Bell Atlantic OSS Information", as defined in
Exhibit I, Section 1.1.4, below.
1.1.3 "Bell Atlantic OSS Facilities" means any gateways, interfaces,
databases, facilities, equipment, software, or systems, used by Bell
Atlantic to provide Bell Atlantic OSS Services to Reseller.
1.1.4 "Bell Atlantic OSS Information" means any information accessed by, or
disclosed or provided to, Reseller through or as a part of Bell
Atlantic OSS Services. The term "Bell Atlantic OSS Information"
includes, but is not limited to: (a) any Customer Information related
to a Bell Atlantic Customer or a Reseller Customer accessed by, or
disclosed or provided to, Reseller through or as a part of Bell
Atlantic OSS Services; and, (b) any Reseller Usage Information (as
defined in Exhibit I, Section 1.1.5, below) accessed by, or disclosed
or provided to, Reseller.
1.1.5 "Reseller Usage Information" means the usage information for a Bell
Atlantic Retail Telecommunications Service purchased by Reseller under
this Agreement that Bell Atlantic would record if Bell Atlantic was
furnishing such Bell Atlantic Retail Telecommunications Service to a
Bell Atlantic end-user retail Customer.
1.2 BELL ATLANTIC OSS SERVICES
1.2.1 Upon request by Reseller, Bell Atlantic shall provide to Reseller,
pursuant to Section 251(c)(3) of the Act, 47 U.S.C. Section 251(c)(3),
Bell Atlantic OSS Services.
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1.2.2 Subject to the requirements of Applicable Law, Bell Atlantic
Operations Support Systems, Bell Atlantic Operations Support Systems
functions, Bell Atlantic OSS Facilities, Bell Atlantic OSS
Information, and the Bell Atlantic OSS Services that will be offered
by Bell Atlantic, shall be as determined by Bell Atlantic. To the
extent required by Applicable Law and technically feasible, Bell
Atlantic will offer to Reseller the Bell Atlantic OSS Services that
Bell Atlantic offers, under agreements approved by the Commission
pursuant to 47 U.S.C. Section 252, to other Telecommunications
Carriers that are engaged in the resale of Bell Atlantic Retail
Telecommunications Services pursuant to 47 U.S.C. Section 251(c)(4).
Subject to the requirements of Applicable Law, Bell Atlantic shall
have the right to change Bell Atlantic Operations Support Systems,
Bell Atlantic Operations Support Systems functions, Bell Atlantic OSS
Facilities, Bell Atlantic OSS Information, and the Bell Atlantic OSS
Services, from time-to-time, without the consent of Reseller.
1.3 RESELLER USAGE INFORMATION
1.3.1 Upon request by Reseller, Bell Atlantic shall provide to Reseller,
pursuant to Section 251(c)(3) of the Act, 47 U.S.C. Section 251(c)(3),
Reseller Usage Information.
1.3.2 Reseller Usage Information will be available to Reseller through the
following:
(a) Daily Usage File on Data Tape.
(b) Daily Usage File through Network Data Mover ("NDM").
(c) Daily Usage File through Centralized Message Distribution System
("CMDS").
1.3.3.1 Reseller Usage Information will be provided in a Bellcore Exchange
Message Records ("EMR") format.
1.3.3.2 Daily Usage File Data Tapes provided pursuant to Exhibit I, Section
1.3.2(a) will be issued each day, Monday through Friday, except holidays
observed by Bell Atlantic.
1.3.4 Except as stated in this Exhibit I, Section 1.3, subject to the
requirements of Applicable Law, the manner in which, and the
frequency with which, Reseller Usage Information will be provided to
Reseller shall be determined by Bell Atlantic.
1.4 PRICES
The prices for Bell Atlantic OSS Services shall be as stated in
Exhibit II, Section 2 following.
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1.5 ACCESS TO AND USE OF BELL ATLANTIC OSS FACILITIES
1.5.1 Bell Atlantic OSS Facilities may be accessed and used by Reseller only
to the extent necessary for Reseller's access to and use of Bell
Atlantic OSS Services pursuant to this Agreement.
1.5.2 Bell Atlantic OSS Facilities may be accessed and used by Reseller only
to provide Telecommunications Services to Reseller Customers.
1.5.3 Reseller shall restrict access to and use of Bell Atlantic OSS
Facilities to Reseller. This Agreement does not grant to Reseller any
right or license to grant sublicenses to other persons, or permission
to other persons (except Reseller's employees, Agents and contractors,
in accordance with Exhibit I, Section 1.5.7, below), to access or use
Bell Atlantic OSS Facilities.
1.5.4 Reseller shall not (a) alter, modify or damage the Bell Atlantic OSS
Facilities (including, but not limited to, Bell Atlantic software), (b)
copy, remove, derive, reverse engineer, or decompile, software from the
Bell Atlantic OSS Facilities, or (c) obtain access through Bell
Atlantic OSS Facilities to Bell Atlantic databases, facilities,
equipment, software, or systems, which are not offered for Reseller's
use under this Agreement.
1.5.5 Reseller shall comply with all practices and procedures established by
Bell Atlantic for access to and use of Bell Atlantic OSS Facilities
(including, but not limited to, Bell Atlantic practices and procedures
with regard to security and use of access and user identification
codes).
1.5.6 All practices and procedures for access to and use of Bell Atlantic
OSS Facilities, and all access and user identification codes for Bell
Atlantic OSS Facilities: (a) shall remain the property of Bell
Atlantic; (b) shall be used by Reseller only in connection with
Reseller's use of Bell Atlantic OSS Facilities permitted by this
Agreement; (c) shall be treated by Reseller as Confidential
Information of Bell Atlantic pursuant to Section 13; and, (d) shall
be destroyed or returned by Reseller to Bell Atlantic upon the earlier
of request by Bell Atlantic or the expiration or termination of this
Agreement.
1.5.7 Reseller's employees, Agents and contractors may access and use Bell
Atlantic OSS Facilities only to the extent necessary for Reseller's
access to and use of the Bell Atlantic OSS Facilities permitted by
this Agreement. Any access to or use of Bell Atlantic OSS Facilities
by Reseller's employees, Agents, or contractors, shall be subject to
the provisions of this Agreement, including, but not limited to,
Section 13, Exhibit I, Section 1.5.6, and Exhibit I, Section 1.6.3.3.
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1.6 BELL ATLANTIC OSS INFORMATION
1.6.1 Subject to the provisions of this Agreement and Applicable Law, Bell
Atlantic grants to Reseller a non-exclusive license to use Bell
Atlantic OSS Information.
1.6.2 All Bell Atlantic OSS Information shall at all times remain the
property of Bell Atlantic. Except as expressly stated in this
Agreement, Reseller shall acquire no rights in or to any Bell Atlantic
OSS Information.
1.6.3.1 The provisions of this Exhibit 1, Section 1.6.3 apply to all Bell
Atlantic OSS Information, except (a) Reseller Usage Information, (b)
CPNI of Reseller, and (c) CPNI of a Bell Atlantic Customer or a
Reseller Customer, to the extent the Customer has authorized Reseller
to use the Customer Information.
1.6.3.2 Bell Atlantic OSS Information may be accessed and used by Reseller only
to provide Telecommunications Services to Reseller Customers.
1.6.3.3 Reseller shall treat Bell Atlantic OSS Information that is designated
by Bell Atlantic, through written or electronic notice (including, but
not limited to, through the Bell Atlantic OSS Services), as
"Confidential" or "Proprietary" as Confidential Information of Bell
Atlantic pursuant to Section 13.
1.6.3.4 Except as expressly stated in this Agreement, this Agreement does not
grant to Reseller any right or license to grant sublicenses to other
persons, or permission to other persons (except Reseller's employees,
Agents or contractors, in accordance with Exhibit I, Section 1.6.3.5),
to access, use or disclose Bell Atlantic OSS Information.
1.6.3.5 Reseller's employees, Agents and contractors may access, use and
disclose Bell Atlantic OSS Information only to the extent necessary for
Reseller's access to, and use and disclosure of, Bell Atlantic OSS
Information permitted by this Agreement. Any access to, or use or
disclosure of, Bell Atlantic OSS Information by Reseller's employees,
Agents or contractors, shall be subject to the provisions of this
Agreement, including, but not limited to, Section 13 and Exhibit I,
Section 1.6.3.3.
1.6.3.6 Reseller's license to use Bell Atlantic OSS Information shall expire
upon the earliest of (a) the time when the Bell Atlantic OSS
Information is no longer needed by Reseller to provide
Telecommunications Services to Reseller Customers; (b) termination of
the license in accordance with this Agreement; or (c) expiration or
termination of this Agreement.
1.6.3.7 All Bell Atlantic OSS Information received by Reseller shall be
destroyed or returned by Reseller to Bell Atlantic, upon expiration,
suspension or termination of the license to use such Bell Atlantic
OSS Information.
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1.6.4 Unless sooner terminated or suspended in accordance with this Agreement
(including, but not limited to, Section 17.1 and Exhibit I, Section
1.7.1), Reseller's access to Bell Atlantic OSS Information through
Bell Atlantic OSS Services shall terminate upon the expiration or
termination of this Agreement.
1.6.5.1 Without in any way limiting Section 16.3, Bell Atlantic shall have the
right (but not the obligation) to audit Reseller to ascertain whether
Reseller is complying with the requirements of Applicable Law and this
Agreement, with regard to Reseller's access to, and use and disclosure
of, Bell Atlantic OSS Information.
1.6.5.2 Without in any way limiting Section 16.3, Section 16.4, or Exhibit I,
Section 1.6.5.1, Bell Atlantic shall have the right (but not the
obligation) to monitor Reseller's access to and use of Bell Atlantic
OSS Information which is made available by Bell Atlantic to Reseller
pursuant to this Agreement, to ascertain whether Reseller is complying
with the requirements of Applicable Law and this Agreement, with regard
to Reseller's access to, and use and disclosure of, such Bell Atlantic
OSS Information. The foregoing right shall include, but not be limited
to, the right (but not the obligation) to electronically monitor
Reseller's access to and use of Bell Atlantic OSS Information which is
made available by Bell Atlantic to Reseller through Bell Atlantic OSS
Facilities.
1.6.5.3 Information obtained by Bell Atlantic pursuant to this Exhibit I,
Section 1.6.5 shall be treated by Bell Atlantic as Confidential
Information of Reseller pursuant to Section 13; provided that, Bell
Atlantic shall have the right (but not the obligation) to use and
disclose information obtained by Bell Atlantic pursuant to this Exhibit
I, Section 1.6.5 to enforce Applicable Law and/or Bell Atlantic's
rights under this Agreement.
1.6.6 Reseller acknowledges that the Bell Atlantic OSS Information, by its
nature, is updated and corrected on a continuous basis by Bell
Atlantic, and therefore that Bell Atlantic OSS Information is subject
to change from time to time.
1.7 LIABILITIES AND REMEDIES
1.7.1 Any breach by Reseller, or Reseller's employees, Agents or
contractors, of the provisions of Exhibit I, Section 1.5 or Exhibit I,
Section 1.6, shall be deemed a material breach of a material
provision of this Agreement by Reseller under Section 17.1 of this
Agreement. In addition, if Reseller or an employee, Agent or
contractor of Reseller at any time breaches a provision of Exhibit I,
Section 1.5 or Exhibit I, Section 1.6, and such breach continues
for more than ten (10) days after written notice thereof from Bell
Atlantic, then, except as otherwise required by Applicable Law, Bell
Atlantic shall have the right, upon notice to Reseller, to suspend
the license to use Bell Atlantic OSS Information granted by Exhibit I,
Section 1.6.1 and/or the provision of Bell Atlantic OSS Services,
in whole or in part.
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1.7.2 Reseller agrees that Bell Atlantic would be irreparably injured by a
breach of Exhibit I, Section 1.5 or Exhibit I, Section 1.6 by Reseller or
the employees, Agents or contractors of Reseller, and that Bell Atlantic
shall be entitled to seek equitable relief, including injunctive relief
and specific performance, in the event of any breach of Exhibit I,
Section 1.5 or Exhibit I, Section 1.6 by Reseller or the employees,
Agents or contractors of Reseller. Such remedies shall not be deemed to
be the exclusive remedies for a breach of Exhibit I, Section 1.5 or
Exhibit I, Section 1.6, but shall be in addition to any other remedies
available under this Agreement or at law or in equity.
1.8 RELATION TO APPLICABLE LAW
The provisions of Exhibit 1, Sections 1.5, 1.6 and 1.7 shall be in
addition to and not in derogation of any provisions of Applicable Law,
including, but not limited to, 47 U.S.C. Section 222 and the FCC rules
in 47 CFR Section 64.2001 - Section 64.2009, and are not intended to
constitute a waiver by Bell Atlantic of any right with regard to
protection of the confidentiality of the information of Bell Atlantic
or Bell Atlantic Customers provided by Applicable Law.
1.9 COOPERATION
Reseller, at Reseller's expense, shall reasonably cooperate with Bell
Atlantic in using Bell Atlantic OSS Services. Such cooperation shall
include, but not be limited to, the following:
1.9.1 Upon request by Bell Atlantic, Reseller shall by no later than the
fifteenth (15th) day of each calendar month submit to Bell Atlantic
reasonable, good faith estimates (by central office or other Bell
Atlantic office or geographic area designated by Bell Atlantic) of the
volume of each Bell Atlantic Retail Telecommunications Service for which
Reseller anticipates submitting Orders in each week of the next calendar
month.
1.9.2 Upon request by Bell Atlantic, Reseller shall submit to Bell Atlantic
reasonable, good faith estimates of other types of transactions or use of
Bell Atlantic OSS Services that Reseller anticipates.
1.9.3 Reseller shall reasonably cooperate with Bell Atlantic in submitting
Orders for Bell Atlantic Retail Telecommunications Services and otherwise
using the Bell Atlantic OSS Services, in order to avoid exceeding the
capacity or capabilities of such Bell Atlantic OSS Services.
1.9.4 Reseller shall participate in cooperative testing of Bell Atlantic OSS
Services and shall provide assistance to Bell Atlantic in identifying and
correcting mistakes, omissions, interruptions, delays, errors, defects,
faults, failures, or other deficiencies, in Bell Atlantic OSS Services.
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1.10 Bell Atlantic Access to Information Related to Reseller CUSTOMERS
1.10.1 Bell Atlantic shall have the right to access, use and disclose
information related to Reseller Customers that is in Bell Atlantic's
possession (including, but not limited to, in Bell Atlantic OSS
Facilities) to the extent such access, use and/or disclosure has been
authorized by the Reseller Customer in the manner required by
Applicable Law.
1.10.2 Upon request by Bell Atlantic, Reseller shall negotiate in good faith
and enter into a contract with Bell Atlantic, pursuant to which Bell
Atlantic may obtain access to Reseller's operations support systems
(including, systems for pre-ordering, ordering, provisioning,
maintenance and repair, and billing) and information contained in such
systems, to permit Bell Atlantic to obtain information related to
Reseller Customers (as authorized by the applicable Reseller Customer),
to permit Customers to transfer service from one Telecommunications
Carrier to another, and for such other purposes as may be permitted by
Applicable Law.
2. E911/911 SERVICES
2.1 Where and to the extent that Bell Atlantic provides E911/911 call
routing to a Public Safety Answering Point ("PSAP") to Bell Atlantic's
own end user retail Customers, Bell Atlantic will provide to Reseller,
for resold Bell Atlantic Retail Telecommunications Service dial tone
lines, E911/911 call routing to the appropriate PSAP. Bell Atlantic
will provide Reseller Customer information for resold Bell Atlantic
Retail Telecommunications Service dial tone lines to the PSAP as that
information is provided to Bell Atlantic by Reseller where and to the
same extent that Bell Atlantic provides Bell Atlantic end user retail
Customer information to the PSAP. Bell Atlantic will update and
maintain, on the same schedule that Bell Atlantic uses with Bell
Atlantic's own end user retail Customers, for Reseller Customers served
by resold Bell Atlantic Retail Telecommunications Service dial tone
lines, the Reseller Customer information in Bell Atlantic's E911/911
databases.
2.2 Reseller shall provide to Bell Atlantic the name, telephone number and
address, of all Reseller Customers, and such other information as may
be requested by Bell Atlantic, for inclusion in E911/911 databases. Any
change in Reseller Customer name, address or telephone number
information (including addition or deletion of a Reseller Customer, or
a change in Reseller Customer name, telephone number or address), or in
other E911/911 information supplied by Reseller to Bell Atlantic, shall
be reported to Bell Atlantic by Reseller within one (1) day after the
change.
2.3 To the extent that it is necessary (whether as a requirement of
Applicable Law or otherwise) for Reseller to enter into any agreements
or other arrangements with governmental entities (or governmental
entity contractors) related to E911/911 in order for Reseller to
provide Telecommunications Services, Reseller shall at Reseller's
expense enter into such agreements and arrangements.
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3. ROUTING TO DIRECTORY ASSISTANCE AND OPERATOR SERVICES
3.1 Upon request by Reseller, to the extent technically feasible, Bell
Atlantic will provide to Reseller the capability of rerouting to
Reseller's platforms directory assistance traffic (411 and 555-1212
calls) from Reseller Customers served by resold Bell Atlantic Retail
Telecommunications Service dial tone line service and operator services
traffic (0+ and 0- intraLATA calls) from Reseller Customers served by
resold Bell Atlantic Retail Telecommunications Service dial tone line
service.
3.2 A request for the rerouting service described in Exhibit I, Section
4.1 must be made by Reseller (a) on a Bell Atlantic switch-by-Bell
Atlantic switch basis, and (b) at least ninety (90) days in advance of
the date that the rerouting capability is to be made available in an
applicable Bell Atlantic switch.
3.3 The prices for the rerouting service described in Exhibit I, Section
4.1 shall be as stated in Exhibit II, Section 2.
4. LIDB/BVS
4.1 Upon request by Reseller, Bell Atlantic will maintain information
(including calling card numbers and collect and bill to third party
billing restriction notation) for Reseller Customers who subscribe to
resold Bell Atlantic Retail Telecommunications Service dial tone line
service, in Bell Atlantic's Line Information Database ("LIDB"), where
and to the same extent that Bell Atlantic maintains information in Bell
Atlantic's LIDB for Bell Atlantic's own end-user retail Customers.
4.2 If an end-user terminates Bell Atlantic Retail Telecommunications
Service dial tone line service provided to the end-user by Bell
Atlantic and, in place thereof, subscribes to Reseller for resold Bell
Atlantic Retail Telecommunications Service dial tone line service, Bell
Atlantic will remove from Bell Atlantic's LIDB any Bell Atlantic
assigned telephone line calling card number (including area code)
("TLN") and Personal Identification Number ("PIN") associated with the
terminated Bell Atlantic Retail Telecommunications Service dial tone
line service. The Bell Atlantic-assigned TLN and PIN will be removed
from Bell Atlantic's LIDB within twenty-four (24) hours after Bell
Atlantic terminates the Bell Atlantic Retail Telecommunications Service
dial tone line service with which the number was associated. Reseller
may issue a new telephone calling card to such end-user, utilizing the
same TLN, and the same or a different PIN. Upon request by Reseller,
Bell Atlantic will enter such TLN and PIN in Bell Atlantic's LIDB for
calling card validation purposes.
4.3 Reseller information which is stored in Bell Atlantic's LIDB will be
subject, to the same extent as Bell Atlantic information stored in Bell
Atlantic's LIDB, to access and use by, and disclosure to, those persons
(including, but not limited to, Bell Atlantic) to
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whom Bell Atlantic allows access to information which is stored in Bell
Atlantic's LIDB. Reseller hereby grants to Bell Atlantic and the
persons to whom Bell Atlantic allows access to information which is
stored in Bell Atlantic's LIDB, a royalty free license for such access,
use and disclosure.
4.4 Reseller shall obtain contractual agreements with each of the persons
authorized to have access to Bell Atlantic's LIDB, under which Reseller
will bill Reseller Customers for calling card, third party, collect and
other calls validated by such persons through Bell Atlantic's LIDB.
4.5 Reseller warrants that the information provided by Reseller for
inclusion in Bell Atlantic's LIDB will at all times be current,
accurate and appropriate for use for billing validation services.
4.6 Upon request by Reseller, Bell Atlantic will provide to Reseller Bell
Atlantic Billing Validation Service, in accordance with Bell Atlantic's
Tariffs, for use by Reseller in connection with Bell Atlantic Retail
Telecommunications Services purchased and provided by Reseller pursuant
to this Agreement.
4.7 Information in Bell Atlantic's LIDB provided to Reseller shall be
treated by Reseller as Confidential Information of Bell Atlantic
pursuant to Section 13.
4.8 The prices for the services described in this Exhibit I, Section 5
shall be as stated in Exhibit II, Section 2.
42
<PAGE>
EXHIBIT II
PRICES FOR BELL ATLANTIC SERVICES
1. BELL ATLANTIC RETAIL TELECOMMUNICATIONS SERVICES
1.1 PRICES
The prices for Bell Atlantic Retail Telecommunications Services shall
be the Retail Prices stated in Bell Atlantic's Tariffs for such Bell Atlantic
Retail Telecommunications Services, less: (a) the applicable discount stated in
Bell Atlantic's Tariffs for Bell Atlantic Retail Telecommunications Services
purchased for resale pursuant to 47 U.S.C. Section 251(c)(4); or, (b) in the
absence of an applicable Bell Atlantic Tariff discount for Bell Atlantic
Retail Telecommunications Services purchased for resale pursuant to 47 U.S.C.
Section 251(c)(4), the applicable discount stated in Exhibit II, Attachment 1.
1.2 INAPPLICABILITY OF DISCOUNTS
The discounts provided for in Exhibit II, Section 1.1, shall not be
applied to:
1.2.1 Retail Prices that are in effect for no more than ninety (90) days;
1.2.2 Charges for services and products provided by Bell Atlantic that are
not Bell Atlantic Retail Telecommunications Services, including, but not limited
to, Bell Atlantic Ancillary Services, and exchange access services as defined in
Section 3(16) of the Act, 47 U.S.C. Section 153(16);
1.2.3 Subscriber Line Charges, Federal Line Cost Charges, end user common
line charges, carrier selection and change charges, and Audiotex Service
charges, and to the extent applicable, the Presubscribed Interexchange Carrier
Charge applicable to Reseller Customers who have not presubscribed to an
interexchange carrier for long distance services; and,
1.2.4 Any service or charge which the Commission, the FCC, or other
governmental entity of appropriate jurisdiction, determines is not subject to a
wholesale rate discount under 47 U.S.C. Section 251(c)(4).
1.3 DISCOUNT CHANGES
1.3.1 Bell Atlantic shall change the discounts provided for in Exhibit II,
Section 1.1, above, from time-to-time, to the extent such change is
required by Applicable Law, including, but not limited to, by regulation
or order of the Commission, the FCC, or other governmental entity of
appropriate jurisdiction.
43
<PAGE>
1.3.2 Bell Atlantic shall have the right to change the discounts provided for
in Exhibit II, Section 1.1, above, from time-to-time, to the extent such change
is required, approved or permitted by Applicable Law, including, but not limited
to, by regulation or order of the Commission, the FCC, or other governmental
entity of appropriate jurisdiction.
1.4 Offers of Merchandise and Services which are not Bell Atlantic Retail
Telecommunications Services
Reseller shall not be eligible to participate in any Bell Atlantic plan
or program under which Bell Atlantic end user retail Customers may obtain
products or merchandise, or services which are not Bell Atlantic Retail
Telecommunications Services, in return for trying, agreeing to purchase,
purchasing, or using, Bell Atlantic Retail Telecommunications Services.
2. BELL ATLANTIC ANCILLARY SERVICES
2.1 PRICES
2.1.1 The prices for Bell Atlantic Ancillary Services shall be as stated: (a)
in Bell Atlantic's Tariffs; or, (b) in the absence of an applicable Bell
Atlantic Tariff price, in Exhibit II, Attachment 1.
2.1.2 If Bell Atlantic at any time offers a Bell Atlantic Ancillary Service
the prices for which are not stated in Bell Atlantic's Tariffs or Exhibit II,
Attachment 1, Bell Atlantic shall have the right to revise Exhibit II,
Attachment 1, to add the prices to Exhibit II, Attachment 1.
2.2 PRICE CHANGES
2.2.1 Bell Atlantic shall change the prices for Bell Atlantic Ancillary
Services, from time-to-time, to the extent such change is required by Applicable
Law, including, but not limited to, by regulation or order of the Commission,
the FCC, or other governmental entity of appropriate jurisdiction.
2.2.2 Bell Atlantic shall have the right to change the prices for Bell
Atlantic Ancillary Services, from time-to-time, to the extent such change is
required, approved or permitted by Applicable Law, including, but not limited
to, by regulation or order of the Commission, the FCC, or other governmental
entity of appropriate jurisdiction.
2.2.3 Except as otherwise required by Applicable Law, Bell Atlantic shall
give Reseller thirty (30) days advance written notice of any increase in the
prices stated in Exhibit II, Attachment 1 for Bell Atlantic Ancillary Services.
44
<PAGE>
ATTACHMENT 1
TO EXHIBIT II
BELL ATLANTIC - VIRGINIA, INC.
DETAILED SCHEDULE OF ITEMIZED CHARGES(1)
I. WHOLESALE DISCOUNT FOR RESALE OF BELL ATLANTIC RETAIL TELECOMMUNICATIONS
SERVICES
<TABLE>
<S> <C>
Resale of Bell Atlantic Retail 21.3% or discount rate as established by
Telecommunications Services if RESELLER Commission Order.
provides its own Operator Services.
Resale of Bell Atlantic Retail 18.5% or discount rate as established by
Telecommunications Services if RESELLER Commission Order.
uses Bell Atlantic Operator Services.
</TABLE>
- ---------------------------
(1) All rates and charges set forth in this Exhibit II, Attachment 1 are subject
to change from time-to-time as provided in this Agreement, including, but not
limited to, in Section 2.3 and Exhibit II of this Agreement. The rates and
charges set forth in this Exhibit II, Attachment 1 shall apply until such time
as they are replaced by new rates as may be approved or allowed into effect by
the Commission from time to time, subject to a stay or other order issued by any
court of competent jurisdiction. At such time(s) as such new rates have been
approved or allowed into effect by the Commission, the Parties shall amend this
Exhibit II, Attachment 1 to reflect the new approved rates.
Except for citations to generally available services and rates offered
under Bell Atlantic's Tariffs, all services and rates listed in this Exhibit II,
Attachment 1 are available to Reseller only in connection with the purchase and
resale of Bell Atlantic Retail Telecommunications Services by Reseller under
this Agreement. Adherence to this limitation shall be subject to reasonable
audit by Bell Atlantic.
The rates set forth in Sections II through IV of this Exhibit II,
Attachment 1, are in addition to, and not in lieu of, any other rates set forth
in this Agreement.
In addition to charges for Bell Atlantic Services, Reseller shall pay,
or collect and remit, applicable taxes and surcharges (including, but not
limited to, E911/911, telecommunications relay service, and universal service
fund, surcharges), as required by Applicable Law and this Agreement.
<PAGE>
<TABLE>
<CAPTION>
SERVICE OR ELEMENT DESCRIPTION: RECURRING CHARGES: NON-RECURRING
- ------------------------------- ------------------ CHARGE:
------------
<S> <C> <C>
II. ACCESS TO OPERATION SUPPORT SYSTEMS
A. Pre-Ordering $.24/Query Not Applicable
B. Ordering $3.83/Transaction Not Applicable
C. Provisioning Included in Ordering Not Applicable
D. Maintenance & Repair $1.16/Trouble Ticket Not Applicable
E. Billing
1. CD-ROM $245.05/CD-ROM/ Not Applicable
Month
2. Daily Usage File
a) Existing Message Recording $.000246/Message Not Applicable
b) Delivery of DUF
Data Tape $20.05/Tape Not Applicable
Network Data Mover $.000093/Message Not Applicable
CMDS $.000093/Message Not Applicable
c) DUF Transport
Communication Ports
9.6 kb Communications Port $116.83/Month Not Applicable
56 kb Communications Port $483.91/Month Not Applicable
256 kb Communications Port $804.90/Month Not Applicable
TI Communications Port $2,872.12/Month Not Applicable
Port Maintenance
9.6 kb Communications Port $10.17/Month Not Applicable
56 kb Communications Port $28.08/Month Not Applicable
256 kb Communications Port $28.08/Month Not Applicable
TI Communications Port $356.61/Month Not Applicable
Line Installation Not Applicable $64.96/Programming
Hour/Port
Port Set-up Not Applicable $10.43/Port
Network Control Programming Not Applicable $64.96/Programming
Coding Hour/Port
</TABLE>
2
<PAGE>
<TABLE>
<CAPTION>
SERVICE OR ELEMENT DESCRIPTION: RECURRING CHARGES: NON-RECURRING
- ------------------------------- ------------------ CHARGE:
-------------
<S> <C> <C>
III. DIRECTORY ASSISTANCE/OPERATOR SERVICES
ROUTING
To RESELLER Platform $.12085/Line/Month Not Applicable
To BA Platform for Re-Branding $.06043/Call Not Applicable
IV. LIDB INTERCONNECTION/BILLING VALIDATION
SERVICE
LIDB Point Codes Not Applicable $/80.93 Point Code
Calling Card $.0153/Query Not Applicable
Billed Number Screening $.0153/Query Not Applicable
Storage of RESELLER's Data in LIDB Not Applicable $1,381.66/Service
Establishment/
Request
</TABLE>
3
<PAGE>
APPENDIX 1, ATTACHMENT 21
QUALIFIED BUSINESS LINES FOR VOLUME COMMITMENT
VIRGINIA
<TABLE>
<S> <C> <C> <C> <C>
- ----------------------------------------------------------------------------------------------------------------------------
ACCESS LINES
- ----------------------------------------------------------------------------------------------------------------------------
Message Business Service 1MB ALS 1BJ ALJ
- ----------------------------------------------------------------------------------------------------------------------------
Measured Business Service LMB ALM
- ----------------------------------------------------------------------------------------------------------------------------
Flat Rate 1FB AFK BUA ALV
- ----------------------------------------------------------------------------------------------------------------------------
Direct Inward Dial Trunks NDT NDZ NDJ
- ----------------------------------------------------------------------------------------------------------------------------
PBX Trunks Message TMB THM
- ----------------------------------------------------------------------------------------------------------------------------
PBX Trunks Measured TV1
- ----------------------------------------------------------------------------------------------------------------------------
PBX Flat TFB TZF
- ----------------------------------------------------------------------------------------------------------------------------
PBX Digital trunks D7Z D7W
- ----------------------------------------------------------------------------------------------------------------------------
CENTREX:**
- ----------------------------------------------------------------------------------------------------------------------------
**EXCLUDES:
1. Centrex systems priced under a special contract (ICB, FPO, LSO, Custom Pricing)
2. Centrex systems which serve multiple end user customers
- ----------------------------------------------------------------------------------------------------------------------------
CENTREX - CUSTOPAK / CLASS OF SERVICE
- ----------------------------------------------------------------------------------------------------------------------------
Message CGC+X CHC+X
- ----------------------------------------------------------------------------------------------------------------------------
Measured CEC+X
- ----------------------------------------------------------------------------------------------------------------------------
Flat CJE+X CJC+X
- ----------------------------------------------------------------------------------------------------------------------------
CUSTOPAK LINES
- ----------------------------------------------------------------------------------------------------------------------------
Unrestricted R3G
- ----------------------------------------------------------------------------------------------------------------------------
Restricted R3K
- ----------------------------------------------------------------------------------------------------------------------------
Primary Off Prem RX3
- ----------------------------------------------------------------------------------------------------------------------------
CENTREX - CUSTOFLEX 2100 / CLASS OF SERVICE
- ----------------------------------------------------------------------------------------------------------------------------
Message KGK+X KHK+X
- ----------------------------------------------------------------------------------------------------------------------------
Measured KEK+X KHK+X
- ----------------------------------------------------------------------------------------------------------------------------
Flat KJE+X
- ----------------------------------------------------------------------------------------------------------------------------
CUSTOFLEX 2100 LINES
- ----------------------------------------------------------------------------------------------------------------------------
Unrestricted R4N
- ----------------------------------------------------------------------------------------------------------------------------
Restricted RHK
- ----------------------------------------------------------------------------------------------------------------------------
Primary Off Prem RX3
- ----------------------------------------------------------------------------------------------------------------------------
ISDN - Unrestricted XQA
- ----------------------------------------------------------------------------------------------------------------------------
ISDN - Restricted XQK
- ---------------------------------------------------------------------------------------------------------------------------
</TABLE>
PAGE 1 OF 1
<PAGE>
APPENDIX 1, ATTACHMENT 22
PRODUCT AND SERVICES ELIGIBLE FOR VTD DISCOUNT
VIRGINIA
<TABLE>
<S> <C> <C> <C> <C>
- ----------------------------------------------------------------------------------------------------------------------------
ACCESS LINES
- ----------------------------------------------------------------------------------------------------------------------------
Message Business Service 1MB ALS 1BJ ALJ
- ----------------------------------------------------------------------------------------------------------------------------
Measured Business Service LMB ALM
- ----------------------------------------------------------------------------------------------------------------------------
Flat Rate 1FB AFK BUA ALV
- ----------------------------------------------------------------------------------------------------------------------------
Direct Inward Dial Trunks NDT NDZ NDJ
- ----------------------------------------------------------------------------------------------------------------------------
PBX Trunks Message TMB THM
- ----------------------------------------------------------------------------------------------------------------------------
PBX Trunks Measured TV1
- ----------------------------------------------------------------------------------------------------------------------------
PBX Flat TFB TZF
- ----------------------------------------------------------------------------------------------------------------------------
PBX Digital trunks D7Z D7W
- ----------------------------------------------------------------------------------------------------------------------------
INTRA-LATA TOLL
# MUST BE ASSOCIATED WITH A RESOLD VTD QUALIFIED BUSINESS LINE
- ----------------------------------------------------------------------------------------------------------------------------
Message Rate Service N/A
- ----------------------------------------------------------------------------------------------------------------------------
MTS, including Key Connections Optional Calling Plan BUT VWDK1 WRV
---------------------------------------------------------
excluding all other Optional Calling Plans
- ----------------------------------------------------------------------------------------------------------------------------
FEATURES
# MUST BE ASSOCIATED WITH A RESOLD VTD QUALIFIED BUSINESS LINE
- ----------------------------------------------------------------------------------------------------------------------------
Touch Tone TTB TJB
- ----------------------------------------------------------------------------------------------------------------------------
IQ SERVICES:
# MUST BE ASSOCIATED WITH A RESOLD VTD QUALIFIED BUSINESS LINE
- ----------------------------------------------------------------------------------------------------------------------------
Call Forwarding ESM
- ----------------------------------------------------------------------------------------------------------------------------
Call Waiting ESX
- ----------------------------------------------------------------------------------------------------------------------------
Call Waiting ID NWT
- ----------------------------------------------------------------------------------------------------------------------------
Speed Dialing 8 ESL
- ----------------------------------------------------------------------------------------------------------------------------
Speed Dialing 30 ESF
- ----------------------------------------------------------------------------------------------------------------------------
3 Way Calling (per Use or Monthly) ESC
- ----------------------------------------------------------------------------------------------------------------------------
*69 (per Use or Monthly) NSS
- ----------------------------------------------------------------------------------------------------------------------------
Call Trace (Per Use Charge)
- ----------------------------------------------------------------------------------------------------------------------------
Caller ID NSD
- ----------------------------------------------------------------------------------------------------------------------------
Caller ID with Name NDF
- ----------------------------------------------------------------------------------------------------------------------------
Per Call Blocking (Per Use Charge)
- ----------------------------------------------------------------------------------------------------------------------------
Repeat Dialing NSQ
- ----------------------------------------------------------------------------------------------------------------------------
Ultra Forward FRM
- ----------------------------------------------------------------------------------------------------------------------------
Distinctive Ring DRQ+X
- ----------------------------------------------------------------------------------------------------------------------------
Priority Call NSK
- ----------------------------------------------------------------------------------------------------------------------------
Select Forward NCE
- ----------------------------------------------------------------------------------------------------------------------------
Call Block NSY
- ----------------------------------------------------------------------------------------------------------------------------
Call Gate OC4
- ----------------------------------------------------------------------------------------------------------------------------
Anonymous Call Rejection - w/Caller ID AWY
- ----------------------------------------------------------------------------------------------------------------------------
Anonymous Call Rejection - w/o Caller ID AYK
- ----------------------------------------------------------------------------------------------------------------------------
</TABLE>
Page 1 of 1
<PAGE>
NEW ENGLAND TELEPHONE AND TELEGRAPH COMPANY
RESALE SERVICE AGREEMENT
This Agreement is by and between New England Telephone and Telegraph
Company ("NET") d/b/a Bell Atlantic - Rhode Island and Essential.Com, Inc.
("Reseller").
WHEREAS, NET will offer local exchange services ("Service(s)") for
resale;
WHEREAS, Reseller is a reseller operating in the State of Rhode
Island;
WHEREAS, NET and Reseller have negotiated in good faith for the
resale of such Services pursuant to and consistent with the
Telecommunications Act of 1996.
NOW, THEREFORE, in consideration of the mutual obligations set forth
herein, and for other good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, NET and Reseller agree as
follows:
1. RESALE ARRANGEMENT
NET will offer telecommunications services it provides at retail to end
users in the State of Rhode Island for resale by Reseller in accordance
with the attached Terms and Conditions -- Resale Services contained in
Attachment A. Attachment A is incorporated herein as an integral and
necessary part of the parties' agreement. Whenever reference is made
herein to the Agreement, the reference includes Attachment A.
2. TERM OF AGREEMENT
A. NET will file this Agreement promptly with the Rhode Island
Public Utility Commission ("RIPUC") for approval pursuant to
section 252 of the Telecommunications Act of 1996. The
Agreement will be effective as of the date the resale
agreement is signed by both parties.
B. Upon execution of the Agreement by both parties, NET and
Reseller shall endeavor to jointly develop an implementation
plan for the services that Reseller will resell.
C. Each Party agrees to fully support approval of the Agreement
by the RIPUC without modification. The Parties, however,
reserve the right to seek regulatory relief and otherwise
seek redress from each other regarding performance and
implementation of this Agreement. In the event the RIPUC
rejects this Agreement in whole or in part the Parties agree
to meet and negotiate in good faith to arrive at a mutually
acceptable modification of the rejected portion(s); provided
that such rejected portion(s) shall not affect the validity
of the remainder of this Agreement.
D. The Agreement is subject to change, modification, or
cancellation as may be required and mutually agreed by either
Party based on any significant change in Federal
Communications Commission or RIPUC rules which may impact the
provision of service under this Agreement or the rights and
obligations of the Parties under the Act.
E. Either party may terminate Agreement with 90 days written
notification to the other.
3. CHARGES
1
<PAGE>
Reseller shall pay NET the charges contained in Attachment A. The
Parties understand that the charges contained in Attachment A are
subject to revision by the RIPUC. If the RIPUC issues any decision or
order which approves for any telecommunications carrier different
charges for any of the services contained in Attachment A within six
months following the effective date of this Agreement, the Parties will
true-up the charges paid under this Agreement retroactive to the
effective date of the Agreement based upon the decision or order of the
RIPUC. However, if the RIPUC does not issue such a decision or order
within six months, the Parties agree that there will be no true-up, and
any new charges approved thereafter by the RIPUC will apply to the
services provided under this Agreement as of the date of the RIPUC
order or decision.
4. PROMOTIONAL MATERIAL
NET shall provide Reseller with a reasonable amount of information
related to the use of the services it will resell for Reseller's use in
its marketing and product materials. NET, in consultation with
Reseller, shall determine the type, quantity, and availability of the
information to be provided to Reseller. NET shall also make available
to Reseller's personnel basic training related to the use and operation
of the services. NET shall reasonably determine the timing and content
of such training. Such training and promotional material shall be
provided to Reseller only and NET is under no obligation to provide any
training or promotional material to any other person or entity Reseller
may engage in the sale, provision, or use of the Services.
5. GOVERNING LAW
This Agreement shall be governed by and construed in accordance with
the laws of the State of Rhode Island, except a provision of law which
would refer any issue to another jurisdiction.
6. ENTIRE AGREEMENT
This Agreement constitutes the entire understanding between the Parties
with respect to the subject matter hereof and supersedes all prior
understandings, oral or written representations, statements,
negotiations, proposals and undertakings in oral written form.
7. AMENDMENTS AND WAIVERS
A. This Agreement may be amended or additional provision may be
added by written agreement signed by or on behalf of both
parties. No amendment or waiver of any provisions of this
Agreement, and no consent to any default under this
Agreement, shall be effective unless the same shall be in
writing and signed by a duly authorized representative on
behalf of the party against whom such amendment, waiver or
consent is claimed, except as otherwise provided in this
Agreement preceding. In addition, no course of dealing or
failure of any party to enforce strictly any term, right or
condition of this Agreement shall be construed as a waiver
of such term, right or condition.
B. Either party's failure at any time to enforce any of the
provisions of this Agreement or any right with respect
thereto, or to exercise any option herein provided, will in
no way be construed to be a waiver of such provisions,
rights, or options or in any way to affect the validity of
this Agreement. The exercise by either party of any rights or
options under the terms herein shall not preclude or
prejudice the exercise thereafter of the same or other rights
under this Agreement.
8. ASSIGNMENT
Neither party may assign or transfer (whether by operation of law or
otherwise) this Agreement (or any rights or obligations hereunder) to a
third party without the prior written consent of the
2
<PAGE>
other party which consent shall not be unreasonably withheld; provided,
however, each party may assign this Agreement to a corporate affiliate
or an entity under its common control or an entity acquiring all or
substantially all of its assets or equity by providing prior written
notice to the other party of such assignment or transfer. Any attempted
assignment or transfer that is not permitted shall be void AB INITIO.
All obligations and duties of any party shall be binding on all
successors in interest and assigns of such party.
9. NOTICE AND DEMAND
Except as otherwise provided under this Agreement, all notices,
demands, or requests which may be given by any party to the other party
shall be in writing and shall be deemed to have been duly given on the
date delivered in person or deposited, postage prepaid, in the United
States Mail via Certified Mail or nationally recognized overnight
carrier, return receipt requested, and addressed as follows:
TO RESELLER: President
Essential.Com, Inc.
3 Burlington Woods Drive
Burlington, MA 01803
Tel: (781) 229-9599
Fax: (781) 229-9499
TO COMPANY: Account Manager - Resale Services
222 Bloomingdale Road
2nd floor
White Plains, NY 10605
cc: Bell Atlantic Corporation
General Counsel
1095 Avenue of the Americas
41st floor
New York, NY 10036
If personal delivery is selected as the method of giving notice under
this Section, a receipt of such delivery shall be obtained. The
address to which such notices, demands, requests, elections or other
communications are to be given by either party may be changed by
written notice given by such party to the other party pursuant to this
Section.
10. THIRD-PARTY BENEFICIARIES
This Agreement shall not provide any person not a party to this
Agreement with any remedy, claim, liability, reimbursement claim of
action or other right in excess of those existing without reference to
this Agreement.
11. FORCE MAJEURE
Neither party shall be deemed to be negligent, at fault, or otherwise
liable in any respect for any delay or failure in performance of any
part of this Agreement to the extent that such failure or delay is
caused by acts of God, acts of civil or military authority, government
regulations, embargoes, epidemics, war, terrorist acts, riots,
insurrections, fires, explosions, earthquakes, nuclear accidents,
floods, strikes, power blackouts, volcanic action, other major
environmental
3
<PAGE>
disturbances, unusually severe weather conditions, inability to secure
products or services of other persons or transportation facilities, or
acts or omissions of transportation common carriers or other causes
beyond the control of the party obligated to perform. If any force
majeure condition occurs, the party delayed or unable to perform shall
give immediate notice to the other Party and shall take all reasonable
steps to correct the force majeure condition. During the pendency of
the force majeure, the duties of the parties under this Agreement
affected by the force majeure condition shall be abated and shall
resume without liability thereafter.
12. CONTINGENCY
Notwithstanding any other provision of this Agreement, this Agreement
is subject to change, modification, or cancellation as may be
required by a regulatory authority or court in the exercise of its
lawful jurisdiction.
13. COMPLIANCE
Each Party shall comply with all applicable federal, state, and local
laws, rules, and regulations applicable to its performance under this
Agreement.
14. NON-EXCLUSIVE AGREEMENT
This Agreement is non-exclusive. NET reserves the right to extend to
others the Services and rights provided for herein.
15. PUBLICITY AND USE OF TRADEMARKS OR SERVICE MARKS
Neither Party nor its subcontractors or agents will use the other
Party's trademarks, service marks, logos or other proprietary trade
dress in connection with the sale of products and services, or in any
advertising, press releases, publicity matters or other promotional
materials without such Party's prior written consent.
Neither Party may imply any direct or indirect affiliation with or
sponsorship or endorsement of its company, products and services by the
other Party.
16. SEVERABILITY
In the event any of the provisions of this Agreement are found to be
invalid by any administrative agency, arbitrator or court or competent
jurisdiction, the remaining provisions of this Agreement, whether
relating to similar or dissimilar subjects, shall nevertheless be
binding with the same effect as though the invalid provisions were
deleted, unless the result would be to substantially change the rights
or obligations of either party, in which event the parties shall seek
to negotiate in good faith revisions to the Agreement consistent with
their earlier intent. Failing further agreement, this Agreement shall
terminate and no party shall be liable to the other, except for
outstanding amounts due under this Agreement, including, but not
limited to, amounts due pursuant to the payment terms, the carryover
pool, and any other amounts which survive termination as stated in
this Agreement.
17. EXECUTED IN COUNTERPARTS
This Agreement may be executed in any number of counterparts, each of
which shall be an original, but such counterparts shall together
constitute but one and the same document.
4
<PAGE>
18. HEADINGS
The headings in this Agreement are for convenience and shall not be
construed to define or limit any of the terms herein or affect the
meanings or interpretation of this Agreement.
19. DISCLAIMER OF REPRESENTATIONS AND WARRANTIES
EXCEPT AS EXPRESSLY PROVIDED UNDER THIS AGREEMENT, NO PARTY MAKES OR
RECEIVES ANY WARRANTY, EXPRESS OR IMPLIED, WITH RESPECT TO THE
SERVICES, FUNCTIONS AND PRODUCTS IT PROVIDES UNDER OR CONTEMPLATED BY
THIS AGREEMENT AND THE PARTIES DISCLAIM THE IMPLIED WARRANTIES OF
MERCHANTABILITY OR OF FITNESS FOR A PARTICULAR PURPOSE.
20. JOINT WORK PRODUCT
This Agreement is the joint work product of the Parties and has been
negotiated by the Parties and their respective counsel and shall be
fairly interpreted in accordance with its terms and, in the event of
any ambiguities, no inferences shall be drawn against either party.
5
<PAGE>
IN WITNESS WHEREOF, the parties have executed this Agreement.
ESSENTIAL.COM, INC.
BY: /s/ Akhil Garland
------------------------------------------
Signature
Akhil Garland
------------------------------------------
Name (Printed)
ITS: CEO
------------------------------------------
Title
DATE: August 4, 1999
------------------------------------------
BY: /s/ Patrick Moran
------------------------------------------
Signature
Patrick Moran
------------------------------------------
Name (Printed)
ITS: Vice President-Operations
------------------------------------------
Title
DATE: August 4, 1999
------------------------------------------
BY: /s/ John Duffy
------------------------------------------
Signature
John Duffy
------------------------------------------
Name (Printed)
ITS: Vice President-Business Development
------------------------------------------
Title
DATE: August 4, 1999
------------------------------------------
NEW ENGLAND TELEPHONE AND TELEGRAPH COMPANY d/b/a BELL ATLANTIC - RHODE
ISLAND
BY: /s/ Jeffrey A. Masoner
------------------------------------------
Signature
Jeffrey A. Masoner
------------------------------------------
Name (Printed)
TITLE: Vice President-Telecom Industry Services
------------------------------------------
DATE: August 17, 1999
------------------------------------------
6
<PAGE>
Attachment A
6.1 RESALE
6.1.1 GENERAL
6.1.1.1 TERMS AND CONDITIONS STRUCTURE
(A) The terms and conditions are divided into sections which are structured
numerically, (e.g., Section 6.1, 6.2, 6.3 etc.).
6.1.2 REFERENCING
6.1.2.1 REFERENCE TO TARIFFS
(A) Whenever reference is made in these terms and conditions to tariffs of
the Telephone Company, the reference is to the tariffs in force as of
the effective date of these terms and conditions, and to amendments
thereto and successive issues thereof. The regulations, rates and
charges contained herein are in addition to the applicable regulations,
rates and charges specified in tariffs of the Telephone Company which
may be referenced.
6.1.2.2 TRADEMARKS AND SERVICE MARKS
(A) Refer to RIPUC No. 15.
6.1.3 TERMS AND CONDITIONS TERMINOLOGY
Unless otherwise defined herein, terminology contained within these
terms and conditions are as defined in RIPUC No. 15.
6.1.3.1 DEFINITIONS
END USER - Any person purchasing service for their own use rather than
for sale to another person, party or entity etc. End Users may not
purchase from these terms and conditions.
PREMISES - This term as defined in RIPUC No. 15 is a reference to the
premises at which the service is provided, and not a reference to the
reseller's premises
RESALE - The sale to another person of telecommunications services
purchased from the Telephone Company. A person purchases for resale
when such person purchases a service for the purpose of reselling it
to another (rather than the purpose of using the service itself).
RESELLER/CUSTOMER - Any individual, partnership, association, joint
stock company, trust, corporation, governmental entity or other
entity, authorized by law to resell telecommunications services in the
state of Rhode Island, which subscribes to the telecommunications
services offered under these terms and conditions.
TELEPHONE COMPANY - The New England Telephone and Telegraph Company.
7
<PAGE>
6.2 GENERAL REGULATIONS
In addition to the general regulations contained herein, the general
regulations specified in RIPUC No. 15 also apply.
6.2.1 APPLICATION OF TERMS AND CONDITIONS
6.2.1.1 SCOPE
(A) Regulations, rates and charges in these terms and conditions apply to
the offering of Telephone Company telecommunications services for
resale.
(B) Only a reseller authorized by law to resell telecommunications
services in the State of Rhode Island may purchase under these terms
and conditions. These terms and conditions are not intended to
enlarge, restrict, or otherwise affect any provision of law relating
to the authority to resell telecommunications services.
(1) Resellers do not surrender any right to purchase from any of the
Telephone Company's intrastate tariffs by purchasing from these terms
and conditions. However, the discounts contained herein will apply only
to purchases from these terms and conditions. Resellers purchasing
retail services from the Telephone Company's intrastate tariffs will do
so through traditional retail channels, and will be billed accordingly.
(C) In addition to the responsibilities and obligations specified in RIPUC
No. 15, the reseller must conform to any applicable rules and
regulations set forth by the Public Utilities Commission.
(D) The resale of telecommunications services and the provision thereof by
the Telephone Company as set forth in these terms and conditions does
not constitute a joint undertaking nor does it constitute an agency,
contractual or any other type of relationship between the reseller and
the Telephone Company (other than that of purchaser and seller) or
between the Telephone Company and the reseller's end user.
(E) A reseller ordering a resold service under these terms and conditions
has all of the obligations that would be imposed under the applicable
Telephone Company tariff upon an end user who orders the service
directly from the Telephone Company. Such obligations include, without
limitation, the obligation to pay for the service, whether or not the
reseller is being paid by its own customers. The rate charged for such
service, when sold to a reseller under these terms and conditions, is
to be determined in accordance with rates and charges specified in
these terms and conditions. However, services that are sold to the
Telephone Company end users only in conjunction with the purchase of
basic dial tone service will be available for resale only in
conjunction with the resale of basic dial tone service and not on a
stand alone basis.
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61 GENERAL REGULATIONS (CONT'D)
6.2.2 RESPONSIBILITY OF THE TELEPHONE COMPANY
6.2.2.1 PROVISION OF SERVICE
(A) The Telephone Company's obligation to furnish service, or to continue
to furnish service, is dependent on its ability to obtain without
charge, danger or undue difficulty access to the premises where the
service is to be provided (where such access is necessary for the
provision of service).
(1) Should a reseller's end user request that a Telephone Company
technician prove his/her identity as an employee of the Telephone
Company before the end user will permit access to their premises,
the technician's Telephone Company identification badge or the Bell
Atlantic registered trademark/servicemark (logo) that is visibly
displayed on the technician's service vehicle will be evidence of such
proof. If the Telephone Company misses the scheduled service
appointment as a result of the reseller's end user's refusal to permit
access to the Telephone Company technician, neither the reseller nor
the reseller's end user will be entitled to any waivers of charges for
missed service appointments that may be offered by the Telephone
Company under service guarantee programs that are associated with the
service being provided.
(B) The Telephone Company reserves the right to refuse an application for
service made by, or for the benefit of, a reseller who is indebted to
the Telephone Company for telephone service previously furnished.
(1) In the event that service is connected for a reseller who is
indebted to the Telephone Company for service previously furnished to
such reseller, the Telephone Company will notify the reseller in
writing via Certified U.S. Mail, that the service will be terminated by
the Telephone Company unless the reseller satisfies the indebtedness
within 10 days of the date of the reseller's receipt of such
notification.
(C) The services offered under the provisions of these terms and conditions
are subject to the availability of facilities, including switching
capacity, and necessary operational support systems.
(1) If existing facilities will not enable the Telephone Company to
meet all outstanding service orders, such orders will be handled in
accordance with reasonable priority rules that do not unreasonably
discriminate between resellers purchasing under these terms and
conditions and end user customers of the Telephone Company.
(D) Resold services offered by the Telephone Company are at least
technically equivalent to the corresponding service offerings that the
Telephone Company provides to its own end users provided that the
reseller complies with the regulations contained in these terms and
conditions.
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6.2 GENERAL REGULATIONS (CONT'D)
6.2.2 RESPONSIBILITY OF THE TELEPHONE COMPANY (CONT'D)
6.2.2.1 PROVISION OF SERVICE (CONT'D)
(E) The Telephone Company will provide service (including the installation
and repair thereof) to resellers at levels that meet the capabilities,
functions and performance levels available to Telephone Company
similarly situated end users providing that the reseller complies with
the regulations contained in these terms and conditions.
(1) Telephone Company personnel dispatched to a reseller's end user
premises for purposes of installation or repair will not accept
requests on behalf of the reseller for new or modified service beyond
that requested by the reseller.
(F) To the extent the provision of repair and installation services under
these terms and conditions entails the appearance by Telephone Company
personnel at the premises of a reseller's end user, the uniforms worn
by such personnel, and the vehicles and other equipment that they use,
may be marked in the conventional manner with the Telephone Company's
name, trademarks, service marks, and logos.
6.2.2.2 INTERRUPTION OF SERVICE
(A) Allowances for interruption of service are available to resellers to
the extent and under the same circumstances as they would be available
to Telephone Company end users under RIPUC No. 15.
6.2.3 RESPONSIBILITY OF THE RESELLER
6.2.3.1 RESELLER NOTIFICATION AND COORDINATION
(A) Unless otherwise specified herein, whenever customer notification is
required, the Telephone Company is responsible for providing notice
only to the reseller who is the customer of record.
(1) The reseller, and not the Telephone Company is responsible for
providing any notices, bill inserts or other information as may be
required to the reseller's end users.
(2) The Telephone Company will not provide resellers with advance
notice of its intent to offer a new retail service (or to modify an
existing retail service) except to the extent that public notice of
certain tariff changes is required by the regulation or orders of the
Public Utilities Commission or other applicable law.
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6.2 GENERAL REGULATIONS (CONT'D)
6.2.3 RESPONSIBILITY OF THE RESELLER (CONT'D)
6.2.3.2 LIABILITY
(A) The reseller shall reimburse the Telephone Company for damages to
Telephone Company facilities utilized to provide services under these
terms and conditions caused by negligence or willful act of the
reseller or the reseller's end user or resulting from the reseller's
or reseller's end user's improper use of the Telephone Company
facilities, or due to malfunction of any facilities or equipment
provided by other than the Telephone Company. Nothing in the foregoing
provision shall be interpreted to hold one reseller liable for another
reseller's actions. The Telephone Company will, upon reimbursement for
damages, cooperate with the reseller in prosecuting a claim against
the person causing such damage and the reseller shall be subrogated to
the right of recovery by the Telephone Company for the damages to the
extent of such payment.
(B) With respect to claims of patent infringement made by third persons,
the reseller shall defend, indemnify, protect and save harmless the
Telephone Company from and against all claims arising out of the
combining with, or use in connection with, the services provided under
these terms and conditions, any circuit, apparatus, system or method
provided by the reseller or reseller's end user.
(C) The reseller shall defend, indemnify and save harmless the Telephone
Company from and against suits, claims, losses or damages including
punitive damages, attorney's fees and court cost by third persons
arising out of the construction, installation, operation, maintenance
or removal of the circuits, facilities or equipment connected to the
Telephone Company's services provided under these terms and
conditions, including, without limitation, Workmen's Compensation
claims, actions for infringement of copyright and / or unauthorized
use of program material, libel and slander actions based on the
content of communications transmitted over the reseller's circuits,
facilities or equipment, and proceedings to recover taxes, fines, or
penalties for failure of the reseller to obtain or maintain in effect
any necessary certificates, permits, licenses, or other authority to
acquire or operate the services provided under these terms and
conditions; provided, however, the foregoing indemnification shall not
apply to suits, claims, and demands to recover damages for damage to
property, death or personal injury unless such suits, claims or
demands are based on the tortious conduct of the reseller, its
officers, agents or employees.
(D) The reseller shall defend, indemnify and save harmless the Telephone
Company from and against any suits, claims, losses or damages,
including punitive damages, attorneys fees and court costs by the
customer or third parties arising out of any act or omission of the
reseller or the reseller's end user in the course of using services
provided under these terms and conditions.
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6.2 GENERAL REGULATIONS (CONT'D)
6.2.3 RESPONSIBILITY OF THE RESELLER (CONT'D)
6.2.3.2 LIABILITY (CONT'D)
(E) In case of damage, loss, theft or destruction of equipment and
facilities furnished by the Telephone Company due to negligence or
willful act of the reseller or the reseller's end user or other
persons authorized to use the service, the reseller or reseller's end
user may be required to pay the expense incurred by the Telephone
Company to replace or restore the equipment and facilities to its
original condition.
(F) The reseller assumes the responsibility for enforcement of all tariff
regulations and class of service restrictions imposed for any
particular service (e.g. prohibitions against unlawful use, damage to
Telephone Company property, distinctions between residence and
business) and any liability arising from violations thereof.
6.2.3.3 CERTIFICATIONS AND PROOF OF EXEMPTIONS
(A) Upon reasonable request the reseller shall certify to the Telephone
Company in writing that the services the reseller is purchasing under
these terms and conditions are being purchased for resale.
(B) The reseller shall provide the Telephone Company with any certificates
or other documentation that may be required under state law pertaining
to tax exemptions.
(C) The reseller shall provide to the Telephone Company any additional
information that is reasonably necessary to enable the Telephone
Company to fulfill its obligations under these terms and conditions.
6.2.3.4 REFERENCES TO THE TELEPHONE COMPANY
(A) The reseller may advise end users that certain services are provided
by the Telephone Company in connection with the service the reseller
furnishes to end users; however, the reseller shall not state, imply
or represent that the Telephone Company jointly participates in or is
part of any partnership or joint business arrangement for the
provision of services to the reseller's customers.
6.2.4 CUSTOMER NOTIFICATION AND COORDINATION
6.2.4.1 PROVISION AND OWNERSHIP OF TELEPHONE NUMBERS
(A) The Telephone Company reserves the reasonable right to assign,
designate or change telephone numbers, or any other call number
designations associated with resold service, or the Telephone Company
serving central office prefixes associated with such numbers, when
necessary in the conduct of business. Any such decisions about the
assignment, designation or change of telephone numbers or office
prefixes will be made in a nondiscriminatory manner.
(B) Should it become necessary to make a change in such number(s), the
Telephone Company will give the reseller six months notice of the
change(s), including an explanation of the reason(s) for the
change(s), by Certified U.S. Mail.
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6.2 GENERAL REGULATIONS (CONT'D)
6.2.4 CUSTOMER NOTIFICATION AND COORDINATION (CONT'D)
6.2.4.1 PROVISION AND OWNERSHIP OF TELEPHONE NUMBERS (CONT'D)
(1) In the case of emergency conditions, (e.g. a fire in a wire
center), it may be necessary to change a telephone number without six
months notice in order to provide service to the reseller.
6.3 ORDERING OF SERVICE
6.3.1 ORDERS FOR RESOLD SERVICES
6.3.1.1 GENERAL
(A) The reseller shall supply all the information reasonably necessary for
the Telephone Company to provide and bill for the requested service, to
include the reseller's end user in its directory listing service and to
otherwise fulfill its obligations under these terms and conditions
[e.g., end username and premises location, configuration of service,
and facility interface].
(1) The reseller is responsible to submit complete and accurate orders.
Failure to do so may result in service discrepancies for which the
Telephone Company will not be responsible.
(B) If the reseller assumes the account of an existing Telephone Company
end user at the end user's existing premises, the order must identify
the end user's billing telephone number and line(s) and indicate that
the end user's existing service (or any specified modification to
and/or cancellation of the existing service) is to be transferred to
the reseller.
(1) Authorization to Assume an Account - A reseller placing an order
under which it will assume the account of an existing Telephone
Company end user customer, or the account of an existing end
user customer of another reseller, must obtain appropriate
authorization from that end user for the change of service
provider. The reseller must verify and confirm that authorization
is in accordance with the laws and provisions that govern such
matters as established or may be established in the State of Rhode
Island.
(C) Resellers may not order services in a particular building or other
location where a reseller has not yet obtained end users at the time
that the reseller's order is placed with the Telephone Company.
(D) Resellers may not order service in a particular building or other
location when doing so would preclude or delay other potential
providers from offering services in that particular building or other
location.
(E) Resellers may not order service under these terms and conditions
without a reasonable basis for believing that such services will
actually be needed by the reseller to meet anticipated demand.
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6.3 ORDERING OF SERVICE (CONT'D)
6.3.1 ORDERS FOR RESOLD SERVICES(CONT'D)
6.3.1.1 GENERAL (CONT'D)
(F) The Telephone Company will not process any orders, complaints or other
requests received from the reseller's end user.
(G) Primary Interexchange Carrier (PIC) Changes-The Telephone Company will
only accept an order to change the PIC, whether interLATA or intraLATA,
for a resold Telephone Company exchange service line from the reseller.
The Telephone Company will only accept an order to freeze the PIC from
the reseller. The reseller will be responsible for all PIC change
charges.
(H) If the order is for modification or discontinuance of service, the
order shall identify the billing telephone number and telephone number
of the service and the changes desired, and any additional information
required by the Telephone Company.
6.3.1.2 AUTOMATED ORDER INTERFACE
(A) Orders for resold services and modifications to or cancellation of an
existing order must be placed by the reseller with the Telephone
Company through the appropriate automated interface established by the
Telephone Company. Such interface will facilitate the following order
processes:
1. Establishment of end user accounts
2. Assignment of telephone numbers
3. Entry of service orders into Telephone Company systems
4. Installation scheduling and negotiation with end users
5. Reservation of installation appointments
6. Entry of end user service and repair inquiries
7. Verification of the network status of an associated
telephone line in conjunction with Telephone Company
systems
8. Other processes that would facilitate the processing of
the reseller's order
(B) The Telephone Company will establish automated interface specifications
(e.g. formats) for data, delivery (transport) and network descriptions,
etc.
(1) Resellers must comply with methods, procedures and operational
guidelines in utilizing the interface specifications established by
the Telephone Company.
(2) Any use of the interface(s) by the reseller or any other party for
unauthorized purposes (e.g., access to data or to enter false
information) will be considered abuse or fraudulent use of the
interface and is prohibited. Such action may result in the Telephone
Company terminating the resellers use of the interface.
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6.3 ORDERING OF SERVICE (CONT'D)
6.3.1 ORDERS FOR RESOLD SERVICES(CONT'D)
6.3.1.2 AUTOMATED ORDER INTERFACE (CONT'D)
(C) If the Telephone Company determines or suspects that abuse or
fraudulent use of the interface has occurred, the Telephone Company
will, as required by law, refer the matter to the appropriate law
enforcement agency.
6.3.1.3 DISCLOSURE OF RESELLER INFORMATION TO OTHER RESELLERS OR TO TELEPHONE
COMPANY RETAIL MARKETING PERSONNEL
(A) General Rule - Subject to the following paragraph (B), neither
Telephone Company personnel involved in the marketing of services to
end user customers, nor other resellers, will have access to
information relating to specific orders or demand forecasts provided
by resellers under these terms and conditions.
(B) Exceptions:
(1) Paragraph (A), above, shall not prohibit the disclosure to any local
exchange carrier (including the Telephone Company or any
reseller), of the fact that a particular end user who was
previously a customer of such carrier, is no longer one of
its customers.
(2) Paragraph (A), above, shall not prohibit the use by the
Telephone Company of aggregate data relating to sales to all
resellers in a particular geographic area for any legitimate
business purpose of the Telephone Company.
(3) Paragraph (A), above, shall not preclude the disclosure to
Telephone Company retail marketing personnel or to other
resellers of information pertaining to a reseller's customer
where the customer consents to and authorizes such
disclosure.
(4) Paragraph (A), above, shall not prohibit attempts to sell
Telephone Company services by Telephone Company employees
who have access to information relating to specific orders
placed by resellers under these terms and conditions, so
long as:
(a) the employee spends a deminimis amount of his or her time involved
in the marketing of Telephone Company services, and
(b) the employee does not utilize the reseller information in
such sales attempts.
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6.3 ORDERING OF SERVICE (CONT'D)
6.3.1 ORDERS FOR RESOLD SERVICES (CONT'D)
6.3.1.3 DISCLOSURE OF RESELLER INFORMATION TO OTHER RESELLERS OR TO
TELEPHONE COMPANY RETAIL MARKETING PERSONNEL (CONT'D)
(B) EXCEPTIONS: (CONT'D)
(5) In the case of a customer who chooses to switch his/her/its service
from a reseller to the Telephone Company, or to another reseller,
Paragraph (A) above shall not prohibit the disclosure to Telephone
Company marketing personnel, or to such other reseller, of information
necessary to enable the Telephone Company or such other reseller to
assume the account, including the customer's service configuration
and billed name and address.
(6) Paragraph (A) above shall not preclude the disclosure to Telephone
Company marketing personnel of the identity of the reseller providing
service to an end user for the purpose of responding to a question from
the end user about the identity of his/her/its service provider.
6.3.1.4 DISCLOSURE OF CUSTOMER INFORMATION
(A) General Rule - Subject to the following paragraph (B), the Telephone
Company will not provide information on any end user customer to a
reseller without the consent and authorization of such customer.
(B) Exceptions:
(1) If a Telephone Company end user subsequently becomes an end user of a
reseller, the Telephone Company will provide the reseller with all
information necessary to enable it to assume the end user's account,
including the customer's service configuration and billed name and
Address.
(2) Paragraph (A) above shall not preclude disclosure of information
pursuant to industry-wide arrangements for the exchange of information
on end user credit histories, consistent with Commission requirements.
6.3.1.5 EVIDENCE OF END USER CONSENT AND AUTHORIZATION
(A) Where the Telephone Company identifies that end user consent is
required for the disclosure of information, the Telephone Company will
obtain consent and appropriate authorization.
6.3.1.6 ADDITIONAL ENGINEERING AND SPECIAL CONSTRUCTION
(A) Additional charges will be applied to an order for service when the
Telephone Company determines additional engineering or special
construction is necessary to accommodate a reseller request.
(1) When it is required, the reseller will be so notified and will be
furnished with a written statement setting forth the justification
for the additional engineering and/or special construction as well as
an estimate of the charges in conjunction with the terms and
conditions specified in RIPUC No. 15.
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6.3.2 RESPONSIBILITY OF THE TELEPHONE COMPANY
6.3.2.1 REFUSAL AND DISCONTINUANCE OF SERVICE
(A) If the reseller fails to comply with the rules and regulations of these
terms and conditions, including any payments to be made by it on the
dates and times herein specified, the Telephone Company may, on thirty
(30) days written notice by Overnight Delivery or Certified U.S. Mail
to the reseller, refuse additional applications for service and/or
refuse to complete any pending orders for service at any time
thereafter. If the Telephone Company does not refuse additional
applications for service on the date specified in the 30 days notice,
and the reseller's noncompliance continues, nothing contained herein
shall preclude the Telephone Company from refusing additional
applications for service without further notice.
(B) If the reseller fails to comply with the rules and regulations of these
terms and conditions, including any payments to be made by it on the
dates and times herein specified, the following shall occur:
6.3 ORDERING OF SERVICE (CONT'D)
6.3.2 RESPONSIBILITY OF THE TELEPHONE COMPANY (CONT'D)
6.3.2.1 REFUSAL AND DISCONTINUANCE OF SERVICE (CONT'D)
(1) The Telephone Company shall notify the reseller and the Commission
in writing of the reseller's failure to pay amount(s) when due under
these terms and conditions and the reseller shall have failed to make
such payment within thirty (30) days of the giving by the Telephone
Company of such notice.
(2) The Telephone Company shall provide a second notice of non-payment
(the "Second Notice") in writing to the reseller and the Commission
following the thirty (30) day period referred to in Section
6.3.2.1.(B)(1), and
(3) If by the tenth (10) day after the giving to the Commission of the
Second Notice, the Commission has not ruled that the Telephone Company
may not take termination actions, then the service shall be
discontinued. The reseller shall have the burden of proof in any such
proceeding before the Commission of establishing that the Telephone
Company is not permitted to take the termination actions.
(C) Notwithstanding the foregoing, the Telephone Company will not exercise
its rights to refuse and discontinue service as stated in 6.3.2.1
(A)&(B) if the reseller submits charges to the Telephone Company it
believes in good faith were billed in error and such charges are
accepted by the Telephone Company for investigation.
6.3.2.2 DISCONTINUANCE OF SERVICE FOR CAUSE WITHOUT NOTICE
(A) The Telephone Company may discontinue service or cancel an application
for service without notice in the event the Telephone Company is
prohibited from furnishing services by order of a court or other
government authority having jurisdiction.
(B) In the event of fraudulent use of the Telephone Company's network,
including but not limited to fraudulent End User orders for transfer of
service, the Telephone Company will discontinue service without notice
and/or seek legal recourse to recover all costs involved in enforcement
of this provision.
6.3.2.3 The Telephone Company will not incur any liability if it discontinues
services or cancels an application for services for any of the reasons
contained in 6.3.2.
6.3.3 RESPONSIBILITY OF THE RESELLER
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6.3.3.1 POINT OF CONTACT FOR END USERS
(A) The reseller shall serve as the single point of contact for its end
users on such matters as billing, requests for new service, requests
for the modification or discontinuance of existing services, service
trouble reports, repair requests, complaints, etc. The reseller shall
be obligated to transmit such requests or reports to the Telephone
Company through the automated order interface to the extent reasonably
necessary to enable the Telephone Company to fulfill its obligations
under these terms and conditions.
6.3 ORDERING OF SERVICE (CONT'D)
6.3.3 RESPONSIBILITY OF THE RESELLER (CONT'D)
6.3.3.2 FORECASTING OF SERVICE REQUIREMENTS
(A) To the extent reasonably necessary for the planning of Telephone
Company facilities, the reseller shall provide, upon request of the
Telephone Company, forecasts of the approximate number of units of
exchange and other services that the reseller expects to require in
specific geographic areas. Such forecasts are considered by the
Telephone Company as confidential information of the reseller and will
be treated in accordance with the provisions specified in these terms
and conditions for confidential reseller information.
6.3.3.3 REFUSAL, DISCONTINUANCE OR TRANSFER OF SERVICE
(A) Where a reseller discontinues its provision of service to all or
substantially all of its end users, whether by its own decision, as a
result of involuntary bankruptcy or for any other reason, the reseller
must send advance written notice of such discontinuance to the
Telephone Company, the RIPUC and to each of the reseller's end users.
If service to the reseller is discontinued by the Telephone Company,
the reseller must send written notice to each of its end users.
(1) Such notice must advise the end users that unless they take action
to switch to a different carrier within 15 days, provision of their
service will be transferred to the Telephone Company. Where the end
user elects a specific carrier within the 15 day period, the relevant
charges associated with the change shall be paid by that carrier.
(a) Should the end user's service be transferred to the Telephone
Company, the Telephone Company will provide service to the end users
at RIPUC No. 15 rates, and not the rates specified in these terms and
conditions. Where the end user does not elect a specific carrier
within the 15 day period, and as a result is transferred to the
Telephone Company, the reseller shall pay the relevant charges
associated with the change.
(B) The reseller must provide the Telephone Company with any information
necessary to enable the Telephone Company to assume the end users'
accounts, including the end users' service configurations and billing
names and addresses.
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6.4 ISSUANCE, PAYMENT AND CREDITING OF RESELLER BILLS
6.4.1 RESPONSIBILITY OF THE TELEPHONE COMPANY
6.4.1.1 GENERAL
(A) The Telephone Company bills only the reseller who is considered the
customer of record who is at all times responsible for payment of the
full amount of all charges incurred. The Telephone Company will not be
required to seek payment from the reseller's end users prior to
terminating the reseller's service or pursuing any other remedies for
nonpayment by the reseller. The reseller will thus be the obligor of
the Telephone Company, and not the guarantor or surety for any of the
obligations of the reseller's end user.
(1) The reseller as customer of record is responsible for any
allocation of end user charges for resold service.
(2) Regardless of whether the reseller's end user is still using
service, the reseller is responsible for charges incurred by the end
user or reseller for all services on a line until the reseller submits
an order to discontinue such service.
6.4.1.2 BILLING CONVENTION METHODS
(A) The Telephone Company shall bill all charges incurred by and credits
due to the reseller under these terms and conditions attributable to
services established or discontinued or provided during the preceding
billing period.
6.4.1.3 BILLING PERIODS
(A) The billing date of a bill for a reseller for service provided under
these terms and conditions is referred to as the bill day. The period
of service each bill covers is as follows.
(1) The Telephone Company will establish a bill day each month for
each reseller account.
(2) The bill will cover all non-usage sensitive service charges and
usage charges for the period beginning with the day following the last
bill day and extends up to and includes the current bill day. Any known
unbilled charges for prior periods and any known unbilled adjustments
will be applied to this bill.
6.4.1.4 LATE PAYMENT PENALTY
(A) If any portion of the payment is received by the Telephone Company
after the payment date (refer to Section 6.4.1.5), or if any portion
of the payment is received by the Telephone Company in funds which are
not immediately available to the Telephone Company, then a late payment
penalty shall be due to the Telephone Company.
(B) The late payment penalty shall be the portion of the payment not
received by the payment date times a late factor. The late factor shall
be the lesser of the following:
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6.4 ISSUANCE. PAYMENT AND CREDITING OF RESELLER BILLS (CONT'D)
6.4.1 RESPONSIBILITY OF THE TELEPHONE COMPANY (CONT'D)
6.4.1.4 LATE PAYMENT PENALTY (CONT'D)
(1) The highest interest rate (in decimal value) which may be levied
by law for commercial transactions for the number of days from the
payment date to and including the date that the reseller actually
makes the payment to the Telephone Company, or
(2) The rate of 0.0005 per day for the number of days from the payment
date to and including the date that the reseller actually makes the
payment to the Telephone Company.
6.4.1.5 PAYMENT DATE
(A) The payment date of bills rendered to resellers for service provided
under these terms and conditions is as follows:
(1) All bills rendered as set forth in this section are due 31 days
after the bill day or by the next bill date, whichever is the shortest
interval.
(2) If such payment date falls on a Sunday or on a legal holiday which
is observed on a Monday, the payment date shall be the first non
holiday day following such Sunday or legal holiday.
(3) If such payment date falls on a Saturday or on a legal holiday
which is observed on Tuesday, Wednesday, Thursday or Friday, the
payment date shall be the last non holiday day preceding such Saturday
or legal holiday.
6.4.1.6 MEDIUM OF PAYMENT.
(A) Bills are payable in immediately available funds.
(1) Immediately Available Funds denotes a corporate or personal check
drawn on a bank account and funds which are available for use by the
receiving party on the same day on which they are received and
include U.S. Federal Reserve bank wire transfers, U.S. Federal Reserve
notes (paper cash), U.S. coins and U.S. Postal Money Orders.
6.4.1.7 CUSTOMER DEPOSITS
(A) The Telephone Company will, in order to safeguard its interests,
require a reseller, if the reseller has a proven history of late
payments or if the reseller's parent or holding company has a proven
history of late payments to the Telephone Company or if the reseller
does not have established credit (except for a reseller which is a
successor of a company which has established credit and the successor
has no history of late payments to the Telephone Company), to make a
deposit prior to or at any time after the provision of a service to
the reseller to be held by the Telephone Company as a guarantee of the
payment of rates and charges.
(B) Such deposit may not exceed the actual or estimated rates and charges
for the service for a two month period.
6.4 ISSUANCE, PAYMENT AND CREDITING OF RESELLER BILLS (CONT'D)
6.4.1 RESPONSIBILITY OF THE TELEPHONE COMPANY (CONT'D)
6.4.1.7 CUSTOMER DEPOSITS (CONT')
(C) The fact that a deposit has been made in no way relieves the reseller
from complying with the Telephone Company's regulations as to the
prompt payment of bills.
(D) At such time as the provision of the service to the reseller is
terminated, the amount of the deposit will be credited to the
reseller's account and any credit balance which may remain will be
refunded.
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(E) At the option of the Telephone Company, such a deposit will be refunded
or credited to the reseller's account when the reseller has established
credit or after the reseller has established a one year prompt payment
record at any time prior to the termination of the provision of the
service to the reseller.
(F) In the case of a cash deposit, the reseller will receive interest as
set forth in Section 6.4.1.4 for the period the deposit is held by the
Telephone Company. Interest will accrue for the number of days from the
date the reseller deposit is received by the Telephone Company to and
including the date such deposit is credited to the reseller's account
or the date the deposit is refunded by the Telephone Company.
(G) Should a deposit be credited to the reseller account, as indicated
above, no interest will accrue on the deposit from the date such
deposit is credited to the reseller's account.
6.4.1.8 BILLING DISPUTE
In the event that a billing dispute occurs concerning any charges
billed to the reseller by the Telephone Company, the following
regulations apply:
(A) The first day of the dispute shall be the date on which the reseller
furnishes the Telephone Company with the account number under which the
bill has been rendered, the date of the bill and the specific items on
the bill being disputed.
(B) The date of resolution shall be the date on which the Telephone Company
completes its investigation of the dispute, notifies the reseller of
the disposition and, if the billing dispute is resolved in favor of the
reseller, applies credit for the correct disputed amount, the disputed
amount penalty and/or late payment penalty as appropriate.
(C) If a billing dispute is resolved in favor of the Telephone Company, any
payments withheld pending resolution of the dispute shall be subject to
the late payment penalty (refer to Section 6.4.1.4). Further, the
reseller will not receive credit for the disputed amount of the
disputed amount penalty.
21
<PAGE>
6.4 ISSUANCE, PAYMENT AND CREDITING OF RESELLER BILLS (CONT'D)
6.4.1 RESPONSIBILITY OF THE TELEPHONE COMPANY (CONT'D)
6.4.1.8 BILLING DISPUTE (CONT'D)
(D) If a reseller disputes a bill within three months of the payment date
and pays the total billed amount on or before the payment date and the
billing dispute is resolved in favor of the reseller, the reseller
will receive a credit for a disputed amount penalty from the Telephone
Company for the period starting with the date of payment and ending on
the date of resolution. The credit for a disputed amount penalty shall
be as set forth following.
(E) If a reseller disputes a bill within three months of the payment date
and pays the total billed amount after the payment date and the
billing dispute is resolved in favor of the reseller, the reseller
will receive a credit for a disputed amount penalty from the Telephone
Company for the period starting with the date of payment and ending on
the date of resolution. The late payment penalty applied to the
disputed amount resolved in the reseller's favor (refer to Section
6.4.1.4) will be credited.
(F) If a reseller disputes a bill within three months of the payment date
and does not pay the disputed amount or does not pay the billed amount
(i.e., the nondisputed and disputed amount), and the billing dispute
is resolved in favor of the reseller, the reseller will not receive a
credit for a disputed amount penalty from the Telephone Company. The
late payment penalty applied to the disputed amount resolved in the
reseller's favor (refer to Section 6.4.1.4) will be credited.
(G) If a reseller disputes a bill after three months from the payment date
and pays the total billed amount on or before the dispute date, and
the billing dispute is resolved in favor of the reseller, the reseller
will receive a credit for a disputed amount penalty from the Telephone
Company for the period starting with the date of dispute and ending on
the date of the resolution. The credit for a disputed amount penalty
shall be as set forth following. The reseller shall not receive a
credit for the late payment penalty.
(H) If a reseller disputes a bill after three months from the payment date
and does not pay the disputed amount or does not pay the billed amount
(i.e., the nondisputed amount and disputed amount) and the billing
dispute is resolved in favor of the reseller, the reseller will not
receive a credit for a disputed amount penalty from the Telephone
Company. However, if the reseller pays the disputed amount or the
billed amount after the date of dispute and before the date of
resolution, the reseller will receive a credit for a disputed amount
penalty from the Telephone Company for the period starting with the
date of payment and ending on the date of resolution as a credit for a
disputed amount penalty. The reseller will receive a credit for the
late payment penalty, if applicable, from the Telephone Company.
22
<PAGE>
6.4 ISSUANCE, PAYMENT AND CREDITING, OF RESELLER BILLS (CONT'D)
6.4.1 RESPONSIBILITY OF THE TELEPHONE COMPANY (CONT'D
6.4.1.8 BILLING DISPUTE (CONT'D)
(1) The late payment penalty credit shall be the disputed amount
resolved in the reseller's favor times a late payment penalty factor
(refer to Section 6.4.1.4) for the period starting with the date of
dispute and ending on the date of payment of the disputed amount or the
date of resolution whichever occurs first.
(2) The disputed amount penalty shall be the disputed amount resolved
in the reseller's favor times a penalty factor. The penalty factor
shall be the lesser of the following calculations.
(a) The highest interest rate in decimal value, which may be levied
by law for commercial transactions for the number of days from the
first date to and including the last date of the period involved.
(b) The rate of 0.0005 per day for the number of days from the first
date to and including the last date of the period involved.
(I) The reseller is responsible for monitoring the accuracy of the
Telephone Company's bills and for notifying the Telephone Company of
any discrepancies between such bills and the services provided by the
Telephone Company.
6.4.1.9 BILLING ADJUSTMENTS AND VERIFICATION
(A) Adjustments for the quantities of services established or discontinued
in any billing period beyond the minimum period set forth for services
in other sections of these terms and conditions will be prorated to the
number of days or major fraction of days based on a 30 day month.
(B) The Telephone Company will, upon request and if available, furnish the
reseller such detailed information as may reasonably be required for
verification of any bill.
6.4.1.10 COMPUTATION OF BILLED CHARGES
(A) When a rate as set forth in these terms and conditions is shown to more
than two decimal places, the charges will be determined using the rate
shown. The resulting amount will then be rounded to the nearest penny
(i.e., rounded to two decimal places).
6.4.1.11 COMPUTATION OF CREDIT ALLOWANCES
(A) Until Telephone Company time of day measurement capabilities are
available, credit adjustments will be computed by apportioning the
total intrastate usage associated with the honored claim into Day,
Evening and Night and Weekend periods using the time of day
distribution applicable to the reseller. The usage will then be
multiplied by the appropriate Day, Evening and Night and Weekend rates.
23
<PAGE>
6.4 ISSUANCE, PAYMENT AND CREDITING OF RESELLER BILLS (CONT'D)
6.4.2 RESPONSIBILITY OF THE CUSTOMER
6.4.2.1 TRANSFER OF END USER ACCOUNT BALANCE
(A) Should a Telephone Company end user discontinue service in order to
become an end user of a reseller, the Telephone Company will render a
final bill to such end user. Balances and/or credits in a Telephone end
user's account will not be carried over to the resellers account with
the Telephone Company.
6.4.2.2 END USER INFORMATION
(A) In order to accommodate billing and collection of end user accounts,
resellers must make the billing names and addresses of their end users
available to all telecommunication carriers.
6.5 RESALE PROVISIONS
6.5.1 DESCRIPTION
6.5.1.1 GENERAL
(A) Resale is the sale to another person of telecommunications services
purchased from the Telephone Company. A customer purchases for resale
when such customer purchases a service for the purpose of reselling it
to another (rather than the purpose of using the service itself).
(1) A purchasing agent who orders services for its principal, and who
does not itself agree to assume the obligations of a reseller under
these terms and conditions, is not purchasing for resale within the
meaning of these terms and conditions.
(2) The purchase of telecommunications services or unbundled network
elements for the purpose of provisioning a different service (such
as the purchase of the Telephone Company's switched carrier access
service for the purpose of provisioning an interexchange carrier's
toll service) is not resale within the meaning of these terms and
conditions.
(B) Where a reseller purchases Telephone Company exchange service from
the Telephone Company and resells it to an end user, such reseller's
end user will be able to access any and all services that a Telephone
Company end user would be able to access on a Telephone Company
exchange service line. Such services to the extent provided by the
Telephone Company will be deemed to have been sold to the reseller
by the Telephone Company as they are utilized by the reseller's end
user, and the reseller will be responsible to the Telephone Company
for payment of such services. Telephone Company practices applicable
to the imposition of charges for Information Provider services, where
the Telephone Company bills and collects the relevant Information
Provider, will apply to resellers to the same extent as they apply to
the Telephone Company's end user customers.
24
<PAGE>
6.5 RESALE PROVISIONS (CONT'D)
6.5.1 DESCRIPTION (CONT'D)
6.5.1.2 SERVICES OFFERED FOR RESALE
(A) The services offered under these terms and conditions are those that
are offered by the Telephone Company to end users under the
regulations, terms and conditions of RIPUC No. 15, except for public
telephone service, and in accordance with the following limitations:
(1) Service that are sold to the Telephone Company's end users only in
conjunction with the purchase of basic dial tone service will be
available for resale only in conjunction with the resale of basic dial
tone service and not on a stand alone basis.
(2) Services in RIPUC No. 15 that have been designated as no longer
available for new installations or no longer offered are not offered
for resale except that such services are available for resale only to
the embedded base of end users who were permitted to retain such
service(s) in accordance with the regulations contained in RIPUC
No. 15.
(3) Promotional program offerings (e.g., discounts, waivers, credits,
certificates, premiums, discounted product trials or other inducements
that would apply to a particular end user for a period of 90 days or
less, and that are offered in order to promote the sale of a service)
are offered for resale, however they are not subject to the resale
discount specified in Section 6.10.5.3.1.
(B) Lifeline - The resale of Lifeline is permitted only to Lifeline
eligible end users. The reseller is responsible for confirming the
eligibility of such end users for Lifeline. In addition, the reseller
must perform the annual verification process.
(1) The Telephone Company (to the extent that it would otherwise be
eligible), and not the reseller will be eligible for any universal
service funding resulting from the provision of Lifeline America in
conjunction with these terms and conditions.
(C) Linkup America may be resold only to Linkup America eligible end
users. The reseller is responsible for confirming the eligibility of
such end users for Linkup America.
(1) The Telephone Company (to the extent that it would otherwise be
eligible), and not the reseller will be eligible for any universal
service funding resulting from the provision of Linkup America in
conjunction with these terms and conditions.
(C) Blocking - Resellers are allowed to purchase blocking services to
restrict end user access to particular capabilities to the extent such
services are available under and on the same terms and conditions as
set forth in RIPUC No. 15.
6.5.2 REGULATIONS
6.5.2.1 RESTRICTIONS
(A) CLASS OF CUSTOMER - This is a restriction contained in RIPUC No. 15
that limits the availability of a service to a particular type of
customer, such as a business customer, a residence customer, carrier,
end user, etc.
(1) Where a resold service is subject to such restriction the
reseller may not resell such service to any customer not in the
relevant class. The reseller may purchase the service for resale
to a customer in the relevant class whether or not the reseller
itself is within the class.
(a) Business services may be resold to residence end users as long
as the end user is served by a business exchange line and as long as
all other services provided on that line are also under the business
class and charged for at the appropriate business service rates and
charges.
25
<PAGE>
6.5 RESALE PROVISIONS (CONT'D)
6.5.2 REGULATIONS (CONT'D)
6.5.2.1 RESTRICTIONS (CONT'D)
(2) Where a reseller resells a service to another person, and such
other person is itself a reseller rather than an end user, the reseller
purchasing from the Telephone Company must require its end users (by
tariff or by contract), to conform to any applicable class of service
restrictions for end users and all other requirements of resellers
under these terms and conditions.
(B) Volume Discounts - The reseller may receive a volume discount when its
end users would have qualified for a volume discount under the
provisions contained in RIPUC No. 15.
(C) The reseller is not allowed to offer resold service to its customers
under any of the Telephone Company trademarks, service marks,
registered trademark, registered service mark or brand-names, or use
the logos of the Telephone Company or the Telephone Company's
affiliates without the expressed written authorization of the
Telephone Company.
6.5.3 APPLICATION OF RATES AND CHARGES
6.5.3.1 UNDERLYING SERVICES
(A) DISCOUNT - The rates and charges that apply for the underlying
services that are sold to a reseller in accordance with the terms and
conditions described herein, are specified in RIPUC No. 15. The
Telephone Company will discount the RIPUC No. 15 rates and charges by
applying the resale discounts specified in Section 6.10.5.3.1 of these
terms and conditions to the applicable RIPUC No. 15 rates and charges
for resold services offered under these terms and conditions in
accordance with Section 6.5.1.2.
The discount applicable to residential and business services,
contained in RIPUC No. 15, Part A, Sections 5.1 through 5.4, and the
Exchange Line portion of Services in Part H varies depending upon
whether or not the Telephone Company provides Operator Services and
Directory Assistance (OSDA).
(1) Public Access Line Service and Public Access Smart Pay Service
purchased for use by the reseller or any of its affiliates who are
independent payphone providers are not subject to the wholesale
discount and therefore, retail rates apply. In all other cases, Public
Access Line Service and Public Access Smart Pay Service are available
for resale at the wholesale discount rates.
(B) The Telephone Company reserves the right to apply a different avoided
cost discount, for services provided pursuant to Special Contract
Arrangements, as approved by the Commission.
26
<PAGE>
6.5 RESALE PROVISIONS (CONT'D)
6.5.3 APPLICATION OF RATES AND CHARGES (CONT'D)
6.5.3.2 SERVICE ESTABLISHMENT
Service establishment charges apply to recover the establishment costs
for electronic interfaces and other operational support systems (OSS).
(A) RECURRING ESTABLISHMENT CHARGES A recurring monthly charge per reseller
will be assessed during the five (5) year recovery period. This charge
provides for NYNEX region-wide access to the OSS platform.
(B) NON-RECURRING ESTABLISHMENT CHARGES A Non-Recurring charge per OSS
Transaction will be assessed during the seven (7) year recovery period
for developmental costs (includes development and ongoing costs).
6.5.3.3 OTHER CHARGES
Charges to recover the ongoing costs to maintain the service center for
resellers and the electronic interface systems will be assessed against
all resellers.
(A) SERVICE CENTER MAINTENANCE CHARGE A monthly recurring charge per resold
line will be assessed to recover the cost of maintaining the service
center for resellers.
(B) ELECTRONIC INTERFACE MAINTENANCE CHARGE A Non-Recurring charge per OSS
Transaction will be assessed after the five year recovery period for
the recovery of ongoing costs associated with maintaining the
electronic interfaces.
(C) COMPLEX ORDER CHARGE A Non-Recurring charge per Centrex line ordered
will be applied to recover the manual processing required for Centrex
lines.
6.5.3.4 SPECIAL CONTRACT PRICING
Services that Bell Atlantic provides to end users under the Customer
Specific Contracts in RIPUC No. 15 Section 1.11 will be offered to the
reseller on the condition that the reseller's end user is similarly
situated, i.e. has the same costs and market characteristics used to
develop the Telephone Company's Customer Specific Pricing Contract. The
discount for Customer Specific Pricing Contracts that are the subject
of a reseller's request shall be an individually-determined discount
based upon the Telephone Company's avoided cost in respect of the
nature and configuration of the services to be provided under the
special contract. At the request of the reseller, the Telephone Company
shall explain in a reasonably timely manner the avoided cost
calculation for special contracts.
27
<PAGE>
6.6 ALTERNATELY BILLED CALLS
An alternately billed call is any call which is billed to a number
other than the number originating the call, and includes credit card,
collect and third party calls.
The following procedures shall apply for alternately billed calls
originating or terminating over a Telephone Company line which has been
resold:
(1) In the case of a local call or an intraLATA toll call carried on
the Telephone Company's network originating from a reseller's end user
customer line that is served in a Telephone Company exchange within the
Telephone Company's serving area in the state of Rhode Island, the
Telephone Company shall record, process and rate such a call at the
Telephone Company's tariffed rates and bill and collect payment from
its customer.
(2) In the case of a local call or an intraLATA toll call carried on
the Telephone Company's network originating from a Telephone Company
end user within the Telephone Company's serving area in the state of
Rhode Island and charged to a reseller's end user customer line that
is served in a Telephone Company's exchange within the Telephone
Company's serving area in the state of Rhode Island, the Telephone
Company shall separately record and process each such call and send
an unrated record of all such calls to the reseller on a daily basis
for the reseller's billing and collections purposes. The reseller
shall pay the Telephone Company for such calls at the wholesale
discount rates. The reseller will pay any additional costs. The
Telephone Company shall bill such calls and any additional costs on
a monthly basis. The reseller shall rate the calls, bill their retail
customers for such calls and keep the revenues collected.
(3) In the case of a local call or an intraLATA toll call
originating from a reseller's end user customer line that is served
in a Telephone Company exchange within the Telephone Company's serving
area in the state of Rhode Island and charged to an out-of-region (as
defined in CATS industry process) customer of a TCRhode Island, the
Telephone Company shall record, process and rate such a call and
forward such information to the TC through Centralized Message
Distribution ("CMDS"). Such TC, in turn, shall bill and collect
payment from its customers and remit to the Telephone Company the
amount billed which shall be adjusted for billing and collection
costs incurred by such out-of-region carrier at rates utilized by the
industry CATS settlement process.
(4) In the case of an out-of-region local call or an intraLATA toll
call originating and terminating outside of the state of Rhode Island
and charged to a reseller's end user customer line that is served in a
Telephone Company exchange within the Telephone Company's serving area
in the state of Rhode Island, for so long as the reseller cannot
receive information and charges regarding such calls directly from the
out-of-region TC through CMDS, the Telephone Company shall, upon
receipt of such information and charges from such out-of-region TC,
retransmit such information and charges
6.6 ALTERNATELY BILLED CALLS (CONT'D)
to the reseller via the daily usage feed charging a record transmission
fee. The Telephone Company shall bill the reseller for such calls on a
monthly basis at the rates transmitted to the Telephone Company from
such out-of-region TC. The reseller shall bill and collect payment from
its customers. The reseller shall remit to the Telephone Company the
amount billed by the Telephone Company.
6.7 RESERVED FOR FUTURE USE
28
<PAGE>
6.8 OTHER SERVICES
6.8.1 CALL USAGE DETAIL
6.8.1.1 DESCRIPTION
(A) Call usage detail is available to resellers for intraLATA toll service.
Call usage data is offered as intraLATA call usage detail and is
provided via transmission or tape/cartridge.
(C) IntraLATA Toll Call Usage Detail - Provides complete call detail by
retail billing telephone number and by line consisting of calling
telephone number, called telephone number, call date, call connect
time, and call elapsed time.
6.8.1.2 REGULATIONS
(A) Responsibility of the Telephone Company
(1) The lapsed time between usage recorded by the Telephone Company
and delivery to the reseller will not exceed eight business days.
(2) The Telephone Company will store reseller usage data for 45 days
from the date of transmission to the reseller.
6.8.1.3 APPLICATION OF RATES AND CHARGES
(A) Record Processing - A per record processed charge applies.
(1) A record consists of a call with called number, call date,
connect time, and elapsed time.
6.8 OTHER SERVICES (CONT'D)
6.8.1 CALL USAGE DETAIL (CONT'D)
6.8.1.3 APPLICATION OF RATES AND CHARGES (CONT'D)
(B) Data Transmission - A per record transmitted charge applies.
(C) Tape or Cartridge - Available in addition to or in place of data
transmission.
(1) When a tape or cartridge is provided in place of data
transmission, data transmission charges are not applicable and a per
tape or cartridge charge will apply. If a tape or cartridge is
requested in addition to data transmission, both the per tape or
cartridge charge and the per data transmission charge applies.
6.8.2 ELECTRONIC CUSTOMER SERVICE RECORD RETRIEVAL
6.8.2.1 DESCRIPTION
(A) This service provides the reseller with the ability to electronically
request the customer service record of an end user. The current
customer service record will be formatted by the Telephone Company and
transmitted back to the reseller. The customer service record reflects
the most recent, completed service order activity and provides the
service and equipment billed by the Telephone Company to a Telephone
Company end user or to a reseller.
6.8.2.2 APPLICATION OF RATES AND CHARGES
(A) A service record retrieval charge applies to each customer service
record electronically delivered to the reseller.
(B) A reseller may request any number of electronic customer service
records, but will only be charged for the number of electronic
customer service records successfully transmitted to the reseller.
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<PAGE>
6.8.3 DIRECTORY SERVICES
6.8.3.1 DIRECTORY ASSISTANCE (DA) AND DIRECTORY LISTING SERVICES
(A) The Telephone Company will include in its published white pages
directories and in its directory assistance records, the name, address
and telephone number of the reseller's telephone exchange service
customers (one listing per end user line), in accordance with the
Telephone Company provisions relating to alphabetical listings and to
directory assistance as specified in RIPUC NO. 15. Such listings will
not be provided for any lines for which the reseller purchases
nonpublished and nonlisted number service. Additional listings will be
provided under the terms and conditions set forth in RIPUC No. 15.
(B) Yellow Page Listing - Upon request of the reseller the Telephone
Company will include in its published yellow page directories a single
line, light-face (non-bold) listing for the reseller's telephone
exchange service business end user.
(C) The Telephone Company will include in the "Information Pages" or
comparable section of its white page directories, for areas served by
the reseller, the reseller's customer service telephone number which
shall be provided by the reseller.
6.8 OTHER SERVICES (CONT'D)
6.8.4 ENHANCED UNIVERSAL EMERGENCY NUMBER SERVICE E-9-1-1
(A) The Telephone Company will include the resellers telephone exchange
service customers in the relevant E-9-1-1 database(s).
(B) The Telephone Company will bill the reseller the E-9-1-1 surcharge,
as ordered by the Commission. The E-9-1-1 surcharge is not subject to
the resale discount.
6.8.5 ANNOYANCE CALL BUREAU
(A) Resellers are entitled to use the services provided by the Telephone
Company's annoyance call bureau.
6.8.6 OPERATOR SERVICES/DIRECTORY ASSISTANCE SERVICES
6.8.6.1 At the reseller's option, the Telephone Company will re-route the
reseller's end-users' local and toll operator services and directory
assistance calls to an alternate operator services provider. The
Telephone Company will provide such re-routing services on a first
come, first served basis pursuant to a mutually agreed-upon schedule.
The schedule established will depend upon the reseller's specific
requirements, and in any event be completed within twelve months of
the request.
6.8.6.2 The rerouting of operator services and directory assistance calls
will be implemented at the Reseller's expense. The charge will be
determined on an individual case basis.
6.8.6.3 Trunks for Operator Services/Directory Assistance Routing can be
ordered in Section 5.6.1.7.
6.8.6.4 The Telephone Company may request the reseller to provide forecasts of
its anticipated use of operator services and directory assistance
routing for planning purposes.
6.8.6.5 Reseller must arrange for Operator Services/Directory Assistance
routing by submitting a Network Design Request as specified in
5.6.1.1(D)(9).
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6.8.6.6 At the reseller's option, the Telephone Company will provide
Operator Services and Directory Assistance announcement services
to the reseller when the reseller utilizes the Telephone Company's
Operator and Directory Assistance Services for the reseller's
end-user's local Operator and Directory Assistance calls or local
and toll Operator Services and Directory Assistance calls, when the
reseller utilizes the Telephone Company's toll network. The reseller
may choose a branded or unbranded announcement. The Telephone Company
will provide such re-branding services on a first come, first served
basis pursuant to a mutually agreed-upon schedule. The schedule
established will depend upon the reseller's specific requirements, and
in any event be completed within twelve months of the request.
6.8.6.7 The establishment of branding of operator services and directory
assistance call will be implemented at the Reseller's expense.
The charge will be determined on an individual case basis. The
rate per branded announcement is detailed in Section 5.8.7(A)(1).
6.8.6.8 The Telephone Company may request the reseller to provide
forecasts of its anticipated use of operator services and
directory assistance branding for planning purposes.
6.8.7 The Telephone Company will bill the reseller the Telecommunications
Relay Service ("TRS") surcharge as ordered by the Commission. The TRS
surcharge is not subject to the resale discount
6.9 RESERVED FOR FUTURE USE
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RHODE ISLAND RESALE AGREEMENT
SECTION 6
6.10 RATES AND CHARGES
6.10.5 RESALE
6.10.5.3.1 DISCOUNTS TO UNDERLYING SERVICES
<TABLE>
<CAPTION>
- ------------------------------------------------------------------------------------------------------
ID SERVICE CATEGORY RATE ELEMENT RATE
<S> <C> <C> <C>
- ------------------------------------------------------------------------------------------------------
A. Discounts for all Business Services 18.78%
services except those in
6.10.5.3.1(B)
--------------------------------------------------------------
Residence Services 17.30%
- ------------------------------------------------------------------------------------------------------
B. Discounts only for Business Services 20.25%
services specified in
RIPUC No. 15, Part A,
Sections 5.1
--------------------------------------------------------------
through 5.4 and the Residence Services 19.04%
exchange line portion
of services in Part H
where the reseller
provides OSDA
- ------------------------------------------------------------------------------------------------------
6.10.5.3.2 SERVICE ESTABLISHMENT CHARGES
- ------------------------------------------------------------------------------------------------------
ID SERVICE CATEGORY RATE ELEMENT RATE
- ------------------------------------------------------------------------------------------------------
Recurring Monthly charge per reseller during $2,606.00
the 5
Establishment Charge year recovery period
- ------------------------------------------------------------------------------------------------------
Non-Recurring Per OSS transaction during 7 yr. $1.24
Establishment period for recovery of development
costs (included development and
Charges ongoing costs)
- ------------------------------------------------------------------------------------------------------
6.10.5.3.3 OTHER CHARGES
- ------------------------------------------------------------------------------------------------------
ID SERVICE CATEGORY RATE ELEMENT RATE
- ------------------------------------------------------------------------------------------------------
Service Center Month charge per resold line $0.21
Maintenance Charge
- ------------------------------------------------------------------------------------------------------
<PAGE>
- ------------------------------------------------------------------------------------------------------
6.10.5.3.3 OTHER CHARGES
- ------------------------------------------------------------------------------------------------------
Complex Order Charge Per Centrex line ordered $16.27
- ------------------------------------------------------------------------------------------------------
*This charge provides for NYNEX region-wide access to the OSS platform.
6.10.8 OPTIONAL SERVICES
6.10.8.1 CALL USAGE DETAIL
- ------------------------------------------------------------------------------------------------------
ID SERVICE CATEGORY RATE ELEMENT RATE
- ------------------------------------------------------------------------------------------------------
Record Processing Per Record Processed $0.004103
- ------------------------------------------------------------------------------------------------------
Data Transmission Per Record Transmitted $0.000118
- ------------------------------------------------------------------------------------------------------
Tape or Cartridge Per Tape or Cartridge $20.12
- ------------------------------------------------------------------------------------------------------
6.10.8.6 OPERATOR AND DIRECTORY SERVICES
- ------------------------------------------------------------------------------------------------------
ID SERVICE CATEGORY RATE ELEMENT RATE
- ------------------------------------------------------------------------------------------------------
Customized Routing Service Establishment - Per ICB
rerouting request
- ------------------------------------------------------------------------------------------------------
Service Establishment - Per ICB
central office switch equipped
- ------------------------------------------------------------------------------------------------------
Per Rerouted Subscriber $0.060852
Line - Per month
- ------------------------------------------------------------------------------------------------------
Announcement Service Establishment - Per reseller TBD
Services for unbranded service
- ------------------------------------------------------------------------------------------------------
Service Establishment - Per reseller TBD
request for branded service
- ------------------------------------------------------------------------------------------------------
Branded Announcement - Surcharge - $0.068821
Per call
- ------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------
<PAGE>
6.10.8.2 ELECTRONIC CUSTOMER SERVICE RECORD RETRIEVAL
- ------------------------------------------------------------------------------------------------------
ID SERVICE CATEGORY RATE ELEMENT RATE
- ------------------------------------------------------------------------------------------------------
Electronic Customer $0.13
Service Record Per Customer Record
Retrieval
- ------------------------------------------------------------------------------------------------------
</TABLE>
<PAGE>
APPENDIX 1, ATTACHMENT 9
QUALIFIED BUSINESS LINES FOR VOLUME COMMITMENT
RHODE ISLAND
<TABLE>
<CAPTION>
- -------------------------------------------------------------------------------------------------------------------------------
ACCESS LINES
- -------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Measured Business Service 1MB ALS
- -------------------------------------------------------------------------------------------------------------------------------
Flat Business Service 1FB 1LB
- -------------------------------------------------------------------------------------------------------------------------------
Direct Inward Dial Trunks NDT ND8
- -------------------------------------------------------------------------------------------------------------------------------
PBX Trunks XMB XFB
- -------------------------------------------------------------------------------------------------------------------------------
PBX DIGITAL TRUNKS T2DMX T4DOX
-----------------------------------------------------------
T2DOX TDYMX
-----------------------------------------------------------
T4DMX TDYOX
- -------------------------------------------------------------------------------------------------------------------------------
PBX ANALOG TRUNKS RM7 TG8 TBPCX TM7
-----------------------------------------------------------
T1V TGJTM TCX TM9
-----------------------------------------------------------
T2D1X TGQ TDD TMB
-----------------------------------------------------------
T2DCX TGZ TDY1X TMC
-----------------------------------------------------------
T3E THN TDYCX TMK
-----------------------------------------------------------
T3U THO TEPCX TMR
-----------------------------------------------------------
T3V THQ TF6 TMT
-----------------------------------------------------------
T4U THU TFB TMU
-----------------------------------------------------------
T4V THW TFC TP5CX
-----------------------------------------------------------
T4X THZ TFK TS9
-----------------------------------------------------------
T5E TJT TFQ TS90X
-----------------------------------------------------------
T5K TKG TFR TW6
-----------------------------------------------------------
T5N TKO TFT TYD
-----------------------------------------------------------
T50 TKV TFU TZQ
-----------------------------------------------------------
T86 TM2 TG2 TZZ
-----------------------------------------------------------
T87 TM3 TG7 TJB
-----------------------------------------------------------
TB2 TM5 TBB TM6
- -------------------------------------------------------------------------------------------------------------------------------
CENTREX: **
- -------------------------------------------------------------------------------------------------------------------------------
**EXCLUDES:
1. Centrex systems priced under a special contract (ICB, FPO, LSO, Custom Pricing)
2. Centrex systems which serve multiple end user customers
- -------------------------------------------------------------------------------------------------------------------------------
CENTREX PLUS
- -------------------------------------------------------------------------------------------------------------------------------
Measured - DMS HMHJX
- -------------------------------------------------------------------------------------------------------------------------------
Measured - 5ESS HMHUX
- -------------------------------------------------------------------------------------------------------------------------------
Unlimited - DMS HFHJX
- -------------------------------------------------------------------------------------------------------------------------------
Unlimited - 5ESS HFHUX
- -------------------------------------------------------------------------------------------------------------------------------
CENTREX PLUS STATIONS/LINES
- -------------------------------------------------------------------------------------------------------------------------------
Primary station at principle location RXR
- -------------------------------------------------------------------------------------------------------------------------------
Primary- Off Prem same CO. RX3
- -------------------------------------------------------------------------------------------------------------------------------
</TABLE>
Page 1 of 1
<PAGE>
APPENDIX 1, ATTACHMENT 10
PRODUCTS AND SERVICES ELIGIBLE FOR VTD DISCOUNT
RHODE ISLAND
<TABLE>
<CAPTION>
- -----------------------------------------------------------------------------------------------------------------------------
ACCESS LINES
- -----------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
- ----------------------------------------------------------------------------------------------------------------------------
Measured Business Service 1MB ALS
- ----------------------------------------------------------------------------------------------------------------------------
Flat Business'Service 1FB 1LB
- ----------------------------------------------------------------------------------------------------------------------------
Direct Inward Dial Trunks NDT ND8
- ----------------------------------------------------------------------------------------------------------------------------
PBX Trunks XMB XFB
- ----------------------------------------------------------------------------------------------------------------------------
PBX DIGITAL TRUNKS T2DMX T4DOX
---------------------------------------------------------
T2DOX TDYMX
---------------------------------------------------------
T4DMX TDYOX
- ----------------------------------------------------------------------------------------------------------------------------
PBX ANALOG TRUNKS RM7 TG8 TBPCX TM7
---------------------------------------------------------
T1V TGJTM TCX TM9
---------------------------------------------------------
T2D1X TGQ TDD TMB
---------------------------------------------------------
T2DCX TGZ TDY1X TMC
---------------------------------------------------------
T3E THN TDYCX TMK
---------------------------------------------------------
T3U THO TEPCX TMR
---------------------------------------------------------
T3V THQ TF6 TMT
---------------------------------------------------------
T4U THU TFB TMU
---------------------------------------------------------
T4V THW TFC TP5CX
---------------------------------------------------------
T4X THZ TFK TS9
---------------------------------------------------------
T5E TJT TFQ TS90X
---------------------------------------------------------
T5K TKG TFR TW6
---------------------------------------------------------
T5N TKO TFT TYD
---------------------------------------------------------
T50 TKV TFU TZQ
---------------------------------------------------------
T86 TM2 TG2 TZZ
---------------------------------------------------------
T87 TM3 TG7 TJB
---------------------------------------------------------
TB2 TM5 TBB TM6
- ----------------------------------------------------------------------------------------------------------------------------
INTRA-LATA TOLL
*MUST BE ASSOCIATED WITH A RESOLD VTD QUALIFIED BUSINESS LINE
- ----------------------------------------------------------------------------------------------------------------------------
Message Rate Service N/A
- ----------------------------------------------------------------------------------------------------------------------------
MTS, including Business Link Optional Calling Plan but OVP OV2
excluding all other Optional Calling Plans ---------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------------------------
FEATURES
*MUST BE ASSOCIATED WITH A RESOLD VTD QUALIFIED BUSINESS LINE
- ----------------------------------------------------------------------------------------------------------------------------
Touch Tone TTB
- ----------------------------------------------------------------------------------------------------------------------------
Call Forwarding ESM
- ----------------------------------------------------------------------------------------------------------------------------
Call Forwarding, Speed Calling 8 & Speed Calling 30 EZO
- ----------------------------------------------------------------------------------------------------------------------------
Call Forwarding, Three Way Calling & Speed Calling 30 ESB
- ----------------------------------------------------------------------------------------------------------------------------
Call Forwarding, Three Way Calling & Speed Calling 8 ESR
- ----------------------------------------------------------------------------------------------------------------------------
Call Forwarding, Three Way Calling, Speed Calling 8 & EZS
Speed Calling 30
- ----------------------------------------------------------------------------------------------------------------------------
Call Waiting ESX
- ----------------------------------------------------------------------------------------------------------------------------
Call Waiting, Call Forwarding & Speed Calling 30 ESG
- ----------------------------------------------------------------------------------------------------------------------------
Call Waiting, Call Forwarding & Speed Calling 8 ESA
- ----------------------------------------------------------------------------------------------------------------------------
Call Waiting, Call Forwarding & Three Way Calling ETC
- ----------------------------------------------------------------------------------------------------------------------------
Call Waiting, Call Forwarding, Speed Calling 8 & Speed EZQ
Calling 30
- ----------------------------------------------------------------------------------------------------------------------------
Call Waiting, Call Forwarding, Three Way Calling & Speed ES5
Calling 30
- ----------------------------------------------------------------------------------------------------------------------------
Page 1 of 2
<PAGE>
- --------------------------------------------------------------------------------------------
Call Waiting, Call Forwarding, Three Way Calling & Speed ES3
Calling 8
- ----------------------------------------------------------------------------------------------------------------------------
Call Waiting, Call Forwarding, Three Way Calling, Speed EZT
Calling 8 & Speed Calling 30
- ----------------------------------------------------------------------------------------------------------------------------
Call Waiting, Speed Calling 8 & Speed Calling 30 EZN
- ----------------------------------------------------------------------------------------------------------------------------
Call Waiting, Three Way Calling & Speed Calling 30 ET3
- ----------------------------------------------------------------------------------------------------------------------------
Call Waiting, Three Way Calling & Speed Calling 8 ET8
- ----------------------------------------------------------------------------------------------------------------------------
Call Waiting, Three Way Calling, Speed Calling 8 & EZR
Speed Calling 30
- ----------------------------------------------------------------------------------------------------------------------------
Speed Calling 30 E3D
- ----------------------------------------------------------------------------------------------------------------------------
Speed Calling 8 E8C
- ----------------------------------------------------------------------------------------------------------------------------
Three Way Calling ESC
- ----------------------------------------------------------------------------------------------------------------------------
Three Way Calling, Speed Calling 8 & Speed Calling 30 EZP
- ----------------------------------------------------------------------------------------------------------------------------
Call Forwarding 11 CFZ GCZ E5E
- ----------------------------------------------------------------------------------------------------------------------------
PHONE SMART SERVICES
*MUST BE ASSOCIATED WITH A RESOLD VTD QUALIFIED BUSINESS LINE
- ----------------------------------------------------------------------------------------------------------------------------
Call Trace Denial HBG
- ----------------------------------------------------------------------------------------------------------------------------
Call Trace (Per Activation Charge)
- ----------------------------------------------------------------------------------------------------------------------------
Caller ID NSD
- ----------------------------------------------------------------------------------------------------------------------------
Per Call Blocking
- ----------------------------------------------------------------------------------------------------------------------------
Per Line Blocking NBJ
- ----------------------------------------------------------------------------------------------------------------------------
Permanent Line Blocking NBD
- ----------------------------------------------------------------------------------------------------------------------------
Repeat Dialing NSQ
- ----------------------------------------------------------------------------------------------------------------------------
Repeat Dialing (Per Activation Charge)
- ----------------------------------------------------------------------------------------------------------------------------
Repeat Dialing Denial HBQ
- ----------------------------------------------------------------------------------------------------------------------------
</TABLE>
Page 2 of 2
<PAGE>
RESALE AGREEMENT
(West Virginia)
PREFACE
THIS RESALE AGREEMENT (this "Agreement") is made effective as
of August 6, 1999 (the "Effective Date") by and between Essential.Com, Inc.
("Reseller"), a Delaware corporation, with offices at Three Burlington Woods
Drive, Burlington, MA 01803, and Bell Atlantic - West Virginia, Inc. ("Bell
Atlantic"), a West Virginia corporation, with offices at 1500 MacCorkle Avenue,
S.E., Suite 500, Charleston, West Virginia 25314.
WHEREAS, pursuant to Section 251(c)(4) of the Act, 47 U.S.C.
Section 251(c)(4), Reseller wishes to purchase Bell Atlantic Retail
Telecommunications Services from Bell Atlantic for resale by Reseller as a
Telecommunications Carrier providing Telecommunications Services in the State of
West Virginia; and
WHEREAS, Bell Atlantic is willing to provide such Bell
Atlantic Retail Telecommunications Services in accordance with this Agreement.
NOW THEREFORE, in consideration of the mutual promises set
forth in this Agreement, Reseller and Bell Atlantic, each on behalf of itself
and its respective successors and assigns, agree as follows:
1. DEFINITIONS
1.1 As used in the Principal Document, the terms listed below
shall have the meanings stated below:
1.1.1 "Act" means the Communications Act of 1934, 47 U.S.C.
Section 151, ET SEQ., as amended from time-to-time.
1.1.2 "Agent" means agent or servant.
1.1.3 "Applicable Law" means all applicable laws and government
regulations and orders.
1.1.4 "Bell Atlantic Ancillary Service" means any service offered by
Bell Atlantic to Reseller in Exhibit 1.
1.1.5 "Bell Atlantic Retail Telecommunications Service' means any
Telecommunications Service that bell atlantic provides at retail to
subscribers who are not Telecommunications Carriers. The term "Bell
Atlantic Retail Telecommunications Service!" does not include any
exchange access service (as defined in Section 3(16) of the act, 47
U.S.C. section 153(16)) provided by Bell Atlantic.
1
<PAGE>
1.1.6 "Bell Atlantic Service" means and includes any Bell Atlantic
Retail Telecommunications Service and any Bell Atlantic Ancillary
Service.
1.1.7 "Bell Atlantic's Affiliates" means any corporations,
partnerships or other persons who control, are controlled by, or are
under common control with, Bell Atlantic.
1.1.8 "Bell Atlantic's Tariffs" and "Bell Atlantic Tariff" mean and
include:
(a) Bell Atlantic's effective Federal and state
tariffs, as amended by Bell Atlantic' from time-to-time; and,
(b) to the extent Bell Atlantic Services are not
subject to Bell Atlantic tariffs, any standard agreements and other
documents, as amended by Bell Atlantic from time-to-time, that set
forth the generally available terms, conditions and prices under which
Bell Atlantic offers such Bell Atlantic Services.
The terms "Bell Atlantic's Tariffs" and "Bell
Atlantic Tariff" do not include Bell Atlantic's "Statement of Generally
Available Terms and Conditions for Interconnection, Unbundled Network
Elements, Ancillary Services and Resale of Telecommunications Services"
which has been approved by the Commission pursuant to Section 252(f) of
the Act, 47 U.S.C. Section 252(f).
1.1.9 "Commission" means the West Virginia Public Service
Commission.
1.1.10 "Contract Period", as used in Section 1.1.25 and Section 6.2,
means a stated period or minimum period of time for which Reseller is
required by this Agreement to subscribe to, use and/or pay for a Bell
Atlantic Service.
1.1.11 "Customer" means and includes customers, subscribers and
patrons, of a Party, purchasers and users of Telecommunications
Services (including, but not limited to, resold Bell Atlantic Retail
Telecommunications Services) provided by a Party, and purchasers and
users of other services and products provided by a Party. The term
"Customer" does not include a Party.
1.1.12 "Bell Atlantic Customer" means a Customer of Bell Atlantic.
1.1.13 "Customer Information" means CPNI of a Customer and any other
nonpublic, individually identifiable information about a Customer or
the purchase by a Customer of the services or products of a Party.
1.1.14 "Customer Proprietary Network Information" ("CPNI") means
"Customer Proprietary Network Information" as defined in Section 222 of
the Act, 47 U.S.C. Section 222.
1.1.15 "Effective Date" means the date first above written.
2
<PAGE>
1.1.16 "Jurisdiction" means the State of West Virginia.
1.1.17 "Operator Services" means: (a) services accessed by dialing
411, 555-1212, 1-555-1212, 0+ local, O+ intraLATA, and, 0-; and, (b)
any other automated or live operator or directory assistance service.
1.1.18 "Order" means an order or application.
1.1.19 "Principal Document" means this document, including the
Preface, Sections 1 through 39, the signature page, Exhibit I, Exhibit
II, and Exhibit II, Attachment 1.
1.1.20 "Reseller Customer" means a Customer of Reseller.
1.1.21 "Retail Prices" means the prices at which Bell Atlantic Retail
Telecommunications Services are provided by Bell Atlantic at retail to
subscribers who are not Telecommunications Carriers.
1.1.22 "Telecommunications Carrier" means "Telecommunications
Carrier" as defined in Section 3(44) of the Act, 47 U.S.C. Section
153(44).
1.1.23 "Telecommunications Service" means "Telecommunications
Service" as defined in Section 3(46) of the Act, 47 U.S.C. Section
153(46).
1.1.24 "Telephone Exchange Service" means "Telephone Exchange
Service" as defined in Section 3(47) of the Act, 47 U.S.C. Section
153(47).
1.1.25 "Termination Date Bell Atlantic Service" means: (a) any Bell
Atlantic Service being provided by Bell Atlantic under this Agreement
at the time of termination of this Agreement, that at the time of
termination of this Agreement is subject to a Contract Period which is
greater than one (1) month; and, (b) any Bell Atlantic Service
requested by Reseller under this Agreement in an Order accepted by Bell
Atlantic prior to termination of this Agreement but not yet being
provided by Bell Atlantic at the time of termination of this Agreement,
that is subject to an initial Contract Period which is greater than one
(1) month.
1.2 Unless the context clearly indicates otherwise, any defined
term which is defined or used in the singular shall include the plural,
and any defined term which is defined or used in the plural shall
include the singular.
2. THE AGREEMENT
2.1 This Agreement includes: (a) the Principal Document; (b) Bell
Atlantic's Tariffs (which Bell Atlantic Tariffs are incorporated into
this Agreement by reference and made a part hereof); and, (c) a
Reseller Order to provide, change or terminate a Bell Atlantic Service,
which has been accepted by Bell Atlantic (including, but not limited
to,
3
<PAGE>
any Order which includes a commitment to purchase a stated number or
minimum number of lines or other Bell Atlantic Services, or a
commitment to purchase lines or other Bell Atlantic Services for a
stated period or minimum period of time).
2.2 Conflicts among terms in the Principal Document, Bell
Atlantic's Tariffs, and a Reseller Order which has been accepted by
Bell Atlantic, shall be resolved in accordance with the following order
of precedence, where the document identified in subsection "(a)" shall
have the highest precedence: (a) the Principal Document; (b) Bell
Atlantic's Tariffs; and, (c) a Reseller Order which has been accepted
by Bell Atlantic. The fact that a term appears in the Principal
Document but not in a Bell Atlantic Tariff, or in a Bell Atlantic
Tariff but not in the Principal Document, shall not be interpreted as,
or deemed grounds for finding, a conflict for the purposes of this
Section 2.2.
2.3 This Agreement (including the Principal Document, Bell
Atlantic's Tariffs, and Reseller Orders which have been accepted by
Bell Atlantic), constitutes the entire agreement between the Parties on
the subject matter hereof, and supersedes any prior or contemporaneous
agreement, understanding, or representation on the subject matter
hereof. Except as otherwise provided in the Principal Document, the
terms in the Principal Document may not be waived or modified except by
a written document which is signed by the Parties. Subject to the
requirements of Applicable Law, Bell Atlantic shall have the right to
add, modify, or withdraw, a Bell Atlantic Tariff at any time, without
the consent of, or notice to, Reseller.
2.4 A failure or delay of either Party to enforce any of the
provisions of this Agreement, or any fight or remedy available under
this Agreement or at law or in equity, or to require performance of any
of the provisions of this Agreement, or to exercise any option provided
under this Agreement, shall in no way be construed to be a waiver of
such provisions, fights, remedies, or options.
3. BELL ATLANTIC SERVICES
3.1 During the term of this Agreement, Reseller, pursuant to
Section 25 1 (c)(4) of the Act, 47 U.S.C. Section 251(cX4), may submit
Orders to Bell Atlantic requesting Bell Atlantic to provide Bell
Atlantic Retail Telecommunications Services for resale by Reseller as a
Telecommunications Carrier providing Telecommunications Services.
3.2 During the term of this Agreement, Reseller may submit Orders
to Bell Atlantic requesting Bell Atlantic to provide Bell Atlantic
Ancillary Services for use by Reseller as a Telecommunications Carrier
providing Telecommunications Services.
3.3 Bell Atlantic may require that Reseller's Orders requesting
Bell Atlantic to provide Bell Atlantic Services be in writing on forms
specified by Bell Atlantic or in an electronic form specified by Bell
Atlantic.
3.4 Upon receipt and acceptance by Bell Atlantic of a Reseller
Order requesting Bell Atlantic to provide a Bell Atlantic Service, Bell
Atlantic shall provide,
4
<PAGE>
and Reseller shall subscribe to, use and pay for, the Bell Atlantic
Service, in accordance with this Agreement.
3.5 Bell Atlantic Retail Telecommunications Services may be
purchased by Reseller under this Agreement only for the purpose of
resale by Reseller as a Telecommunications Carrier providing
Telecommunications Services, pursuant to Section 251(c)(4) of the Act,
47 U.S.C. Section 251(c)(4). Bell Atlantic Retail Telecommunications
Services to be purchased by Reseller for other purposes (including, but
not limited to, Reseller's own use) must be purchased by Reseller
pursuant to separate written agreements, including, but not limited
to, applicable Bell Atlantic Tariffs. Reseller warrants and agrees
that Reseller will purchase Bell Atlantic Retail Telecommunications
Services from Bell Atlantic under this Agreement only for the purpose
of resale by Reseller as a Telecommunications Carrier providing
Telecommunications Services, pursuant to Section 251(c)(4) of the Act,
47 U.S.C. Section 251 (c)(4).
3.6 Bell Atlantic Ancillary Services may be purchased by Reseller
under this Agreement only for use by Reseller as a Telecommunications
Carrier providing Telecommunications Services. Bell Atlantic Ancillary
Services to be purchased by Reseller for other purposes must be
purchased by Reseller pursuant to separate written agreements,
including, but not limited to, applicable Bell Atlantic Tariffs.
Reseller warrants and agrees that Reseller will purchase Bell Atlantic
Ancillary Services from Bell Atlantic under this Agreement only for use
by Reseller as a Telecommunications Carrier providing
Telecommunications Services.
3.7 Subject to the requirements of Applicable Law, Bell Atlantic
shall have the right to add, modify, grandfather, discontinue or
terminate Bell Atlantic Services at any time, without the consent of
Reseller.
4. PRICES
4.1 Reseller shall pay Bell Atlantic for Bell Atlantic Services
at the prices stated in this Agreement, including, but not limited to,
in Exhibit II, Attachment 1.
4.2 If, prior to establishment of a Bell Atlantic Service,
Reseller cancels or changes its Order for the Bell Atlantic Service,
Reseller shall reimburse Bell Atlantic for the costs associated with
such cancellation or changes as required by this Agreement (including,
but not limited to, Bell Atlantic's Tariffs).
4.3 Upon request by Bell Atlantic, Reseller shall provide to Bell
Atlantic adequate assurance of payment of charges due to Bell Atlantic.
Assurance of payment of charges may be requested by Bell Atlantic: (a)
if Reseller, in Bell Atlantic's reasonable judgment, at the Effective
Date or at any time thereafter, is unable to show itself to be
creditworthy; (b) if Reseller, in Bell Atlantic's reasonable judgment,
at the effective date or at any time thereafter, is not creditworthy;
or, (c) if Reseller fails to timely pay a bill rendered to Reseller by
Bell Atlantic. Unless otherwise agreed by the parties, the
5
<PAGE>
assurance of payment shall be in the form of a cash deposit and shall
be in an amount equal to the charges for Bell Atlantic Services that
Reseller may reasonably be expected to incur during a period of two (2)
months. Bell Atlantic may at any time use the deposit or other
assurance of payment to pay amounts due from Reseller.
5. BILLING AND PAYMENT
5.1 Except as otherwise permitted or required by this Agreement,
or agreed in writing by the Parties, Bell Atlantic shall render bills
to Reseller monthly. Except as otherwise agreed in writing by the
Parties, Bell Atlantic will render bills to Reseller in a paper form.
5.2 Reseller shall pay Bell Atlantic's bills in immediately
available U.S. funds. Except as otherwise agreed in writing by the
Parties, payments shall be transmitted by electronic funds transfer.
5.3 Payment of charges shall be due by the due date stated on Bell
Atlantic's bills. Except as otherwise required by Bell Atlantic's
Tariffs or agreed in writing by the Parties, the due date shall not be
sooner than twenty (20) days after the date the bill is received by
Reseller.
5.4 Charges which are not paid by the due date stated on Bell
Atlantic's bill shall be subject to a late payment charge. The late
payment charge shall be in an amount specified by Bell Atlantic, which
shall not exceed a rate of one-and-one-half percent (1.5%) of the
over-due amount (including any unpaid, previously billed late payment
charges) per month.
5.5 Reseller acknowledges and agrees that:
5.5.1 During the term of this Agreement, Bell Atlantic will be
engaged in developing and deploying new or modified forms of bills for
Telecommunications Carriers who are engaged in the resale of Bell
Atlantic Retail Telecommunications Services and new or modified systems
and methods for computing and rendering such bills.
5.5.2 Prior to the completion of deployment of such new or modified
forms of bills and such new or modified systems and methods for
computing and rendering bills, Bell Atlantic's form of bill and systems
and methods for computing and rendering bills may be subject to
limitations and restrictions, including, but not limited to, the
limitations stated in Section 5.5.3, below, the inability to provide
Reseller with a single, consolidated bill for all Bell Atlantic
Services purchased by Reseller, and the unavailability of bills and
billing information in an electronic form (e.g., bills may be rendered
in a paper form).
5.5.3 Prior to the completion of deployment of the new or modified
forms of bills and the new or modified systems and methods for
computing and rendering bills,
6
<PAGE>
Bell Atlantic may apply the discount identified in Exhibit II, Section
1.1, in a manner (including, but not limited to, in a
"bottom-of-the-bill" format) that results in the Exhibit II, Section
1.1 discount being applied to charges stated in the bill (including,
but not limited to, Subscriber Line Charges, Federal Line Cost Charges,
end user common line charges, carrier selection and change charges,
Audiotex Service charges, and charges for services which are not Bell
Atlantic Retail Telecommunications Services) which are not subject to
the Exhibit II, Section 1.1 discount. Bell Atlantic will implement a
"true-up" process and within six (6) months after the due date of each
monthly bill, issue to Reseller a "true-up" bill for amounts which were
not collected from Reseller under the monthly bill because of the
application of the Exhibit II, Section 1.1 discount to charges which
are not subject to the Exhibit II, Section 1.1 discount. The "true-up"
bill may be issued as a part of or an entry on a monthly bill, as a
bill separate from a monthly bill, or in such other form as Bell
Atlantic may determine.
5.6 Although it is the intent of Bell Atlantic to submit timely
and accurate bills, failure by Bell Atlantic to present bills
(including, but not limited to, monthly bills and "true-up" bills) to
Reseller in a timely or accurate manner shall not constitute a breach
or default of this Agreement, or a waiver of a right of payment of the
incurred charges, by Bell Atlantic. Reseller shall not be entitled to
dispute charges for Bell Atlantic Services provided by Bell Atlantic
based on Bell Atlantic's failure to submit a bill for the charges in a
timely fashion.
6. TERM
6.1 The term of this Agreement shall commence on the Effective
Date, and, except as otherwise provided in this Agreement, shall remain
in effect through August 5, 2000 (the "Initial Term Ending Date").
After the Initial Term Ending Date, this Agreement shall continue in
force and effect unless and until terminated as provided in this
Agreement. Following the Initial Term Ending Date, either Party may
terminate this Agreement by providing written notice of termination to
the other Party, such written notice to be provided at least ninety
(90) days in advance of the date of termination.
6.2 Following termination of this Agreement pursuant to Section
6.1, this Agreement, as amended from time to time, shall remain in
effect as to any Termination Date Bell Atlantic Service for the
remainder of the Contract Period applicable to such Termination Date
Bell Atlantic Service at the time of the termination of this
Agreement. If a Termination Date Bell Atlantic Service is terminated
prior to the expiration of the Contract Period applicable to such
Termination Date Bell Atlantic Service, Reseller shall pay any
termination charge provided for in this Agreement.
7. SERVICE INSTALLATION AND MAINTENANCE
Reseller shall comply with Bell Atlantic's processes and
procedures (including, but not limited to, requirements by Bell
Atlantic that reseller use Bell Atlantic OSS Services) for the
communication to Bell Atlantic of (a) Reseller's orders to provide,
change or terminate, Bell Atlantic Services, and (b) Reseller's
requests for
7
<PAGE>
information about, assistance in using, or repair or maintenance of,
Bell Atlantic Services. Bell Atlantic may, from time-to-time, upon
notice to Reseller, change these processes and procedures.
8. ASSIGNMENT
8.1 Reseller shall not assign this Agreement or any right or
interest under this Agreement, nor delegate any obligation under this
Agreement, without the prior written approval of Bell Atlantic, which
approval shall not be unreasonably withheld, conditioned or delayed.
Any attempted assignment or delegation in contravention of the
foregoing shall be void and ineffective.
8.2 Bell Atlantic may, without the consent of Reseller, assign
this Agreement or any right or interest under this Agreement, and/or
delegate any obligation under this Agreement, to any of Bell Atlantic's
Affiliates, or to a person with which Bell Atlantic merges or which
acquires substantially all of Bell Atlantic's assets.
9. AVAILABILITY OF SERVICE
9.1 Subject to the requirements of Applicable Law, Bell Atlantic
shall be obligated to provide Bell Atlantic Services to Reseller under
this Agreement only where Bell Atlantic is able, without unreasonable
expense (as determined by Bell Atlantic in its reasonable judgment),
(a) to obtain, retain, install and maintain suitable facilities for the
provision of such Bell Atlantic Services, and (b) to obtain, retain and
maintain suitable rights for the provision of such Bell Atlantic
Services.
9.2 Bell Atlantic's obligation to provide a Bell Atlantic Retail
Telecommunications Service to Reseller under this Agreement shall be
limited to providing the Bell Atlantic Retail Telecommunications
Service to Reseller where, and to the same extent, that Bell Atlantic
provides such Bell Atlantic Retail Telecommunications Service to Bell
Atlantic's own end user retail Customers.
10. BRANDING
10.1 Except as stated in Section 10.2, in providing Bell Atlantic
Services to Reseller, Bell Atlantic shall have the right, but not the
obligation, to identify the Bell Atlantic Services with Bell Atlantic's
trade names, trademarks and service marks. Any such identification of
the Bell Atlantic Services shall not constitute the grant of a license
or other right to Reseller to use Bell Atlantic's trade names, trade
marks or service marks.
10.2 To the extent required by Applicable Law, upon request by
Reseller and at prices, terms and conditions to be negotiated by
Reseller and Bell Atlantic, Bell Atlantic shall provide Bell Atlantic
Retail Telecommunications Services that are identified by Reseller's
trade name, or that are not identified by trade name, trademark or
service mark.
8
<PAGE>
11. CHOICE OF LAW
11.1 The construction, interpretation and performance of this
Agreement shall be governed by the laws of the United States of America
and the laws of Jurisdiction (without regard to Jurisdiction's
conflicts of laws rules). All disputes relating to this Agreement shall
be resolved through the application of such laws.
11.2 Reseller agrees to submit to the jurisdiction of any court,
commission or other governmental entity in which a claim, suit-or
proceeding which arises out of or in connection with this Agreement or
Bell Atlantic Services provided under this Agreement and in which Bell
Atlantic is a party, is brought.
12. COMPLIANCE WITH APPLICABLE LAW
12.1 Each Party shall in its performance of this Agreement comply
with Applicable Law, including, but not limited to, all applicable
regulations and orders of the Commission and the Federal Communications
Commission (hereinafter the "FCC").
12.2 Reseller shall in providing Bell Atlantic Retail
Telecommunications Services to Reseller Customers comply with
Applicable Law, including, but not limited to, all applicable
regulations and orders of the Commission and the FCC.
13. CONFIDENTIAL INFORMATION
13.1 For the purposes of this Section 13, "Confidential
Information" means the following information disclosed by one Party
("Discloser") to the other Party ("Recipient") in connection with this
Agreement:
(a) Customer Information related to a Reseller
Customer which is disclosed by Reseller to Bell Atlantic (except to the
extent that (i) the Customer Information is subject to publication in-
a directory, (ii) the Customer Information is subject to disclosure
through an Operator Service or other Telecommunications Service, or in
the course of furnishing Telecommunications Services, or (iii) the
Reseller Customer to whom the Customer Information is related, in the
manner required by Applicable Law, has given Bell Atlantic permission
to use and/or disclose the Customer Information);
(b) Customer Information related to a Bell
Atlantic Customer which is disclosed by Bell Atlantic to Reseller
(except to the extent that the Bell Atlantic Customer to whom the
Customer Information is related, in the manner required by Applicable
Law, has given Reseller permission to use and/or disclose the Customer
Information);
(c) Information related to specific Bell
Atlantic facilities and equipment (including, but not limited to,
cable-and-pair information) which is disclosed by Bell Atlantic to
Reseller; and
9
<PAGE>
(d) Any other information which is identified by
the Discloser as Confidential Information in accordance with Section
13.2.
13.2 All information which is to be treated as Confidential
Information under Section 13.1 (d) shall:
(a) if in written, graphic, electromagnetic, or
other tangible form, be marked as "Confidential" or "Proprietary"; and
(b) if oral, (i) be identified by the Discloser
at the time of disclosure to be "Confidential" or "Proprietary", and
(ii) be set forth in a written summary which identifies the information
as "Confidential" or "Proprietary" and is delivered by the Discloser to
the Recipient within ten (10) days after the oral disclosure.
Each Party shall have the right to correct an
inadvertent failure to identify information as Confidential Information
pursuant to Section 13.1(d) by giving written notification within
thirty (30) days after the information is disclosed. The Recipient
shall, from that time forward, treat such information as Confidential
Information.
Notwithstanding any other provision of this
Agreement, a Party shall have the right to refuse to accept receipt of
information which the other Party has identified as Confidential
Information pursuant to Section 13.1 (d).
13.3 In addition to any requirements imposed by law, including,
but not limited to, 47 U.S.C. Section 222, for a period of five years
from the receipt of Confidential Information from the Discloser, except
as otherwise specified in this Agreement, the Recipient agrees:
(a) to use the Confidential Information only for
the purpose of performing under this Agreement;
(b) using the same degree of care that it uses
with similar confidential information of its own, to hold the
Confidential Information in confidence and restrict disclosure of the
Confidential Information solely to the Recipient's Affiliates, and the
directors, officers and employees of the Recipient and the Recipient's
Affiliates, having a need to know the Confidential Information for the
purpose of performing under this Agreement. The Recipient's Affiliates
and the directors, officers and employees of the Recipient and the
Recipient's Affiliates, shall be required by the Recipient to comply
with the provisions of this Section 13 in the same manner as the
Recipient. The Recipient shall be liable for any failure of the
Recipient's Affiliates and the directors, officers and employees of the
Recipient and the Recipient's Affiliates, to comply with the provisions
of this Section 13.
13.4 If the Recipient wishes to disclose the Discloser's
Confidential Information to a third party Agent or contractor, such
disclosure must be mutually agreed
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to in writing by the Parties to this Agreement, and the Agent or
contractor must have executed a written agreement of non-disclosure and
non-use comparable in scope to the terms of this Section 13.
13.5 The Recipient may make copies of Confidential Information only
as reasonably necessary to perform its obligations under this
Agreement. All such copies shall bear the same copyright and
proprietary rights notices as are contained on the original.
13.6 The Recipient shall return or destroy all Confidential
Information received from the Discloser, including any copies made by
the Recipient, within thirty (30) days after a written request by the
Discloser is delivered to the Recipient, except for (a) Confidential
Information that the Recipient reasonably requires to perform its
obligations under this Agreement, and (b) Customer Information related
to a Reseller Customer that is to be treated by Bell Atlantic as
Confidential Information pursuant to Section 13.1(a). If the Recipient
loses or makes an unauthorized disclosure of the Discloser's
Confidential Information, it shall notify the Discloser immediately and
use reasonable efforts to retrieve the lost or improperly disclosed
information.
13.7 The requirements of this Section 13 shall not apply to
Confidential Information:
(a) which was in the possession of the Recipient free of
restriction prior to its receipt from the Discloser;
(b) after it becomes publicly known or available
through no breach of this Agreement by the Recipient, the Recipient's
Affiliates, or the directors, officers, employees, Agents, or
contractors, of the Recipient or the Recipient's Affiliates;
(c) after it is rightfully acquired by the
Recipient free of restrictions on its disclosure;
(d) after it is independently developed by the
Recipient; or
(e) to the extent the disclosure is required by
Applicable Law, a court, or governmental agency; provided, the
Discloser has been notified of the required disclosure promptly after
the Recipient becomes aware of the required disclosure, the Recipient
undertakes reasonable lawful measures to avoid disclosing the
Confidential Information until the Discloser has had reasonable time to
seek a protective order, and the Recipient complies with any protective
order that covers the Confidential Information to be disclosed.
13.8 Each Party's obligations to safeguard Confidential Information
disclosed prior to expiration, cancellation or termination of this
Agreement shall survive such expiration, cancellation or termination.
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13.9 Confidential Information shall remain the property of the
Discloser, and the Discloser shall retain all of the Discloser's right,
title and interest in any Confidential Information disclosed by the
Discloser to the Recipient. Except as otherwise expressly provided
elsewhere in this Agreement, no license is granted by this Agreement
with respect to any Confidential Information (including, but not
limited to, under any patent, trademark, or copyright), nor is any such
license to be implied, solely by virtue of the disclosure of any
Confidential Information.
13.10 Each Party agrees that the Discloser would be irreparably
injured by a breach of this Section 13 by the Recipient, the
Recipient's Affiliates, or the directors, officers, employees, Agents
or contractors of the Recipient or the Recipient's Affiliates, and that
the Discloser shall be entitled to seek equitable relief, including
injunctive relief and specific performance, in the event of any breach
of the provisions of this Section 13. Such remedies shall not be deemed
to be the exclusive remedies for a breach of this Section 13, but shall
be in addition to any other remedies available under this Agreement or
at law or in equity.
13.11 The provisions of this Section 13 shall be in addition to and
not in derogation of any provisions of Applicable Law, including, but
not limited to, 47 U.S.C. Section 222, and are not intended to
constitute a waiver by a Party of any right with regard to protection
of the confidentiality of information of the Party or its Customers
provided by Applicable Law. In the event of a conflict between a
provision of this Section 13 and a provision of Applicable Law, the
provision of Applicable Law shall prevail.
14. CONTINGENCIES
Neither Party shall be liable for any delay or
failure in performance by it which results from strikes, labor
slowdowns, or other labor disputes, fires, explosions, floods,
earthquakes, volcanic action, delays in obtaining or inability to
obtain necessary services, facilities, equipment, parts or repairs
thereof, power failures, embargoes, boycotts, unusually severe weather
conditions, revolution, riots or other civil disturbances, war or acts
of the public enemy, acts of God, or causes beyond the Party's
reasonable control.
15. COUNTERPARTS
This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original and all of
which shall together constitute one and the same instrument.
16. CUSTOMER INFORMATION
16.1 Without in any way limiting Section 12, each Party shall
comply with Applicable Law with regard to Customer Information,
including, but not limited to, 47 U.S.C. Section 222 and the FCC rules
in 47 CFR Section 64.2001 - Section 64.2009.
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16.2 A Party ("Accessing Party") shall not access (including, but
not limited to, in the case of Reseller, through Bell Atlantic OSS
Services), use or disclose Customer Information made available to the
Accessing Party by the other Party pursuant to this Agreement unless
the Accessing Party, in the manner required by Applicable Law, has
obtained any Customer authorization for such access, use and/or
disclosure required by Applicable Law. By accessing, using or
disclosing Customer Information made available to the Accessing Party
by the other Party pursuant to this Agreement, the Accessing Party
represents and warrants that the Accessing Party has obtained, in the
manner required by Applicable Law, any Customer authorization for such
action required by Applicable Law. The Accessing Party shall upon
request by the other Party provide proof of such authorization
(including, a copy of any written authorization).
16.3 Bell Atlantic shall have the right (but not the obligation) to
audit Reseller to ascertain whether Reseller is complying with the
requirements of Applicable Law and this Agreement, with regard to
Reseller's access to, and use and disclosure of, Customer Information
which is made available to Reseller by Bell Atlantic pursuant to this
Agreement.
16.4 In addition to Bell Atlantic's audit rights under Section
16.3, Bell Atlantic shall have the right (but not the obligation) to
monitor Reseller's access to and use of Customer Information which is
made available by Bell Atlantic to Reseller pursuant to this Agreement,
to ascertain whether Reseller is complying with the requirements of
Applicable Law and this Agreement, with regard to Reseller's access to,
and use and disclosure of, such Customer Information. The foregoing
right shall include, but not be limited to, the right (but not the
obligation) to electronically monitor Reseller's access to and use of
Customer Information which is made available by Bell Atlantic to
Reseller pursuant to this Agreement through Bell Atlantic OSS
Facilities or other electronic interfaces or gateways.
16.5 Information obtained by Bell Atlantic pursuant to Section 16.3
or Section 16.4 shall be treated by Bell Atlantic as Confidential
Information of Reseller pursuant to Section 13; provided that, Bell
Atlantic shall have the right (but not the obligation) to use and
disclose information obtained by Bell Atlantic pursuant to this Section
16 to enforce Applicable Law and/or Bell Atlantic's rights under this
Agreement.
17. DEFAULT
17.1 If Reseller materially breaches a material provision of this
Agreement (other than an obligation to make payment of any amount
billed under this Agreement), and such breach continues for more than
thirty (30) days after written notice thereof from Bell Atlantic, then,
except as otherwise required by Applicable Law, Bell Atlantic shall
have the right, upon notice to Reseller, to terminate or suspend this
Agreement and/or provision of Bell Atlantic Services, in whole or in
part.
17.2.1 If Reseller fails to make a payment of any amount billed under
this Agreement by the due date stated on the bill and such failure
continues for more than
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thirty (30) days after written notice thereof from Bell Atlantic, then,
except as provided in Section 17.2.2, below, or as otherwise required
by Applicable Law, Bell Atlantic shall have the right, upon notice to
Reseller, to terminate or suspend this Agreement and/or provision of
Bell Atlantic Services, in whole or in part.
17.2.2 If a good faith dispute arises between the Parties concerning
the obligation of Reseller to make payment of an amount billed under
this Agreement, the failure to pay the amount in dispute shall not
constitute cause for termination or suspension of this Agreement or
provision of Bell Atlantic Services, if, within thirty (30) days of the
date that Bell Atlantic gives Reseller written notice of the failure to
pay the amount in dispute, Reseller (a) gives Bell Atlantic written
notice of the dispute stating the basis of the dispute, and (b)
furnishes to Bell Atlantic an irrevocable letter of credit in a form
acceptable to Bell Atlantic or other security arrangement acceptable to
Bell Atlantic, guaranteeing payment to Bell Atlantic of any portion of
the disputed amount (including the whole of the disputed amount) which
is thereafter agreed by Bell Atlantic and Reseller, or determined by a
court or other governmental entity of appropriate jurisdiction, to be
due to Bell Atlantic. The existence of such a dispute shall not relieve
Reseller of its obligations to pay any undisputed amount which is due
to Bell Atlantic and to otherwise comply with this Agreement.
18. FACILITIES
18.1 Bell Atlantic or its suppliers shall retain all right, title
and interest in, and ownership of, all facilities, equipment, software,
information, and wiring, used to provide Bell Atlantic Services. Bell
Atlantic shall have access at all reasonable times to Reseller and
Reseller Customer locations for the purpose of installing, inspecting,
maintaining, repairing, and removing, facilities, equipment, software,
and wiring, used to provide the Bell Atlantic Services. Reseller shall,
at Reseller's expense, obtain any rights and authorizations necessary
for such access.
18.2 Except as otherwise agreed to in writing by Bell Atlantic,
Bell Atlantic shall not be responsible for the installation,
inspection, repair, maintenance, or removal, of facilities, equipment,
software, or wiring, provided by Reseller or Reseller Customers for use
with Bell Atlantic Services.
19. INTELLECTUAL PROPERTY
Except as expressly stated in this Agreement, nothing
contained within this Agreement shall be construed as the grant of a
license, either express or implied, with respect to any patent,
copyright, trade name, trade mark, service mark, trade secret, or other
proprietary interest or intellectual property, now or hereafter owned,
controlled or licensable by either Party.
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20. JOINT WORK PRODUCT
The Principal Document is the joint work product of
the representatives of the Parties. For convenience, the Principal
Document has been drafted in final form by Bell Atlantic. Accordingly,
in the event of ambiguities, no inferences shall be drawn against
either Party solely on the basis of authorship of the Principal
Document.
21. LIABILITY
21.1.1 AS USED IN THIS SECTION 21, "OTHER BELL ATLANTIC PERSONS"
MEANS BELL ATLANTIC'S AFFILIATES, AND THE DIRECTORS, OFFICERS,
EMPLOYEES, AGENTS AND CONTRACTORS, OF BELL ATLANTIC AND BELL ATLANTIC'S
AFFILIATES.
21.1.2 AS USED IN THIS SECTION 21, "BELL ATLANTIC SERVICE FAILURE"
MEANS AND INCLUDES ANY FAILURE TO INSTALL, RESTORE, PROVIDE OR
TERMINATE A BELL ATLANTIC SERVICE, AND ANY MISTAKE, OMISSION,
INTERRUPTION, DELAY, ERROR, DEFECT, FAULT, FAILURE, OR DEFICIENCY, IN A
BELL ATLANTIC SERVICE.
21.2 THE LIABILITY, IF ANY, OF BELL ATLANTIC AND OTHER BELL
ATLANTIC PERSONS, TO RESELLER, RESELLER CUSTOMERS AND/OR ANY OTHER
PERSON, FOR ANY CLAIM, LOSS OR DAMAGES ARISING OUT OF OR IN CONNECTION
WITH A BELL ATLANTIC SERVICE FAILURE, SHALL BE LIMITED AND/OR EXCLUDED
AS SET FORTH IN BELL ATLANTIC'S TARIFFS.
21.3.1 TO THE EXTENT THE BELL ATLANTIC TARIFFS APPLICABLE TO A BELL
ATLANTIC SERVICE DO NOT CONTAIN A PROVISION WHICH LIMITS OR EXCLUDES
THE LIABILITY OF BELL ATLANTIC AND/OR OTHER BELL ATLANTIC PERSONS TO
RESELLER, RESELLER CUSTOMERS AND/OR ANY OTHER PERSON, FOR ANY CLAIM,
LOSS OR DAMAGES ARISING OUT OF OR IN CONNECTION WITH A BELL ATLANTIC
SERVICE FAILURE, SECTION 21.3.3 SHALL APPLY.
21.3.2 TO THE EXTENT A BELL ATLANTIC SERVICE IS NOT SUBJECT TO A BELL
ATLANTIC TARIFF, SECTION 21.3.3 SHALL APPLY.
21.3.3 THE LIABILITY, IF ANY, OF BELL ATLANTIC AND OTHER BELL
ATLANTIC PERSONS, TO RESELLER, RESELLER CUSTOMERS AND/OR ANY OTHER
PERSON, FOR ANY CLAIM, LOSS OR DAMAGES ARISING OUT OF OR IN CONNECTION
WITH A BELL ATLANTIC SERVICE FAILURE, SHALL BE LIMITED TO A TOTAL
AMOUNT NOT IN EXCESS OF: (a) TWICE THE PROPORTIONATE CHARGE FOR THE
BELL ATLANTIC SERVICE AFFECTED DURING THE PERIOD OF THE BELL ATLANTIC
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SERVICE FAILURE; OR, (b) IF THERE IS NO CHARGE FOR THE BELL ATLANTIC
SERVICE AFFECTED, FIVE HUNDRED DOLLARS ($500.00).
21.4 NOTWITHSTANDING ANYTHING CONTAINED IN SECTION 21.2, SECTION
21.3.1, SECTION 21.3.2, OR SECTION 21.3.3, ABOVE, BELL ATLANTIC AND
OTHER BELL ATLANTIC PERSONS SHALL HAVE NO LIABILITY TO RESELLER,
RESELLER CUSTOMERS, AND/OR ANY OTHER PERSON, FOR ANY SPECIAL, INDIRECT,
INCIDENTAL, OR CONSEQUENTIAL, DAMAGES (INCLUDING, BUT NOT LIMITED TO,
DAMAGES FOR HARM TO BUSINESS, LOST REVENUES, LOST PROFITS, LOST
SAVINGS, OR OTHER COMMERCIAL OR ECONOMIC LOSS), ARISING OUT OF OR IN
CONNECTION WITH A BELL ATLANTIC SERVICE FAILURE OR ANY BREACH OR
FAILURE IN PERFORMANCE OF THIS AGREEMENT BY BELL ATLANTIC.
21.5 THE LIMITATIONS AND EXCLUSIONS FROM LIABILITY STATED IN
SECTIONS 21.2 THROUGH 21.4 SHALL APPLY REGARDLESS OF THE FORM OF A
CLAIM OR ACTION, WHETHER IN CONTRACT, WARRANTY, TORT (INCLUDING, BUT
NOT LIMITED TO, THE NEGLIGENCE OF BELL ATLANTIC AND/OR OTHER BELL
ATLANTIC PERSONS), STRICT LIABILITY, OR OTHERWISE, AND REGARDLESS OF
WHETHER BELL ATLANTIC HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH
DAMAGES.
21.6 Reseller shall, in its tariffs or other contracts with
Reseller Customers, provide that in no case shall Bell Atlantic or
Other Bell Atlantic Persons be liable to Reseller Customers or to any
other third parties for any indirect, special, incidental,
consequential, or other damages, including, but not limited to, harm to
business, lost revenues, lost profits, lost savings, or other
commercial or economic loss, whether foreseeable or not, and
regardless of notification of the possibility of such damages. Reseller
shall indemnify, defend and hold Bell Atlantic and Other Bell Atlantic
Persons harmless from claims by Reseller Customers and other third
parties as provided in Bell Atlantic's Tariffs.
21.7 Bell Atlantic's obligations under this Agreement shall extend
only to Reseller. Bell Atlantic shall have no liability under this
Agreement to Reseller Customers or to any other third party. Nothing in
this Agreement shall be deemed to create a third party beneficiary
relationship between Bell Atlantic and Reseller Customers or any other
third party.
21.8 Reseller shall indemnify, defend and hold harmless Bell
Atlantic, Bell Atlantic's Affiliates, and the directors, officers and
employees of Bell Atlantic and Bell Atlantic's Affiliates, from any
claims, suits, government proceedings, judgments, fines, liabilities,
losses, damages, costs or expenses (including reasonable attorneys
fees) arising out of or in connection with: (a) the failure of Reseller
to transmit to Bell Atlantic a request by a Reseller Customer to
install, provide, change or terminate, a Bell Atlantic
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Retail Telecommunications Service; (b) the transmission by Reseller to
Bell Atlantic of an Order to install, provide, change or terminate, a
Bell Atlantic Retail Telecommunications Service, which Order was not
authorized by the applicable Reseller Customer; (c) erroneous or
inaccurate information in an Order transmitted by Reseller to Bell
Atlantic; (d) the transmission by Reseller to Bell Atlantic of an Order
to change or terminate a Telecommunications Service provided to an end
user by Bell Atlantic or another Telecommunications Service provider,
or to install or provide a Telecommunications Service for an end user,
which Order was not authorized by the applicable end user; (e) the
transmission by Reseller to Bell Atlantic of an Order to select, change
or reassign a telephone number for an end user, which Order was not
authorized by the applicable end user; (f) the transmission by Reseller
to Bell Atlantic of an Order to select a Telephone Exchange Service
provider for an end user, or to change or terminate an end user's
selection of a Telephone Exchange Service provider, which Order was not
authorized by the applicable end user in the manner required by
Applicable Law (or, in the absence of such Applicable Law, in the
manner required by the rules and procedures in 47 CFR Section 64.1100);
(g) access to, or use or disclosure of, Customer Information or Bell
Atlantic OSS Information by Reseller or Reseller's employees, Agents or
contractors; (h) the failure of Reseller to transmit, or to transmit in
a timely manner, E911/911 information to Bell Atlantic; (i) erroneous
or inaccurate E911/911 information transmitted by Reseller to Bell
Atlantic; (j) any information provided by Reseller for inclusion in
Bell Atlantic's LIDB; or, (k) the marketing, advertising or sale of
Reseller's services and/or products (including, but not limited to,
resold Bell Atlantic Retail Telecommunications Services), or the
billing or collection of charges for Reseller's services and/or
products (including, but not limited to, resold Bell Atlantic Retail
Telecommunications Services). For the purposes of Section 21.8(b), (d)
and (e), an Order shall be deemed not to have been authorized by a
Reseller Customer or end user if Applicable Law and/or this Agreement
required such authorization to be obtained in a particular manner, and
Reseller did not obtain the authorization in the manner required by
Applicable Law and this Agreement.
22. NON-EXCLUSIVE REMEDIES
Except as otherwise expressly provided in this
Agreement, each of the remedies provided under this Agreement is
cumulative and is in addition to any other remedies that may be
available under this Agreement or at law or in equity.
23. NOTICES
All notices and other communications under this
Agreement shall be deemed effective upon receipt by the Party being
notified, provided such notices or communications are in writing and
are sent by certified or registered mail, return receipt requested, or
by a reputable private delivery service which provides a record of
delivery, and addressed as shown below:
To Bell Atlantic:
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Bell Atlantic - West Virginia, Inc.
c/o Bell Atlantic Network Services, Inc.
1320 North Courthouse Road
Arlington, Virginia 22201
Attn.: Director, Resale
Initiatives
To Reseller: President
Essential.Com, Inc.
3 Burlington Woods Drive
Burlington, MA 0 1803
Tel: (781) 229-9599
Fax: (781) 229-9499
Either Party may from time-to-time designate another
address or addressee by giving notice in accordance with this Section
23.
24. OPTION TO OBTAIN BELL ATLANTIC SERVICE UNDER OTHER AGREEMENTS
24.1 If, at any time while this Agreement is in effect, Bell
Atlantic is a party to an agreement with a Telecommunications Carrier
other than Reseller ("Third-Person Telecommunications Carrier) to
provide Bell Atlantic Services to the Third-Person Telecommunications
Carrier, which agreement has been approved by the Commission pursuant
to 47 U.S.C. Section 252, upon request by Reseller, Bell Atlantic, to
the extent required by Applicable Law (including, but not limited to 47
U.S.C. Section 252(i)), shall make available to Reseller any Bell
Atlantic Service offered by Bell Atlantic under the agreement with the
Third-Person Telecommunications Carrier upon the same terms and
conditions (including prices) provided in the agreement with the
Third-Person Telecommunications Carrier, but (except as otherwise
expressly agreed in writing by the Parties) only on a prospective
basis. Following such request by Reseller and prior to provision of the
Bell Atlantic Service by Bell Atlantic to Reseller pursuant to the
Terms and conditions (including prices) of the Third-Person
Telecommunications Carrier agreement, this Agreement shall be amended
to incorporate the terms and conditions (including prices) from the
Third-Person Telecommunications Carrier agreement applicable to the
Bell Atlantic Service Reseller has elected to purchase pursuant to the
terms and conditions (including prices) of the Third-Person
Telecommunications Carrier agreement. Except as otherwise expressly
agreed in writing by the Parties, the amendment shall apply on a
prospective basis only and shall not apply with regard to any Bell
Atlantic Service provided by Bell Atlantic to Reseller prior to the
effective date of the amendment.
24.2 To the extent the exercise of the foregoing option requires a
rearrangement of facilities by Bell Atlantic, Reseller shall be liable
for the non-recurring charges associated therewith, as well as for any
termination charges associated with the termination of existing
facilities or Bell Atlantic Services.
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25. REGULATORY APPROVALS
25.1 Within thirty (30) days after execution of this Agreement by
the Parties, Bell Atlantic shall file the Agreement with the Commission
for approval by the Commission.
25.2 Each Party shall exercise reasonable efforts (including
reasonably cooperating with the other Party) to secure approval of this
Agreement, and any amendment to this Agreement agreed to by the
Parties, from the Commission, the FCC, and other applicable
governmental entities.
25.3 Upon request by Bell Atlantic, Reseller shall, at Reseller's
expense, provide reasonable, good-faith support and assistance to Bell
Atlantic in obtaining any governmental approvals necessary for (a)
this Agreement and any amendment to this Agreement agreed to by the
Parties, and/or (b) the provision of Bell Atlantic Services by Bell
Atlantic to Reseller. Without in any way limiting the foregoing, upon
request by Bell Atlantic, Reseller shall (a) join in petitions
requesting approval of this Agreement, or an Amendment to this
Agreement agreed to by the Parties, to be filed with the Commission,
the FCC, or other applicable governmental entities, and (b) file other
documents with and present testimony to the Commission, the FCC, or
other applicable governmental entities, requesting approval of this
Agreement or an amendment to this Agreement agreed to by the Parties.
26. REGULATORY CONTINGENCIES
26.1 Neither Party shall be liable for any delay or failure in
performance by it which results from requirements of Applicable Law, or
acts or failures to act of any governmental entity or official.
26.2 In the event that any provision of this Agreement shall be
invalid or unenforceable, such invalidity or unenforceability shall not
invalidate or render unenforceable any other provision of this
Agreement, and this Agreement shall be construed as if it did not
contain such invalid or unenforceable provision.
26.3 In the event that any legislative, regulatory, judicial or
other governmental action materially affects any material terms of this
Agreement, the ability of either Party to perform any material terms of
this Agreement, or the rights or obligations of either Party under this
Agreement, the Parties shall take such action as shall be necessary to
conform this Agreement to the governmental action and/or to permit
Bell Atlantic to continue to provide and Reseller to continue to
purchase Bell Atlantic Services, including, but not limited to,
conducting good faith negotiations to enter into a mutually acceptable
modified or substitute agreement, filing tariffs, or additional,
supplemental or modified tariffs, and making other required filings
with governmental entities.
26.4 In the event of a governmental action described in Section
26.3, above, to the extent permitted by Applicable Law, Bell Atlantic
shall continue to provide and
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Reseller shall continue to subscribe to, use and pay for, any Bell
Atlantic Services affected by the governmental action until the action
to be taken by Bell Atlantic and Reseller under Section 26.3, above, is
taken and becomes effective in accordance with Applicable Law. Such
continued provision of and subscription to, use of and payment for, the
affected Bell Atlantic Services shall be in accordance with the terms
(including prices) of this Agreement, unless other terms, including but
not limited to the terms of a Bell Atlantic Tariff, are required by
Applicable Law.
26.5 If suspension or termination of the provision of any Bell
Atlantic Service is required by or as a result of a governmental
action, such suspension or termination shall not affect Reseller's
subscription to, use or obligation to pay for, other Bell Atlantic
Services, unless such suspension or termination has a material, adverse
effect on Reseller's ability to use the other Bell Atlantic Services.
26.6 If any of the Bell Atlantic Services to be provided by Bell
Atlantic pursuant to a tariff shall at any time become detariffed or
deregulated, Bell Atlantic may transfer the provisions of the tariff
relative to such Bell Atlantic Services to a Bell Atlantic "Guide for
Detariffed Services" or similar document, and such "Guide for
Detariffed Services" or similar document, as amended by Bell Atlantic
from time-to time, shall become a part of this Agreement.
27. RELATIONSHIP OF THE PARTIES
27.1 The relationship between the Parties under this Agreement
shall be that of independent contractors.
27.2 Nothing contained in this Agreement shall:
(a) make either Party the Agent or employee of
the other Party;
(b) grant either Party the authority to enter
into a contract on behalf of, or otherwise legally bind, the other
Party in any way;
(c) create a partnership, joint venture or other
similar relationship between the parties; or
(d) grant to Reseller a franchise,
distributorship or similar interest.
27.3 Each Party shall be solely responsible for selection,
supervision, termination, and compensation, of its respective
employees, Agents and contractors.
27.4 Each Party shall be solely responsible for payment of any
Social Security or other taxes which it is required by Applicable Law
to pay in conjunction with its employees, Agents or contractors, and
for collecting and remitting to applicable taxing authorities any taxes
which it is required by Applicable Law to collect from its employees,
Agents or contractors.
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27.5 The relationship of the Parties under this Agreement is a
non-exclusive relationship. Bell Atlantic shall have the right to
provide services offered by Bell Atlantic under this Agreement to
persons other than Reseller. Reseller shall have the right to purchase
services that may be purchased by Reseller under this Agreement from
persons other than Bell Atlantic.
28. RESELLER'S PROVISION OF SERVICE
28.1 Prior to providing Bell Atlantic Retail Telecommunications
Services purchased by Reseller under this Agreement to Reseller
Customers, Reseller shall obtain from the Commission, the FCC, and any
other applicable governmental entities, any certificates or other
authorizations required by Applicable Law for Reseller to provide
Telecommunications Services. Reseller shall promptly notify Bell
Atlantic in writing of any governmental action which suspends, cancels
or withdraws any such certificate or authorization, or otherwise limits
or affects Reseller's right to provide Telecommunications Services.
28.2 To the extent required by Applicable Law, Reseller shall: (a)
file with the Commission, the FCC, and/or other applicable governmental
entities, the tariffs, arrangements and other documents that set forth
the terms, conditions and prices under which Reseller provides
Telecommunications Services; and, (b) make available for public
inspection, the tariffs, arrangements and other documents that set
forth the terms, conditions and prices under which Reseller provides
Telecommunications Services.
29. RESELLER'S RESALE AND USE OF SERVICE
29.1 Reseller shall comply with the provisions of this Agreement
(including, but not limited to, Bell Atlantic's Tariffs) regarding
resale or use of Bell Atlantic Services, including, but not limited to,
any restrictions on resale or use of Bell Atlantic Services.
29.2 Without in any way limiting Section 29.1, (a) Reseller shall
not resell residential service to persons not eligible to subscribe to
such service from Bell Atlantic (including, BUT NOT limited to,
business Reseller Customers and other nonresidential Reseller
Customers), and (b) Reseller shall not resell Lifeline or other
means-tested service offerings, or grandfathered or discontinued
service offerings, to persons not eligible to subscribe to such service
offerings from Bell Atlantic.
29.3 Reseller shall undertake in good faith to ensure that Reseller
Customers comply with the provisions of Bell Atlantic's Tariffs
applicable to their use of Bell Atlantic Retail Telecommunications
Services.
29.4 Reseller shall comply with Applicable Law, and Bell Atlantic's
procedures, for handling requests from law enforcement and other
government agencies
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for service termination, assistance with electronic surveillance, and
provision of information.
30. RESPONSIBILITY FOR CHARGES
30.1 Reseller shall be responsible for and pay all charges for any
Bell Atlantic Service provided by Bell Atlantic to Reseller, whether
the Bell Atlantic Service is ordered, activated or used by Reseller, a
Reseller Customer, or another person.
30.2 In addition to the charges for Bell Atlantic Services,
Reseller agrees to pay any charges for Telecommunications Services,
facilities, equipment, software, wiring, or other services or products,
provided by Bell Atlantic, or provided by persons other than Bell
Atlantic and billed for by Bell Atlantic, that are ordered, activated
or used by Reseller, Reseller Customers or other persons, through, by
means of, or in association with, Bell Atlantic Services provided by
Bell Atlantic to Reseller.
30.3 Reseller agrees to indemnify, defend and hold Bell Atlantic
harmless from, any charges for Telecommunications Services, facilities,
equipment, software, wiring, or other services or products, provided by
persons other than Bell Atlantic that are ordered, activated or used by
Reseller, Reseller Customers or other persons, through, by means of, or
in association with, Bell Atlantic Services provided by Bell Atlantic
to Reseller.
30.4 Without in any way limiting Reseller's obligations under
Section 30.1, Section 30.2 and Section 30.3, Reseller shall pay, or
collect and remit to Bell Atlantic, without discount, all Subscriber
Line Charges, Federal Line Cost Charges, end user common line charges,
carrier selection and change charges (PIC change charge), and the
Presubscribed Interexchange Carrier Charge applicable to Reseller
Customers who have not presubscribed to an interexchange carrier for
long distance services, associated with Bell Atlantic Services provided
by Bell Atlantic to Reseller.
30.5 Upon request by Reseller, Bell Atlantic will provide for use
on resold Bell Atlantic Retail Telecommunications Service dial tone
lines purchased by Reseller such Bell Atlantic Retail
Telecommunications Service call blocking services as Bell Atlantic
provides to Bell Atlantic's own end user retail Customers, where and to
the extent Bell Atlantic provides such Bell Atlantic Retail
Telecommunications Service call blocking services to Bell Atlantic's
own end user retail Customers.
31. SECTION HEADINGS.
The section headings in the Principal Document are
for convenience only and are not intended to affect the meaning or
interpretation of the Principal Document.
32. SERVICES NOT COVERED BY THIS AGREEMENT
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32.1 This Agreement applies only to Bell Atlantic Services (as the
term "Bell Atlantic Service" is defined in Section 1.1.6) provided, or
to be provided, by Bell Atlantic to Reseller, as specified in Section
3. Any Telecommunications Services, facilities, equipment, software,
wiring, or other services or products (including, but not limited to,
Telecommunications Services, facilities, equipment, software, wiring,
or other services or products, interconnected or used with Bell
Atlantic Services provided, or to be provided, by Bell Atlantic to
Reseller) provided, or to be provided, by Bell Atlantic to Reseller,
which are not subscribed to by Reseller under this Agreement, must be
subscribed to by Reseller separately, pursuant to other written
agreements (including, but not limited to, applicable Bell Atlantic
Tariffs). Reseller shall use and pay for any Telecommunications
Services, facilities, equipment, software, wiring, or other services or
products, provided, or to be provided, by Bell Atlantic to Reseller,
which are not subscribed to by Reseller under this Agreement, in
accordance with such other written agreements (including, but not
limited to, applicable Bell Atlantic Tariffs).
32.2 Without in any way limiting Section 32.1 and without
attempting to list all Bell Atlantic products and services that are not
subject to this Agreement, the Parties agree that this Agreement does
not apply to the purchase by Reseller of the following Bell Atlantic
services and products: except as expressly stated in the Principal
Document, exchange access services as defined in Section 3(16) of the
Act, 47 U.S.C. Section 153(16) (including, but not limited to, primary
interLATA toll carrier and primary intraLATA toll carrier choice or
change); Bell Atlantic Answer Call, Bell Atlantic Answer Call Plus,
Bell Atlantic Home Voice Mail, Bell Atlantic Home Voice Mail Plus, Bell
Atlantic Voice Mail, Bell Atlantic Basic Mailbox, Bell Atlantic
OptiMail Service, and other Voice mail, fax mail, voice messaging, and
fax messaging, services; Bell Atlantic Optional Wire Maintenance Plan;
Bell Atlantic Guardian Enhanced Maintenance Service; Bell Atlantic
Sentry I Enhanced Maintenance Service; Bell Atlantic Sentry II Enhanced
Maintenance Service; Bell Atlantic Sentry III Enhanced Maintenance
Service; Bell Atlantic Call 54 Service; Bell Atlantic Public Telephone
Service; customer premises equipment; Bell Atlantic telephone directory
listings offered under agreements or arrangements other than Bell
Atlantic Tariffs filed with the Commission; and, Bell Atlantic
telephone directory advertisements.
32.3 Without in any way limiting Section 32.1, the Parties also
agree that this Agreement does not apply to the installation,
inspection, maintenance, repair, removal, or use of any facilities,
equipment, software, or wiring, located on Reseller's side of the
Network Rate Demarcation Point applicable to Reseller and does not
grant to Reseller or Reseller Customers a right to installation,
inspection, maintenance, repair, or removal, by Bell Atlantic, or use,
by Reseller or Reseller Customers, of any such facilities, equipment,
software, or wiring.
32.4 Without in any way limiting Section 32.1, the Parties agree
that this Agreement does not apply to the purchase by Reseller of
Audiotex Services (including, but not limited to, Dial-it, 976, 915 and
556* services) for resale to- Audiotex Service providers or other
information service providers. Bell Atlantic shall have the right (but
not the obligation) to block calls made to Audiotex Service numbers
(including, but not
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limited to, Dial-It numbers and 976, 915 and 556 numbers) through Bell
Atlantic Services purchased by Reseller under this Agreement.
Notwithstanding the foregoing, Reseller shall pay, without discount,
any charges for Audiotex Services (including, but not limited to,
Dial-It, 976, 915 and 556 services) that are ordered, activated or used
by Reseller, Reseller Customers or other persons, through, by means of,
or in association with, Bell Atlantic Services provided by Bell
Atlantic to Reseller.
32.5 Nothing contained within this Agreement shall obligate Bell
Atlantic to provide any service or product which is not a Bell Atlantic
Service (including, but not limited to, the services listed in Sections
32.2, 32.3 'and 32.4, above) to Reseller.
32.6 Nothing contained within this Agreement shall obligate Bell
Atlantic to provide a Bell Atlantic Service or any other service or
product to a Reseller Customer. Without in any way limiting the
foregoing, except as otherwise required by Applicable Law, Bell
Atlantic reserves the right to terminate provision of services and
products (including, but not limited to, Telecommunications Services
and the services listed in Sections 32.2 and 32.3, above) to any person
who ceases to purchase Bell Atlantic Retail Telecommunications Service
dial tone line service from Bell Atlantic.
32.7 Nothing contained in this Section 32 shall in any way exclude
or limit Reseller's obligations and liabilities under Section 30,
including, but not limited to Reseller's obligations and liabilities to
pay charges for services and products as required by Section 30.
33. SERVICE QUALITY
Bell Atlantic Services provided by Bell Atlantic to
Reseller under this Agreement shall comply with the quality
requirements for such Bell Atlantic Services specified by Applicable
Law (including, but not limited to, any applicable provisions of 47
CFR Sections 51.311 and 51.603(b)).
34. SINGLE POINT OF CONTACT
34.1 Reseller shall be the single point of contact for Reseller
Customers and other persons with regard to Telecommunications Services
and other services and products which they wish to purchase from
Reseller or which they have purchased from Reseller. Communications by
Reseller Customers and other persons with regard to Telecommunications
Services and other services and products which they wish to purchase
from Reseller or which they have purchased from Reseller, shall be made
to Reseller, and not to Bell Atlantic. Reseller shall instruct Reseller
Customers and other persons that such communications shall be directed
to Reseller.
34.2 Without in any way limiting Section 34. 1, requests by
Reseller Customers for information about or provision of
Telecommunications Services which they wish to purchase from reseller,
requests by reseller customers to change, terminate, or obtain
information about, assistance in using, or repair or maintenance of,
Telecommunications
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Services which they have purchased from Reseller, and inquiries by
Reseller Customers concerning Reseller's bills, charges for Reseller's
Telecommunications Services, and, if the Reseller Customers receive
dial tone line service from Reseller, annoyance calls, shall be made by
the Reseller Customers to Reseller, and not to Bell Atlantic.
34.3 Reseller shall establish telephone numbers and mailing
addresses at which Reseller Customers and other persons may communicate
with Reseller and shall advise Reseller Customers and other persons who
may wish to communicate with Reseller of these telephone numbers and
mailing addresses.
35. SURVIVAL
The liabilities and obligations of a Party for acts
or omissions of the Party prior to the termination, cancellation or
expiration of this Agreement, the rights, liabilities and obligations
of a Party under any provision of this Agreement regarding
indemnification or defense, Customer Information, confidential
information, or limitation or exclusion of liability, the rights of
Bell Atlantic and the liabilities and obligations of Reseller under
Section 18.1, and the rights, liabilities and obligations of a Party
under any provision of this Agreement which by its terms is
contemplated to survive (or be performed after) termination,
cancellation or expiration of this Agreement, shall survive
termination, cancellation or expiration of this Agreement.
36. TAXES
36.1 With respect to any purchase of Bell Atlantic Services under
this Agreement, if any Federal, state or local government tax, fee,
duty, surcharge (including, but not limited to any E911/911,
telecommunications relay service, or universal service fund,
surcharge), or other tax-like charge (a "Tax") is required or permitted
by Applicable Law to be collected from Reseller by Bell Atlantic, then
(a) to the extent required by Applicable Law, Bell Atlantic shall. bill
Reseller for such Tax, (b) Reseller shall timely remit such Tax to Bell
Atlantic (including both Taxes billed by Bell Atlantic and Taxes
Reseller is required by Applicable Law to remit without billing by
Bell Atlantic), and (c) Bell Atlantic shall remit such collected Tax to
the applicable taxing authority.
36.2 With respect to any purchase of Bell Atlantic Services under
this Agreement, if any Tax is imposed by Applicable Law on the receipts
of Bell Atlantic, which Applicable Law permits Bell Atlantic to exclude
certain receipts received from sales of Bell Atlantic Services for
resale by Reseller, such exclusion being based on the fact that
Reseller is also subject to a Tax based upon receipts ("receipts tax"),
then Reseller (a) shall provide Bell Atlantic with notice in writing in
accordance with section 36.7 of its intent to pay the Receipts Tax, and
(b) shall timely pay the Receipts Tax to the applicable taxing
authority.
36.3 With respect to any purchase of Bell Atlantic services under
this Agreement, that are resold by Reseller to a Reseller Customer, if
any Tax is imposed by
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Applicable Law on the Reseller Customer in connection with the Reseller
Customer's purchase of the resold Bell Atlantic Services which Reseller
is required to impose and/or collect from the Reseller Customer, then
Reseller (a) shall impose and/or collect such Tax from the Reseller
Customer, and (b) shall timely remit such Tax to the applicable taxing
authority.
36.4.1 If Bell Atlantic has not received an exemption certificate
from Reseller and fails to bill Reseller for any Tax as required by
Section 36.1, then, as between Bell Atlantic and Reseller, (a) Reseller
shall remain liable for such unbilled Tax, and (b) Bell Atlantic -shall
be liable for any interest and/or penalty assessed on the unbilled
Tax by the applicable taxing authority.
36.4.2 If Reseller fails to remit any Tax to Bell Atlantic as
required by Section 36.1, then, as between Bell Atlantic and Reseller,
Reseller shall be liable for such uncollected Tax and any interest
and/or penalty assessed on the uncollected Tax by the applicable taxing
authority.
36.4.3 If Bell Atlantic does not collect a Tax because Reseller has
provided Bell Atlantic with an exemption certificate which is later
found to be inadequate by the applicable taxing authority, then, as
between Bell Atlantic and Reseller, Reseller shall be liable for such
uncollected Tax and any interest and/or penalty assessed on the
uncollected Tax by the applicable taxing authority.
36.4.4 Except as provided in Section 36.4.5, if Reseller fails to
pay the Receipts Tax as required by Section 36.2, then, as between Bell
Atlantic and Reseller, (a) Bell Atlantic shall be liable for any Tax
imposed on Bell Atlantic's receipts, (b) Reseller shall be liable for
any interest and/or penalty imposed on Bell Atlantic with respect to
the Tax on Bell Atlantic's receipts, and (c) Reseller shall be liable
for any Tax imposed on Reseller's receipts and any interest and/or
penalty assessed by the applicable taxing authority on Reseller with
respect to the Tax on Reseller's receipts.
36.4.5 If any discount or portion of a discount in price provided to
Reseller under this Agreement (including, but not limited to, a
discount provided for in Exhibit II, Section 1.1) represents Tax
savings to Bell Atlantic which it was anticipated Bell Atlantic would
receive, because it was anticipated that receipts from sales of Bell
Atlantic Services, that would otherwise be subject to a Tax on such
receipts, could be excluded from such Tax under Applicable Law because
the Bell Atlantic Services would be sold to Reseller for resale, and
Bell Atlantic is, in fact, required by Applicable Law to pay such Tax
on receipts from sales of Bell Atlantic Services to Reseller, then, as
between Bell Atlantic and Reseller, (a) Reseller shall be liable for,
and shall indemnify and hold harmless Bell Atlantic against (on an
after-tax basis), any such Tax, and (b) Reseller shall be liable for,
and shall indemnify and hold harmless Bell Atlantic against (on an
after-tax basis), any interest and/or penalty assessed by the
applicable taxing authority on either Reseller or Bell Atlantic with
respect to the Tax on Bell Atlantic's receipts.
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36.4.6 If Reseller fails to impose and/or collect any Tax from
Reseller Customers as required by Section 36.3, then, as between Bell
Atlantic and Reseller, Reseller shall remain liable for such
uncollected Tax and any interest and/or penalty assessed on such
uncollected Tax by the applicable taxing authority.
36.4.7 With respect to any Tax that Reseller has agreed to pay, is
responsible for because Reseller received a discount in price on Bell
Atlantic Services attributable to anticipated Tax savings by Bell
Atlantic, or is required to impose on and/or collect from Reseller
Customers, Reseller agrees to indemnify and hold Bell Atlantic harmless
on an after-tax basis for any costs incurred by Bell Atlantic as a
result of actions taken by the applicable taxing authority to recover
the Tax from Bell Atlantic due to failure of Reseller to timely remit
the Tax to Bell Atlantic, or timely pay, or collect and timely remit,
the Tax to the taxing authority.
36.5 If either Party is audited by a taxing authority, the other
Party agrees to reasonably cooperate with the Party being audited in
order to respond to any audit inquiries in a proper and timely manner
so that the audit and/or any resulting controversy may be resolved
expeditiously.
36.6.1 If Applicable Law clearly exempts a purchase of Bell Atlantic
Services under this Agreement from a Tax, and if such Applicable Law
also provides an exemption procedure, such as an exemption certificate
requirement, then, if Reseller complies with such procedure, Bell
Atlantic shall not collect such Tax during the effective period of the
exemption. Such exemption shall be effective upon receipt of the
exemption certificate or affidavit in accordance with Section 36.7.
36.6.2 If Applicable Law clearly exempts a purchase of Bell Atlantic
Services under this Agreement from a Tax, but does not also provide an
exemption procedure, then Bell Atlantic shall not collect such Tax if
Reseller (a) furnishes Bell Atlantic with a letter signed by an officer
of Reseller requesting an exemption and citing the provision in the
Applicable Law which clearly allows such exemption, and (b) supplies
Bell Atlantic with an indemnification agreement, reasonably acceptable
to Bell Atlantic, which holds Bell Atlantic harmless on an after-tax
basis with respect to forbearing to collect such Tax.
36.7 All notices, affidavits, exemption certificates or other
communications required or permitted to be given by either Party to the
other under this Section 36, shall be made in writing and shall be sent
by certified or registered mail, return receipt requested, or by a
reputable private delivery service which provides a record of delivery,
to the addressee stated in Section 23 at the address stated in sECTION
23 and to the following:
To Bell Atlantic:
Tax Administration
Bell Atlantic Corporation
1095 Avenue of the Americas
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Room 3109
New York, New York 10036
To Reseller: Controller
Essential.Com, Inc.
3 Burlington Woods Drive
Burlington, MA 01803
Tel: (781) 229-9599
Fax: (781) 229-9499
Either Party may from time-to-time designate another
address or addressee by giving notice in accordance with the terms of
this Section 36.7.
Any notice or other communication shall be deemed to
be given when received.
37. TELEPHONE EXCHANGE SERVICE PROVIDER SELECTION
37.1 Without in any way limiting Reseller's obligations under
Section 12, Reseller shall comply with Applicable Law with regard to
end user selection of a Telephone Exchange Service provider. Until the
Commission or the FCC adopts regulations and/or orders applicable to
end user selection of a Telephone Exchange Service provider, Reseller
shall apply the rules and procedures set forth in Section 64.1100 of
the FCC Rules, 47 CFR Section 64.1100, to the process for end user
selection of a Telephone exchange Service provider (including, to end
user selection of a Telephone Exchange Service provider that occurs
during any telemarketing contact with an end user), and shall comply
with such rules and procedures.
37.2 By submitting to Bell Atlantic an Order to install, provide,
change or terminate a Telecommunications Service, to select, change or
reassign a telephone number, or to select, change or terminate an end
user's Telephone Exchange Service provider, Reseller represents and
warrants: (a) that Reseller has obtained authorization for such action
from the applicable end user; and, (b) that if Applicable Law and/or
this Agreement required such authorization to be obtained in a
particular manner, Reseller obtained the authorization in the manner
required by Applicable Law and this Agreement. Reseller shall upon
request by Bell Atlantic provide proof of such authorization
(including, a copy of any written authorization).
37.3 If Reseller submits an Order to Bell Atlantic to install,
provide, change or terminate a Telecommunications Service, to select,
change or reassign a telephone number, or to select, change or
terminate an end users Telephone Exchange Service provider, and (a)
when requested by Bell Atlantic to provide a written document signed
by the end user stating the end user's Telephone Exchange Service
provider selection, fails to provide such document to Bell Atlantic, or
(b) has not obtained authorization for such installation, provision,
selection, change, reassignment or termination, from the end user in
the manner required by Applicable Law (or, in the absence of Applicable
Law, in
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the manner required by the rules and procedures in 47 CFR Section
64.1100), Reseller shall be liable to Bell Atlantic for all charges
that would be applicable to the end user for the initial installation,
provision, selection, change, reassignment or termination, of the end
user's Telecommunications Service, telephone number, and/or Telephone
Exchange Service provider, and any charges for restoring the end user's
Telecommunications Service, telephone number, and/or Telephone Exchange
Service provider selection, to its end user authorized condition.
38. TELEPHONE NUMBERS
38.1 Reseller's use of telephone numbers shall be subject to
Applicable Law (including, but not limited to, the rules of the FCC,
the North American Numbering Council, and the North American Numbering
Plan Administrator), the applicable provisions of this Agreement
(including, but not limited to, this Section 38), and Bell Atlantic's
practices and procedures for use and assignment of telephone numbers,
as amended from time-to-time.
38.2 Subject to Sections 38.1 and 38.3, if an end user who
subscribes to a Bell Atlantic Retail Telecommunications Service dial
tone line from either Reseller or Bell Atlantic changes the
Telecommunications Carrier from whom the end user subscribes for such
dial tone line (including a change from Bell Atlantic to Reseller, from
Reseller to Bell Atlantic, or from Reseller to a Telecommunications
Carrier other than Bell Atlantic), after such change, the end user may
continue to use with the dial tone line the telephone numbers which
were assigned to the dial tone line by Bell Atlantic immediately prior
to the change.
38.3 Bell Atlantic shall have the right to change the telephone
numbers used by an end user if at any time: (a) the type or class of
service subscribed to by the end user changes; (b) the end user
requests service at a new location, that is not served by the Bell
Atlantic switch and the Bell Atlantic rate center from which the end
user previously had service; or, (c) continued use of the telephone
numbers is not technically feasible.
38.4 If service on a Bell Atlantic Retail Telecommunications
Service dial tone line subscribed to by Reseller from Bell Atlantic
under this Agreement is terminated, the telephone numbers associated
with such dial tone line shall be available for reassignment by Bell
Atlantic to any person to whom Bell Atlantic elects to assign the
telephone numbers, including, but not limited to, Bell Atlantic, Bell
Atlantic end user retail Customers, Reseller, or Telecommunications
Carriers other than Bell Atlantic and Reseller.
39. WARRANTIES
EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, BELL
ATLANTIC MAKES NO WARRANTIES WITH RESPECT TO BELL ATLANTIC SERVICES,
WHETHER EXPRESS OR IM[PLIED, WRITTEN OR ORAL, IN FACT OR IN LAW. THE
WARRANTIES SET FORTH IN THIS
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AGREEMENT ARE BELL ATLANTIC'S EXCLUSIVE WARRANTIES WITH RESPECT TO BELL
ATLANTIC SERVICES AND ARE IN LIEU OF ALL OTHER WARRANTIES, EXPRESS OR
IMPLIED, WRITTEN OR ORAL, IN FACT OR IN LAW. BELL ATLANTIC DISCLAIMS
ANY AND ALL OTHER WARRANTIES, INCLUDING, BUT NOT LIMITED TO, WARRANTIES
OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, WARRANTIES
AGAINST INFRINGEMENT, AND WARRANTIES ARISING BY TRADE CUSTOM, TRADE
USAGE, COURSE OF DEALING, OR OTHERWISE.
40. PUBLICITY AND USE OF TRADEMARKS OR SERVICE MARKS
40.1.1 Neither Party nor its subcontractors or agents will use the
other Party's trademarks, service marks, logos or other proprietary
trade dress in connection with the sale of products and services, or in
any advertising, press releases, publicity matters or other promotional
materials without such Party's prior written consent.
40.1.2 Neither Party may imply any direct or indirect affiliation
with or sponsorship or endorsement of its company, products and
services by the other Party.
41. AUTHORIZATION
41.1.1 Bell Atlantic is a corporation duly organized, validly
existing and in good standing under the laws of the State of West
Virginia and has full power and authority to execute and deliver this
Agreement and to perform the obligations hereunder on behalf of
Bell Atlantic.
41.2 Essential.Com, Inc., a corporation, is duly organized, validly
existing and in good standing under the laws of Delaware, and has full
power and authority to execute and deliver this Agreement and to
perform its obligations hereunder.
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IN WITNESS WHEREOF, intending to be legally bound, Reseller
and Bell Atlantic have caused this Agreement to be executed by their respective
authorized representatives.
ESSENTIAL.COM, INC.
BY: /s/ Akhil Garland
-------------------------------------------
Signature
Akhil Garland
-------------------------------------------
Name (Printed)
ITS: CEO
-------------------------------------------
Title
BY: /s/ Patrick Moran
-------------------------------------------
Signature
Patrick Moran
-------------------------------------------
Name (Printed)
ITS: Vice President-Operations
-------------------------------------------
Title
BY: /s/ John Duffy
-------------------------------------------
Signature
John Duffy
-------------------------------------------
Name (Printed)
ITS: Vice President -Business Development
-------------------------------------------
Title
BELL ATLANTIC - WEST VIRGINIA, INC.
BY: /s/ Jeffrey A. Masoner
-------------------------------------------
Signature
Jeffrey A. Masoner
-------------------------------------------
Name (Printed)
TITLE: Vice President - Telecom Industry Services
-------------------------------------------
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EXHIBIT I
BELL ATLANTIC ANCILLARY SERVICES
1. BELL ATLANTIC OSS SERVICES
1.1 DEFINITIONS
As used in the Principal Document, the terms listed below
shall have the meanings stated below:
1.1.1 "Bell Atlantic Operations Support Systems" means Bell Atlantic
systems for pre ordering, ordering, provisioning, maintenance and
repair, and billing.
1.1.2 "Bell Atlantic OSS Services" means access to Bell Atlantic
Operations Support Systems functions. The term "Bell Atlantic OSS
Services" includes, but is not limited to: (a) Bell Atlantic's
provision of Reseller Usage Information to Reseller pursuant to Exhibit
1, Section 1.3, below; and, (b) "Bell Atlantic OSS Information", as
defined in Exhibit I, Section 1.1.4, below.
1.1.3 "Bell Atlantic OSS Facilities" means any gateways, interfaces,
databases, facilities, equipment, software, or systems, used by Bell
Atlantic to provide Bell Atlantic OSS Services to Reseller.
1.1.4 "Bell Atlantic OSS Information" means any information accessed
by, or disclosed or provided to, Reseller through or as a part of Bell
Atlantic OSS Services. The term "Bell Atlantic OSS Information"
includes, but is not limited to: (a) any. Customer Information related
to a Bell Atlantic Customer or a Reseller Customer accessed by, or
disclosed or provided to, Reseller through or as a part of Bell
Atlantic OSS Services; and, (b) any Reseller Usage Information (as
defined in Exhibit I, Section 1.1.5, below) accessed by, or disclosed
or provided to, Reseller.
1.1.5 "Reseller Usage Information" means the usage information for
a Bell Atlantic Retail Telecommunications Service purchased by Reseller
under this Agreement that Bell Atlantic would record if Bell Atlantic
was furnishing such Bell Atlantic Retail Telecommunications Service to
a Bell Atlantic end-user retail Customer.
1.2 BELL ATLANTIC OSS SERVICES
1.2.1 Upon request by Reseller, Bell Atlantic shall provide to
Reseller, pursuant to Section 251(c)(3) of the Act, 47 U.S.C. Section
251(c)(3), Bell Atlantic OSS Services.
1.2.2 Subject to the requirements of Applicable Law, Bell Atlantic
Operations Support Systems, Bell Atlantic Operations Support Systems
functions, Bell Atlantic OSS
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Facilities, Bell Atlantic OSS Information, and the Bell Atlantic OSS
Services that will be offered by Bell Atlantic, shall be as determined
by Bell Atlantic. To the extent required by Applicable Law and
technically feasible, Bell Atlantic will offer to Reseller the Bell
Atlantic OSS Services that Bell Atlantic offers, under agreements
approved by the Commission pursuant to 47 U.S.C. Section 252, to other
Telecommunications Carriers that are engaged in the resale of Bell
Atlantic Retail Telecommunications Services pursuant to 47 U.S.C.
Section 251(c)(4). Subject to the requirements of Applicable Law, Bell
Atlantic shall have the right to change Bell Atlantic Operations
Support Systems, Bell Atlantic Operations Support Systems functions,
Bell Atlantic OSS Facilities, Bell Atlantic OSS Information, and the
Bell Atlantic OSS Services, from time-to-time, without the consent of
Reseller.
1.3 Reseller Usage Information
1.3.1 Upon request by Reseller, Bell Atlantic shall provide to
Reseller, pursuant to Section 251(c)(3) of the Act, 47 U.S.C. Section
251(c)(3), Reseller Usage Information.
1.3.2 Reseller Usage Information will be available to Reseller
through the following:
(a) Daily Usage File on Data Tape.
(b) Daily Usage File through Network Data Mover ("NDM").
(c) Daily Usage File through Centralized Message Distribution
System ("CMDS").
1.3.3.1 Reseller Usage Information will be provided in a Bellcore
Exchange Message Records ("EMR") format.
1.3.3.2 Daily Usage File Data Tapes provided pursuant to Exhibit I,
Section 1.3.2(a) will be issued each day, Monday through Friday, except
holidays observed by Bell Atlantic.
1.3.4 Except as stated in this Exhibit I, Section 1.3, subject to
the requirements of Applicable Law, the manner in which, and the
frequency with which, Reseller Usage Information will be provided to
Reseller shall be determined by Bell Atlantic.
1.4 PRICES
The prices for Bell Atlantic OSS Services shall be as stated
in Exhibit II, Section 2 following.
1.5 ACCESS TO AND USE OF BELL ATLANTIC OSS FACILITIES
1.5.1 Bell Atlantic OSS facilities may be accessed and used by
Reseller only to the extent necessary for Reseller's access to and use
of Bell Atlantic OSS Services pursuant to this Agreement
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1.5.2 Bell Atlantic OSS Facilities may be accessed and used by
Reseller only to provide Telecommunications Services to Reseller
Customers.
1.5.3 Reseller shall restrict access to and use of Bell Atlantic OSS
Facilities to Reseller. This Agreement does not grant to Reseller any
right or license to grant sublicenses to other persons, or permission
to other persons (except Reseller's employees, Agents and contractors,
in accordance with Exhibit 1, Section 1.5.7, below), to access or use
Bell Atlantic OSS Facilities.
1.5.4 Reseller shall not (a) alter, modify or damage the Bell
Atlantic OSS Facilities (including, but not limited to, Bell Atlantic
software), (b) copy, remove, derive, reverse engineer, or decompile,
software from the Bell Atlantic OSS Facilities, or (c) obtain access
through Bell Atlantic OSS Facilities to Bell Atlantic databases,
facilities, equipment, software, or systems, which are not offered for
Reseller's use under this Agreement.
1.5.5 Reseller shall comply with all practices and procedures
established by Bell Atlantic for access to and use of Bell Atlantic OSS
Facilities (including, but not limited to, Bell Atlantic practices and
procedures with regard to security and use of access and user
identification codes).
1.5.6 All practices and procedures for access to and use of Bell
Atlantic OSS Facilities, and all access and user identification codes
for Bell Atlantic OSS Facilities: (a) shall remain the property of Bell
Atlantic; (b) shall be used by Reseller only in connection with
Reseller's use of Bell Atlantic OSS Facilities permitted by this
Agreement; (c) shall be treated by Reseller as Confidential Information
of Bell Atlantic pursuant to Section 13; and, (d) shall be destroyed or
returned by Reseller to Bell Atlantic upon the earlier of request by
Bell Atlantic or the expiration or termination of this Agreement.
1.5.7 Reseller's employees, Agents and contractors may access and
use Bell Atlantic OSS Facilities only to the extent necessary for
Reseller's access to and use of the Bell Atlantic OSS Facilities
permitted by this Agreement. Any access to or use of Bell Atlantic OSS
Facilities by Reseller's employees, Agents, or contractors, shall be
subject to the provisions of this Agreement, including, but not limited
to, Section 13, Exhibit 1, Section 1.5.6, and Exhibit I, Section
1.6.3.3.
1.6 BELL ATLANTIC OSS INFORMATION
1.6.1 Subject to the provisions of this Agreement and Applicable
Law, Bell Atlantic grants to Reseller a non-exclusive license to use
Bell Atlantic OSS Information.
1.6.2 All Bell Atlantic OSS Information shall at all times remain
the property of Bell Atlantic. Except as expressly stated in this
Agreement, Reseller shall acquire no rights in or to any Bell Atlantic
OSS Information.
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1.6.3.1 The provisions of this Exhibit 1, Section 1.6.3 apply to all
Bell Atlantic OSS Information, except (a) Reseller Usage Information,
(b) CPNI of Reseller, and (c) CPNI of a Bell Atlantic Customer or a
Reseller Customer, to the extent the Customer has authorized Reseller
to use the Customer Information.
1.6.3.2 Bell Atlantic OSS Information may be accessed and used by
Reseller only to provide Telecommunications Services to Reseller
Customers.
1.6.3.3 Reseller shall treat Bell Atlantic OSS Information that is
designated by Bell Atlantic, through written or electronic notice
(including, but not limited to, through the Bell Atlantic OSS
Services), as "Confidential" or "Proprietary" as Confidential
Information of Bell Atlantic pursuant to Section 13.
1.6.3.4 Except as expressly stated in this Agreement, this Agreement
does not grant to Reseller any right or license to grant sublicenses to
other persons, or permission to other persons (except Reseller's
employees, Agents or contractors, in accordance with Exhibit 1, Section
1.6.3.5), to access, use or disclose Bell Atlantic OSS Information.
1.6.3.5 Reseller's employees, Agents and contractors may access, use
and disclose Bell Atlantic OSS Information only to the extent necessary
for Reseller's access to, and use and disclosure of, Bell Atlantic OSS
Information permitted by this Agreement. Any access to, or use or
disclosure of, Bell Atlantic OSS Information by Reseller's employees,
Agents or contractors, shall be subject to the provisions of this
Agreement, including, but not limited to, Section 13 and Exhibit 1,
Section 1.6.3.3.
1.6.3.6 Reseller's license to use Bell Atlantic OSS Information shall
expire upon the earliest of (a) the time when the Bell Atlantic OSS
Information is no longer needed by Reseller to provide
Telecommunications Services to Reseller Customers; (b) termination of
the license in accordance with this Agreement; or (c) expiration or
termination of this Agreement.
1.6.3.7 All Bell Atlantic OSS Information received by Reseller shall
be destroyed or returned by Reseller to Bell Atlantic, upon expiration,
suspension or termination of the license to use such Bell Atlantic OSS
Information.
1.6.4 Unless sooner terminated or suspended in accordance with this
Agreement (including, but not limited to, Section 17.1 and Exhibit I,
Section 1.7. 1), Reseller's access to Bell Atlantic OSS Information
through Bell Atlantic OSS Services shall terminate upon the expiration
or termination of this Agreement.
1.6.5.1 Without in any way limiting Section 16.3, Bell Atlantic shall
have the right (but not the obligation) to audit reseller to ascertain
whether Reseller is complying with the requirements of Applicable Law
and this Agreement, with regard to Reseller's access to, and use and
disclosure of, Bell Atlantic OSS Information.
35
<PAGE>
1.6.5.2 Without in any way limiting Section 16.3, Section 16.4, or
Exhibit I, Section 1.6.5.1, Bell Atlantic shall have the right (but not
the obligation) to monitor Reseller's access to and use of Bell
Atlantic OSS Information which is made available by Bell Atlantic to
Reseller pursuant to this Agreement, to ascertain whether Reseller is
complying with the requirements of Applicable Law and this Agreement,
with regard to Reseller's access to, and use and disclosure of, such
Bell Atlantic OSS Information. The foregoing right shall include, but
not be limited to, the right (but not the obligation) to electronically
monitor Reseller's access to and use of Bell Atlantic OSS Information
which is made available by Bell Atlantic to Reseller through Bell
Atlantic OSS Facilities.
1.6.5.3 Information obtained by Bell Atlantic pursuant to this Exhibit
1, Section 1.6.5 shall be treated by Bell Atlantic as Confidential
Information of Reseller pursuant to Section 13; provided that, Bell
Atlantic shall have the right (but not the obligation) to use and
disclose information obtained by Bell Atlantic pursuant to this Exhibit
1, Section 1.6.5 to enforce Applicable Law and/or Bell Atlantic's
rights under this Agreement.
1.6.6 Reseller acknowledges that the Bell Atlantic OSS Information,
by its nature, is updated and corrected on a continuous basis by Bell
Atlantic, and therefore that Bell Atlantic OSS Information is subject
to change from time to time.
1.7 LIABILITIES AND REMEDIES
1.7.1 Any breach by Reseller, or Reseller's employees, Agents or
contractors, of the provisions of Exhibit 1, Section 1.5 or Exhibit 1,
Section 1.6, shall be deemed a material breach of a material provision
of this Agreement by Reseller under Section 17.1 of this Agreement. In
addition, if Reseller or an employee, Agent or contractor of Reseller
at any time breaches a provision of Exhibit I, Section 1.5 or Exhibit
I, Section 1.6, and such breach continues for more than ten (10) days
after written notice thereof from Bell Atlantic, then, except as
otherwise required by Applicable Law, Bell Atlantic shall have the
right, upon notice to Reseller, to suspend the license to use Bell
Atlantic OSS Information granted by Exhibit I, Section 1.6.1 and/or
the provision of Bell Atlantic OSS Services, in whole or in part.
1.7.2 Reseller agrees that Bell Atlantic would be irreparably
injured by a breach of Exhibit 1, Section 1.5 or Exhibit 1, Section 1.6
by Reseller or the employees, Agents or contractors of Reseller, and
that Bell Atlantic shall be entitled to seek equitable relief,
including injunctive relief and specific performance, in the event of
any breach of exhibit 1, Section 1.5 or Exhibit 1, Section 1.6 by
Reseller or the employees, Agents or contractors of Reseller. Such
remedies shall not be deemed to be the exclusive remedies for a breach
of Exhibit 1, Section 1.5 or Exhibit 1, Section 1.6, but shall be in
addition to any other remedies available under this Agreement or at law
or in equity.
1.8 RELATION TO APPLICABLE LAW
The provisions of Exhibit 1, Sections 1.5, 1.6 and 1.7 shall
be in addition to and not in derogation of any provisions of Applicable
Law, including, but not limited to, 47
36
<PAGE>
U.S.C. Section 222 and the FCC rules in 47 CFR Section 64.2001 -
Section 64.2009, and are not intended to constitute a waiver by Bell
Atlantic of any right with regard to protection of the confidentiality
of the information of Bell Atlantic or Bell Atlantic Customers provided
by Applicable Law.
1.9 CORPORATION
Reseller, at Reseller's expense, shall reasonably cooperate
with Bell Atlantic in using Bell Atlantic OSS Services. Such
cooperation shall include, but not be limited to, the following:
1.9.1 Upon request by Bell Atlantic, Reseller shall by no later than
the fifteenth (15th) day of each calendar month submit to Bell Atlantic
reasonable, good faith estimates (by central office or other Bell
Atlantic office or geographic area designated by Bell Atlantic) of the
volume of each Bell Atlantic Retail Telecommunications Service for
which Reseller anticipates submitting Orders in each week of the next
calendar month.
1.9.2 Upon request by Bell Atlantic, Reseller shall submit to Bell
Atlantic reasonable, good faith estimates of other types of
transactions or use of Bell Atlantic OSS Services that Reseller
anticipates.
1.9.3 Reseller shall reasonably cooperate with Bell Atlantic in
submitting Orders for Bell Atlantic Retail Telecommunications Services
and otherwise using the Bell Atlantic OSS Services, in order to avoid
exceeding the capacity or capabilities of such Bell Atlantic OSS
Services.
1.9.4 Reseller shall participate in cooperative testing of Bell
Atlantic OSS Services and shall provide assistance to Bell Atlantic in
identifying and correcting mistakes, omissions, interruptions, delays,
errors, defects, faults, failures, or other deficiencies, in Bell
Atlantic OSS Services.
1.10 Bell Atlantic access to information related to Reseller
CUSTOMERS
1.10.1 Bell Atlantic shall have the right to access, use and disclose
information related to reseller customers that is in bell atlantic's
possession (including, but not limited to, in Bell Atlantic OSS
Facilities) to the extent such access, use and/or disclosure has been
authorized by the reseller customer in the manner required by
Applicable Law.
1.10.2 Upon request by Bell Atlantic, Reseller shall negotiate in
good faith and enter into a contract with Bell Atlantic, pursuant to
which Bell Atlantic may obtain access to reseller's operations support
systems (including, systems for pre-ordering, ordering, provisioning,
maintenance and repair, and billing) and information contained in such
systems, to permit Bell Atlantic to obtain information related to
Reseller Customers (as authorized by the applicable Reseller Customer),
to permit customers to transfer service from one telecommunications
carrier to another, and for such other purposes as may be permitted by
Applicable Law.
37
<PAGE>
2. E911/911 SERVICES
2.1 Where and to the extent that Bell Atlantic provides E911/911
call routing to a Public Safety Answering Point ("PSAP") to Bell
Atlantic's own end user retail Customers, Bell Atlantic will provide to
Reseller, for resold Bell Atlantic Retail Telecommunications Service
dial tone lines, E911/911 call routing to the appropriate PSAP. Bell
Atlantic will provide Reseller Customer information for resold Bell
Atlantic Retail Telecommunications Service dial tone lines to the PSAP
as that information is provided to Bell Atlantic by Reseller where and
to the same extent that Bell Atlantic provides Bell Atlantic end user
retail Customer information to the PSAP. Bell Atlantic will update and
maintain, on the same schedule that Bell Atlantic uses with Bell
Atlantic's own end user retail Customers, for Reseller Customers served
by resold Bell Atlantic Retail Telecommunications Service dial tone
lines, the Reseller Customer information in Bell Atlantic's E911/911
databases.
2.2 Reseller shall provide to Bell Atlantic the name, telephone
number and address, of all Reseller Customers, and such other
information as may be requested by Bell Atlantic, for inclusion in
E911/911 databases. Any change in Reseller Customer name, address or
telephone number information (including addition or deletion of a
Reseller Customer, or a change in Reseller Customer name, telephone
number or address), or in other E911/911 information supplied by
Reseller to Bell Atlantic, shall be reported to Bell Atlantic by
Reseller within one (1) day after the change.
2.3 To the extent that it is necessary (whether as a requirement
of Applicable Law or otherwise) for Reseller to enter into any
agreements or other arrangements with governmental entities (or
governmental entity contractors) related to E911/911 in order for
Reseller to provide Telecommunications Services, Reseller shall at
Reseller's expense enter into such agreements and arrangements.
3. Routing to Directory Assistance and Operator Services
3.1 Upon request by Reseller, to the extent technically feasible,
Bell Atlantic will provide to Reseller the capability of rerouting to
Reseller's platforms directory assistance traffic (411 and 555-1212
calls) from Reseller Customers served by resold Bell Atlantic Retail
Telecommunications Service dial tone line service and operator services
traffic (0+ and 0- intraLATA calls) from Reseller Customers served by
resold Bell Atlantic Retail Telecommunications Service dial tone line
service.
3.2 A request for the rerouting service described in Exhibit I,
Section 4.1 must be made by Reseller (a) on a Bell Atlantic
switch-by-Bell Atlantic switch basis, and (b) at least ninety (90) days
in advance of the date that the rerouting capability is to be made
available in an applicable Bell Atlantic switch.
3.3 The prices for the rerouting service described in exhibit I,
Section 4.1 shall be as stated in Exhibit II, Section 2.
38
<PAGE>
4. LIDB/BVS
4.1 Upon request by Reseller, Bell Atlantic will maintain
information (including calling card numbers and collect and bill to
third party billing restriction notation) for Reseller Customers who
subscribe to resold Bell Atlantic Retail Telecommunications Service
dial tone line service, in Bell Atlantic's Line Information Database
("LIDB"), where and to the same extent that Bell Atlantic maintains
information in Bell Atlantic's LIDB for Bell Atlantic's own end-user
retail Customers.
4.2 If an end-user terminates Bell Atlantic Retail
Telecommunications Service dial tone line service provided to the
end-user by Bell Atlantic and, in place thereof, subscribes to Reseller
for resold Bell Atlantic Retail Telecommunications Service dial tone
line service, Bell Atlantic will remove from Bell Atlantic's LIDB any
Bell Atlantic assigned telephone line calling card number (including
area code) ("TLN") and Personal Identification Number ("PIN")
associated with the terminated Bell Atlantic Retail Telecommunications
Service dial tone line service. The Bell Atlantic-assigned TLN and PIN
will be removed from Bell Atlantic's LIDB within twenty-four (24) hours
after Bell Atlantic terminates the Bell Atlantic Retail
Telecommunications Service dial tone line service with which the number
was associated. Reseller may issue a new telephone calling card to
such end-user, utilizing the same TLN, and the same or a different PIN.
Upon request by Reseller, Bell Atlantic will enter such TLN and PIN in
Bell Atlantic's LIDB for calling card validation purposes.
4.3 Reseller information which is stored in Bell Atlantic's LIDB
will be subject, to the same extent as Bell Atlantic information stored
in Bell Atlantic's LIDB, to access and use by, and disclosure to, those
persons (including, but not limited to, Bell Atlantic) to whom Bell
Atlantic allows access to information which is stored in Bell
Atlantic's LIDB. Reseller hereby grants to Bell Atlantic and the
persons to whom Bell Atlantic allows access to information which is
stored in Bell Atlantic's LIDB, a royalty free license for such access,
use and disclosure.
4.4 Reseller shall obtain contractual agreements with each of the
persons authorized to have access to Bell Atlantic's LIDB, under which
Reseller will bill Reseller Customers for calling card, third party,
collect and other calls validated by such persons through Bell
Atlantic's LIDB.
4.5 Reseller warrants that the information provided by Reseller
for inclusion in Bell Atlantic's LIDB will at all times be current,
accurate and appropriate for use for billing validation services.
4.61 Upon request by Reseller, Bell Atlantic will provide to
Reseller Bell Atlantic Billing Validation Service, in accordance with
bell atlantic's Tariffs, for use by Reseller in connection with Bell
Atlantic Retail Telecommunications Services purchased and provided by
Reseller pursuant to this Agreement.
39
<PAGE>
4.7 Information in Bell Atlantic's LIDB provided to Reseller shall
be treated by Reseller as Confidential Information of Bell Atlantic
pursuant to Section 13.
4.8 The prices for the services described in this Exhibit I,
Section 5 shall be as stated in Exhibit 11, Section 2.
40
<PAGE>
EXHIBIT II
PRICES FOR BELL ATLANTIC SERVICES
1. BELL ATLANTIC RETAIL TELECOMMUNICATIONS SERVICES
1.1 PRICES
The prices for Bell Atlantic Retail Telecommunications
Services shall be the Retail Prices stated in Bell Atlantic's Tariffs for such
Bell Atlantic Retail Telecommunications Services, less: (a) the applicable
discount stated in Bell Atlantic's Tariffs for Bell Atlantic Retail
Telecommunications Services purchased for resale pursuant to 47 U.S.C. Section
251(c)(4); or, (b) in the absence of an applicable Bell Atlantic Tariff discount
for Bell Atlantic Retail Telecommunications Services purchased for resale
pursuant to 47 U.S.C. Section 251(c)(4), the applicable discount stated in
Exhibit II, Attachment 1.
1.2 INAPPLICABILITY OF DISCOUNTS
The discounts provided for in Exhibit 11, Section 1.1, shall
not be applied to:
1.2.1 Retail Prices that are in effect for no more than ninety (90)
days;
1.2.2 Charges for services and products provided by Bell Atlantic
that are not Bell Atlantic Retail Telecommunications Services, including, but
not limited to, Bell Atlantic Ancillary Services, and exchange access services
as defined in Section 3(16) of the Act, 47 U.S.C. Section 153(16);
1.2.3 Subscriber Line Charges, Federal Line Cost Charges, end user
common line charges, carrier selection and change charges, and Audiotex Service
charges, and to the extent applicable, the Presubscribed Interexchange Carrier
Charge applicable to Reseller Customers who have not presubscribed to an
interexchange carrier for long distance services; and,
1.2.4 Any service or charge which the Commission, the FCC, or other
governmental entity of appropriate jurisdiction, determines is not subject to a
wholesale rate discount under 47 U.S.C. Section 251(c)(4).
1.3 DISCOUNT CHANGES
1.3.1 Bell Atlantic shall change the discounts provided for in
Exhibit II, Section 1.1, above, from time-to-time, to the extent such change is
required by Applicable Law, including, but not limited to, by regulation or
order of the Commission, the FCC, or other governmental entity of appropriate
jurisdiction.
1.3.2 Bell Atlantic shall have the right to change the discounts
provided for in Exhibit 11, Section 1.1, above, from time-to-time, to the extent
such change is required, approved or
41
<PAGE>
permitted by Applicable Law, including, but not limited to, by regulation or
order of the Commission, the FCC, or other governmental entity of appropriate
jurisdiction.
1.4 Offers of Merchandise and Services which are not Bell Atlantic
Retail Telecommunications Services
Reseller shall not be eligible to participate in any Bell
Atlantic plan or program under which Bell Atlantic end user retail Customers may
obtain products or merchandise, or services which are not Bell Atlantic Retail
Telecommunications Services, in return for trying, agreeing to purchase,
purchasing, or using, Bell Atlantic Retail Telecommunications Services.
2. BELL ATLANTIC ANCILLARY SERVICES
2.1 PRICES
2.1.1 The prices for Bell Atlantic Ancillary Services shall be as
stated: (a) in Bell Atlantic's Tariffs; or, (b) in the absence of an applicable
Bell Atlantic Tariff price, in Exhibit II, Attachment 1.
2.1.2 If Bell Atlantic at any time offers a Bell Atlantic Ancillary
Service the prices for which are not stated in Bell Atlantic's Tariffs or
Exhibit II, Attachment 1, Bell Atlantic shall have the right to revise Exhibit
II, Attachment 1, to add the prices to Exhibit II, Attachment 1.
2.2 PRICE CHANGES
2.2.1 Bell Atlantic shall change the prices for Bell Atlantic
Ancillary Services, from time-to-time, to the extent such change is required by
Applicable Law, including, but not limited to, by regulation or order of the
Commission, the FCC, or other governmental entity of appropriate jurisdiction.
2.2.2 Bell Atlantic shall have the right to change the prices for
Bell Atlantic Ancillary Services, from time-to-time, to the extent such change
is required, approved or permitted by Applicable Law, including, but not
limited to, by regulation or order of the Commission, the FCC, or other
governmental entity of appropriate jurisdiction.
2.2.3 Except as otherwise required by Applicable Law, Bell Atlantic
shall give Reseller thirty (30) days advance written notice of any increase in
the prices stated in Exhibit II, Attachment I for Bell Atlantic Ancillary
Services.
42
<PAGE>
ATTACHMENT I
to EXHIBIT II
BELL ATLANTIC - WEST VIRGINIA, INC.
DETAILED SCHEDULE OF ITEMIZED CHARGES(1)
1. Wholesale Discount for Resale of Bell Atlantic Retail Telecommunications
Services
Resale of Bell Atlantic Retail 17.84% or discount rate as
Telecommunications Services if RESELLER established by further
provides its own Operator Services. Commission Order.
Resale of Bell Atlantic Retail 15.05% or discount rate as
Telecommunications Services if RESELLER established by further
uses Bell Atlantic Operator Services. Commission Order.
- ---------------------------------
(1) All rates and charges set forth in this Exhibit II, Attachment
I are subject to change from time-to-time as provided in this Agreement,
including, but not limited to, in Section 2.3 and Exhibit II of this Agreement.
The rates and charges set forth in this Exhibit II, Attachment I shall apply
until such time as they are replaced by new rates as may be approved or allowed
into effect by the Commission from time to time, subject to a stay or other
order issued by any court of competent jurisdiction. At such time(s) as such new
rates have been approved or allowed into effect by the Commission, the Parties
shall amend this Exhibit II, Attachment I to reflect the new approved rates.
Except for citations to generally available services and rates
offered under Bell Atlantic's Tariffs, all services and rates listed in this
Exhibit II, Attachment I are available to Reseller only in connection with the
purchase and resale of Bell Atlantic Retail Telecommunications Services by
Reseller under this Agreement. Adherence to this limitation shall be subject to
reasonable audit by Bell Atlantic.
The rates set forth in Sections II through IV of this Exhibit
II, Attachment 1, are in addition to, and not in lieu of, any other rates set
forth in this Agreement.
In addition to charges for Bell Atlantic Services, Reseller
shall pay, or collect and remit, applicable taxes and surcharges (including, but
not limited to, E911/911, telecommunications relay service, and universal
service fund, surcharges), as required by Applicable Law and this Agreement.
<PAGE>
<TABLE>
<CAPTION>
SERVICE OR ELEMENT DESCRIPTION: RECURRING CHARGES: NON-RECURRING
CHARGE:
<S> <C> <C>
II. Access to Operation Support Systems
A. Pre-Ordering $.26/Query Not Applicable
B. Ordering $4.3123/Transaction Not Applicable
C. Provisioning Included in Ordering Not Applicable
D. Maintenance & Repair
1. ECG Access $.26/Query Not Applicable
2. EB/OSI Access $1.18/Trouble Ticket Not Applicable
E. Billing
1. CD-ROM $250.02/CD-ROM Not Applicable
2. Daily Usage File
a. Existing Message Recording $.000262/Message Not Applicable
2. Daily Usage File (Continued)
b. Delivery of DUF
Data Tape $19.94/Tape $62.25/Programming Hour
Network Data Mover $.000095/Message Not Applicable
CMDS $.000095/Message $62.25/Programming Hour
c. DUF Transport
9.6 kb Communications Port $10.39/Month $7987.36/Port
56 kb Communications Port $28.69/Month $33,054.84/Port
256 kb Communications Port $28.69/Month $55,026.09/Port
T1 Communications Port $364.3 1/Month $196,348.98/Port
Line Installation Not Applicable $62.25/Programming Hour
Port Set-up Not Applicable $10.00/port
Network Control Programming Coding Not Applicable $62.25/Programming Hour
</TABLE>
2
<PAGE>
<TABLE>
<CAPTION>
SERVICE- OR ELEMENT DESCRIPTION: RECURRING CHARGES: NON-RECURRING
CHARGE:
<S> <C> <C>
III. Directory Assistance/Operator Services Routing
To Reseller Platform $.157388/Line/Month $3.89/Line
To BA Platform for Re-Branding $.0787/Call $3.89/Line
IV. LIDB Interconnection/Billing Validation Service
LIDB Point Codes Not Applicable $87.04/Point Code
Calling Card $.0149/Query Not Applicable
Billed Number Screening $.0149/Query Not Applicable
Storage of RESELLER's Data in LIDB Database Not Applicable $1,490.34 Service
Establishment/
Request
</TABLE>
3
<PAGE>
Appendix 1, Attachment 25
QUALIFIED BUSINESS LINES FOR VOLUME COMMITMENT
WEST VIRGINIA
<TABLE>
<S> <C> <C>
- ------------------------------------------------------------------------------------------------------------------------
Access Lines
- ------------------------------------------------------------------------------------------------------------------------
Message Business Service WHB
- ------------------------------------------------------------------------------------------------------------------------
Measured Business Service RUB AQE
- ------------------------------------------------------------------------------------------------------------------------
Flat Rate IUB AAY
- ------------------------------------------------------------------------------------------------------------------------
Direct Inward Dial Trunks NDT
- ------------------------------------------------------------------------------------------------------------------------
Direct Inward Dial Blocks NDZ NDJ
- ------------------------------------------------------------------------------------------------------------------------
PBX Trunks Measured TV4 TFR
- ------------------------------------------------------------------------------------------------------------------------
PBX Trunks Flat TV1 ++
- ------------------------------------------------------------------------------------------------------------------------
PBX Digital trunks D7Z D7W
- ------------------------------------------------------------------------------------------------------------------------
CENTREX:**
- ------------------------------------------------------------------------------------------------------------------------
**Excludes:
1. Centrex systems priced under a special contract (ICB, FPO, LSO, Custom
Pricing)
2. Centrex systems which serve multiple end user customers
- ------------------------------------------------------------------------------------------------------------------------
CENTREX - CUSTOPAK I CLASS OF SERVICE
- ------------------------------------------------------------------------------------------------------------------------
Measured CEM+X
- ------------------------------------------------------------------------------------------------------------------------
CUSTOPAK LINES
- ------------------------------------------------------------------------------------------------------------------------
Unrestricted R3G
- ------------------------------------------------------------------------------------------------------------------------
Restricted R3K
- ------------------------------------------------------------------------------------------------------------------------
Primary: Off Prem RX3
- ------------------------------------------------------------------------------------------------------------------------
CENTREX - CUSTOFLEX 2100 / CLASS OF SERVICE
- ------------------------------------------------------------------------------------------------------------------------
Measured KEN+X
- ------------------------------------------------------------------------------------------------------------------------
CUSTOFLEX 2100 LINES
- ------------------------------------------------------------------------------------------------------------------------
Unrestricted R4N
- ------------------------------------------------------------------------------------------------------------------------
Restricted RHK
- ------------------------------------------------------------------------------------------------------------------------
Primary Off Prem RX3
- ------------------------------------------------------------------------------------------------------------------------
ISDN - Unrestricted XQA
- ------------------------------------------------------------------------------------------------------------------------
ISDN - Restricted XQK
- ------------------------------------------------------------------------------------------------------------------------
</TABLE>
PAGE 1 OF 1
<PAGE>
APPENDIX 1, ATTACHMENT 26
PRODUCT AND SERVICES ELIGIBLE FOR VTD DISCOUNT
WEST VIRGINIA
<TABLE>
<S> <C> <C>
- ----------------------------------------------------------------------------------------------------------------
Access Lines
- ----------------------------------------------------------------------------------------------------------------
Message Business Service WHB
- ----------------------------------------------------------------------------------------------------------------
Measured Business Service RUB AQE
- ----------------------------------------------------------------------------------------------------------------
Flat Rate IUB AAY
- ----------------------------------------------------------------------------------------------------------------
Direct Inward Dial Trunks NDT
- ----------------------------------------------------------------------------------------------------------------
Direct Inward Dial Blocks NDZ NDJ
- ----------------------------------------------------------------------------------------------------------------
PBX Trunks Measured 1V4 TFR
- ----------------------------------------------------------------------------------------------------------------
PBX Trunks Flat TV1 ++
- ----------------------------------------------------------------------------------------------------------------
PBX Digital trunks D7Z D7W
- ----------------------------------------------------------------------------------------------------------------
INTRA-LATA TOLL
* Must be associated with a resold VTD Qualified Business Line
- ----------------------------------------------------------------------------------------------------------------
Message Rate Service N/A
- ----------------------------------------------------------------------------------------------------------------
MTS, including Key Connections & Rewarding Connections VVVDKI WRV
- ----------------------------------------------------------------------------------------------------------------
Optional Calling Plan but excluding all other OCPs OVSXX OVS1X
- ----------------------------------------------------------------------------------------------------------------
Features
* Must be associated with a resold VTD Qualified Business Line
- ----------------------------------------------------------------------------------------------------------------
Touch Tone TTB TJ B
- ----------------------------------------------------------------------------------------------------------------
IQ SERVICES:
* Must be associated with a resold VTD Qualified Business Line
- ----------------------------------------------------------------------------------------------------------------
Call Forwarding ESM
- ----------------------------------------------------------------------------------------------------------------
Call Waiting ESX
- ----------------------------------------------------------------------------------------------------------------
Call Waiting ID NWT
- ----------------------------------------------------------------------------------------------------------------
Speed Dialing 8 ESL
- ----------------------------------------------------------------------------------------------------------------
Speed Dialing 30 ESF
- ----------------------------------------------------------------------------------------------------------------
3 Way Calling (per Use or Monthly) ESC
- ----------------------------------------------------------------------------------------------------------------
*69 (per Use or Monthly) NSS
- ----------------------------------------------------------------------------------------------------------------
Call Trace (Per Use Charge)
- ----------------------------------------------------------------------------------------------------------------
Caller ID NSD
- ----------------------------------------------------------------------------------------------------------------
Caller ID with Name NDF
- ----------------------------------------------------------------------------------------------------------------
Per Call Blocking (Per Use Charge)
- ----------------------------------------------------------------------------------------------------------------
Repeat Dialing NSQ
- ----------------------------------------------------------------------------------------------------------------
Ultra Forward FRM
- ----------------------------------------------------------------------------------------------------------------
Distinctive Ring DRQ+X
- ----------------------------------------------------------------------------------------------------------------
Priority Call NSK
- ----------------------------------------------------------------------------------------------------------------
Select Forward NCE
- ----------------------------------------------------------------------------------------------------------------
Call Block NSY
- ----------------------------------------------------------------------------------------------------------------
Call Gate OC4
- ----------------------------------------------------------------------------------------------------------------
Anonymous Call Rejection - w/Caller ID AWY
- ----------------------------------------------------------------------------------------------------------------
</TABLE>
PAGE 1 of 1
<PAGE>
EXHIBIT 10.12
NEW ENGLAND TELEPHONE AND TELEGRAPH COMPANY
RESALE SERVICE AGREEMENT
This Agreement is by and between New England Telephone and Telegraph
Company ("Company") d/b/a Bell Atlantic - Vermont and Essential.Com, Inc.
("Customer").
WHEREAS, the Company will offer local exchange services ("Service(s)")
for resale;
WHEREAS, the Customer is a reseller operating in the State of Vermont;
WHEREAS, the Company and the Customer have negotiated in good faith for
the resale of such Services pursuant to and consistent with the
Telecommunications Act of 1996.
NOW, THEREFORE, in consideration of the mutual obligations set forth
herein, and for other good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the Company and the Customer agree
as follows:
1. RESALE ARRANGEMENT
The Company will offer telecommunications services it provides at
retail to end users in the State of Vermont for resale by the Customer
in accordance with the attached Terms and Conditions - Resale Services
contained in Attachment A. Attachment A is incorporated herein as an
integral and necessary part of the parties' agreement. Whenever
reference is made herein to the Agreement, the reference includes
Attachment A.
2. TERM OF AGREEMENT
A. The Company will file the Agreement promptly following its
execution with the Vermont Public Service Board ("Board") for
approval pursuant to section 252 of the Telecommunications Act
of 1996. The Agreement will be effective as of the date the
resale agreement is signed by both parties.
B. Upon execution of the Agreement by both parties, the Company
and Customer shall endeavor to jointly develop an
implementation plan for the services that Customer will
resell.
1
<PAGE>
C. Each Party agrees to fully support approval of the Agreement
by the Board without modification. The Parties, however,
reserve the right to seek regulatory relief and otherwise
seek redress from each other regarding performance and
implementation of this Agreement. In the event the Board
rejects this Agreement in whole or in part, the Parties
agree to meet and negotiate in good faith to arrive at a
mutually acceptable modification of the rejected portion(s);
provided that such rejected portion(s) shall not affect the
validity of the Remainder of this Agreement.
D. The Agreement is subject to change, modification, or
cancellation as may be required and mutually agreed by either
Party based on any significant change in Federal
Communications Commission or Board rules which may impact the
provision of service under this Agreement or the rights and
obligations of the Parties under the Act.
E. Either party may terminate Agreement with 90 days written
notification to the other.
3. CHARGES
A. The Customer shall pay the Company the charges contained in
Attachment A. The Parties understand that the charges contained
in Attachment A are subject to revision by the Board. If the
Board issues any decision or order which approves for any
telecommunications carrier different charges for any of the
services contained in Attachment A within six months following
the effective date of this Agreement, the Parties will true-up
the charges paid under this Agreement retroactive to the
effective date of the Agreement based upon the decision or order
of the Board. However, if the Board does not issue such a
decision or order within six months, the Parties agree that there
will be no true-up, and any new charges approved thereafter by
the Board will apply to the services provided under this
Agreement as of the date of the VTPSB order or decision.
B. The Recurring Monthly Service Establishment charge of $2605.55
per reseller, per month, set out at Section 6.10.5.2, shall not
be payable unless and until such charge, or any part thereof, has
been approved by the Vermont Public Service Board. Subsequent to
Vermont Board Approval, Customer agrees to pay such charge, or
approved part thereof, on an ongoing basis for the period
specified in Attachment A. In addition, Customer agrees to a
true-up of the Service Establishment Charge in as many monthly
installments as the number of months required for the Vermont
Board to review and approve said charge, measured from Customer's
commencement of operations.
4. PROMOTIONAL MATERIAL
2
<PAGE>
The Company shall provide the Customer with a reasonable amount of
information related to the use of the services the Customer will resell
for its use in its marketing and product materials. The Company, in
consultation with Customer, shall determine the type, quantity, and
availability of the information to be provided to Customer. The
Company shall also make available to Customer's personnel basic
training related to the use and operation of the services. The Company
shall reasonably determine the timing and content of such training.
Such training and promotional material shall be provided to the
Customer only and the Company is under no obligation to provide any
training or promotional material to any other person or entity the
Customer may engage in the sale, provision, or use of the Services.
5. GOVERNING LAW
This Agreement shall be governed by and construed in accordance with
the laws of the State of Vermont, except a provision of law which would
refer any issue to another jurisdiction.
6. ENTIRE AGREEMENT
This Agreement constitutes the entire understanding between the Parties
with respect to the subject matter hereof and supersedes all prior
understandings, oral or written representations, statements,
negotiations, proposals and undertakings in oral written form.
7. AMENDMENTS AND WAIVERS
A. This Agreement may be amended or additional provisions may be
added by written agreement signed by or on behalf of both
parties. No amendment or waiver of any provisions of this
Agreement, and no consent to any default under this Agreement,
shall be effective unless the same shall be in writing and signed
by a duly authorized representative on behalf of the party
against whom such amendment, waiver or consent is claimed, except
as otherwise provided in this Agreement preceding. In addition,
no course of dealing or failure of any party to enforce strictly
any term, right or condition of this Agreement shall be construed
as a waiver of such term, right or condition.
B. Either party's failure at any time to enforce any of the
provisions of this Agreement or any right with respect thereto,
or to exercise any option herein provided, will in no way be
construed to be a waiver of such provisions, rights, or options
or in any way to affect the validity of this Agreement. The
exercise by either party of any rights or options under the terms
herein shall not preclude or prejudice the exercise thereafter of
the same or other rights under this Agreement.
8. ASSIGNMENT
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Neither party may assign or transfer (whether by operation of law or
otherwise) this Agreement (or any rights or obligations hereunder) to a
third party without the prior written consent of the other party which
consent shall not be unreasonably withheld; provided, however, each
party may assign this Agreement to a corporate affiliate or an entity
under its common control or an entity acquiring all or substantially
all of its assets or equity by providing prior written notice to the
other party of such assignment or transfer. Any attempted assignment or
transfer that is not permitted shall be void AB INITIO. All obligations
and duties of any party shall be binding on all. successors in interest
and assigns of such party.
9. NOTICE AND DEMAND
Except as otherwise provided under this Agreement, all notices,
demands, or requests which may be given by any party to the other party
shall be in writing and shall be deemed to have been duly given on the
date delivered in person or deposited, postage prepaid, in the United
States Mail via Certified Mail or nationally recognized overnight
carrier, return receipt requested, and addressed as follows:
TO RESELLER: President
Essential.Com, Inc.
3 Burlington Woods Drive
Burlington, MA 01803
Tel: (781) 229-9599
Fax: (781) 229-9499
TO COMPANY: Account Manager - Resale Services
222 Bloomingdale Road
2nd floor
White Plains, NY 10605
cc: Bell Atlantic Corporation
General Counsel
1095 Avenue of the Americas
41st floor
New York, NY 10036
If personal delivery is selected as the method of giving notice under
this Section, a receipt of such delivery shall be obtained. The
address to which such notices, demands, requests, elections or other
communications are to be given by either party may be changed by
written notice given by such party to the other party pursuant to
this Section.
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10. THIRD-PARTY BENEFICIARIES
This Agreement shall not provide any person not a party to this
Agreement with any remedy, claim, liability, reimbursement, claim of
action or other right in excess of those existing without reference to
this Agreement.
11. FORCE MAJEURE
Neither party shall be deemed to be negligent, at fault, or otherwise
liable in any respect for any delay or failure in performance of any
part of this Agreement to the extent that such failure or delay is
caused by acts of God, acts of civil or military authority, government
regulations, embargoes, epidemics, war, terrorist acts, riots,
insurrections, fires, explosions, earthquakes, nuclear accidents,
floods, strikes, power blackouts, volcanic action, other major
environmental disturbances, unusually severe weather conditions,
inability to secure products or services of other persons or
transportation facilities, or acts or omissions of transportation
common carriers or other causes beyond the control of the party
obligated to perform. If any force majeure condition occurs, the party
delayed or unable to perform shall give immediate notice to the other
Party and shall take all reasonable steps to correct the force majeure
condition. During the pendency of the force majeure, the duties of the
parties under this Agreement affected by the force majeure condition
shall be abated and shall resume without liability thereafter.
12. CONTINGENCY
Notwithstanding any other provision of this Agreement, this Agreement
is subject to change, modification, or cancellation as may be required
by a regulatory authority or court in the exercise of its lawful
jurisdiction.
13. COMPLIANCE
Each Party shall comply with all applicable federal, state, and local
laws, rules, and regulations applicable to its performance under this
Agreement.
14. NON-EXCLUSIVE AGREEMENT
This Agreement is non-exclusive. The Company reserves the right to
extend to others the Services and rights provided for herein.
15. PUBLICITY AND USE OF TRADEMARKS OR SERVICE MARKS
Neither Party nor its subcontractors or agents will use the other
Party's trademarks, service marks, logos or other proprietary trade
dress in connection with the sale of products and services, or in any
advertising, press releases, publicity matters or other promotional
materials without such Party's prior written consent.
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Neither Party may imply any direct or indirect affiliation with or
sponsorship or endorsement of its company, products and services by the
other Party.
16. SEVERABILITY
In the event any of the provisions of this Agreement are found to be
invalid by any administrative agency, arbitrator or court or competent
jurisdiction, the remaining provisions of this Agreement, whether
relating to similar or dissimilar subjects, shall nevertheless be
binding with the same effect as though the invalid provisions were
deleted, unless the result would be to substantially change the rights
or obligations of either party, in which event the parties shall seek
to negotiate in good faith revisions to the Agreement consistent with
their earlier intent. Failing further agreement, this Agreement shall
terminate and no party shall be liable to the other, except for
outstanding amounts due under this Agreement, including, but not
limited to, amounts due pursuant to the payment terms, the carryover
pool, and any other amounts which survive termination as stated in this
Agreement.
17. EXECUTED IN COUNTERPARTS
This Agreement may be executed in any number of counterparts, each of
which shall be an original, but such counterparts shall together
constitute but one and the same document.
18. READINGS
The headings in this Agreement are for convenience and shall not be
construed to define or limit any of the terms herein or affect the
meanings or interpretation of this Agreement.
19. DISCLAIMER OF REPRESENTATIONS AND WARRANTIES
EXCEPT AS EXPRESSLY PROVIDED UNDER THIS AGREEMENT, NO PARTY MAKES OR
RECEIVES ANY WARRANTY, EXPRESS OR IMPLIED, WITH RESPECT TO THE
SERVICES, FUNCTIONS AND PRODUCTS IT PROVIDES UNDER OR CONTEMPLATED BY
THIS AGREEMENT AND THE PARTIES DISCLAIM THE IMPLIED WARRANTIES OF
MERCHANTABILITY OR OF FITNESS FOR A PARTICULAR PURPOSE.
20. JOINT WORK PRODUCT
This Agreement is the joint work product of the Parties and has been
negotiated by the Parties and their respective counsel and shall be
fairly interpreted in
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accordance with its terms and, in the event of any ambiguities, no
inferences shall be drawn against either party.
7
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IN WITNESS WHEREOF, the parties have executed this Agreement.
ESSENTIAL.COM, INC.
BY: /s/ Akhil Garland
-------------------------------------
Signature
Akhil Garland
-------------------------------------
Name (Printed)
ITS: CEO
-------------------------------------
Title
DATE: 4 Aug 99
-------------------------------------
BY: /s/ Patrick Moran
-------------------------------------
Signature
Patrick Moran
-------------------------------------
Name (Printed)
ITS: Vice President-Operations
-------------------------------------
Title
DATE: 4 Aug 99
-------------------------------------
BY: /s/ John A. Duffy
-------------------------------------
Signature
John Duffy
-------------------------------------
Name (Printed)
ITS: Vice President-Business Development
-------------------------------------
Title
DATE: 4 Aug 99
-------------------------------------
NEW ENGLAND TELEPHONE AND TELEGRAPH COMPANY d/b/a BELL ATLANTIC - VERMONT
BY: /s/ Jeffrey A. Masoner
-------------------------------------
Signature
Jeffrey A. Masoner
-------------------------------------
Name (Printed)
TITLE: Vice President-Telecom Industry Services
-------------------------------------
DATE: 8/17/99
-------------------------------------
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Attachment A
6.1 RESALE
6.1.1 GENERAL
6. 1. 1.1 TERMS AND CONDITIONS STRUCTURE
(A) The terms and conditions are divided into sections which are structured
numerically, (e.g., Section 6.1, 6.2, 6.3 etc.).
6.1.2 REFERENCING
6.1.2.1 REFERENCE TO TARIFFS
(A) Whenever reference is made in these terms and conditions to tariffs of
the Telephone Company, the reference is to the tariffs in force as of
the effective date of these terms and conditions, and to amendments
thereto and successive issues thereof. The regulations, rates and
charges contained herein are in addition to the applicable
regulations, rates and charges specified in tariffs of the Telephone
Company which may be referenced.
6.1.2.2 TRADEMARKS AND SERVICE MARKS
(A) Refer to VTPSB No. 20.
6.1.3 TERMS AND CONDITIONS TERMINOLOGY
Unless otherwise defined herein, terminology contained within these
terms and conditions are as defined in VTPSB No. 20.
6.1.3.1 DEFINITIONS
END USER - Any person purchasing service for their own use rather than
for sale to another person, party or entity etc. End Users may not
purchase from these terms and conditions.
PREMISES - This term as defined in VTPSB No. 20 is a reference to the
premises at which the service is provided, and not a reference to the
reseller's premises.
RESALE - The sale to another person of telecommunications services
purchased from the Telephone Company. A person purchases for resale
when such person purchases a service for the purpose of reselling it
to another (rather than the purpose of using the service itself).
RESELLER/CUSTOMER - Any individual, partnership, association, joint
stock company, trust, corporation, governmental entity or other
entity, authorized by law to resell telecommunications services in the
state of Vermont, which subscribes to the telecommunications services
offered under these terms and conditions.
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TELEPHONE COMPANY -The New England Telephone and Telegraph Company.
6.2 GENERAL REGULATIONS
In addition to the general regulations contained herein, the general
regulations specified in VTPSB No. 20 also apply.
6.2.1 APPLICATION OF TERMS AND CONDITIONS
6.2.1.1 SCOPE
(A) Regulations, rates and charges in these terms and conditions apply to
the offering of Telephone Company telecommunications services for
resale.
(B) Only a reseller authorized by law to resell telecommunications services
in the State of Vermont may purchase under these terms and conditions.
These terms and conditions are not intended to enlarge, restrict, or
otherwise affect any provision of law relating to the authority to
resell telecommunications services.
(1) Resellers do not surrender any right to purchase from any of the
Telephone Company's intrastate tariffs by purchasing from these terms
and conditions. However, the discounts contained herein will apply only
to purchases from these terms and conditions. Resellers purchasing
retail services from the Telephone Company's intrastate tariffs will do
so through traditional retail channels, and will be billed accordingly.
(C) In addition to the responsibilities and obligations specified in VTPSB
No. 20, the reseller must conform to any applicable rules and
regulations set forth by the Public Service Board.
(D) The resale of telecommunications services and the provision thereof by
the Telephone Company as set forth in these terms and conditions does
not constitute a joint undertaking nor does it constitute an agency,
contractual or any other type of relationship between the reseller and
the Telephone Company (other than that of purchaser and seller) or
between the Telephone Company and the reseller's end user.
(E) A reseller ordering a resold service under these terms and conditions
has all of the obligations that would be imposed under the applicable
Telephone Company tariff upon an end user who orders the service
directly from the Telephone Company. Such obligations include, without
limitation, the obligation to pay for the service, whether or not the
reseller is being paid by its own customers. The rate charged for such
service, when sold to a reseller under these terms and conditions, is
to be determined in accordance with rates and charges specified in
these terms and conditions. However, services that are sold to the
Telephone Company end users only in conjunction with the purchase of
basic dial tone service will be available for resale only in
conjunction with the resale of basic dial tone service and not on a
stand alone basis.
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6.2 GENERAL REGULATIONS (CONT'D)
6.2.2 RESPONSIBILITY OF THE TELEPHONE COMPANY
6.2.2.1 PROVISION OF SERVICE
(A) The Telephone Company's obligation to furnish service, or to continue
to furnish service, is dependent on its ability to obtain without
charge, danger or undue difficulty access to the premises where the
service is to be provided (where such access is necessary for the
provision of service).
(1) Should a reseller's end user request that a Telephone Company
technician prove his/her identity as an employee of the Telephone
Company before the end user will permit access to their premises, the
technician's Telephone Company identification badge or the Bell
Atlantic registered trademark/servicemark (logo) that is visibly
displayed on the technician's service vehicle will be evidence of such
proof. If the Telephone Company misses the scheduled service
appointment as a result of the reseller's end user's refusal to permit
access to the Telephone Company technician, neither the reseller nor
the reseller's end user will be entitled, to any waivers of charges
for missed service appointments that may be offered by the Telephone
Company under service guarantee programs that are associated with the
service being provided.
(B) The Telephone Company reserves the right to refuse an application for
service made by, or for the benefit of, a reseller who is indebted to
the Telephone Company for telephone service previously furnished.
(1) In the event that service is connected for a reseller who is
indebted to the Telephone Company for service previously furnished to
such reseller, the Telephone Company will notify the reseller in
writing via Certified U.S. Mail, that the service will be terminated
by the Telephone Company unless the reseller satisfies the
indebtedness within 10 days of the date of the reseller's receipt of
such notification.
(C) The services offered under the provisions of these terms and
conditions are subject to the availability of facilities, including
switching capacity, and necessary operational support systems.
(1) If existing facilities will not enable the Telephone Company to
meet all outstanding service orders, such orders will be handled in
accordance with reasonable priority rules that do not unreasonably
discriminate between resellers purchasing under these terms and
conditions and end user customers of the Telephone Company.
(D) Resold services offered by the Telephone Company are at least
technically equivalent to the corresponding service offerings that the
Telephone Company provides to its own end users provided that the
reseller complies with the regulations contained in these terms and
conditions.
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6.2 GENERAL REGULATIONS (CONT'D)
6.2.2 RESPONSIBILITY OF THE TELEPHONE COMPANY (CONT'D)
6.2.2.1 PROVISION OF SERVICE (CONT'D)
(E) The Telephone Company will provide service (including the installation
and repair thereof) to resellers at levels that meet the capabilities,
functions and performance levels available to Telephone Company
similarly situated end users providing that the reseller complies with
the regulations contained in these terms and conditions.
(1) Telephone Company personnel dispatched to a reseller's end user
premises for purposes of installation or repair will not accept
requests on behalf of the reseller for new or modified service beyond
that requested by the reseller.
(F) To the extent the provision of repair and installation services under
these terms and conditions entails the appearance by Telephone Company
personnel at the premises of a reseller's end user, the uniforms worn
by such personnel, and the vehicles and other equipment that they use,
may be marked in the conventional manner with the Telephone Company's
name, trademarks, service marks, and logos.
6.2.2.2 INTERRUPTION OF SERVICE
(A) Allowances for interruption of service are available to resellers to
the extent and under the same circumstances as they would be available
to Telephone Company end users under VTPSB No. 20.
6.2.3 RESPONSIBILITY OF THE RESELLER
6.2.3.1 RESELLER NOTIFICATION AND COORDINATION
(A) Unless otherwise specified herein, whenever customer notification is
required, the Telephone Company is responsible for providing notice
only to the reseller who is the customer of record.
(1) The reseller, and not the Telephone Company is responsible for
providing any notices, bill inserts or other information as may be
required to the reseller's end users.
(2) The Telephone Company will not provide resellers with advance
notice of its intent to offer a new retail service (or to modify an
existing retail service) except to the extent that public notice of
certain tariff changes is required by the regulation or orders of the
Public Service Board or other applicable law.
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6.2 GENERAL RELATIONS (CONT'D)
6.2.3 RESPONSIBILITY OF THE RESELLER (CONT'D)
6.2.3.2 LIABILITY
(A) The reseller shall reimburse the Telephone Company for damages to
Telephone Company facilities utilized to provide services under these
terms and conditions caused by negligence or willful act of the
reseller or the reseller's end user or resulting from the reseller's
or reseller's end user's improper use of the Telephone Company
facilities, or due to malfunction of any facilities or equipment
provided by other than the Telephone Company. Nothing in the
foregoing provision shall be interpreted to hold one reseller liable
for another reseller's actions. The Telephone Company will, upon
reimbursement for damages, cooperate with the reseller in prosecuting
a claim against the person causing such damage and the reseller shall
be subrogated to the right of recovery by the Telephone Company for
the damages to the extent of such payment.
(B) With respect to claims of patent infringement made by third persons,
the reseller shall defend, indemnify, protect and save harmless the
Telephone Company from and against all claims arising out of the
combining with, or use in connection with, the services provided under
these terms and conditions, any circuit, apparatus, system or method
provided by the reseller or reseller's end user.
(C) The reseller shall defend, indemnify and save harmless the Telephone
Company from and against suits, claims, losses or damages including
punitive damages, attorney's fees and court cost by third persons
arising out of the construction, installation, operation, maintenance
or removal of the circuits, facilities or equipment connected to the
Telephone Company's services provided under these terms and
conditions, including, without limitation, Workmen's Compensation
claims, actions for infringement of copyright and/or unauthorized
use of program material, libel and slander actions based on the
content of communications transmitted over the reseller's circuits,
facilities or equipment, and proceedings to recover taxes, fines, or
penalties for failure of the reseller to obtain or maintain in effect
any necessary certificates, permits, licenses, or other authority to
acquire or operate the services provided under these terms and
conditions; provided, however, the foregoing indemnification shall not
apply to suits, claims, and demands to recover damages for damage to
property, death or personal injury unless such suits, claims or
demands are based on the tortious conduct of the reseller, its
officers, agents or employees.
(D) The reseller shall defend, indemnify and save harmless the Telephone
Company from and against any suits, claims, losses or damages,
including punitive damages, attorneys fees and court costs by the
customer or third parties arising out of any act or omission of the
reseller or the reseller's end user in the course of using services
provided under these terms and conditions.
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6.2 GENERAL REGULATIONS (CONT'D)
6.2.3 RESPONSIBILITY OF THE RESELLER (CONT'D)
6.2.3.2 LIABILITY (CONT'D)
(E) In case of damage, loss, theft or destruction of equipment and
facilities furnished by the Telephone Company due to negligence or
willful act of the reseller or the reseller's end user or other persons
authorized to use the service, the reseller or reseller's end user may
be required to pay the expense incurred by the Telephone Company to
replace or restore the equipment and facilities to its original
condition.
(F) The reseller assumes the responsibility for enforcement of all tariff
regulations and class of service restrictions imposed for any
particular service (e.g. prohibitions against unlawful use, damage to
Telephone Company property, distinctions between residence and
business) and any liability arising from violations thereof
6.2.3.3 CERTIFICATIONS AND PROOF OF EXEMPTIONS
(A) Upon reasonable request the reseller shall certify to the Telephone
Company in writing that the services the reseller is purchasing under
these terms and conditions are being purchased for resale.
(B) The reseller shall provide the Telephone Company with any certificates
or other documentation that may be required under state law pertaining
to tax exemptions.
(C) The reseller shall provide to the Telephone Company any additional
information that is reasonably necessary to enable the Telephone
Company to fulfill its obligations under these terms and conditions.
6.2.3.4 REFERENCES TO THE TELEPHONE COMPANY
(A) The reseller may advise end users that certain services are provided by
the Telephone Company in connection with the service the reseller
furnishes to end users; however, the reseller shall not state, imply or
represent that the Telephone Company jointly participates in or is part
of any partnership or joint business arrangement for the provision of
services to the reseller's customers.
6.2.4 CUSTOMER NOTIFICATION AND COORDINATION
6.2.4.1 PROVISION AND OWNERSHIP OF TELEPHONE NUMBERS
(A) The Telephone Company reserves the reasonable right to assign,
designate or change telephone numbers, or any other call number
designations associated with resold service, or the Telephone Company
serving central office prefixes associated with such numbers, when
necessary in the conduct of business. Any such decisions about the
assignment, designation or change of telephone numbers or office
prefixes will be made in a nondiscriminatory manner.
(B) Should it become necessary to make a change in such number(s), the
Telephone Company will give the reseller six months notice of the
change(s), including an explanation of the reason(s) for the change(s),
by Certified U.S. Mail.
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6.2 GENERAL REGULATIONS (CONT'D)
6.2.4 CUSTOMER NOTIFICATION AND COORDINATION (CONT'D)
6.2.4.1 PROVISION AND OWNERSHIP OF TELEPHONE NUMBERS (CONT'D)
(1) In the case of emergency conditions, (e.g. a fire in a wire
center), it may be necessary to change a telephone number without
six months notice in order to provide service to the reseller.
6.3 ORDERING OF SERVICE
6.3.1 ORDERS FOR RESOLD SERVICES
6.3.1.1 GENERAL
(A) The reseller shall supply all the information reasonably necessary for
the Telephone Company to provide and bill for the requested service,
to include the reseller's end user in its directory listing service
and to otherwise fulfill its obligations under these terms and
conditions [e.g., end user name and premises location, configuration
of service, and facility interface].
(1) The reseller is responsible to submit complete and accurate
orders. Failure to do so may result in service discrepancies for which
the Telephone Company will not be responsible.
(B) If the reseller assumes the account of an existing Telephone Company
end user at the end user's existing premises, the order assuming the
account must identify the end user's billing telephone number and
line(s) and indicate that the end users existing service (or any
specified modification to and/or cancellation of the existing service)
is to be transferred to the reseller.
(1) Authorization to Assume an Account - A reseller placing an order
under which it will assume the account of an existing Telephone
Company end user customer, or the account of an existing end user
customer of another reseller, must obtain appropriate authorization
from that end user for the change of service provider. The reseller
must verify and confirm that authorization is in accordance with the
laws and provisions that govern such matters as established or may
be established in the State of Vermont.
(C) Resellers may not order services in a particular building or other
location where a reseller has not yet obtained end users at the time
that the reseller's order is placed with the Telephone Company.
(D) Resellers may not order service in a particular building or other
location when doing so would preclude or delay other potential
providers from offering services in that particular building or other
location.
(E) Resellers may not order service under these terms and conditions
without a reasonable basis for believing that such services will
actually be needed by the reseller to meet anticipated demand.
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6.3 ORDERING OF SERVICE (CONT'D)
6.3.1 ORDERS FOR RESOLD SERVICES(CONT'D)
6.3.1.1 GENERAL (CONT'D)
(F) The Telephone Company will not process any orders, complaints or other
requests received from the reseller's end user.
(G) Primary Interexchange Carrier (PIC) Changes - The Telephone Company
will only accept an order to change the PIC, whether interLATA or
intraLATA, for a resold Telephone Company exchange service line,
from the reseller The Telephone Company will only accept an order to
freeze the PIC from the reseller. The reseller will be responsible for
all PIC change charges.
(H) If the order is for modification or discontinuance of service, the
order shall identify the billing telephone number and telephone number
of the service and the changes desired, and any additional information
required by the Telephone Company.
6.3.1.2 AUTOMATED ORDER INTERFACE
(A) Orders for resold services and modifications to or cancellation of an
existing order must be placed by the reseller with the Telephone
Company through the appropriate automated interface established by the
Telephone Company. Such interface will facilitate the following order
processes:
1. Establishment of end user accounts
2. Assignment of telephone numbers
3. Entry of service orders into Telephone Company systems
4. Installation scheduling and negotiation with end users
5. Reservation of installation appointments
6. Entry of end user service and repair inquiries
7. Verification of the network status of an associated
telephone line in conjunction with Telephone Company
systems
8. Other processes that would facilitate the processing of the
reseller's order
(B) The Telephone Company will establish automated interface specifications
(e.g. formats) for data, delivery (transport) and network descriptions,
etc.
(1) Resellers must comply with methods, procedures and operational
guidelines in utilizing the interface specifications established by
the Telephone Company.
(2) any use of the interface(s) by the reseller or any other party for
unauthorized purposes (e.g., access to data or to enter false
information) will be considered abuse or fraudulent use of the
interface and is prohibited. Such action may result in the Telephone
Company terminating the reseller's use of the interface.
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6.3 ORDERING OF SERVICE (CONT'D)
6.3.1 ORDERS FOR RESOLD SERVICES(CONT'D)
6.3.1.2 AUTOMATED ORDER INTERFACE (CONT'D)
(C) If the Telephone Company determines or suspects that abuse or
fraudulent use of the interface has occurred, the Telephone Company
will, as required by law, refer the matter to the appropriate law
enforcement agency.
6.3.1.3 DISCLOSURE OF RESELLER INFORMATION TO OTHER RESELLERS OR TO TELEPHONE
COMPANY RETAIL MARKETING PERSONNEL
(A) General Rule - Subject to the following paragraph (B),
neither Telephone Company personnel involved in the marketing of
services to end user customers, nor other resellers, will have access
to information relating to specific orders or demand forecasts
provided by resellers under these terms and conditions.
(B) Exceptions:
(1) Paragraph (A), above, shall not prohibit the
disclosure to any local exchange carrier (including the Telephone
Company or any reseller), of the fact that a particular end user
who was previously a customer of such carrier, is no longer one
of its customers.
(2) Paragraph (A), above, shall not prohibit the use by
the Telephone Company of aggregate data relating to sales to all
resellers in a particular geographic area for any legitimate
business purpose of the Telephone Company.
(3) Paragraph (A), above, shall not preclude the
disclosure to Telephone Company retail marketing personnel or to
other resellers of information pertaining to a reseller's
customer where the customer consents to and authorizes such
disclosure.
(4) Paragraph (A), above, shall not prohibit attempts to
sell Telephone Company services by Telephone Company employees
who have access to information relating to specific orders placed
by resellers under these terms and conditions, so long as:
(a) the employee spends a deminimis amount of his
or her time involved in the marketing of Telephone Company
services, and
(b) the employee does not utilize the reseller information in such
sales attempts.
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6.3 ORDERING OF SERVICE (Cont'd)
6.3.1 ORDERS FOR RESOLD SERVICES (Cont'd)
6.3.1.3 DISCLOSURE OF RESELLER INFORMATION TO OTHER RESELLERS OR TO TELEPHONE
COMPANY RETAIL MARKETING PERSONNEL (Cont'd)
(B) EXCEPTIONS: (Cont'd)
(5) In the case of a customer who chooses to switch his/her/its service
from a reseller to the Telephone Company, or to another reseller,
Paragraph (A) above shall not prohibit the disclosure to Telephone
Company marketing personnel, or to such other reseller, of
information necessary to enable the Telephone Company or such other
reseller to assume the account, including the customer's service
configuration and billed name and address.
(6) Paragraph (A) above shall not preclude the disclosure to Telephone
Company marketing personnel of the identity of the reseller
providing service to an end user for the purpose of responding to a
question from the end user about the identity of his/her/its
service provider.
6.3.1.4 DISCLOSURE OF CUSTOMER INFORMATION
(A) General Rule - Subject to the following paragraph (B), the Telephone
Company will not provide information on any end user customer to a
reseller without the consent and authorization of such customer.
(B) Exceptions:
(1) If a Telephone Company end user subsequently becomes an end user of
a reseller, the Telephone Company will provide the reseller with
all information necessary to enable it to assume the end user's
account, including the customer's service configuration and billed
name and address.
(2) Paragraph (A) above shall not preclude disclosure of information
pursuant to industry-wide arrangements for the exchange of
information on end user credit histories, consistent with PBS
requirements.
6.3.1.5 EVIDENCE OF END USER CONSENT AND AUTHORIZATION
(A) Where the Telephone Company identifies that end user consent is
required for the disclosure of information, the Telephone Company will
obtain consent and appropriate authorization from the end user.
6.3.1.6 ADDITIONAL ENGINEERING AND SPECIAL CONSTRUCTION
(A) Additional charges will be applied to an order for service when the
Telephone Company determines additional engineering or special
construction is necessary to accommodate a reseller request.
(1) When it is required, the reseller will be so notified and will be
furnished with a written statement setting forth the justification
for the additional engineering and/or special construction as well
as an estimate of the charges in conjunction with the terms and
conditions specified in VTPSB No. 20.
6.3 ORDERING OF SERVICE (CONT'D)
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6.3.2 RESPONSIBILITY OF THE TELEPHONE COMPANY (CONT'D)
6.3.2.1 REFUSAL AND DISCONTINUANCE OF SERVICE
(A) If the reseller fails to comply with the rules and regulations of these
terms and conditions, including any payments to be made by it on the
dates and times herein specified, the Telephone Company may, on thirty
(30) days written notice by Overnight Delivery or Certified U.S. Mail
to the reseller, refuse additional applications for service and/or
refuse to complete any pending orders for service at any time
thereafter. If the Telephone Company does not refuse additional
applications for service on the date specified in the 30 days notice,
and the reseller's noncompliance continues, nothing contained herein
shall preclude the Telephone Company from refusing additional
applications for service without further notice.
(B) If the reseller fails to comply with the rules and regulations of these
terms and conditions, including any payments to be made by it on the
dates and times herein specified, the following shall occur:
(1) The Telephone Company shall notify the reseller and the PSB in
writing of the reseller's failure to pay amount(s) when due under
these terms and conditions and if the reseller shall have failed to
make such payment within thirty (30) days of the giving by the
Telephone Company of such notice then
(2) The Telephone Company shall provide a second notice of non-payment
(the "Second Notice") in writing to the reseller and the PSB following
the thirty (30) day period referred to in Section 6.3.2.1(B)(1), and
(3) If by the tenth (10) day after the giving to the PSB of the Second
Notice, the PSB has not ruled that the Telephone Company may not take
termination actions, then the service shall be discontinued. The
reseller shall have the burden of proof in any such proceeding before
the PSB of establishing that the Telephone Company is not permitted to
take the termination actions.
(C) Notwithstanding the foregoing, the Telephone Company will not exercise
its rights to refuse and discontinue service as stated in 6.3.2.1
(A)&(B) if the reseller submits charges to the Telephone Company if
believes in good faith were billed in. effort and such charges are
accepted by the Telephone Company for investigation.
6.3.2.2 DISCONTINUANCE OF SERVICE FOR CAUSE WITHOUT NOTICE
(A) The Telephone Company may discontinue service or cancel an application
for service without notice in the event the Telephone Company is
prohibited from furnishing services by order of a court or other
government authority having jurisdiction.
(B) In the event of fraudulent use of the Telephone Company's network,
including but not limited to fraudulent End User orders for transfer of
service, the Telephone Company will discontinue service without notice
and/or seek legal recourse to recover all costs involved in enforcement
of this provision.
6.3.2.3 The Telephone Company will not incur any liability if it
discontinues services or cancels an application for services for any
of the reasons contained in 6.3.2.
6.3 ORDERING OF SERVICE (CONT'D)
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6.3.3 RESPONSIBILITY OF THE RESELLER
6.3.3.1 POINT OF CONTACT FOR END USERS
(A) The reseller shall serve as the single point of contact for its end
users on such matters as billing, requests for new service, requests
for the modification or discontinuance of existing services, service
trouble reports, repair requests, complaints, etc. The reseller shall
be obligated to transmit such requests or reports to the Telephone
Company through the automated order interface to the extent reasonably
necessary to enable the Telephone Company to fulfill its obligations
under these terms and conditions.
6.3.3.2 FORECASTING OF SERVICE REQUIREMENTS
(A) To the extent reasonably necessary for the planning of Telephone
Company facilities, the reseller shall provide, upon request of the
Telephone Company, forecasts of the approximate number of units of
exchange and other services that the reseller expects to require in
specific geographic areas. Such forecasts are considered by the
Telephone Company as confidential information of the reseller and will
be treated in accordance with the provisions specified in these terms
and conditions for confidential reseller information.
6.3.3.3 REFUSAL, DISCONTINUANCE OR TRANSFER OF SERVICE
(A) Where a reseller discontinues its provision of service to all or
substantially all of its end users, whether by its own decision, as a
result of involuntary bankruptcy or for any other reason, the reseller
must send advance written notice of such discontinuance to the
Telephone Company, the PSB and to each of the reseller's end users. If
service to the reseller is discontinued by the Telephone Company, the
reseller must send written notice to each of its end users.
1. Such notice must advise the end users that unless they take
action to switch to a different carrier with 10 days,
provision of their service will be discontinued. Where the
end user elects a specific carrier within the 10 day
period, the relevant charges associated with the change
shall be paid by that carrier.
2. Should the end user elect to transfer service to the
Telephone Company, the Telephone Company will provide
service to the end user in accordance with the terms,
conditions, rates and charges set forth in VTPSB No. 20 and
not the rates specified herein.
(B) If a reseller end user subsequently becomes an end user of
the Telephone Company, the reseller must provide the Telephone
Company with all information necessary to enable the Telephone
Company to assume the end user's account, including the end user's
service configuration and billing name and address.
6.4 ISSUANCE, PAYMENT AND CREDITING OF RESELLER BILLS
6.4.1 RESPONSIBILITY OF THE TELEPHONE COMPANY
6.4.1.1 GENERAL
(A) The Telephone Company bills only the reseller who is considered the
customer of record who is at all times responsible for payment of the
full amount of all charges incurred. The Telephone Company will not be
required to seek payment
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from the reseller's end users prior to terminating the reseller's
service or pursuing any other remedies for nonpayment by the reseller.
The reseller will thus be the obligor of the Telephone Company, and not
the guarantor or surety for any of the obligations of the reseller's end
user.
(1) The reseller as customer of record is responsible for any
allocation of end user charges for resold service.
(2) Regardless of whether the reseller's end user is still using
service, the reseller is responsible for charges incurred by the end
user or reseller for all services on a line until the reseller submits
an order to discontinue such service.
6.4.1.2 BILLING CONVENTION METHODS
(A) The Telephone Company shall bill all charges incurred by and credits
due to the reseller under these terms and conditions attributable to
services established or discontinued or provided during the preceding
billing period.
6.4.1.3 BILLING PERIODS
(A) The billing date of a bill for a reseller for service provided under
these terms and conditions is referred to as the bill day. The
period of service each bill covers is as follows:
(1) The Telephone Company will establish a bill day each month for
each reseller account.
(2) The bill will cover all non-usage sensitive service charges and
usage charges for the period beginning with the day following the last
bill day and extends up to and includes the current bill day. Any
known unbilled charges for prior periods and any known unbilled
adjustments will be applied to this bill.
6.4.1.4 LATE PAYMENT PENALTY
(A) If any portion of the payment is received by the Telephone Company
after the payment date (refer to Section 6.4.1.5), or if any portion
of the payment is received by the Telephone Company in funds which are
not immediately available to the Telephone Company, then a late payment
penalty shall be due to the Telephone Company.
(B) The late payment penalty shall be the portion of the payment not
received by the payment date times a late factor. The late factor shall
be the lesser of the following:
6.4 ISSUANCE, PAYMENT AND CREDITING OF RESELLER BILLS (CONT'D)
6.4.1 RESPONSIBILITY OF THE TELEPHONE COMPANY (CONT'D)
6.4.1.4 LATE PAYMENT PENALTY (CONT'D)
(1) The highest interest rate (in decimal value) which may be levied
by law for commercial transactions for the number of days from the
payment date to and including the date that the reseller actually
makes the payment to the Telephone Company, or
(2) The rate of 0.0005 per day for the number of days from the payment
date to and including the date that the reseller actually makes the
payment to the Telephone Company.
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6.4.1.5 PAYMENT DATE
(A) The payment date of bills rendered to resellers for service provided
under these terms and conditions is as follows:
(1) All bills rendered as set forth in this section are due 31 days
after the bill day or by the next bill date whichever is the shortest
interval.
(2) If such payment date falls on a Sunday or on a legal holiday which
is observed on a Monday, the payment date shall be the first non
holiday day following such Sunday or legal holiday.
(3) If such payment date falls on a Saturday or on a legal holiday
which is observed on Tuesday, Wednesday, Thursday or Friday, the
payment date shall be the last non holiday day preceding such Saturday
or legal holiday.
6.4.1.6 MEDIUM OF PAYMENT
(A) Bills are payable in immediately available funds.
(1) Immediately Available Funds denotes a corporate or personal check
drawn on a bank account and funds which are available for use by the
receiving party on the same day on which they are received and include
U.S. Federal Reserve bank wire transfers, U.S. Federal Reserve notes
(paper cash), U.S. coins and U.S. Postal Money Orders.
6.4.1.7 CUSTOMER DEPOSITS
(A) The Telephone Company will, in order to safeguard its interests,
require a reseller, if the reseller has a proven history of late
payments or if the reseller's parent or holding company has a proven
history of late payments to the Telephone Company or if the reseller
does not have established credit (except for a reseller which is a
successor of a company which has established credit and the successor
has no history of late payments to the Telephone Company), to make a
deposit prior to or at any time after the provision of a service to the
reseller to be held by the Telephone Company as a guarantee of the
payment of rates and charges.
(B) Such deposit may not exceed the actual or estimated rates and charges
for the service for a two month period.
6.4 ISSUANCE, PAYMENT AND CREDITING OF RESELLER BILLS (CONT'D)
6.4.1 RESPONSIBILITY OF THE TELEPHONE COMPANY (CONT'D)
6.4.1.7 CUSTOMER DEPOSITS (CONT'D)
(C) The fact that a deposit has been made in no way relieves the reseller
from complying with the Telephone Company's regulations as to the
prompt payment of bills.
(D) At such time as the provision of the service to the reseller is
terminated, the amount of the deposit will be credited to the
reseller's account and any credit balance which may remain will be
refunded.
(E) At the option of the Telephone Company, such a deposit will be refunded
or credited to the reseller's account when the reseller has established
credit or after the reseller has established a one year prompt payment
record at any time prior to the termination of the provision of the
service to the reseller.
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(F) In the case of a cash deposit, for the period the deposit is held by
the Telephone Company, the reseller will receive simple interest of
10% per annum. Interest will be credited to the reseller annually on
the first bill following December 31, or upon termination of the
service or the return of the deposit by the Telephone Company.
(G) Should a deposit be credited to the reseller account, as indicated
above, no interest will accrue on the deposit from the date such
deposit is credited to the reseller's account.
6.4.1.8 BILLINGS DISPUTE
In the event that a billing dispute occurs concerning any charges
billed to the reseller by the Telephone Company, the following
regulations apply:
(A) The first day of the dispute shall be the date on which the reseller
furnishes the Telephone Company with the account number under which the
bill has been rendered, the date of the bill and the specific items on
the bill being disputed.
(B) The date of resolution shall be the date on which the Telephone Company
completes its investigation of the dispute, notifies the reseller of the
disposition and, if the billing dispute is resolved in favor of the
reseller, applies credit for the correct disputed amount, the disputed
amount penalty and/or late payment penalty as appropriate.
(C) If a billing dispute is resolved in favor of the Telephone Company, any
payments withheld pending resolution of the dispute shall be subject to
the late payment penalty (refer to Section 6.4.1.4). Further, the
reseller will not receive credit for the disputed amount of the disputed
amount penalty.
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6.4 ISSUANCE, PAYMENT AND CREDITING OF RESELLER BILLS (CONT'D)
6.4.1 RESPONSIBILITY OF THE TELEPHONE COMPANY (CONT'D)
6.4.1.8 BILLING DISPUTE (CONT'D)
(D) If a reseller disputes a bill within three months of the payment date
and pays the total billed amount on or before the payment date and the
billing dispute is resolved in favor of the reseller, the reseller will
receive a credit for a disputed amount penalty from the Telephone
Company for the period starting with the date of payment and ending on
the date of resolution. The credit for a disputed amount penalty shall
be as set forth following.
(E) If a reseller disputes a bill within three months of the payment date
and pays the total billed amount after the payment date and the billing
dispute is resolved in favor of the reseller, the reseller will receive
a credit for a disputed amount penalty from the Telephone Company for
the period starting with the date of payment and ending on the date of
resolution. The late payment penalty applied to the disputed amount
resolved in the reseller's favor (refer to Section 6.4.1.4) will be
credited.
(F) If a reseller disputes a bill within three months of the payment date
and does not pay the disputed amount or does not pay the billed amount
(i.e., the non-disputed and disputed amount), and the billing dispute
is resolved in favor of the reseller, the reseller will not receive a
credit for a disputed amount penalty from the Telephone Company. The
late payment penalty applied to the disputed amount resolved in the
reseller's favor(refer to Section 6.4.1.4) will be credited.
(G) If a reseller disputes a bill after three months from the payment date
and pays the total billed amount on or before the dispute date, and the
billing dispute is resolved in favor of the reseller, the reseller will
receive a credit for a disputed amount penalty from the Telephone
Company for the period starting with the date of dispute and ending on
the date of the resolution. The credit for a disputed amount penalty
shall be as set forth following. The reseller shall not receive a
credit for the late payment penalty.
(H) If a reseller disputes a bill after three months from the payment date
and does not pay the disputed amount or does not pay the billed amount
(i.e., the nondisputed amount and disputed amount) and the billing
dispute is resolved in favor of the reseller, the reseller will not
receive a credit for a disputed amount penalty from the Telephone
Company. However, if the reseller pays the disputed amount or the
billed amount after the date of dispute and before the date of
resolution, the reseller will receive a credit for a disputed amount
penalty from the Telephone Company for the period starting with the
date of payment and ending on the date of resolution as a credit for a
disputed amount penalty. The reseller will receive a credit for the
late payment penalty, if applicable, from the Telephone Company.
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6.4 ISSUANCE, PAYMENT AND CREDIT OF RESELLER BILLS (CONT'D)
6.4.1 RESPONSIBILITY OF THE TELEPHONE COMPANY (CONT'D)
6.4.1.8 BILLING DISPUTE (CONT'D)
(1) The late payment penalty credit shall be the disputed amount
resolved in the reseller's favor times a late payment penalty factor
(refer to Section 6.4.1.4) for the period starting with the date of
dispute and ending on the date of payment of the disputed amount or
the date of resolution whichever occurs first.
(2) The disputed amount penalty shall be the disputed amount resolved
in the reseller's favor times a penalty factor. The penalty factor
shall be the lesser of the following calculations.
(a) The highest interest rate in decimal value, which may be levied by
law for commercial transactions for the number of days from the first
date to and including the last date of the period involved.
(b) The rate of 0.0005 per day for the number of days from the first
date to and including the last date of the period involved.
(I) The reseller is responsible for monitoring the accuracy of the
Telephone Company's bills and for notifying the Telephone Company of
any discrepancies between such bills and the services provided by the
Telephone Company.
6.4.1.9 BILLING ADJUSTMENTS AND VERIFICATION
(A) Adjustments for the quantities of services established or discontinued
in any billing period beyond the minimum period set forth for services
in other sections of these terms and conditions will be prorated to
the number of days or major fraction of days based on a 30 day month.
(B) The Telephone Company will, upon request and if available, furnish the
reseller such detailed information as may reasonably be required for
verification of any bill.
6.4.1.10 COMPUTATION OF BILLED CHARGES
(A) When a rate as set forth in these terms and conditions is shown to
more than two decimal places, the charges will be determined using the
rate shown. The resulting amount will then be rounded to the nearest
penny (i.e., rounded to two decimal places).
6.4. 1.11 COMPUTATION OF CREDIT ALLOWANCES
(A) Until Telephone Company time of day measurement capabilities are
available, credit adjustments will be computed by apportioning the
total intrastate usage associated with the honored claim into Day,
Evening and Night and Weekend periods using the time of day
distribution applicable to the reseller. The usage will then be
multiplied by the appropriate Day, Evening and Night and Weekend
rates.
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6.4 ISSUANCE, PAYMENT AND CREDITING OF RESELLER BILLS (CONT'D)
6.4.2 RESPONSIBILITY OF THE CUSTOMER
6.4.2.1 TRANSFER OF END USER ACCOUNT BALANCE
(A) Should a Telephone Company end user discontinue service in order to
become an end user of a reseller, the Telephone Company will render a
final bill to such end user. Balances and/or credits in a Telephone end
user's account will not be carried over to the resellers account with
the Telephone Company.
6.4.2.2 END USER INFORMATION
(A) In order to accommodate billing and collection of end user accounts,
resellers must make the billing names and addresses of their end users
available to all telecommunication carriers.
6.5 RESALE PROVISIONS
6.5.1 DESCRIPTION
6.5.1.1 GENERAL
(A) Resale is the sale to another person of telecommunications services
purchased from the Telephone Company. A customer purchases for resale
when such customer purchases a service for the purpose of reselling it
to another (rather than the purpose of using the service itself).
(1) A purchasing agent who orders services for its principal, and who
does not itself agree to assume the obligations of a reseller under
these terms and conditions, is not purchasing for resale within the
meaning of these terms and conditions.
(2) The purchase of telecommunications services or unbundled network
elements for the purpose of provisioning a different service (such as
the purchase of the Telephone Company's switched carrier access service
for the purpose of provisioning an interexchange carrier's toll
service) is not resale within the meaning of these terms and
conditions.
(B) Where a reseller purchases Telephone Company exchange service from the
Telephone Company and resells it to an end user, such reseller's end user will
be able to access any and all services that a Telephone Company end user would
be able to access on a Telephone Company exchange service line. Such services to
the extent provided by the Telephone Company will be deemed to have been sold to
the reseller by the Telephone Company as they are utilized by the reseller's end
user, and the reseller will be responsible to the Telephone Company for payment
of such services.
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6.5.1 DESCRIPTION (CONT'D)
6.5.1.2 SERVICES OFFERED FOR RESALE
(A) The services offered under these terms and conditions are those that
are offered by the Telephone Company to end users under the
regulations, terms and conditions of VTPSB No. 20, except for public
telephone service, and in accordance with the following limitations:
(1) Services that are sold to the Telephone Company's end users only
in conjunction with the purchase of basic dial tone service will be
available for resale only in conjunction with the resale of basic dial
tone service and not on a stand alone basis.
(2) Services in VTPSB No. 20 that have been designated as no longer
available for new installations or no longer offered are not offered
for resale except that such services are only available for resale to
the embedded base of end users who were permitted to retain such
service(s) in accordance with the regulations contained in VTPSB No.
20.
(3) Promotional program offerings (e.g., discounts, waivers, credits,
certificates, premiums, discounted product trials or other inducements
that would apply to a particular end user for a period of 90 days or
less, and that are offered in order to promote the sale of a service)
are offered for resale, however they are not subject to the resale
discount specified in Section 6.10.5.3.1.
(B) Linkup America may only be resold to Linkup America eligible end
users. The reseller is responsible for confirming the eligibility of
such end users for Linkup America.
(1) The Telephone Company (to the extent it would otherwise be
eligible), and not the reseller will be eligible for any universal
service funding resulting from the provision of Link Up America in
conjunction with these terms and conditions.
(C) Lifeline may only be sold to Lifeline eligible end users. The
reseller is responsible for confirming the eligibility of such end
users for Lifeline.
(1) The Telephone Company (to the extent it would otherwise be
eligible), and not the reseller will be eligible for any universal
service funding resulting from the provision of Lifeline in
conjunction with these terms and conditions.
(D) Blocking - Resellers are allowed to purchase blocking services to
restrict end user access to particular capabilities to the extent
such services are available under and on the same terms and
conditions as set forth in VTPSB NO. 20.
6.5.2 REGULATIONS
6.5.2.1 RESTRICTIONS
(A) CLASS OF CUSTOMER - This is a restriction contained in VTPSB NO. 20
that limits the availability of a service to a particular type of
customer, such as a business customer, a residence customer, carrier,
end user, etc.
(1) Where a resold service is subject to such restriction the
reseller may not resell such service to any customer not in the
relevant class. The reseller may purchase the service
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6.5 RESALE PROVISIONS (CONT'D)
6.5.2 REGULATIONS (CONT'D)
6.5.2.1 RESTRICTIONS (CONT'D)
for resale to a customer in the relevant class whether or not the
reseller itself is within the class.
(a) Business services may be resold to residence end users as long as
the end user is served by a business exchange line and as long as
all other services provided on that line are also under the business
class and charged for at the appropriate business service rates and
charges.
(2) Where a reseller resells a service to another person, and such
other person is itself a reseller rather than an end user, the reseller
purchasing from the Telephone Company must require its end users (by
tariff or by contract), to conform to any applicable class of service
restrictions for end users and all other requirements of resellers
under these terms and conditions.
(3) This class of service restriction does not pertain to resale of a
Centrex line where a residential end user is not restricted to
business service for that Centrex line. This service is subject to
additional Individual Case Basis (ICB) developmental costs and will be
developed in a mutually agreed upon time schedule, not to exceed six
months from the time that the service is ordered.
(B) Aggregation of Usage - The reseller may receive a volume discount only
to the extent that its individual end users would have qualified for
volume discounts under the provisions contained in VTPSB No. 20.
(C) The reseller is not allowed to offer resold service to its customers
under any of the Telephone Company trademarks, service marks,
registered trademark, registered service mark or brand-names, or use
the logos of the Telephone Company or the Telephone Company's
affiliates without the expressed written authorization of the Telephone
Company.
6.5.3 APPLICATION OF RATES AND CHARGES
6.5.3.1 UNDERLYING SERVICES
(A) DISCOUNT - The rates and charges that apply for the underlying services
that are sold to a reseller in accordance with the terms and conditions
described herein, are specified in VTPSB No. 20. The Telephone Company
will discount the VTPSB No. 20 rates and charges by applying the resale
discounts specified in Section 6.10.5.3.1 of these terms and conditions
to the applicable VTPSB No. 20 rates and charges for resold services
offered under these terms and conditions in accordance with Section
6.5.1.2.
The discount applicable to residential and business services, contained
in VTPSB No. 20, Part A, Sections 5.1 through 5.4, and the Exchange
Line portion of Services in Part H varies depending upon whether or not
the Telephone Company provides Operator Services and Directory
Assistance (OSDA).
6.5 RESALE PROVISIONS (CONT'D)
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6.5.3 APPLICATION OF RATES AND CHARGES (CONT'D)
6.5.3.1 UNDERLYING SERVICES (CONT'D)
(B) The Telephone Company reserves the right to apply a different avoided
cost discount, for services provided pursuant to Special Contract
Arrangements, as approved by the PSB.
6.5.3.2 SERVICE ESTABLISHMENT
Service establishment charges apply to recover the establishment costs
for electronic interfaces and other operational support systems (OSS).
(A) RECURRING ESTABLISHMENT CHARGES A recurring monthly charge per
reseller will be assessed during the five (5) year recovery period.
This charge provides for NYNEX region-wide access to the OSS platform.
(B) NON-RECURRING ESTABLISHMENT CHARGES A Non-Recurring charge per OSS
Transaction will be assessed during the five (5) year recovery period
for developmental costs (includes development and ongoing costs).
6.5.3.3 OTHER CHARGES
Charges to recover the ongoing costs to maintain the service center
for resellers and the electronic interface systems will be assessed
against all resellers.
(A) SERVICE CENTER MAINTENANCE CHARGE A monthly recurring charge per
resold line will be assessed to recover the cost of maintaining the
service center for resellers.
(B) ELECTRONIC INTERFACE MAINTENANCE CHARGE A Non-Recurring charge per OSS
Transaction will be assessed after the five year recovery period for
the recovery of ongoing costs associated with maintaining the
electronic interfaces.
(C) COMPLEX ORDER CHARGE A Non-Recurring charge per Centrex line ordered
will be applied to recover the manual processing required for Centrex
lines.
6.5.3.4 SPECIAL CONTRACT PRICING
Special Contract Arrangements will be offered to the reseller on the
condition that the reseller's end-user is similarly situated, i.e.
has the same cost and market characteristics used to develop the
Telephone Company's Special Contract Arrangement.
The discounts for Special Contract Arrangements shall not be the
discounts specified in 6.10.5.3.1 but shall be an
individually-determined discount based upon the Telephone Company's
avoided cost in respect of the nature and configuration of the
services to be provided under special contract. At the request of the
reseller, the Telephone Company shall explain in a reasonably timely
manner the avoided cost calculation for special contracts.
6.6 ALTERNATELY BILLED CALLS
An alternately billed call is any call which is billed to a number
other than the number originating the call, and includes credit card,
collect and third party calls.
The following procedures shall apply for alternately billed calls
originating or terminating over a Telephone Company line which has
been resold:
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(1) In the case of a local call or an intraLATA toll call carried on the
Telephone Company's network originating from a reseller's end user customer line
that is served in a Telephone Company exchange within the Telephone Company's
serving area in the state of Vermont, the Telephone Company shall record,
process and rate such a call at the Telephone Company's tariffed rates and bill
and collect payment from its customer.
(2) In the case of a local call or an intraLATA toll call carried on the
Telephone Company's network originating from a Telephone Company end user within
the Telephone Company's serving area in the state of Vermont and charged to a
reseller's end user customer line that is served in a Telephone Company's
exchange within the Telephone Company's serving area in the state of Vermont,
the Telephone Company shall separately record and process each such call and
send an unrated record of all such calls to the reseller on a daily basis for
the reseller's billing and collections purposes. The reseller shall pay the
Telephone Company for such calls at the wholesale discount rates. The reseller
will pay any additional costs. The Telephone Company shall bill such calls and
any additional costs on a monthly basis. The reseller shall rate the calls,
bill their retail customers for such calls and keep the revenues collected.
(3) In the case of a local call or an intraLATA toll call originating from a
reseller's end user customer line that is served in a Telephone Company
exchange within the Telephone Company's serving area in the state of Vermont
and charged to an out-of-region (as defined in CATS industry process)customer
of a TC Vermont, the Telephone Company shall record, process and rate such a
call and forward such information to the TC through Centralized Message
Distribution ("CMDS"). Such TC, in turn, shall bill and collect payment from
its customers and remit to the Telephone Company the amount billed which
shall be adjusted for billing and collection costs incurred by such
out-of-region carrier at rates utilized by the industry CATS settlement
process.
(4) In the case of an out-of-region local call or an intraLATA toll call
originating and terminating outside of the state of Vermont and charged to a
reseller's end user customer line that is served in a Telephone Company exchange
within the Telephone Company's serving area in the state of Vermont, for so long
as the reseller cannot receive information and charges regarding such calls
directly from the out-of-region TC through CMDS, the Telephone Company shall,
upon receipt of such information and charges from such out-of-region TC,
retransmit such information and charges
30
<PAGE>
6.6 ALTERNATELY BILLED CALLS (CONT'D)
to the reseller via the daily usage feed charging a record transmission
fee. The Telephone Company shall bill the reseller for such calls on a
monthly basis at the rates transmitted to the Telephone Company from
such out-of-region TC. The reseller shall bill and collect payment from
its customers. The reseller shall remit to the Telephone Company the
amount billed by the Telephone Company.
6.7 RESERVED FOR FUTURE USE
6.8 OTHER SERVICES
6.8.1 CALL USAGE DETAIL
6.8.1.1 DESCRIPTION
(A) Call usage detail is available to resellers for local calls associated
with the Telephone Company's resold message rate service, and for
intraLATA toll service. Call usage data is offered as local call usage
detail or local call usage detail and intraLATA call usage detail and
is provided via transmission or tape/cartridge.
(B) Local Call Usage Detail - Provides complete call detail by retail
billing telephone number and by line, consisting of calling telephone
number, called telephone number, call date, call connect time, and
call elapsed time.
(C) IntraLATA Call Usage Detail - Provides complete call detail by retail
billing telephone number and by line consisting of calling telephone
number, called telephone number, call date, call connect time, and
call elapsed time.
6.8.1.2 REGULATIONS
(A) Responsibility of the Telephone Company
(1) The lapsed time between usage recorded by the Telephone Company
and delivery to the reseller will not exceed eight business days.
(2) The Telephone Company will store reseller usage data for 45 days
from the date of transmission to the reseller.
6.8.1.3 APPLICATION OF RATES AND CHARGES
(A) Record Processing - A per record processed charge applies.
(1) A record consists of a call with called number, call date,
connect time, and elapsed time.
31
<PAGE>
6.8 OTHER SERVICES (CONT'D)
6.8.1 CALL USAGE DETAIL (CONT'D)
6.8.1.3 APPLICATION OF RATES AND CHARGES (CONT'D)
(B) Data Transmission - A per record transmitted charge applies.
(C) Tape or Cartridge - Available in addition to or in place of data
transmission.
(1) When a tape or cartridge is provided in place of data transmission,
data transmission charges are not applicable and a per tape or
cartridge charge will apply. If a tape or cartridge is requested in
addition to data transmission, both the per tape or cartridge charge
and the per data transmission charge applies.
6.8.2 ELECTRONIC CUSTOMER SERVICE RECORD RETRIEVAL
6.8.2.1 DESCRIPTION
(A) This service provides the reseller with the ability to electronically
request the customer service record of an end user. The current
customer service record will be formatted by the Telephone Company and
transmitted back to the reseller. The customer service record reflects
the most recent, completed service order activity and provides the
service and equipment billed by the Telephone Company to a Telephone
Company end user or to a reseller.
6.8.2.2 APPLICATION OF RATES AND CHARGES
(A) A service record retrieval charge applies to each customer service
record electronically delivered to the reseller.
(B) A reseller may request any number of electronic customer service
records, but will only be charged for the number of electronic
customer service records successfully transmitted to the reseller.
6.8.3 DIRECTORY SERVICES
6.8.3.1 DIRECTORY ASSISTANCE (DA) AND DIRECTORY LISTING SERVICES
(A) The Telephone Company will include in its published white pages
directories and in its directory assistance records, the name, address
and telephone number of the reseller's telephone exchange service
customers (one listing per end user line), in accordance with the
Telephone Company provisions relating to alphabetical listings and to
directory assistance as specified in VTPSB No. 20. Such listings will
not be provided for any lines for which the reseller purchases
nonpublished and nonlisted number service. Additional listings will be
provided under the terms and conditions set forth in VTPSB No. 20.
(B) Yellow Page Listing - Upon request of the reseller the Telephone
Company will include in its published yellow page directories a single
line, light-face (non-bold) listing for the reseller's telephone
exchange service business end user.
(C) The Telephone Company will include in the "Information Pages" or
comparable section of its white page directories, for areas served by
the reseller, the reseller's customer service telephone number which
shall be provided by the reseller.
6.8 OTHER SERVICES (CONT'D)
32
<PAGE>
6.8.4 ENHANCED UNIVERSAL EMERGENCY NUMBER SERVICE E-9-1-1
(A) The Telephone Company will include the resellers telephone exchange
service customers in the relevant E-9-1-1 database(s).
6.8.5 ANNOYANCE CALL BUREAU
(A) Resellers are entitled to use the services provided by the Telephone
Company's annoyance call bureau.
6.8.6 OPERATOR SERVICES/DIRECTORY ASSISTANCE SERVICES
6.8.6.1 At the reseller's option, the Telephone Company will re-route
the reseller's end-users' local and toll operator services and
directory assistance calls to an alternate operator services
provider. The Telephone Company will provide such re-routing
services on a first come, first served basis pursuant to a
mutually agreed-upon schedule. The schedule established will
depend upon the reseller's specific requirements, and in any
event be completed within twelve months of the request.
6.8.6.2 The rerouting of operator services and directory assistance
calls will be implemented at the Reseller's expense. The charge
will be determined on an individual case basis.
6.8.6.3 Trunks for Operator Services/Directory Assistance Routing can
be ordered in Section 5.6.1.7.
6.8.6.4 The Telephone Company may request the reseller to provide
forecasts of its anticipated use of operator services and
directory assistance routing for planning purposes.
6.8.6.5 Reseller must arrange for Operator Services/Directory Assistance
routing by submitting a Network Design Request as specified in
5.6.1.1 (D)(9).
6.8.6.6 At the reseller's option, the Telephone Company will provide
Operator Services and Directory Assistance announcement services
to the reseller when the reseller utilizes the Telephone
Company's Operator and Directory Assistance Services for the
reseller's end-users' local and toll Operator Services and
Directory Assistance calls. The reseller may choose a branded or
unbranded announcement. The Telephone Company will provide such
rebranding services on a first come, first served basis pursuant
to a mutually agreed-upon schedule. The schedule established
will depend upon the reseller's specific requirements, and in
any event be completed within twelve months of the request.
6.8.6.7 The establishment of branding of operator services and directory
assistance call will be implemented at the Reseller's expense.
The charge will be determined on an individual case basis. The
rate per branded announcement, is detailed in Section
5.8.7(A)(1).
6.8.6.8 The Telephone Company may request the reseller to provide
forecasts of its anticipated use of operator services and
directory assistance branding for planning purposes.
6.9 RESERVED FOR FUTURE USE
33
<PAGE>
34
<PAGE>
VERMONT RESALE AGREEMENT
SECTION 6
6.10 RATES AND CHARGES
6.10.5 RESALE
6.10.5.3.1 Discounts to Underlying Services
<TABLE>
ID Service Category Rate Element Rate
- -----------------------------------------------------------------------------------
<S> <C> <C> <C>
A. Discounts for all Business Services 26.01%
services except
those in
6.10.5.3. 1 (B)
Residence Services 18.20%
B. Discounts only for Business Services 27.66%
services specified in
VTPSB No. 20,
Part A, Sections 5.1
through 5.4 and the Residence Services 20.43%
exchange line
portion of services
in Part H where the
reseller provides
OSDA
</TABLE>
6.10.5.3.2 Service Establishment Charges
<TABLE>
ID Service Category Rate Element Rate
- -------------------------------------------------------------------------------------------------
<S> <C> <C> <C>
Recurring Monthly charge per reseller during $2,606.00
Establishment the 5 year recovery period
Charge*
Non-Recurring Per OSS transaction during 7 yr. $1.26
Establishment period for recovery of
Charges development costs (included
development and ongoing costs)
</TABLE>
* This charge provides for NYNEX region-wide access to the OSS platform.
1
<PAGE>
6.10.5.3.3 Other Charges
<TABLE>
ID SERVICE CATEGORY Rate Element Rate
- --------------------------------------------------------------------------------------------------
<S> <C> <C> <C>
Service Center Monthly charge per resold line $0.21
Maintenance
Charge
Electronic Interface Per OSS Transaction after the $0.42
Maintenance development costs are fully
Charge recovered (includes only ongoing
costs)
Complex Order Per Centrex line ordered $16.27
Charge
</TABLE>
6.10.8 Optional Services
6.10.8.1 Call Usage Detail
<TABLE>
ID Service Category Rate Element Rate
- ------------------------------------------------------------------------------------------------------
<S> <C> <C> <C>
Record Processing Per Record Processed $0.004099
Data Transmission Per Record Transmitted $0.000119
Tape or Cartridge Per Tape or Cartridge $20.12
</TABLE>
2
<PAGE>
6.10.8.2 Electronic Customer Service Record Retrieval
<TABLE>
ID Service Category Rate Element Rate
- ---------------------------------------------------------------------------------------------
<S> <C> <C> <C>
Electronic $0.14
Customer Service Per Customer Record
Record Retrieval
</TABLE>
6.10.8.6 Operator Services/Directory Assistance Services
<TABLE>
ID Service Category Rate Element Rate
- ----------------------------------------------------------------------------------------
<S> <C> <C> <C>
Establishment of ICB
Branding Nonrecurring Establishment
Charge
Branded Branding Surcharge per Call $0.077810
Announcement
Charge
</TABLE>
3
<PAGE>
APPENDIX 1, ATTACHMENT 11
QUALIFIED BUSINESS LINES FOR VOLUME COMMITMENT
VERMONT
<TABLE>
<CAPTION>
<S> <C>
- ----------------------------------------------------------------------------------------------------------------------------------
ACCESS LINES
- ----------------------------------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------------------------------
Non-Optional Measured - Low Use LMB ALM
- ----------------------------------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------------------------------
Non-Optional Measured - Standard LMA B2K
- ----------------------------------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------------------------------
Direct Inward Dial Trunks NDT ND8
- ----------------------------------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------------------------------
PBX Trunks XMB XFB
- ----------------------------------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------------------------------
PBX DIGITAL TRUNKS T2DMX T4DOX
---------------------------------------------------------------
---------------------------------------------------------------
T2DOX TDYMX
---------------------------------------------------------------
---------------------------------------------------------------
T4DMX TDYOX
- ----------------------------------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------------------------------
PBX ANALOG TRUNKS RM7 TG8 TBPCX TM7
---------------------------------------------------------------
---------------------------------------------------------------
T1V TGJTM TCX TM9
---------------------------------------------------------------
---------------------------------------------------------------
T2D1X TGQ TDD TMB
---------------------------------------------------------------
---------------------------------------------------------------
T2DCX TGZ TDY1X TMC
---------------------------------------------------------------
---------------------------------------------------------------
T3E THN TDYCX TMK
---------------------------------------------------------------
---------------------------------------------------------------
T3U THO TEPCX TMR
---------------------------------------------------------------
---------------------------------------------------------------
T3V THQ TF6 TMT
---------------------------------------------------------------
---------------------------------------------------------------
T4U THU TFB TMU
---------------------------------------------------------------
---------------------------------------------------------------
T4V THW TFC TP5CX
---------------------------------------------------------------
---------------------------------------------------------------
T4X THZ TFK TS9
---------------------------------------------------------------
---------------------------------------------------------------
T5E TJT TFQ TS90X
---------------------------------------------------------------
---------------------------------------------------------------
T5K TKG TFR TW6
---------------------------------------------------------------
---------------------------------------------------------------
T5N TKO TFT TYD
---------------------------------------------------------------
---------------------------------------------------------------
T50 TKV TFU TZQ
---------------------------------------------------------------
---------------------------------------------------------------
T86 TM2 TG2 TZZ
---------------------------------------------------------------
---------------------------------------------------------------
T87 TM3 TG7 TJB
---------------------------------------------------------------
---------------------------------------------------------------
TB2 TM5 TBB TM6
- ----------------------------------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------------------------------
CENTREX:**
- ----------------------------------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------------------------------
**Excludes:
1. Centrex systems priced under a special contract (ICB, FPO, LSO, Custom Pricing)
2. Centrex systems which serve multiple end user customers
- ----------------------------------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------------------------------
INTELLIPATH
- ----------------------------------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------------------------------
Non-Optional Measured - DMS1OO E6JJX
- ----------------------------------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------------------------------
Non-Optional Measured - 5ESS E6JUX
- ----------------------------------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------------------------------
Measured - DMS1OO E6KJX
- ----------------------------------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------------------------------
Measured - 5ESS E6KUX
- ----------------------------------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------------------------------
INTELLIPATH STATIONS / LINES
- ----------------------------------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------------------------------
Primary Station - Principle premise R42
- ----------------------------------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------------------------------
Primary Station - Principle premise - Fully Restricted R45
- ----------------------------------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------------------------------
Primary Station - other than Principle premise R43
- ----------------------------------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------------------------------
Primary Station - other than Principle premise - Fully
Restricted R46
- ----------------------------------------------------------------------------------------------------------------------------------
</TABLE>
Page 1 of 1
<PAGE>
APPENDIX 1, ATTACHMENT 12
PRODUCTS AND SERVICES ELIGIBLE FOR VTD DISCOUNT
VERMONT
<TABLE>
<CAPTION>
<S> <C> <C> <C> <C>
- ----------------------------------------------------------------------------------------------------------------------------------
ACCESS LINES
- ----------------------------------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------------------------------
Non-Optional Measured - Low Use LMB ALM
- ----------------------------------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------------------------------
Non-Opflonal Measured - Standard LMA B2K
- ----------------------------------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------------------------------
Direct Inward Dial Trunks NDT ND8
- ----------------------------------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------------------------------
PBX Trunks XMB XFB
- ----------------------------------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------------------------------
PBX DIGITAL TRUNKS T2DMX T4DOX
--------------------------------------------------------------
--------------------------------------------------------------
T2DOX TDYMX
--------------------------------------------------------------
--------------------------------------------------------------
T4DMX TDYOX
- ----------------------------------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------------------------------
PBX ANALOG TRUNKS RM7 TG8 TBPCX TM7
--------------------------------------------------------------
--------------------------------------------------------------
T1V TGJTM TCX TM9
--------------------------------------------------------------
--------------------------------------------------------------
T2D1X TGQ TDD TMB
--------------------------------------------------------------
--------------------------------------------------------------
T2DCX TGZ TDY1X TMC
--------------------------------------------------------------
--------------------------------------------------------------
T3E THN TDYCX TMK
--------------------------------------------------------------
--------------------------------------------------------------
T3U THO TEPCX TMR
--------------------------------------------------------------
--------------------------------------------------------------
T3V THQ TF6 TMT
--------------------------------------------------------------
--------------------------------------------------------------
T4U THU TFB TMU
--------------------------------------------------------------
--------------------------------------------------------------
T4V THW TFC TP5CX
--------------------------------------------------------------
--------------------------------------------------------------
T4X THZ TFK TS9
--------------------------------------------------------------
--------------------------------------------------------------
T5E TJT TFQ TS90X
--------------------------------------------------------------
--------------------------------------------------------------
T5K TKG TFR TW6
--------------------------------------------------------------
--------------------------------------------------------------
T5N TKO TFT TYD
--------------------------------------------------------------
--------------------------------------------------------------
T50 TKV TFU TZQ
--------------------------------------------------------------
--------------------------------------------------------------
T86 TM2 TG2 TZZ
--------------------------------------------------------------
--------------------------------------------------------------
T87 TM3 TG7 TJB
--------------------------------------------------------------
--------------------------------------------------------------
TB2 TM5 TBB TM6
- ----------------------------------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------------------------------
INTRA-LATA TOLL
#MUST BE ASSOCIATED WITH A RESOLD VTD QUALIFIED BUSINESS LINE
- ----------------------------------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------------------------------
Message Rate Service N/A
- ----------------------------------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------------------------------
MTS, including Business Link Optional Calling Plan but OVP OV2
--------------------------------------------------------------
--------------------------------------------------------------
excluding all other Optional Calling Plans
- ----------------------------------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------------------------------
FEATURES
#MUST BE ASSOCIATED WITH A RESOLD VTD QUALIFIED BUSINESS LINE
- ----------------------------------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------------------------------
Touch Tone TTB
- ----------------------------------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------------------------------
Call Forwarding ESM
- ----------------------------------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------------------------------
Call Forwarding, Speed Calling 8 & Speed Calling 30 EZO
- ----------------------------------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------------------------------
Call Forwarding, Three Way Calling & Speed Calling 30 ESB
- ----------------------------------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------------------------------
Call Forwarding, Three Way Calling & Speed Calling 8 ESR
- ----------------------------------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------------------------------
Call Forwarding, Three Way Calling, Speed Calling 8 &
Speed Calling 30 EZS
- ----------------------------------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------------------------------
Call Walting ESX
- ----------------------------------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------------------------------
Call Waiting, Call Forwarding & Speed Calling 30 ESG
- ----------------------------------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------------------------------
Call Waiting, Call Forwarding & Speed Calling 8 ESA
- ----------------------------------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------------------------------
Call Waiting, Call Forwarding & Three Way Calling ETC
- ----------------------------------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------------------------------
Call Waiting, Call Forwarding, Speed Calling 8 & Speed
Calling 30 EZQ
- ----------------------------------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------------------------------
Call Waiting, Call Forwarding, Three Way Calling & Speed
Ealling 30 ES5
- ----------------------------------------------------------------------------------------------------------------------------------
</TABLE>
Page 1 of 2
<PAGE>
<TABLE>
<CAPTION>
<S> <C> <C> <C>
- ----------------------------------------------------------------------------------------------------------------------------------
Call Waiting, Call Forwarding, Three Way Calling & Speed
Calling 8 ES3
- ----------------------------------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------------------------------
Call Waiting, Call Forwarding, Three Way Calling, Speed
Calling 8 & Speed Calling 30 EZT
- ----------------------------------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------------------------------
Call Waiting, Speed Calling 8 & Speed Calling 30 EZN
- ----------------------------------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------------------------------
Call Waiting, Three Way Calling & Speed Calling 30 ET3
- ----------------------------------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------------------------------
Call Waiting, Three Way Calling & Speed Calling 8 ET8
- ----------------------------------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------------------------------
Call Waiting, Three Way Calling, Speed Calling 8 &
Speed Calling 30 EZR
- ----------------------------------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------------------------------
Speed Calling 30 E3D
- ----------------------------------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------------------------------
Speed Calling 8 E8C
- ----------------------------------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------------------------------
Three Way Calling ESC
- ----------------------------------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------------------------------
Three Way Calling, Speed Calling 8 & Speed Calling 30 EZP
- ----------------------------------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------------------------------
Call Forwarding II CFZ GCZ E5E
- ----------------------------------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------------------------------
PHONE SMART SERVICES
#MUST BE ASSOCIATED WITH A RESOLD VTD QUALIFIED BUSINESS LINE
- ----------------------------------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------------------------------
*69 NSS
- ----------------------------------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------------------------------
*69 (Per Activation Charge)
- ----------------------------------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------------------------------
*69 Denial HBS
- ----------------------------------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------------------------------
Call Trace NST
- ----------------------------------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------------------------------
Call Waiting ID NWT
- ----------------------------------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------------------------------
Call Waiting ID with Name N7PXA
- ----------------------------------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------------------------------
Call Trace (Per Activation Charge)
- ----------------------------------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------------------------------
Caller ID NSD
- ----------------------------------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------------------------------
Caller ID with Name NNK
- ----------------------------------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------------------------------
Caller ID Manager NWL
- ----------------------------------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------------------------------
Caller ID Manager with Name NNW
- ----------------------------------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------------------------------
Per Call Blocking
- ----------------------------------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------------------------------
Per Line Blocking NBJ
- ----------------------------------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------------------------------
Repeat Dialing NSQ
- ----------------------------------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------------------------------
Repeat Dialing (Per Activation Charge)
- ----------------------------------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------------------------------
Repeat Dialing & *69 NSP
- ----------------------------------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------------------------------
Repeat Dialing Denial HBQ
- ----------------------------------------------------------------------------------------------------------------------------------
</TABLE>
Page 2 of 2
<PAGE>
NEW ENGLAND TELEPHONE AND TELEGRAPH COMPANY
RESALE SERVICE AGREEMENT
This Agreement is by and between New England Telephone and Telegraph
Company "NET") d/b/a Bell Atlantic - New Hampshire and Essential.Com, Inc.
("Reseller).
WHEREAS, NET will offer local exchange services ("Service(s)") for
resale;
WHEREAS, Reseller is a reseller operating in the State of New Hampshire;
WHEREAS, NET and Reseller have negotiated in good faith for the resale of
such Services pursuant to and consistent with the Telecommunications Act of
1996.
NOW, THEREFORE, in consideration of the mutual obligations set forth
herein, and for other good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, NET and Reseller agree as follows:
1. RESALE ARRANGEMENT
NET will offer telecommunications services it provides at retail to end
users in the State of New Hampshire for resale by Reseller in accordance
with the attached Terms and Conditions -- Resale Services contained in
Attachment A. Attachment A is incorporated herein as an integral and
necessary part of the parties' agreement. Whenever reference is made
herein to the Agreement, the reference includes Attachment A.
2. TERM OF AGREEMENT
A. NET will file this Agreement promptly with the New Hampshire
Public Utility Commission ("WHPUC") for approval pursuant to
section 252 of the Telecommunications Act of 1996. The Agreement
will be effective as of the date the resale agreement is signed by
both parties.
B. Upon execution of the Agreement by both parties, NET and Reseller
shall endeavor to jointly develop an implementation plan for the
services that Reseller will resell.
C. Each Party agrees to fully support approval of the Agreement by
the NHPUC without modification. 116 Parties, however, reserve the
right to seek regulatory relief and otherwise seek redress from
each other regarding performance and implementation of this
Agreement. In the event the NHPUC rejects this Agreement in whole
or in part, the Parties agree to meet and negotiate in good faith
to arrive at a mutually acceptable modification of the rejected
portion(s); provided that such rejected portion(s) shall not
affect the validity of the remainder of this Agreement.
1
<PAGE>
D. The Agreement is subject to change, modification, or cancellation
as may be required and mutually agreed by either Party based on
any significant change in Federal Communications Commission or
NHPUC rules which may impact the provision of service under this
Agreement or the rights and obligations of the Parties under the
Act.
E. Either party may terminate Agreement with 90 days written
notification to the other.
3. CHARGES
Reseller shall pay NET the charges contained in Attachment A. The Parties
understand that the charges contained in Attachment A are subject to
revision by the NHPUC. If the NHPUC issues any decision or order which
approves for any telecommunications carrier different charges for any of
the services contained in Attachment A within six months following the
effective date of this Agreement, the Parties will true-up the charges
paid under this Agreement retroactive to the effective date of the
Agreement based upon the decision or order of the NHPUC. However, if the
NHPUC does not issue such a decision or order within six months, the
Parties agree that there will be no true-up, and any new charges approved
thereafter by the NHPUC will apply to the services provided under this
Agreement as of the date of the NHPUC order or decision.
4. PROMOTIONAL MATERIAL
NET shall provide Reseller with a reasonable amount of information
related to the use of the services it will resell for Reseller's use in
its marketing and product materials. NET, in consultation with Reseller,
shall determine the t)W, quantity, and availability of the information to
be provided to Reseller. NET shall also make available to Reseller's
personnel basic training related to the use and operation of the
services. NET shall reasonably determine the timing and content of such
training. Such training and promotional material shall be provided to
Reseller only and NET is under no obligation to provide any training or
promotional material to any other person or entity Reseller may engage in
the sale, provision, or use of the Services.
5. GOVERNING LAW
This Agreement shall be governed by and construed in accordance with the
laws of the State of New Hampshire, except a provision of law which would
refer any issue to another jurisdiction.
6. ENTIRE AGREEMENT
2
<PAGE>
This Agreement constitutes the entire understanding between the Parties
with respect to the subject matter hereof and supersedes all prior
understandings, oral or written representations, statements,
negotiations, proposals and undertakings in oral written form.
7. AMENDMENTS AND WAIVERS
A. This Agreement may be amended or additional provisions may be
added by written agreement signed by or on behalf of both parties.
No amendment or waiver of any provisions of this Agreement, and no
consent to any default under this Agreement, shall be effective
unless the same shall be in writing and signed by a duly
authorized representative on behalf of the party against whom such
amendment, waiver or consent is claimed, except as otherwise
provided in this Agreement preceding. In addition, no course of
dealing or failure of any party to enforce strictly any term,
right or condition of this Agreement shall be construed as a
waiver of such term, right or condition.
B Either party's failure at any time to enforce any of the
provisions of this Agreement or any right with respect thereto, or
to exercise any option herein provided, will in no way be
construed to be a waiver of such provisions, rights, or options or
in any way to affect the validity of this Agreement. The exercise
by either party of any rights or options under the terms herein
shall not preclude or prejudice the exercise thereafter of the
same or other rights under this Agreement.
8. ASSIGNMENT
Neither party may assign or transfer (whether by operation of law or
otherwise) this Agreement (or any rights or obligations hereunder) to a
third party without the prior written consent of the other party which
consent shall not be unreasonably withheld; provided, however, each party
may assign this Agreement to a corporate affiliate or an entity under its
common control or an entity acquiring all or substantially all of its
assets or equity by providing prior written notice to the other party of
such assignment or transfer. Any attempted assignment or transfer that is
not permitted shall be void ab initio. All obligations and duties of any
party shall be binding on all successors in interest and assigns of such
party.
9. NOTICE AND DEMAND
Except as otherwise provided under this Agreement, all notices, demands,
or requests which may be given by any party to the other party shall be
in writing and shall be deemed to have been duly given on the date
delivered in person or deposited, postage prepaid, in the United States
Mail via Certified Mail or nationally recognized overnight carrier,
return receipt requested, and addressed as follows:
3
<PAGE>
TO RESELLER: President
----------- Essential.Com, Inc.
3 Burlington Woods Drive
Burlington, MA 01803
Tel: (781) 229-9599
Fax: (781) 229-9499
TO COMPANY: Account Manager - Resale Services
---------- 222 Bloomingdale Road
2nd floor
White Plains, NY 10605
cc: Bell Atlantic Corporation
General Counsel
1095 Avenue of the Americas
41st floor
New York, NY 10036
If personal delivery is selected as the method of giving notice under
this Section, a receipt of such delivery shall be obtained. The address
to which such notices, demands, requests, elections or other
communications are to be given by either party may be changed by written
notice given by such party to the other party pursuant to this Section.
10. THIRD-PARTY BENEFICIARIES
This Agreement shall not provide any person not a party to this Agreement
with any remedy, claim, liability, reimbursement, claim of action or
other right in excess of those existing without reference to this
Agreement.
11. FORCE MAJEURE
Neither party shall be deemed to be negligent, at fault, or otherwise
liable in any respect for any delay or failure in performance of any part
of this Agreement to the extent that such failure or delay is caused by
acts of God, acts of civil or military authority, government regulations,
embargoes, epidemics, war, terrorist acts, riots, insurrections, fires,
explosions, earthquakes, nuclear accidents, floods, strikes, power
blackouts, volcanic action, other major environmental disturbances,
unusually severe weather conditions, inability to secure products or
services of other persons or transportation facilities, or acts or
omissions of transportation common carriers or other causes beyond the
control of the party obligated to perform. If any force majeure condition
occurs, the party delayed or unable to perform shall give immediate
notice to the other Party and shall take all
4
<PAGE>
reasonable steps to correct the force majeure condition. During the
pendency of the force majeure, the duties of the parties under this
Agreement affected by the force majeure condition shall be abated and
shall resume without liability thereafter.
12. CONTINGENCY
Notwithstanding any other provision of this Agreement, this Agreement is
subject to change, modification, or cancellation as may be required by a
regulatory authority or court in the exercise of its lawful jurisdiction.
13. COMPLIANCE
Each Party shall comply with all applicable federal, state, and local
laws, rules, and regulations applicable to its performance under this
Agreement.
14. NON-EXCLUSIVE AGREEMENT
This Agreement is non-exclusive. NET reserves the right to extend to
others the Services and rights provided for herein.
15. PUBLICITY AND USE OF TRADEMARKS OR SERVICE MARKS
Neither Party nor its subcontractors or agents will use the other Party's
trademarks, service marks, logos or other proprietary trade dress in
connection with the sale of products and services, or in any advertising,
press releases, publicity matters or other promotional materials without
such Party's prior written consent.
Neither Party may imply any direct or indirect affiliation with or
sponsorship or endorsement of its company, products and services by the
other Party.
16. SEVERABILITY
In the event any of the provisions of this Agreement are found to be
invalid by any administrative agency, arbitrator or court or competent
jurisdiction, the remaining provisions of this Agreement, whether
relating to similar or dissimilar subjects, shall nevertheless be binding
with the same effect as though the invalid provisions were deleted,
unless the result would be to substantially change the rights or
obligations of either party, in which event the parties shall seek to
negotiate in good faith revisions to the Agreement consistent with their
earlier intent. Failing further agreement, this Agreement shall terminate
and no party shall be liable to the other, except for outstanding amounts
due under this Agreement, including, but not limited to, amounts due
pursuant to the payment terms, the carryover pool, and any other amounts
which survive termination as stated in this Agreement.
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17. EXECUTED IN COUNTERPARTS
This Agreement may be executed in any number of counterparts, each of
which shall be an original, but such counterparts shall together
constitute but one and the same document.
18. HEADINGS
The headings in this Agreement are for convenience and shall not be
construed to define or limit any of the terms herein or affect the
meanings or interpretation of this Agreement.
19. DISCLAIMER OF REPRESENTATIONS AND WARRANTIES
EXCEPT AS EXPRESSLY PROVIDED UNDER THIS AGREEMENT, NO PARTY MAKES OR
RECEIVES ANY WARRANTY, EXPRESS OR IMPLIED, WITH RESPECT TO THE SERVICES,
FUNCTIONS AND PRODUCTS IT PROVIDES UNDER OR CONTEMPLATED BY THIS
AGREEMENT AND THE PARTIES DISCLAIM THE IMPLIED WARRANTIES OF
MERCHANTABILITY OR OF FITNESS FOR A PARTICULAR PURPOSE.
20. JOINT WORK PRODUCT
This Agreement is the joint work product of the Parties and has been
negotiated by the Parties and their respective counsel and shall be
fairly interpreted in accordance with its terms and, in the event of any
ambiguities, no inferences shall be drawn against either party.
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Attachment A
6.1 RESALE
6.1.1 GENERAL
6.1.1.1 TERMS AND CONDITIONS STRUCTURE
(A) The terms and conditions are divided into sections which are structured
numerically, (e.g., Section 6.1, 6.2, 6.3 etc.).
6.1.2 REFERENCING
6.1.2.1 REFERENCE TO TARIFFS
(A) Whenever reference is made in these terms and conditions to tariffs of
the Telephone Company, the reference is to the tariffs in force as of
the effective date of these terms and conditions, and to amendments
thereto and successive issues thereof. The regulations, rates and
charges contained herein are in addition to the applicable regulations,
rates and charges specified in tariffs of the Telephone Company which
may be referenced.
6.1.2.2 TRADEMARKS AND SERVICE MARKS
(A) Refer to NHPUC No. 77.
6.1.3 TERMS AND CONDITIONS TERMINOLOGY
Unless otherwise defined herein, terminology contained within these
terms and conditions are as defined in NHPUC No. 77.
6.1.3.1 DEFINITIONS
END USER - Any person purchasing service for their own use rather than
for sale to another person, party or entity etc. End Users may not
purchase from these terms and conditions.
PREMISES - This term as defined in NHPUC No. 77 is a reference to the
premises at which the service is provided, and not a reference to the
reseller's premises.
RESALE - The sale to another person of telecommunications services
purchased from the Telephone Company. A person purchases for resale
when such person purchases a service for the purpose of reselling it
to another (rather than the purpose of using the service itself).
RESELLER/CUSTOMER - Any individual, partnership, association, joint
stock company, trust, corporation, governmental entity or other
entity, authorized by law to resell telecommunications services in
the state of New Hampshire, which subscribes to the telecommunications
services offered under these terms and conditions.
TELEPHONE COMPANY - The New England Telephone and Telegraph Company.
6.2 GENERAL REGULATIONS
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In addition to the general regulations contained herein, the general
regulations specified in NHPUC No. 77 also apply.
6.2.1 APPLICATION OF TERMS AND CONDITIONS
6.2.1.1 SCOPE
(A) Regulations, rates and charges in these terms and conditions apply to
the offering of Telephone Company telecommunications services for
resale.
(B) Only a reseller authorized by law to resell telecommunications services
in the State of New Hampshire may purchase under these terms and
conditions. These terms and conditions are not, intended to enlarge,
restrict, or otherwise affect any provision of law relating to the
authority to resell telecommunications services.
(1) Resellers do not surrender any right to purchase from any of the
Telephone Company's intrastate tariffs by purchasing from these terms
and conditions. However, the discounts contained herein will apply
only to purchases from these terms and conditions. Resellers purchasing
retail services from the Telephone Company's intrastate tariffs will
do so through traditional retail channels, and will be billed
accordingly.
(C) In addition to the responsibilities and obligations specified in NHPUC
No. 77, the reseller must conform to any applicable rules and
regulations set forth by the Public Utilities Commission.
(D) The resale of telecommunications services and the provision thereof by
the Telephone Company as set forth in these terms and conditions does
not constitute a joint undertaking nor does it constitute an agency,
contractual or any other type of relationship between the reseller and
the Telephone Company (other than that of purchaser and seller) or
between the Telephone Company and the reseller's end user.
(E) A reseller ordering a resold service under these terms and conditions
has all of the obligations that would be imposed under the applicable
Telephone Company tariff upon an end user who orders the service
directly from the Telephone Company. Such obligations include, without
limitation, the obligation to pay for the service, whether or not the
reseller is being paid by its own customers. The rate charged for such
service, when sold to a reseller under these terms and conditions, is
to be determined in accordance with rates and charges specified in
these terms and conditions. However, services that are sold to the
Telephone Company end users only in conjunction with the purchase of
basic dial tone service will be available for resale only in
conjunction with the resale of basic dial tone service and not on a
stand alone basis.
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6.2 GENERAL REGULATIONS (CONT'D)
6.2.2 RESPONSIBILITY OF THE TELEPHONE COMPANY
6.2.2.1 PROVISION OF SERVICE
(A) The Telephone Company's obligation to furnish service, or to continue
to furnish service, is dependent on its ability to obtain without
charge, danger or undue difficulty access to the premises where the
service is to be provided (where such access is necessary for the
provision of service).
(1) Should a reseller's end user request that a Telephone Company
technician prove his/her identity as an employee of the Telephone
Company before the end user will permit access to their premises, the
technician's Telephone Company identification badge or the Bell
Atlantic registered trademark/servicemark (logo) that is visibly
displayed on the technician's service vehicle will be evidence of such
proof. If the Telephone Company misses the scheduled service
appointment as a result of the reseller's end user's refusal to permit
access to the Telephone Company technician, neither the reseller nor
the reseller's end user will be entitled to any waivers of charges for
missed service appointments that may be offered by the Telephone
Company under service guarantee programs that are associated with the
service being provided.
(B) The Telephone Company reserves the right to refuse an application for
service made by, or for the benefit of, a reseller who is indebted to
the Telephone Company for telephone service previously furnished.
(1) In the event that service is connected for a reseller who is
indebted to the Telephone Company for service previously furnished to
such reseller, the Telephone Company will notify the reseller in
writing via Certified U.S. Mail, that the service will be terminated
by the Telephone Company unless the reseller satisfies the indebtedness
within 10 days of the date of the reseller's receipt of such
notification.
(C) The services offered under the provisions of these terms and conditions
are subject to the availability of facilities, including switching
capacity, and necessary operational support systems.
(1) If existing facilities will not enable the Telephone Company to
meet all outstanding service orders, such orders will be handled in
accordance with reasonable priority rules that do not unreasonably
discriminate between resellers purchasing under these terms and
conditions and end user customers of the Telephone Company.
(D) Resold services offered by the Telephone Company are at least
technically equivalent to the corresponding service offerings that the
Telephone Company provides to its own end users provided that the
reseller complies with the regulations contained in these terms
and conditions.
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6.2 GENERAL REGULATIONS (CONT'D)
6.2.2 RESPONSIBILITY OF THE TELEPHONE COMPANY (CONT'D)
6.2.2.1 PROVISION OF SERVICE (CONT'D)
(E) The Telephone Company will provide service (including the installation
and repair thereof) to resellers at levels that meet the capabilities,
functions and performance levels available to Telephone Company
similarly situated end users providing that the reseller complies with
the regulations contained in these terms and conditions.
(1) Telephone Company personnel dispatched to a reseller's end user
premises for purposes of installation or repair will not accept
requests on behalf of the reseller for new or modified service beyond
that requested by the reseller.
(F) To the extent the provision of repair and installation services under
these terms and conditions entails the appearance by Telephone Company
personnel at the premises of a reseller's end user, the uniforms worn
by such personnel, and the vehicles and other equipment that they use,
may be marked in the conventional manner with the Telephone Company's
name, trademarks, service marks, and logos.
6.2.2.2 INTERRUPTION OF SERVICE
(A) Allowances for interruption of service are available to resellers to
the extent and under the same circumstances as they would be available
to Telephone Company end users under NHPUC No. 77.
6.2.3 RESPONSIBILITY OF THE RESELLER
6.2.3.1 RESELLER NOTIFICATION AND COORDINATION
(A) Unless otherwise specified herein, whenever customer notification is
required, the Telephone Company is responsible for providing notice
only to the reseller who is the customer of record.
(1) The reseller, and not the Telephone Company is responsible for
providing any notices, bill inserts or other information as may be
required to the reseller's end users.
(2) The Telephone Company will not provide resellers with advance
notice of its intent to offer a new retail service (or to modify an
existing retail service) except to the extent that public notice of
certain tariff changes is required by the regulation or orders of
the Public Utilities Commission or other applicable law.
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6.2 GENERAL REGULATIONS (CONT'D)
6.2.3 RESPONSIBILITY OF THE RESELLER (CONT'D)
6.2.3.2 LIABILITY
(A) The reseller shall reimburse the Telephone Company for damages to
Telephone Company facilities utilized to provide services under these
terms and conditions caused by negligence or willful act of the
reseller or the reseller's end user or resulting from the reseller's or
reseller's end user's improper use of the Telephone Company facilities,
or due to malfunction of any facilities or equipment provided by other
than the Telephone Company. Nothing in the foregoing provision shall be
interpreted to hold one reseller liable for another reseller's actions.
The Telephone Company will, upon reimbursement for damages, cooperate
with the reseller in prosecuting a claim against the person causing
such damage and the reseller shall be subrogated to the right of
recovery by the Telephone Company for the damages to the extent of such
payment.
(B) With respect to claims of patent infringement made by third persons,
the reseller shall defend, indemnify, protect and save harmless the
Telephone Company from and against all claims arising out of the
combining with, or use in connection with, the services provided under
these terms and conditions, any circuit, apparatus, system or method
provided by the reseller or reseller's end user.
(C) The reseller shall defend, indemnify and save harmless the Telephone
Company from and against suits, claims, losses or damages including
punitive damages, attorney's fees and court cost by third persons
arising out of the construction, installation, operation, maintenance
or removal of the circuits, facilities or equipment connected to the
Telephone Company's services provided under these terms and conditions,
including, without limitation, Workmen's Compensation claims, actions
for infringement of copyright and/or unauthorized use of program
material, libel and slander actions based on the content of
communications transmitted over the reseller's circuits, facilities or
equipment, and proceedings to recover taxes, fines, or penalties for
failure of the reseller to obtain or maintain in effect any necessary
certificates, permits, licenses, or other authority to acquire or
operate the services provided under these terms and conditions;
provided, however, the foregoing indemnification shall not apply to
suits, claims, and demands to recover damages for damage to property,
death or personal injury unless such suits, claims or demands are based
on the tortious conduct of the reseller, its officers, agents or
employees.
(D) The reseller shall defend, indemnify and save harmless the Telephone
Company from and against any suits, claims, losses or damages,
including punitive damages, attorneys fees and court costs by the
customer or third parties arising out of any act or omission of the
reseller or the reseller's end user in the course of using services
provided under these terms and conditions.
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6.2 GENERAL REGULATIONS (CONT'D)
6.2.3 RESPONSIBILITY OF THE RESELLER (CONT'D)
6.2.3.2 LIABILITY (CONT'D)
(E) In case of damage, loss, theft or destruction of equipment and
facilities furnished by the Telephone Company due to negligence or
willful act of the reseller or the reseller's end user or other persons
authorized to use the service, the reseller or reseller's end user may
be required to pay the expense incurred by the Telephone Company to
replace or restore the equipment and facilities to its original
condition.
(F) The reseller assumes the responsibility for enforcement of all tariff
regulations and class of service restrictions imposed for any
particular service (e.g. prohibitions against unlawful use, damage to
Telephone Company property, distinctions between residence and
business) and any liability arising from violations thereof.
6.2.3.3 CERTIFICATIONS AND PROOF OF EXEMPTIONS
(A) Upon reasonable request the reseller shall certify to the Telephone
Company in writing that the services the reseller is purchasing under
these terms and conditions are being purchased for resale.
(B) The reseller shall provide the Telephone Company with any certificates
or other documentation that may be required under state law pertaining
to tax exemptions.
(C) The reseller shall provide to the Telephone Company any additional
information that is reasonably necessary to enable the Telephone
Company to fulfill its obligations under these terms and conditions.
6.2.3.4 REFERENCES TO THE TELEPHONE COMPANY
(A) The reseller may advise end users that certain services are provided
by the Telephone Company in connection with the service the reseller
furnishes to end users; however, the reseller shall not state, imply
or represent that the Telephone Company jointly participates in or is
part of any partnership or joint business arrangement for the
provision of services to the reseller's customers.
6.2.4 CUSTOMER NOTIFICATION AND COORDINATION
6.2.4.1 PROVISION AND OWNERSHIP OF TELEPHONE NUMBERS
(A) The Telephone Company reserves the reasonable right to assign,
designate or change telephone numbers, or any other call number
designations associated with resold service, or the Telephone Company
serving central office prefixes associated with such numbers, when
necessary in the conduct of business. Any such decisions about the
assignment, designation or change of telephone numbers or office
prefixes will be made in a nondiscriminatory manner.
(B) Should it become necessary to make a change in such number(s), the
Telephone Company will give the reseller six months notice of the
change(s), including an explanation of the reason(s) for the change(s),
by Certified U.S. Mail.
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6.2 GENERAL REGULATIONS (CONT'D)
6.2.4 CUSTOMER NOTIFICATION AND COORDINATION (CONT'D)
6.2.4.1 PROVISION AND OWNERSHIP OF TELEPHONE NUMBERS (CONT'D)
(1) In the case of emergency conditions, (e.g. a fire in a wire
center), it may be necessary to change a telephone number without six
months notice in order to provide service to the reseller.
6.3 ORDERING OF SERVICE
6.3.1 ORDERS FOR RESOLD SERVICES
6.3.1.1 GENERAL
(A) The reseller shall supply all the information reasonably necessary for
the Telephone Company to provide and bill for the requested service, to
include the reseller's end user in its directory listing service and to
otherwise fulfill its obligations under these terms and conditions
[e.g., end user name and premises location, configuration of service,
and facility interface].
(1) The reseller is responsible to submit complete and accurate orders.
Failure to do so may result in service discrepancies for which the
Telephone Company will not be responsible.
(B) If the reseller assumes the account of an existing Telephone Company
end user at the end user's existing premises, the order must identify
the end user's billing telephone number and line(s) and indicate that
the end user's existing service (or any specified modification to
and/or cancellation of the existing service) is to be transferred to
the reseller.
(1) Authorization to Assume an Account - A reseller placing an order
under which it will assume the account of an existing Telephone Company
end user customer, or the account of an existing end user customer of
another reseller, must obtain appropriate authorization from that end
user for the change of service provider. The reseller must verify and
confirm that authorization is in accordance with the laws and
provisions that govern such matters as established or may be
established in the State of New Hampshire.
(C) Resellers may not order services in a particular building or other
location where a reseller has not yet obtained end users at the time
that the reseller's order is placed with the Telephone Company.
(D) Resellers may not order service in a particular building or other
location when doing so would preclude or delay other potential
providers from offering services in that particular building or other
location.
(E) Resellers may not order service under these terms and conditions
without a reasonable basis for believing that such services will
actually be needed by the reseller to meet anticipated demand.
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6.3 ORDERING OF SERVICE (CONT'D)
6.3.1 ORDERS FOR RESOLD SERVICES(CONT'D)
6.3.1.1 GENERAL (CONT'D)
(F) The Telephone Company will not process any orders, complaints or other
requests received from the reseller's end user.
(G) Primary Interexchange Carrier (PIC) Changes-The Telephone Company will
only accept an order to change the PIC, whether interLATA or intraLATA,
for a resold Telephone Company exchange service line from the reseller.
The Telephone Company will only accept an order to freeze the PIC from
the reseller. The reseller will be responsible for all PIC change
charges.
(H) If the order is for modification or discontinuance of service, the
order shall identify the billing telephone number and telephone number
of the service and the changes desired, and any additional information
required by the Telephone Company.
6.3.1.2 AUTOMATED ORDER INTERFACE
(A) Orders for resold services and modifications to or cancellation of an
existing order must be placed by the reseller with the Telephone
Company through the appropriate automated interface established by the
Telephone Company. Such interface will facilitate the following order
processes:
1. Establishment of end user accounts
2. Assignment of telephone numbers
3. Entry of service orders into Telephone Company systems
4. Installation scheduling and negotiation with end users
5. Reservation of installation appointments
6. Entry of end user service and repair inquiries
7. Verification of the network status of an associated
telephone line in conjunction with Telephone Company
systems
8. Other processes that would facilitate the processing of
the reseller's order
(B) The Telephone Company will establish automated interface specifications
(e.g. formats) for data, delivery (transport) and network descriptions,
etc.
(1) Resellers must comply with methods, procedures and operational
guidelines in utilizing the interface specifications established by
the Telephone Company.
(2) Any use of the interface(s) by the reseller or any other party for
unauthorized purposes (e.g., access to data or to enter false
information) will be considered abuse or fraudulent use of the
interface and is prohibited. Such action may result in the Telephone
Company terminating the resellers use of the interface.
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6.3 ORDERING OF SERVICE (CONT'D)
6.3.1 ORDERS FOR RESOLD SERVICES(CONT'D)
6.3.1.2 AUTOMATED ORDER INTERFACE (CONT'D)
(C) If the Telephone Company determines or suspects that abuse or
fraudulent use of the interface has occurred, the Telephone Company
will, as required by law, refer the matter to the appropriate law
enforcement agency.
6.3.1.3 DISCLOSURE OF RESELLER INFORMATION TO OTHER RESELLERS OR TO
TELEPHONE COMPANY RETAIL MARKETING PERSONNEL
(A) General Rule - Subject to the following paragraph (B), neither
Telephone Company personnel involved in the marketing of services to
end user customers, nor other resellers, will have access to
information relating to specific orders or demand forecasts provided by
resellers under these terms and conditions.
(B) Exceptions:
(1) Paragraph (A), above, shall not prohibit the disclosure to any local
exchange carrier (including the Telephone Company or any reseller), of
the fact that a particular end user who was previously a customer of
such carrier, is no longer one of its customers.
(2) Paragraph (A), above, shall not prohibit the use by the Telephone
Company of aggregate data relating to sales to all resellers in a
particular geographic area for any legitimate business purpose of the
Telephone Company.
(3) Paragraph (A), above, shall not preclude the disclosure to Telephone
Company retail marketing personnel or to other resellers of
information pertaining to a reseller's customer where the customer
consents to and authorizes such disclosure.
(4) Paragraph (A), above, shall not prohibit attempts to sell Telephone
Company services by Telephone Company employees who have access to
information relating to specific orders placed by resellers under
these terms and conditions, so long as:
(a) the employee spends a deminimis amount of his or her time involved in
the marketing of Telephone Company services, and
(b) the employee does not utilize the reseller information in such sales
attempts.
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6.3 ORDERING OF SERVICE (Cont'd)
6.3.1 ORDERS FOR RESOLD SERVICES (Cont'd)
6.3.1.3 DISCLOSURE OF RESELLER INFORMATION TO OTHER RESELLERS OR TO
TELEPHONE COMPANY RETAIL MARKETING PERSONNEL (Cont'd)
(B) EXCEPTIONS: (Cont'd)
(5) In the case of a customer who chooses to switch his/her/its
service from a reseller to the Telephone Company, or to another
reseller, Paragraph (A) above shall not prohibit the disclosure to
Telephone Company marketing personnel, or to such other reseller,
of information necessary to enable the Telephone Company or such
other reseller to assume the account, including the customer's
service configuration and billed name and address.
(6) Paragraph (A) above shall not preclude the disclosure to
Telephone Company marketing personnel of the identity of the
reseller providing service to an end user for the purpose of
responding to a question from the end user about the
identity of his/her/its service provider.
6.3.1.4 DISCLOSURE OF CUSTOMER INFORMATION
(A) General Rule - Subject to the following paragraph (B), the
Telephone Company will not provide information on any end user
customer to a reseller without the consent and authorization of
such customer.
(B) Exceptions:
(1) If a Telephone Company end user subsequently becomes an end user
of a reseller, the Telephone Company will provide the reseller
with all information necessary to enable it to assume the end
user's account, including the customer's service configuration
and billed name and address.
(2) Paragraph (A) above shall not preclude disclosure of information
pursuant to industry-wide arrangements for the exchange of
information on end user credit histories, consistent with
Commission requirements.
6.3.1.5 EVIDENCE OF END USER CONSENT AND AUTHORIZATION
(A) Where the Telephone Company identifies that end user consent is
required for the disclosure of information, the Telephone Company will
obtain consent and appropriate authorization from the end user.
6.3.1.6 ADDITIONAL ENGINEERING AND SPECIAL CONSTRUCTION
(A) Additional charges will be applied to an order for service when the
Telephone Company determines additional engineering or special
construction is necessary to accommodate a reseller request.
(1) When it is required, the reseller will be so notified and will be
furnished with a written statement setting forth the justification
for the additional engineering and/or special construction as well as
an estimate of the charges in conjunction with the terms and
conditions specified in NHPUC. No. 77.
6.3.2 RESPONSIBILITY OF THE TELEPHONE COMPANY
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6.3.2.1 REFUSAL AND DISCONTINUANCE OF SERVICE
(A) If the reseller fails to comply with the rules and regulations of these
terms and conditions, including any payments to be made by it on the
dates and times herein specified, the Telephone Company may, on thirty
(30) days written notice by Overnight Delivery or Certified U.S. Mail
to the reseller, refuse additional applications for service and/or
refuse to complete any pending orders for service at any time
thereafter. If the Telephone Company does not refuse additional
applications for service on the date specified in the 30 days notice,
and the reseller's noncompliance continues, nothing contained herein
shall preclude the Telephone Company from refusing additional
applications for service without further notice.
(B) If the reseller fails to comply with the rules and regulations of these
terms and conditions, including any payments to be made by it on the
dates and times herein specified, the following shall occur:
(1) The Telephone Company shall notify the reseller and the Commission
in writing of the reseller's failure to pay amount(s) when due under
these terms and conditions and the reseller shall have failed to make
such payment within thirty (30) days of the giving by the Telephone
Company of such notice.
(2) The Telephone Company shall provide a second notice of non-payment
(the "Second Notice") in writing to the reseller and the Commission
following the thirty (30) day period referred to in Section
6.3.2.1(B)(1), and
(3) If by the tenth (10) day after the giving to the Commission of the
Second Notice, the Commission has not ruled that the Telephone Company
may not take termination actions, then the service shall be
discontinued. The reseller shall have the burden of proof in any such
proceeding before the Commission of establishing that the Telephone
Company is not permitted to take the termination actions.
(C) Notwithstanding the foregoing, the Telephone Company will not exercise
its rights to refuse and discontinue service as stated in
6.3.2.1(A)&(B) if the reseller submits charges to the Telephone
Company it believes in good faith were billed in error and such
charges are accepted by the Telephone Company for investigation.
6.3.2.2 DISCONTINUANCE OF SERVICE FOR CAUSE WITHOUT NOTICE
(A) The Telephone Company may discontinue service or cancel an application
for service without notice in the event the Telephone Company is
prohibited from furnishing services by order of a court or other
government authority having jurisdiction.
(B) In the event of fraudulent use of the Telephone Company's network,
including but not limited to fraudulent End User orders for transfer of
service, the Telephone Company will discontinue service without notice
and/or seek legal recourse to recover all costs involved in enforcement
of this provision.
6.3.2.3 The Telephone Company will not incur any liability if it discontinues
services or cancels an application for services for any of the reasons
contained in 6.3.2.
6.3.3 RESPONSIBILITY OF THE RESELLER
6.3.3.1 POINT OF CONTACT FOR END USERS
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(A) The reseller shall serve as the single point of contact for its end
users on such matters as billing, requests for new service, requests
for the modification or discontinuance of existing services, service
trouble reports, repair requests, complaints, etc. The reseller shall
be obligated to transmit such requests or reports to the Telephone
Company through the automated order interface to the extent reasonably
necessary to enable the Telephone Company to fulfill its obligations
under these terms and conditions.
6.3.3.2 FORECASTING OF SERVICE REQUIREMENTS
(A) To the extent reasonably necessary for the planning of Telephone Company
facilities, the reseller shall provide, upon request of the Telephone
Company, forecasts of the approximate number of units of exchange and
other services that the reseller expects to require in specific
geographic areas. Such forecasts are considered by the Telephone Company
as confidential information of the reseller and will be treated in
accordance with the provisions specified in these terms and conditions
for confidential reseller information.
6.3.3.3 REFUSAL, DISCONTINUANCE OR TRANSFER OF SERVICE
(A) Where a reseller discontinues its provision of service to all or
substantially all of its end users, whether by its own decision, as a
result of involuntary bankruptcy or for any other reason, the reseller
must send advance written notice of such discontinuance to the
Telephone Company, the NHPUC and to each of the reseller's end users.
If service to the reseller is discontinued by the Telephone Company,
the reseller must send written notice to each of its end users.
1. Such notice must advise the end users that unless they take
action to switch to a different carrier with 60 days,
provision of their service will be discontinued. Where the end
user elects a specific carrier within the 60 day period, the
relevant charges associated with the change shall be paid by
that carrier.
2. Should the end user elect to transfer service to the Telephone
Company, the Telephone Company will provide service to the end
user in accordance with the terms, conditions, rates and
charges set forth in NHPUC No. 77 and not the rates specified
herein.
(B) If a reseller end user subsequently becomes an end user of the
Telephone Company, the reseller must provide the Telephone Company with
all information necessary to enable the Telephone Company to assume the
end user's account, including the end user's service configuration and
billing name and address.
6.4 ISSUANCE, PAYMENT AND CREDITING OF RESELLER BILLS
6.4.1 RESPONSIBILITY OF THE TELEPHONE COMPANY
6.4.1.1 GENERAL
(A) The Telephone Company bills only the reseller who is considered the
customer of record who is at all times responsible for payment of the
full amount of all charges incurred. The Telephone Company will not
be required to seek payment from the reseller's end users prior to
terminating the reseller's service or pursuing any other remedies for
nonpayment by the reseller. The reseller will thus be the
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obligor of the telephone company, and not the guarantor or surety for
any of the obligations of the reseller's end user.
(1) The reseller as customer of record is responsible for any
allocation of end user charges for resold service.
(2) Regardless of whether the reseller's end user is still using
service, the reseller is responsible for charges incurred by the end
user or reseller for all services on a line until the reseller submits
an order to discontinue such service.
6.4.1.2 BILLING CONVENTION METHODS
(A) The Telephone Company shall bill all charges incurred by and credits
due to the reseller under these terms and conditions attributable to
services established or discontinued or provided during the preceding
billing period.
6.4.1.3 BILLING PERIODS
(A) The billing date of a bill for a reseller for service provided under
these terms and conditions is referred to as the bill day. The period
of service each bill covers is as follows.
(1) The Telephone Company will establish a bill day each month for each
reseller account.
(2) The bill will cover all non-usage sensitive service charges and
usage charges for the period beginning with the day following the last
bill day and extends up to and includes the current bill day. Any known
unbilled charges for prior periods and any known unbilled adjustments
will be applied to this bill.
6.4.1.4 LATE PAYMENT PENALTY
(A) If any portion of the payment is received by the Telephone Company
after the payment date (refer to Section 6.4.1.5), or if any portion of
the payment is received by the Telephone Company in funds which are not
immediately available to the Telephone Company, then a late payment
penalty shall be due to the Telephone Company.
(B) The late payment penalty shall be the portion of the payment not
received by the payment date times a late factor. The late factor shall
be the lesser of the following:
6.4 ISSUANCE, PAYMENT AND CREDITING OF RESELLER BILLS (CONT'D)
6.4.1 RESPONSIBILITY OF THE TELEPHONE COMPANY (CONT'D)
6.4.1.4 LATE PAYMENT PENALTY (CONT'D)
(1) The highest interest rate (in decimal value) which may be levied by
law for commercial transactions for the number of days from the payment
date to and including the date that the reseller actually makes the
payment to the Telephone Company, or
(2) The rate of 0.0005 per day for the number of days from the payment
date to and including the date that the reseller actually makes the
payment to the Telephone Company.
6.4.1.5 PAYMENT DATE
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(A) The payment date of bills rendered to resellers for service provided
under these terms and conditions is as follows:
(1) All bills rendered as set forth in this section are due 25 days
from the date the bill is mailed.
(2) If such payment date falls on a Sunday or on a legal holiday which
is observed on a Monday, the payment date shall be the first non holiday
day following such Sunday or legal holiday.
(3) If such payment date falls on a Saturday or on a legal holiday which
is observed on Tuesday, Wednesday, Thursday or Friday, the payment date
shall be the last non holiday day preceding such Saturday or legal
holiday.
6.4.1.6 MEDIUM OF PAYMENT
(A) Bills are payable in immediately available funds.
(1) Immediately Available Funds denotes a corporate or personal check
drawn on a bank account and funds which are available for use by the
receiving party on the same day on which they are received and include
U.S. Federal Reserve bank wire transfers, U.S. Federal Reserve notes
(paper cash), U.S. coins and U.S. Postal Money Orders.
6.4.1.7 CUSTOMER DEPOSITS
(A) The Telephone Company will, in order to safeguard its interests,
require a reseller, if the reseller has a proven history of late
payments or if the reseller's parent or holding company has a proven
history of late payments to the Telephone Company or if the reseller
does not have established credit (except for a reseller which is a
successor of a company which has established credit and the successor
has no history of late payments to the Telephone Company), to make a
deposit prior to or at any time after the provision of a service to the
reseller to be held by the Telephone Company as a guarantee of the
payment of rates and charges.
(B) Such deposit may not exceed the actual or estimated rates and charges
for the service for a two month period.
6.4 ISSUANCE, PAYMENT AND CREDITING OF RESELLER BILLS (CONT'D)
6.4.1 RESPONSIBILITY OF THE TELEPHONE COMPANY (CONT'D)
6.4.1.7 CUSTOMER DEPOSITS (CONT'D)
(C) The fact that a deposit has been made in no way relieves the reseller
from complying with the Telephone Company's regulations as to the
prompt payment of bills.
(D) At such time as the provision of the service to the reseller is
terminated, the amount of the deposit will be credited to the
reseller's account and any credit balance which may remain will
be refunded.
(E) At the option of the Telephone Company, such a deposit will be
refunded or credited to the reseller's account when the reseller has
established credit or after the reseller has established a one year
prompt payment record at any time prior to the termination of the
provision of the service to the reseller.
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(F) In the case of a cash deposit, for the period the deposit is held by the
Telephone Company, the reseller will receive interest at a rate equal to
the Prime Rate. Interest will accrue for the number of days from the
date the reseller deposit is received by the Telephone Company to and
including the date such deposit is credited to the reseller's account or
the date the deposit is refunded by the Telephone Company.
(G) Should a deposit be credited to the reseller account, as indicated
above, no interest will accrue on the deposit from the date such deposit
is credited to the reseller's account.
6.4.1.8 BILLING DISPUTE
In the event that a billing dispute occurs concerning any charges billed to
the reseller by the Telephone Company, the following regulations apply:
(A) The first day of the dispute shall be the date on which the reseller
furnishes the Telephone Company with the account number under which the bill
has been rendered, the date of the bill and the specific items on the bill
being disputed.
(B) The date of resolution shall be the date on which the Telephone Company
completes its investigation of the dispute, notifies the reseller of the
disposition and, if the billing dispute is resolved in favor of the
reseller, applies credit for the correct disputed amount, the disputed
amount penalty and/or late payment penalty as appropriate.
(C) If a billing dispute is resolved in favor of the Telephone Company, any
payments withheld pending resolution of the dispute shall be subject to the
late payment penalty (refer to Section 6.4.1.4). Further, the reseller will
not receive credit for the disputed amount of the disputed amount penalty.
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6.4 ISSUANCE, PAYMENT AND CREDITING OF RESELLER BILLS (CONT'D)
6.4.1 RESPONSIBILITY OF THE TELEPHONE COMPANY (CONT'D)
6.4.1.8 BILLING DISPUTE (CONT'D)
(D) If a reseller disputes a bill within three months of the payment date
and pays the total billed amount on or before the payment date and the
billing dispute is resolved in favor of the reseller, the reseller will
receive a credit for a disputed amount penalty from the Telephone
Company for the period starting with the date of payment and ending on
the date of resolution. The credit for a disputed amount penalty shall
be as set forth following.
(E) If a reseller disputes a bill within three months of the payment
date and pays the total billed amount after the payment date and the
billing dispute is resolved in favor of the reseller, the reseller will
receive a credit for a disputed amount penalty from the Telephone
Company for the period starting with the date of payment and ending on
the date of resolution. The late payment penalty applied to the
disputed amount resolved in the reseller's favor (refer to Section
6.4.1.4) will be credited.
(F) If a reseller disputes a bill within three months of the payment date
and does not pay the disputed amount or does not pay the billed amount
(i.e., the nondisputed and disputed amount), and the billing dispute is
resolved in favor of the reseller, the reseller will not receive a
credit for a disputed amount penalty from the Telephone Company. The
late payment penalty applied to the disputed amount resolved in the
reseller's favor (refer to Section 6.4.1.4) will be credited.
(G) If a reseller disputes a bill after three months from the payment date
and pays the total billed amount on or before the dispute date, and the
billing dispute is resolved in favor of the reseller, the reseller will
receive a credit for a disputed amount penalty from the Telephone
Company for the period starting with the date of dispute and ending on
the date of the resolution. The credit for a disputed amount penalty
shall be as set forth following. The reseller shall not receive a
credit for the late payment penalty.
(H) If a reseller disputes a bill after three months from the payment date
and does not pay the disputed amount or does not pay the billed amount
(i.e., the nondisputed amount and disputed amount) and the billing
dispute is resolved in favor of the reseller, the reseller will not
receive a credit for a disputed amount penalty from the Telephone
Company. However, if the reseller pays the disputed amount or the
billed amount after the date of dispute and before the date of
resolution, the reseller will receive a credit for a disputed amount
penalty from the Telephone Company for the period starting with the
date of payment and ending on the date of resolution as a credit for a
disputed amount penalty. The reseller will receive a credit for the
late payment penalty, if applicable, from the Telephone Company.
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6.4 ISSUANCE, PAYMENT AND CREDITING OF RESELLER BILLS (CONT'D)
6.4.1 RESPONSIBILITY OF THE TELEPHONE COMPANY (CONT'D)
6.4.1.8 BILLING DISPUTE (CONT'D)
(1) The late payment penalty credit shall be the disputed amount
resolved in the reseller's favor times a late payment penalty factor
(refer to Section 6.4.1.4) for the period starting with the date of
dispute and ending on the date of payment of the disputed amount or the
date of resolution whichever occurs first.
(2) The disputed amount penalty shall be the disputed amount resolved
in the reseller's favor times a penalty factor. The penalty factor
shall be the lesser of the following calculations.
(a) The highest interest rate in decimal value, which may be levied by
law for commercial transactions for the number of days from the first
date to and including the last date of the period involved.
(b) The rate of 0.0005 per day for the number of days from the first
date to and including the last date of the period involved.
(I) The reseller is responsible for monitoring the accuracy of the
Telephone Company's bills and for notifying the Telephone Company of
any discrepancies between such bills and the services provided by the
Telephone Company.
6.4.1.9 BILLING ADJUSTMENTS AND VERIFICATION
(A) Adjustments for the quantities of services established or discontinued
in any billing period beyond the minimum period set forth for services
in other sections of these terms and conditions will be prorated to the
number of days or major fraction of days based on a 30 day month.
(B) The Telephone Company will, upon request and if available, furnish the
reseller such detailed information as may reasonably be required for
verification of any bill.
6.4.1.10 COMPUTATION OF BILLED CHARGES
(A) When a rate as set forth in these terms and conditions is shown to more
than two decimal places, the charges will be determined using the rate
shown. The resulting amount will then be rounded to the nearest penny
(i.e., rounded to two decimal places).
6.4.1.11 COMPUTATION OF CREDIT ALLOWANCES
(A) Until Telephone Company time of day measurement capabilities are
available, credit adjustments will be computed by apportioning the
total intrastate usage associated with the honored claim into Day,
Evening and Night and Weekend periods using the time of day
distribution applicable to the reseller. The usage will then be
multiplied by the appropriate Day, Evening and Night and Weekend rates.
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6.4 ISSUANCE, PAYMENT AND CREDITING OF RESELLER BILLS (CONT'D)
6.4.2 RESPONSIBILITY OF THE CUSTOMER
6.4.2.1 TRANSFER OF END USER ACCOUNT BALANCE
(A) Should a Telephone Company end user discontinue service in order to
become an end user of a reseller, the Telephone Company will render a
final bill to such end user. Balances and/or credits in a Telephone
end user's account will not be carried over to the resellers account
with the Telephone Company.
6.4.2.2 END USER INFORMATION
(A) In order to accommodate billing and collection of end user accounts,
resellers must make the billing names and addresses of their end users
available to all telecommunication carriers.
6.5 RESALE PROVISIONS
6.5.1 DESCRIPTION
6.5.1.1 General
(A) Resale is the sale to another person of telecommunications services
purchased from the Telephone Company. A customer purchases for resale
when such customer purchases a service for the purpose of reselling it
to another (rather than the purpose of using the service itself).
(1) A purchasing agent who orders services for its principal, and who
does not itself agree to assume the obligations of a reseller under
these terms and conditions, is not purchasing for resale within the
meaning of these terms and conditions.
(2) The purchase of telecommunications services or unbundled network
elements for the purpose of provisioning a different service (such as
the purchase of the Telephone Company's switched carrier access service
for the purpose of provisioning an interexchange carrier's toll
service) is not resale within the meaning of these terms and
conditions.
(3) A person purchasing a service for shared use by that person and
others is purchasing for resale within the meaning of these terms and
conditions if such person agrees to assume all the obligations of a
reseller under these terms and conditions.
(B) Where a reseller purchases Telephone Company exchange service from the
Telephone Company and resells it to an end user, such reseller's end user will
be able to access any and all services that a Telephone Company end user
would be able to access on a Telephone Company exchange service line. Such
services to the extent provided by the Telephone Company will be deemed to
have been sold to the reseller by the Telephone Company as they are utilized
by the reseller's end user, and the reseller will be responsible to the
Telephone Company for payment of such services.
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6.5 RESALE PROVISIONS (CONT'D)
6.5.1 DESCRIPTION (CONT'D)
6.5.1.2 SERVICES OFFERED FOR RESALE
(A) The services offered under these terms and conditions are those that
are offered by the Telephone Company to end users under the
regulations, terms and conditions of NHPUC No. 77, except for public
telephone service, and in accordance with the following limitations:
(1) Service that are sold to the Telephone Company's end users only in
conjunction with the purchase of basic dial tone service will be
available for resale only in conjunction with the resale of basic dial
tone service and not on a stand alone basis.
(2) Services in NHPUC No. 77 that have been designated as no longer
available for new installations or no longer offered are not offered
for resale except that such services are only available for resale to
the embedded base of end users who were permitted to retain such
service(s) in accordance with the regulations contained in NHPUC No.
77.
(3) Promotional program offerings (e.g., discounts, waivers, credits,
certificates, premiums, discounted product trials or other inducements
that would apply to a particular end user for a period of 90 days or
less, and that are offered in order to promote the sale of a service)
are offered for resale, however they are not subject to the resale
discount specified in Section 6.10.5.3.1.
(B) Linkup America may only be resold to Linkup America eligible end users.
The reseller is responsible for confirming the eligibility of such end
users for Linkup America.
(1) The Telephone Company (to the extent that it would otherwise be
eligible), and not the reseller will be eligible for any universal
service funding resulting from the provision of Linkup America in
conjunction with these terms and conditions.
(C) Blocking - Resellers are allowed to purchase blocking services to
restrict end user access to particular capabilities to the extent such
services are available under and on the same terms and conditions as
set forth in NHPUC No. 77.
6.5.2 REGULATIONS
6.5.2.1 RESTRICTIONS
(A) CLASS OF CUSTOMER - This is a restriction contained in NHPUC No. 77
that limits the availability of a service to a particular type of
customer, such as a business customer, a residence customer, carrier,
end user, etc.
(1) Where a resold service is subject to such restriction the reseller
may not resell such service to any customer not in the relevant class.
The reseller may purchase the service for resale to a customer in the
relevant class whether or not the reseller itself is within the class.
(a) Business services may be resold to residence end users as long as
the end user is served by a business exchange line and as long as all
other services provided on
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that line are also under the business class and charged for at the
appropriate business service rates and charges.
6.5 RESALE PROVISIONS (CONT'D)
6.5.2 REGULATIONS (CONT'D)
6.5.2.1 RESTRICTIONS (CONT'D)
(2) Where a reseller resells a service to another person, and such
other person is itself a reseller rather than an end user, the reseller
purchasing from the Telephone Company must require its end users (by
tariff or by contract), to conform to any applicable class of service
restrictions for end users and all other requirements of resellers
under these terms and conditions.
(3) This class of service restriction does not pertain to resale of a
Centrex line where a residential end user is not restricted to business
service for that Centrex line. This service is subject to additional
Individual Case Basis (ICB) developmental costs and will be developed
under a mutually agreed upon time schedule, not to exceed six months
from the time the service is ordered.
(B) Aggregation of Usage - Regulations on limitations on aggregation of
traffic contained in NHPUC No. 77 are applicable.
(C) The reseller is not allowed to offer resold service to its customers
under any of the Telephone Company trademarks, service marks,
registered trademark, registered service mark or brand-names, or use
the logos of the Telephone Company or the Telephone Company's
affiliates without the expressed written authorization of the
Telephone Company.
6.5.3 APPLICATION OF RATES AND CHARGES
6.5.3.1 UNDERLYING SERVICES
(A) Discount - The rates and charges that apply for the underlying
services that are sold to a reseller in accordance with the terms and
conditions described herein, are specified in NHPUC No. 77. The
Telephone Company will discount the NHPUC No. 77 rates and charges by
applying the resale discounts specified in Section 6.10.5.3.1 of these
terms and conditions to the applicable NHPUC No. 77 rates and charges
for resold services offered under these terms and conditions in
accordance with Section 6.5.1.2.
The discount applicable to residential and business services,
contained in NHPUC No. 77, Part A, Sections 5.1 through 5.4, and the
Exchange Line portion of Services in Part H varies depending upon
whether or not the Telephone Company provides Operator Services and
Directory Assistance (OSDA).
(B) The Telephone Company reserves the right to apply a different avoided
cost discount, for services provided pursuant to Special Contract
Arrangements, as approved by the Commission.
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6.5 RESALE PROVISIONS (CONT'D)
6.5.3 APPLICATION OF RATES AND CHARGES (CONT'D)
6.5.3.2 SERVICE ESTABLISHMENT
Service establishment charges apply to recover the establishment costs
for electronic interfaces and other operational support systems (OSS).
(A) RECURRING ESTABLISHMENT CHARGES A recurring monthly charge per reseller
will be assessed during the five (5) year recovery period. This charge
provides for NYNEX region-wide access to the OSS platform.
(B) NON-RECURRING ESTABLISHMENT CHARGES Non-Recurring charge per OSS
Transaction will be assessed during the seven (7) year recovery period
for developmental costs (includes development and ongoing costs).
6.5.3.3 OTHER CHARGES
Charges to recover the ongoing costs to maintain the service center for
resellers and the electronic interface systems will be assessed against
all resellers.
(A) SERVICE CENTER MAINTENANCE CHARGE A monthly recurring charge per resold
line will be assessed to recover the cost of maintaining the service
center for resellers.
(B) ELECTRONIC INTERFACE MAINTENANCE CHARGE A Non-Recurring charge per OSS
Transaction will be assessed after the seven year recovery period for
the recovery of ongoing costs associated with maintaining the
electronic interfaces.
(C) COMPLEX ORDER CHARGE A Non-Recurring charge per Centrex line ordered
will be applied to recover the manual processing required for Centrex
lines.
6.5.3.4 SPECIAL CONTRACT PRICING
Special Contract Arrangements will be offered to the reseller on the
condition that the reseller's end-user is similarly situated, i.e. has
the same cost and market characteristics used to develop the Telephone
Company's Special Contract Arrangement.
The discounts for Special Contract Arrangements shall not be the
discounts specified in 6.10.5.3.1 but shall be an
individually-determined discount based upon the Telephone Company's
avoided cost in respect of the nature and configuration of the services
to be provided under special contract. At the request of the reseller,
the Telephone Company shall explain in a reasonably timely manner the
avoided cost calculation for special contracts.
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6.6 ALTERNATELY BILLED CALLS
An alternately billed call is any call which is billed to a number
other than the number originating the call, and includes credit card,
collect and third party calls.
The following procedures shall apply for alternately billed calls
originating or terminating over a Telephone Company line which has
been resold:
(1) In the case of a local call or an intraLATA toll call carried on
the Telephone Company's network originating from a reseller's end user
customer line that is served in a Telephone Company exchange within the
Telephone Company's serving area in the state of New Hampshire, the
Telephone Company shall record, process and rate such a call at the
Telephone Company's tariffed rates and bill and collect payment from
its customer.
(2) In the case of a local call or an intraLATA toll call carried on
the Telephone Company's network originating from a Telephone Company
end user within the Telephone Company's serving area in the state of
New Hampshire and charged to a reseller's end user customer line that
is served in a Telephone Company's exchange within the Telephone
Company's serving area in the state of New Hampshire, the Telephone
Company shall separately record and process each such call and send an
unrated record of all such calls to the reseller on a daily basis for
the reseller's billing and collections purposes. The reseller shall pay
the Telephone Company for such calls at the wholesale discount rates.
The reseller will pay any additional costs. The Telephone Company shall
bill such calls and any additional costs on a monthly basis. The
reseller shall rate the calls, bill their retail customers for such
calls and keep the revenues collected.
(3) In the case of a local call or an intraLATA toll call originating
from a reseller's end user customer line that is served in a Telephone
Company exchange within the Telephone Company's serving area in the
state of New Hampshire and charged to an out-of-region (as defined in
CATS industry process)customer of a TC, the Telephone Company shall
record, process and rate such a call and forward such information to
the TC through Centralized Message Distribution ("CMDS"). Such TC, in
turn, shall bill and collect payment from its customers and remit to
the Telephone Company the amount billed which shall be adjusted for
billing and collection costs incurred by such out-of-region carrier at
rates utilized by the industry CATS settlement process.
(4) In the case of an out-of-region local call or an intraLATA toll
call originating and terminating outside of the state of New Hampshire
and charged to a reseller's end user customer line that is served in a
Telephone Company exchange within the Telephone Company's serving area
in the state of New Hampshire, for so long as the reseller cannot
receive information and charges regarding such calls directly from the
out-of-region TC through CMDS, the Telephone Company shall, upon
receipt of such information and charges from such out-of-region TC,
retransmit such information and charges to the reseller via the daily
usage feed charging a record transmission fee. The Telephone Company
shall bill the reseller for such calls on a monthly basis at the rates
transmitted to the Telephone Company from such out-of-region TC. The
reseller shall bill and collect payment
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from its customers. The reseller shall remit to the Telephone Company
the amount billed by the Telephone Company.
6.7 RESERVED FOR FUTURE USE
6.8 OTHER SERVICES
6.8.1 CALL USAGE DETAIL
6.8.1.1 DESCRIPTION
(A) Call usage detail is available to resellers for local calls associated
with the Telephone Company's resold message rate service, and for
intraLATA toll service. Call usage data is offered as local call usage
detail or local call usage detail and intraLATA call usage detail and
is provided via transmission or tape/cartridge.
(B) Local Call Usage Detail - Provides complete call detail by retail
billing telephone number and by line, consisting of calling telephone
number, called telephone number, call date, call connect time, and call
elapsed time.
(C) IntraLATA Call Usage Detail - Provides complete call detail by retail
billing telephone number and by line consisting of calling telephone
number, called telephone number, call date, call connect time, and call
elapsed time.
6.8.1.2 REGULATIONS
(A) Responsibility of the Telephone Company
(1) The lapsed time between usage recorded by the Telephone Company and
delivery to the reseller will not exceed eight business days.
(2) The Telephone Company will store reseller usage data for 45 days
from the date of transmission to the reseller.
6.8.1.3 APPLICATION OF RATES AND CHARGES
(A) Record Processing - A per record processed charge applies.
(1) A record consists of a call with called number, call date, connect
time, and elapsed time.
(B) Data Transmission - A per record transmitted charge applies.
(C) Tape or Cartridge - Available in addition to or in place of data
transmission.
(1) When a tape or cartridge is provided in place of data
transmission, data transmission charges are not applicable and a per
tape or cartridge charge will apply. If a tape or cartridge is
requested in addition to data transmission, both the per tape or
cartridge charge and the per data transmission charge applies.
6.8.2 ELECTRONIC CUSTOMER SERVICE RECORD RETRIEVAL
6.8.2.1 DESCRIPTION
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(A) This service provides the reseller with the ability to electronically
request the customer service record of an end user. The current
customer service record will be formatted by the Telephone Company and
transmitted back to the reseller. The customer service record reflects
the most recent, completed service order activity and provides the
service and equipment billed by the Telephone Company to a Telephone
Company end user or to a reseller.
6.8.2 ELECTRONIC CUSTOMER SERVICE RECORD RETRIEVAL (CONT'D)
6.8.2.2 APPLICATION OF RATES AND CHARGES
(A) A service record retrieval charge applies to each customer service
record electronically delivered to the reseller.
(B) A reseller may request any number of electronic customer service
records, but will only be charged for the number of electronic
customer service records successfully transmitted to the reseller.
6.8.3 DIRECTORY SERVICES
6.8.3.1 DIRECTORY ASSISTANCE (DA) AND DIRECTORY LISTING SERVICES
(A) The Telephone Company will include in its published white pages
directories and in its directory assistance records, the name, address
and telephone number of the reseller's telephone exchange service
customers (one listing per end user line), in accordance with the
Telephone Company provisions relating to alphabetical listings and to
directory assistance as specified in NHPUC No. 77. Such listings will
not be provided for any lines for which the reseller purchases
nonpublished and nonlisted number service. Additional listings will be
provided under the terms and conditions set forth in NHPUC No. 77.
(B) Yellow Page Listing - Upon request of the reseller the Telephone
Company will include in its published yellow page directories a single
line, light-face (non-bold) listing for the reseller's telephone
exchange service business end user.
(C) The Telephone Company will include in the "Information Pages" or
comparable section of its white page directories, for areas served by
the reseller, the reseller's customer service telephone number which
shall be provided by the reseller.
6.8 OTHER SERVICES (CONT'D)
6.8.4 ENHANCED UNIVERSAL EMERGENCY NUMBER SERVICE E-9-1-1
(A) The Telephone Company will include the resellers telephone exchange
service customers in the relevant E-9-1-1 database(s).
(B) The Telephone Company will bill the reseller the E-9-1-1 surcharge, as
ordered by the Commission. The E-9-1-1 surcharge is not subject to the
resale discount.
6.8.5 ANNOYANCE CALL BUREAU
(A) Resellers are entitled to use the services provided by the Telephone
Company's annoyance call bureau.
6.8.6 OPERATOR SERVICES/DIRECTORY ASSISTANCE SERVICES
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6.8.6.1 At the reseller's option, the Telephone Company will re-route the
reseller's end-users' local and toll operator services and
directory assistance calls to an alternate operator services
provider. The Telephone Company will provide such re-routing
services on a first come, first served basis pursuant to a
mutually agreed-upon schedule. The schedule established will
depend upon the reseller's specific requirements, and in any
event be completed within twelve months of the request.
6.8.6.2 The rerouting of operator services and directory assistance calls
will be implemented at the Reseller's expense. The charge will be
determined on an individual case basis.
6.8.6.3 Trunks for Operator Services/Directory Assistance Routing can be
ordered in Section 5.6.1.7.
6.8.6.4 The Telephone Company may request the reseller to provide
forecasts of its anticipated use of operator services and
directory assistance routing for planning purposes.
6.8.6.5 Reseller must arrange for Operator Services/Directory Assistance
routing by submitting a Network Design Request as specified in
5.6.1.1 (D)(9).
6.8.6.6 At the reseller's option, the Telephone Company will provide
Operator Services and Directory Assistance announcement services
to the reseller when the reseller utilizes the Telephone
Company's Operator and Directory Assistance Services for the
reseller's end-users' local Operator Service and Directory
Assistance calls or local and toll Operator Services and
Directory Assistance calls, when the reseller utilizes the
Telephone Company's toll network. The reseller may choose a
branded or unbranded announcement. The Telephone Company will
provide such re-branding services on a first come, first served
basis pursuant to a mutually agreed-upon schedule. The schedule
established will depend upon the reseller's specific
requirements, and in any event be completed within twelve months
of the request.
6.8.6.7 The establishment of branding of operator services and directory
assistance call will be implemented at the Reseller's expense.
The charge will be determined on an individual case basis. The
rate, per branded announcement, is detailed in Section 5.8.7(A)
(1).
6.8.6.8 The Telephone Company may request the reseller to provide
forecasts of its anticipated use of operator services and
directory assistance branding for planning purposes.
6.9 RESERVED FOR FUTURE USE
32
<PAGE>
NEW HAMPSHIRE RESALE AGREEMENT
SECTION 6
6.10 RATES AND CHARGES
6.10.5 RESALE
<TABLE>
<CAPTION>
6.10.5.3.1 Discounts to Underlying Services
- ------------------------------------------------------------------------------------------------------
<S> <C> <C> <C>
ID Service Category Rate Element Rate
- ------------------------------------------------------------------------------------------------------
A. Discounts for all Business Services 18.78%
services except those in
6.10.5.3.1(B)
--------------------------------------------------------------
Residence Services 17.30%
- ------------------------------------------------------------------------------------------------------
B. Discounts only for Business Services 20.25%
services specified in
NHPUC No. 77, Part A,
Sections 5.1
--------------------------------------------------------------
through 5.4 and the Residence Services 19.04%
exchange line portion
of services in Part H
where the reseller
provides OSDA
<CAPTION>
- ------------------------------------------------------------------------------------------------------
6.10.5.3.2 Service Establishment Charges
- ------------------------------------------------------------------------------------------------------
<C> <C>
ID Service Category Rate Element Rate
- ------------------------------------------------------------------------------------------------------
Recurring Monthly charge per reseller during the 5 $2,483.00
Establishment Charge * year recovery period
- ------------------------------------------------------------------------------------------------------
Non-Recurring Per OSS transaction during 7 yr. period $1.15
for recovery of development costs
Establishment (included development and ongoing costs)
Charges
- ------------------------------------------------------------------------------------------------------
* This charge provides for NYNEX region-wide access to the OSS platform.
- ------------------------------------------------------------------------------------------------------
ID Service Category Rate Element Rate
- ------------------------------------------------------------------------------------------------------
<PAGE>
- ------------------------------------------------------------------------------------------------------
6.10.5.3.3 Other Charges
- ------------------------------------------------------------------------------------------------------
Service Center Monthly charge per resold line $0.21
Maintenance Charge
- ------------------------------------------------------------------------------------------------------
Electronic Interface Per OSS Transaction after the $0.39
Maintenance Charge development costs are fully recovered
(includes only ongoing costs)
- ------------------------------------------------------------------------------------------------------
Complex Order Charge Per Centrex line ordered $16.27
- ------------------------------------------------------------------------------------------------------
6.10.8 Optional Services
6.10.8.1 Call Usage Detail
ID Service Category Rate Element Rate
- ------------------------------------------------------------------------------------------------------
Record Processing Per Record Processed $0.004144
- ------------------------------------------------------------------------------------------------------
Data Transmission Per Record Transmitted $0.000118
- ------------------------------------------------------------------------------------------------------
Tape or Cartridge Per Tape or Cartridge $20.12
- ------------------------------------------------------------------------------------------------------
<CAPTION>
6.10.8.2 Electronic Customer Service Record Retrieval
- ------------------------------------------------------------------------------------------------------
<C> <C>
ID Service Category Rate Element Rate
- ------------------------------------------------------------------------------------------------------
Electronic Customer $0.12
Service Record Per Customer Record
Retrieval
<CAPTION>
6.10.8.6 Operator Services/Directory Assistance
- ------------------------------------------------------------------------------------------------------
<C> <C>
ID Service Category Rate Element Rate
- ------------------------------------------------------------------------------------------------------
Announcement
Services
- ------------------------------------------------------------------------------------------------------
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
6.10.8.6 Operator Services/Directory Assistance
<S> <C> <C>
- ------------------------------------------------------------------------------------------------------
Service Establishment per Reseller $36.52
Request for Unbranded Service
(Nonrecurring Charge)
- ------------------------------------------------------------------------------------------------------
Branding Surcharge per Call $0.05796
- ------------------------------------------------------------------------------------------------------
Service Establishment per Reseller $175.28
Request for Branded Service
(Nonrecurring Charge)
- ------------------------------------------------------------------------------------------------------
Customized Routing Service Establishment - Per rerouting ICB
request
- ------------------------------------------------------------------------------------------------------
Service Establishment - Per central office ICB
switch equipped
- ------------------------------------------------------------------------------------------------------
Per Rerouted Subscriber Line - Per month $0.045455
- ------------------------------------------------------------------------------------------------------
</TABLE>
<PAGE>
IN WITNESS WHEREOF, the parties have executed this Agreement.
ESSENTIAL.COM, INC.
BY: /s/ Akhil Garland
------------------------------------
Signature
Akhil Garland
------------------------------------
Name (Printed)
ITS: CEO
------------------------------------
Title
DATE: 4 Aug 99
------------------------------------
BY: /s/ Patrick Moran
------------------------------------
Signature
Patrick Moran
------------------------------------
Name (Printed)
ITS: Vice President-Operations
------------------------------------
Title
DATE: 4 Aug 99
------------------------------------
BY: /s/ John A. Duffy
------------------------------------
Signature
John Duffy
------------------------------------
Name (Printed)
ITS: Vice President-Business Development
------------------------------------
Title
DATE: 4 Aug 99
------------------------------------
NEW ENGLAND TELEPHONE AND TELEGRAPH COMPANY d/b/a BELL
ATLANTIC - NEW HAMPSHIRE
BY: /s/ Jeffrey A. Masoner
------------------------------------
Signature
Jeffrey A. Masoner
------------------------------------
Name (Printed)
TITLE: Vice President-Telecom Industry Services
------------------------------------
DATE: 8/17/99
------------------------------------
7
<PAGE>
APPENDIX 1, ATTACHMENT 7
QUALIFIED BUSINESS LINES FOR VOLUME COMMITMENT
NEW HAMPSHIRE
<TABLE>
<CAPTION>
<S> <C> <C> <C> <C>
- ------------------------------------------------------------------------------------------------------------------------------
ACCESS LINES
- ------------------------------------------------------------------------------------------------------------------------------
Measured Business Service 4 Element B1M ALX
- ------------------------------------------------------------------------------------------------------------------------------
Flat Business Service 1FB 1LB
- ------------------------------------------------------------------------------------------------------------------------------
Direct Inward Dial Trunks NDT ND8
- ------------------------------------------------------------------------------------------------------------------------------
PBX Trunks XMB XFB
- ------------------------------------------------------------------------------------------------------------------------------
PBX Digital trunks T2DMX T4DOX
---------------------------------------------------------------
T2DOX TDYMX
---------------------------------------------------------------
T4DMX TDYOX
- ------------------------------------------------------------------------------------------------------------------------------
PBX Analog trunks RM7 TG8 TBPCX TM7
---------------------------------------------------------------
T1V TGJTM TCX TM9
---------------------------------------------------------------
T2D1X TGQ TDD TMB
---------------------------------------------------------------
T2DCX TGZ TDY1X TMC
---------------------------------------------------------------
T3E THN TDYCX TMK
---------------------------------------------------------------
T3U THO TEPCX TMR
---------------------------------------------------------------
T3V THQ TF6 TMT
---------------------------------------------------------------
T4U THU TFB TMU
---------------------------------------------------------------
T4V THW TFC TP5CX
---------------------------------------------------------------
T4X THZ TFK TS9
---------------------------------------------------------------
T5E TJT TFQ TS90X
---------------------------------------------------------------
T5K TKG TFR TW6
---------------------------------------------------------------
T5N TKO TFT TYD
---------------------------------------------------------------
T50 TKV TFU TZQ
---------------------------------------------------------------
T86 TM2 TG2 TZZ
---------------------------------------------------------------
T87 TM3 TG7 TJB
---------------------------------------------------------------
TB2 TM5 TBB TM6
- ------------------------------------------------------------------------------------------------------------------------------
CENTREX: **
- ------------------------------------------------------------------------------------------------------------------------------
**Excludes:
1. Centrex systems priced under a special contract (ICB, FPO, LSO, Custom Pricing)
2. Centrex systems which serve multiple end user customers
- ------------------------------------------------------------------------------------------------------------------------------
Intellipath
- ------------------------------------------------------------------------------------------------------------------------------
Unlimited - DMS100 E6EJX H3KJX
- ------------------------------------------------------------------------------------------------------------------------------
Unlimited - 5ESS E6EUX H3KUX
- ------------------------------------------------------------------------------------------------------------------------------
Measured 4E - DMS100 E7QJX H7KJX
- ------------------------------------------------------------------------------------------------------------------------------
Measured 4E - 5ESS E7QUX H7JUX
- ------------------------------------------------------------------------------------------------------------------------------
Intellipath Stations/Lines
- ------------------------------------------------------------------------------------------------------------------------------
Primary Station - Principle premise R42 R3G
- ------------------------------------------------------------------------------------------------------------------------------
Primary Station - Principle premise - Fully Restricted R45 R3Q
- ------------------------------------------------------------------------------------------------------------------------------
Primary Station - other than Principle premise R43 R3P
- ------------------------------------------------------------------------------------------------------------------------------
Primary Station - other than Principle premise - Fully
Restricted R46 R3H
- ------------------------------------------------------------------------------------------------------------------------------
Intellipath II
- ------------------------------------------------------------------------------------------------------------------------------
Unlimited - DMS100 EGDJX FV7JX
- ------------------------------------------------------------------------------------------------------------------------------
Unlimited - 5ESS EGDUX FV7UX
- ------------------------------------------------------------------------------------------------------------------------------
Measured 4E- DMS100 EGQJX FVNJX
- ------------------------------------------------------------------------------------------------------------------------------
Measured 4E - 5ESS EGQUX FVNUX
- ------------------------------------------------------------------------------------------------------------------------------
Intellipath II Stations 1 lines
- ------------------------------------------------------------------------------------------------------------------------------
Primary Station - Principle premise RXR R3G
- ------------------------------------------------------------------------------------------------------------------------------
Primary Station - Principle premise - Fully Restricted RX5 R3Q
- ------------------------------------------------------------------------------------------------------------------------------
Primary Station - other than Principle premise RX3 R3P
- ------------------------------------------------------------------------------------------------------------------------------
Primary Station - other than Principle premise - Fully Restricted RX6 R3H
- ------------------------------------------------------------------------------------------------------------------------------
</TABLE>
PAGE 1 OF 1
<PAGE>
APPENDIX 1, ATTACHMENT 8
PRODUCTS AND SERVICES ELIGIBLE FOR VTD Discount
NEW HAMPSHIRE
<TABLE>
<CAPTION>
<S> <C> <C> <C> <C>
- ------------------------------------------------------------------------------------------------------------------------------------
ACCESS LINES
- ------------------------------------------------------------------------------------------------------------------------------------
Measured Business Service 4-Element B1M ALX
- ------------------------------------------------------------------------------------------------------------------------------------
Flat Business Service 1FB 1LB
- ------------------------------------------------------------------------------------------------------------------------------------
Direct Inward Dial Trunks NDT ND8
- ------------------------------------------------------------------------------------------------------------------------------------
PBX Trunks XMB XFB
- ------------------------------------------------------------------------------------------------------------------------------------
PBX Digital trunks T2DMX T4DOX
-----------------------------------------------------------------
T2DOX TDYMX
-----------------------------------------------------------------
T4DMX TDYOX
- ------------------------------------------------------------------------------------------------------------------------------------
PBX-Analog trunks RM7 TG8 TBPCX TM7
-----------------------------------------------------------------
T1V TGJTM TCX TM9
-----------------------------------------------------------------
T2D1X TGQ TDD TMB
-----------------------------------------------------------------
T2DCX TGZ TDY1X TMC
-----------------------------------------------------------------
T3E THN TDYCX TMK
-----------------------------------------------------------------
T3U THO TEPCX TMR
-----------------------------------------------------------------
T3V THQ TF6 TMT
-----------------------------------------------------------------
T4U THU TFB TMU
-----------------------------------------------------------------
T4V THW TFC TP5CX
-----------------------------------------------------------------
T4X THZ TFK TS9
-----------------------------------------------------------------
T5E TJT TFQ TS90X
-----------------------------------------------------------------
T5K TKG TFR TW6
-----------------------------------------------------------------
T5N TKO TFT TYD
-----------------------------------------------------------------
T50 TKV TFU TZQ
-----------------------------------------------------------------
T86 TM2 TG2 TZZ
-----------------------------------------------------------------
T87 TM3 TG7 TJB
-----------------------------------------------------------------
TB2 TM5 TBB TM6
- ------------------------------------------------------------------------------------------------------------------------------------
INTRA-LATA TOLL
#Must be associated with a resold VTD Qualified Business Line
- ------------------------------------------------------------------------------------------------------------------------------------
Message Rate Service N/A
- ------------------------------------------------------------------------------------------------------------------------------------
MTS, including Business Link Optional Calling Plan but OVP OV2
-----------------------------------------------------------------
excluding all other Optional Calling Plans
- ------------------------------------------------------------------------------------------------------------------------------------
FEATURES
#Must be associated with a resold VTD Qualified Business Line
- ------------------------------------------------------------------------------------------------------------------------------------
Touch Tone TTB
- ------------------------------------------------------------------------------------------------------------------------------------
Call Forwarding ESM
- ------------------------------------------------------------------------------------------------------------------------------------
Call Forwarding, Speed Calling 8 & Speed Calling 30 EZO
- ------------------------------------------------------------------------------------------------------------------------------------
Call Forwarding, Three Way Calling & Speed Calling 30 ESB
- ------------------------------------------------------------------------------------------------------------------------------------
Call Forwarding, Three Way Calling & Speed Calling 8 ESR
- ------------------------------------------------------------------------------------------------------------------------------------
Call Forwarding, Three Way Calling, Speed Calling 8 &
Speed Calling 30 EZS
- ------------------------------------------------------------------------------------------------------------------------------------
Call Waiting ESX
- ------------------------------------------------------------------------------------------------------------------------------------
Call Waiting, Call Forwarding & Speed Calling 30 ESG
- ------------------------------------------------------------------------------------------------------------------------------------
Call Waiting, Call Forwarding & Speed Calling 8 ESA
- ------------------------------------------------------------------------------------------------------------------------------------
Call Waiting, Call Forwarding & Three Way Calling ETC
- ------------------------------------------------------------------------------------------------------------------------------------
Call Waiting, Call Forwarding, Speed Calling 8 & Speed
Calling 30 EZQ
- ------------------------------------------------------------------------------------------------------------------------------------
Call Waiting, Call Forwarding, Three Way Calling & Speed
Calling 30 ES5
- ------------------------------------------------------------------------------------------------------------------------------------
Page 1 of 2
<PAGE>
- ------------------------------------------------------------------------------------------------------------------------------------
Call Waiting, Call Forwarding, Three Way Calling & Speed
Calling 8 ES3
- ------------------------------------------------------------------------------------------------------------------------------------
Call Waiting, Call Forwarding, Three Way Calling, Speed
Calling 8 & Speed Calling 30 EZT
- ------------------------------------------------------------------------------------------------------------------------------------
Call Waiting, Speed Calling 8 & Speed Calling 30 EZN
- ------------------------------------------------------------------------------------------------------------------------------------
Call Waiting, Three Way Calling & Speed Calling 30 ET3
- ------------------------------------------------------------------------------------------------------------------------------------
Call Waiting, Three Way Calling & Speed Calling 8 ET8
- ------------------------------------------------------------------------------------------------------------------------------------
Call Waiting, Three Way Calling, Speed Calling 8 &
Speed Calling 30 EZR
- ------------------------------------------------------------------------------------------------------------------------------------
Speed Calling 30 E3D
- ------------------------------------------------------------------------------------------------------------------------------------
Speed Calling 8 E8C
- ------------------------------------------------------------------------------------------------------------------------------------
Three Way Calling ESC
- ------------------------------------------------------------------------------------------------------------------------------------
Three Way Calling, Speed Calling 8 & Speed Calling 30 EZP
- ------------------------------------------------------------------------------------------------------------------------------------
Call Forwarding II CFZ GCZ E5E
- ------------------------------------------------------------------------------------------------------------------------------------
Phone Smart Services
#Must be associated with a resold VTD Qualified Business Line
- ------------------------------------------------------------------------------------------------------------------------------------
*69 NSS
- ------------------------------------------------------------------------------------------------------------------------------------
*69 (Per Activation Charge)
- ------------------------------------------------------------------------------------------------------------------------------------
*69 Denial HBS
- ------------------------------------------------------------------------------------------------------------------------------------
Call Trace Denial HBG
- ------------------------------------------------------------------------------------------------------------------------------------
Call Waiting ID NWT
- ------------------------------------------------------------------------------------------------------------------------------------
Call Waiting ID with Name N7PXA
- ------------------------------------------------------------------------------------------------------------------------------------
Call Trace (Per Activation Charge)
- ------------------------------------------------------------------------------------------------------------------------------------
Caller ID NSD
- ------------------------------------------------------------------------------------------------------------------------------------
Caller ID with Name NNK
- ------------------------------------------------------------------------------------------------------------------------------------
Caller ID Manager NWL
- ------------------------------------------------------------------------------------------------------------------------------------
Caller ID Manager with Name NNW
- ------------------------------------------------------------------------------------------------------------------------------------
Per Call Blocking
- ------------------------------------------------------------------------------------------------------------------------------------
Per Line Blocking NBJ
- ------------------------------------------------------------------------------------------------------------------------------------
Repeat Dialing NSQ
- ------------------------------------------------------------------------------------------------------------------------------------
Repeat Dialing (Per Activation Charge)
- ------------------------------------------------------------------------------------------------------------------------------------
Repeat Dialing & *69 NSP
- ------------------------------------------------------------------------------------------------------------------------------------
Repeat Dialing Denial HBQ
- ------------------------------------------------------------------------------------------------------------------------------------
</TABLE>
Page 2 of 2
<PAGE>
NEW ENGLAND TELEPHONE AND TELEGRAPH COMPANY
RESALE SERVICE AGREEMENT
This Agreement is by and between New England Telephone and Telegraph
Company ("Company") d/b/a Bell Atlantic - Maine and Essential.Com, Inc.
("Customer").
WHEREAS, the Company will offer local exchange services ("Service(s)")
for resale;
WHEREAS, the Customer is a reseller operating in the State of Maine;
WHEREAS, the Company and the Customer have negotiated in good faith for
the resale of such Services pursuant to and consistent with the
Telecommunications Act of 1996.
NOW, THEREFORE, in consideration of the mutual obligations set forth
herein, and for other good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the Company and the Customer agree
as follows:
1. RESALE ARRANGEMENT
The Company will offer telecommunications services it provides at
retail to end users in the State of Maine for resale by the Customer in
accordance with the attached Terms and Conditions -- Resale Services
contained in Attachment A. Attachment A is incorporated herein as an
integral and necessary part of the parties' agreement. Whenever
reference is made herein to the Agreement, the reference includes
Attachment A.
2. TERM OF AGREEMENT
A. The Company will file the Agreement promptly following its
execution with the Maine Public Utility Commission
("Commission") for approval pursuant to section 252 of the
Telecommunications Act of 1996. The Agreement will be
effective as of the date the resale agreement is signed by
both parties.
B. Upon execution of the Agreement by both parties, the Company
and Customer shall endeavor to jointly develop an
implementation plan for the services that Customer will
resell.
C. Each Party agrees to fully support approval of the Agreement
by the Commission without modification. The Parties, however,
reserve the right to seek regulatory relief and otherwise seek
redress from each other
1
<PAGE>
regarding performance and implementation of this Agreement. In
the event the Commission rejects this Agreement in whole or in
part, the Parties agree to meet and negotiate in good faith to
arrive at a mutually acceptable modification of the rejected
portion(s); provided that such rejected portion(s) shall not
affect the validity of the Remainder of this Agreement.
D. The Agreement is subject to change, modification, or
cancellation as may be required and mutually agreed by either
Party based on any significant change in Federal
Communications Commission or Commission rules which may impact
the provision of service under this Agreement or the rights
and obligations of the Parties under the Act.
E. Either party may terminate Agreement with 90 days written
notification to the other.
3. CHARGES
A. The Customer shall pay the Company the charges contained in
Attachment A. The Parties understand that the charges
contained in Attachment A are subject to revision by the
Commission. If the Commission issues any decision or order
which approves for any telecommunications carrier different
charges for any of the services contained in Attachment A
within six months following the effective date of this
Agreement, the Parties will true-up the charges paid under
this Agreement retroactive to the effective date of the
Agreement based upon the decision or order of the Commission.
However, if the Commission does not issue such a decision or
order within six months, the Parties agree that there will be
no true-up, and any new charges approved thereafter by the
Commission will apply to the services provided under this
Agreement as of the date of the MPUC order or decision.
B. The Recurring Monthly Service Establishment charge of $2605.55
per reseller, per month, set out at Section 6.10.5.2, shall
not be payable unless and until such charge, or any part
thereof, has been approved by the Maine Public Utilities
Commission. Subsequent to Maine Commission Approval, Customer
agrees to pay such charge, or approved part thereof on an
ongoing basis for the period specified in Attachment A. In
addition, Customer agrees to a true-up of the Service
Establishment Charge in as many monthly installments as the
number of months required for the Maine Commission to review
and approve said charge, measured from Customer's commencement
of operations.
4. PROMOTIONAL MATERIAL
The Company shall provide the Customer with a reasonable amount of
information related to the use of the services the Customer will resell
for its use in
2
<PAGE>
its marketing and product materials. The Company, in consultation with
Customer, shall determine the type, quantity, and availability of the
information to be provided to Customer. The Company shall also make
available to Customer's personnel basic training related to the use and
operation of the services. The Company shall reasonably determine the
timing and content of such training. Such training and promotional
material shall be provided to the Customer only and the Company is
under no obligation to provide any training or promotional material to
any other person or entity the Customer may engage in the sale,
provision, or use of the Services.
5. GOVERNING LAW
This Agreement shall be governed by and construed in accordance with
the laws of the State of Maine, except a provision of law which would
refer any issue to another jurisdiction.
6. ENTIRE AGREEMENT
This Agreement constitutes the entire understanding between the Parties
with respect to the subject matter hereof and supersedes all prior
understandings, oral or written representations, statements,
negotiations, proposals and undertakings in oral written form.
7. AMENDMENTS AND WAIVERS
A. This Agreement may be amended or additional provisions may be
added by written agreement signed by or on behalf of both
parties. No amendment or waiver of any provisions of this
Agreement, and no consent to any default under this Agreement,
shall be effective unless the same shall be in writing and
signed by a duly authorized representative on behalf of the
party against whom such amendment, waiver or consent is
claimed, except as otherwise provided in this Agreement
preceding. In addition, no course of dealing or failure of any
party to enforce strictly any term, right or condition of this
Agreement shall be construed as a waiver of such term, right
or condition.
B Either party's failure at any time to enforce any of the
provisions of this Agreement or any right with respect
thereto, or to exercise any option herein provided, will in no
way be construed to be a waiver of such provisions, rights, or
options or in any way to affect the validity of this
Agreement. The exercise by either party of any rights or
options under the terms herein shall not preclude or prejudice
the exercise thereafter of the same or other rights under this
Agreement.
8. ASSIGNMENT
3
<PAGE>
Neither party may assign or transfer (whether by operation of law or
otherwise) this Agreement (or any rights or obligations hereunder) to a
third party without the prior written consent of the other party which
consent shall not be unreasonably withheld; provided, however, each
party may assign this Agreement to a corporate affiliate or an entity
under its common control or an entity acquiring all or substantially
all of its assets or equity by providing prior written notice to the
other party of such assignment or transfer. Any attempted assignment or
transfer that is not permitted shall be void AB INITIO. All obligations
and duties of any party shall be binding on all successors in interest
and assigns of such party.
9. NOTICE AND DEMAND
Except as otherwise provided under this Agreement, all notices,
demands, or requests which may be given by any party to the other party
shall be in writing and shall be deemed to have been duly given on the
date delivered in person or deposited, postage prepaid, in the United
States Mail via Certified Mail or nationally recognized overnight
carrier, return receipt requested, and addressed as follows:
TO RESELLER: President
Essential.Com, Inc.
3 Burlington Woods Drive
Burlington, MA 01803
Tel: (781) 229-9599
Fax: (781) 229-9499
TO COMPANY: Account Manager - Resale Services
222 Bloomingdale Road
2nd floor
White Plains, NY 10605
cc: Bell Atlantic Corporation
General Counsel
1095 Avenue of the Americas
41st floor
New York, NY 10036
If personal delivery is selected as the method of giving notice under
this Section, a receipt of such delivery shall be obtained. The
address to which such notices, demands, requests, elections or other
communications are to be given by either party may be changed by
written notice given by such party to the other party pursuant to this
Section.
4
<PAGE>
10. THIRD-PARTY BENEFICIARIES
This Agreement shall not provide any person not a party to this
Agreement with any remedy, claim, liability, reimbursement, claim of
action or other right in excess of those existing without reference to
this Agreement.
11. FORCE MAJEURE
Neither party shall be deemed to be negligent, at fault, or otherwise
liable in any respect for any delay or failure in performance of any
part of this Agreement to the extent that such failure or delay is
caused by acts of God, acts of civil or military authority, government
regulations, embargoes, epidemics, war, terrorist acts, riots,
insurrections, fires, explosions, earthquakes, nuclear accidents,
floods, strikes, power blackouts, volcanic action, other major
environmental disturbances, unusually severe weather conditions,
inability to secure products or services of other persons or
transportation facilities, or acts or omissions of transportation
common carriers or other causes beyond the control of the party
obligated to perform. If any force majeure condition occurs, the party
delayed or unable to perform shall give immediate notice to the other
Party and shall take all reasonable steps to correct the force majeure
condition. During the pendency of the force majeure, the duties of the
parties under this Agreement affected by the force majeure condition
shall be abated and shall resume without liability thereafter.
12. CONTINGENCY
Notwithstanding any other provision of this Agreement, this Agreement
is subject to change, modification, or cancellation as may be required
by a regulatory authority or court in the exercise of its lawful
jurisdiction.
13. COMPLIANCE
Each Party shall comply with all applicable federal, state, and local
laws, rules, and regulations applicable to its performance under this
Agreement.
14. NON-EXCLUSIVE AGREEMENT
This Agreement is non-exclusive. The Company reserves the right to
extend to others the Services and rights provided for herein.
15. PUBLICITY AND USE OF TRADEMARKS OR SERVICE MARKS
Neither Party nor its subcontractors or agents will use the other
Party's trademarks, service marks, logos or other proprietary trade
dress in connection with the sale of products and services, or in any
advertising, press releases,
5
<PAGE>
publicity matters or other promotional materials without such Party's
prior written consent.
Neither Party may imply any direct or indirect affiliation with or
sponsorship or endorsement of its company, products and services by the
other Party.
16. SEVERABILITY
In the event any of the provisions of this Agreement are found to be
invalid by any administrative agency, arbitrator or court or competent
jurisdiction, the remaining provisions of this Agreement, whether
relating to similar or dissimilar subjects, shall nevertheless be
binding with the same effect as though the invalid provisions were
deleted, unless the result would be to substantially change the rights
or obligations of either party, in which event the parties shall seek
to negotiate in good faith revisions to the Agreement consistent with
their earlier intent. Failing further agreement, this Agreement shall
terminate and no party shall be liable to the other, except for
outstanding amounts due under this Agreement, including, but not
limited to, amounts due pursuant to the payment terms, the carryover
pool, and any other amounts which survive termination as stated in this
Agreement.
17. EXECUTED IN COUNTERPARTS
This Agreement may be executed in any number of counterparts, each of
which shall be an original, but such counterparts shall together
constitute but one and the same document.
18. HEADINGS
The headings in this Agreement are for convenience and shall not be
construed to define or limit any of the terms herein or affect the
meanings or interpretation of this Agreement.
19. DISCLAIMER OF REPRESENTATIONS AND WARRANTIES
EXCEPT AS EXPRESSLY PROVIDED UNDER THIS AGREEMENT, NO PARTY MAKES OR
RECEIVES ANY WARRANTY, EXPRESS OR IMPLIED, WITH RESPECT TO THE
SERVICES, FUNCTIONS AND PRODUCTS IT PROVIDES UNDER OR CONTEMPLATED BY
THIS AGREEMENT AND THE PARTIES DISCLAIM THE IMPLIED WARRANTIES OF
MERCHANTABILITY OR OF FITNESS FOR A PARTICULAR PURPOSE.
20. JOINT WORK PRODUCT
6
<PAGE>
This Agreement is the joint work product of the Parties and has been
negotiated by the Parties and their respective counsel and shall be
fairly interpreted in accordance with its terms and, in the event of
any ambiguities, no inferences shall be drawn against either party.
7
<PAGE>
IN WITNESS WHEREOF, the parties have executed this Agreement.
ESSENTIAL.COM, INC.
BY: /s/ Akhil Garland
--------------------------------------------------
Signature
Akhil Garland
--------------------------------------------------
Name (Printed)
ITS: CEO
--------------------------------------------------
Title
DATE: 4 Aug 99
--------------------------------------------------
BY: /s/ Patrick Moran
--------------------------------------------------
Signature
Patrick Moran
--------------------------------------------------
Name (Printed)
ITS: Vice President-Operations
--------------------------------------------------
Title
DATE: 4 Aug 99
--------------------------------------------------
BY: /s/ John Duffy
--------------------------------------------------
Signature
John Duffy
--------------------------------------------------
Name (Printed)
ITS: Vice President-Business Development
--------------------------------------------------
Title
DATE: 4 Aug 99
--------------------------------------------------
NEW ENGLAND TELEPHONE AND TELEGRAPH COMPANY d/b/a BELL
ATLANTIC - MAINE
BY: /s/ Jeffrey A. Masoner
--------------------------------------------------
Jeffrey A. Masoner
--------------------------------------------------
Name (Printed)
TITLE: Vice President-Telecom Industry Services
-------------------------------------------------
DATE: 8/17/99
--------------------------------------------------
8
<PAGE>
Attachment A
6.1 RESALE
6.1.1 GENERAL
6.1.1.1 TERMS AND CONDITIONS STRUCTURE
(A) The terms and conditions are divided into sections which are
structured numerically, (e.g., Section 6.1, 6.2, 6.3 etc.).
6.1.2 REFERENCING
6.1.2.1 REFERENCE TO SCHEDULES
(A) Whenever reference is made in these terms and conditions to
schedules of the Telephone Company, the reference is to the
schedules in force as of the effective date of these terms and
conditions, and to amendments thereto and successive issues
thereof. The regulations, rates and charges contained herein
are in addition to the applicable regulations, rates and
charges specified in schedules of the Telephone Company which
may be referenced.
6.1.2.2 TRADEMARKS AND SERVICE MARKS
(A) Refer to MEPUC No. 15.
6.1.3 TERMS AND CONDITIONS TERMINOLOGY
Unless otherwise defined herein, terminology contained within these
terms and conditions are as defined in MEPUC No. 15.
6.1.3.1 DEFINITIONS
END USER - Any person purchasing service for their own use rather than
for sale to another person, party or entity etc. End Users may not
purchase from these terms and conditions.
PREMISES - This term as defined in MEPUC No. 15 is a reference to the
premises at which the service is provided, and not a reference to the
reseller's premises.
RESALE - The sale to another person of telecommunications services
purchased from the Telephone Company. A person purchases for resale
when such person purchases a service for the purpose of reselling it to
another (rather than the purpose of using the service itself).
RESELLER/CUSTOMER - Any individual, partnership, association, joint
stock company, trust, corporation, governmental entity or other
entity, authorized by law to resell telecommunications services in
the state of Maine, which subscribes to the telecommunications
services offered under these terms and conditions.
TELEPHONE COMPANY - The New England Telephone and Telegraph Company.
9
<PAGE>
6.2 GENERAL REGULATIONS
In addition to the general regulations contained herein, the general
regulations specified in MEPUC No. 15 also apply.
6.2.1 APPLICATION OF TERMS AND CONDITIONS
6.2.1.1 SCOPE
(A) Regulations, rates and charges in these terms and conditions
apply to the offering of Telephone Company telecommunications
services for resale.
(B) Only a carrier authorized by law to resell telecommunications
services in the State of Maine may purchase under these terms and
conditions. These terms and conditions are not intended to enlarge,
restrict, or otherwise affect any provision of law relating to the
authority to resell telecommunications services.
(1) Resellers do not surrender any right to purchase from any of the
Telephone Company's intrastate schedules by purchasing from these terms
and conditions. However, the discounts contained herein will apply only
to purchases from these terms and conditions. Resellers purchasing
retail services from the Telephone Company's intrastate schedules will
do so through traditional retail channels, and will be billed
accordingly.
(C) In addition to the responsibilities and obligations specified in MEPUC
No. 15, the reseller must conform to any applicable rules and
regulations set forth by the Public Utilities Commission.
(D) The resale of telecommunications services and the provision
thereof by the Telephone Company as set forth in these terms and
conditions does not constitute a joint undertaking nor does it
constitute an agency, contractual or any other type of relationship
between the reseller and the Telephone Company (other than that of
purchaser and seller) or between the Telephone Company and the
reseller's end user.
(E) A reseller ordering a resold service under these terms and
conditions has all of the obligations that would be imposed under the
applicable Telephone Company schedule upon an end user who orders the
service directly from the Telephone Company. Such obligations include,
without limitation, the obligation to pay for the service, whether or
not the reseller is being paid by its own customers. The rate charged
for such service, when sold to a reseller under these terms and
conditions, is to be determined in accordance with rates and charges
specified in these terms and conditions. However, services that are
sold to the Telephone Company end users only in conjunction with the
purchase of basic dial tone service will be available for resale only
in conjunction with the resale of basic dial tone service and not on a
stand alone basis.
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6.2 GENERAL REGULATIONS (CONT'D)
6.2.2 RESPONSIBILITY OF THE TELEPHONE COMPANY
6.2.2.1 PROVISION OF SERVICE
(A) The Telephone Company's obligation to furnish service, or to
continue to furnish service, is dependent on its ability to
obtain without charge, danger or undue difficulty access to
the premises where the service is to be provided (where
such access is necessary for the provision of service).
(1) Should a reseller's end user request that a Telephone
Company technician prove his/her identity as an employee of
the Telephone Company before the end user will permit access
to their premises, the technician's Telephone Company
identification badge or the Bell Atlantic registered
trademark/servicemark (logo) that is visibly displayed on the
technician's service vehicle will be evidence of such proof.
If the Telephone Company misses the scheduled service
appointment as a result of the reseller's end user's refusal
to permit access to the Telephone Company technician, neither
the reseller nor the reseller's end user will be entitled to
any waivers of charges for missed service appointments that
may be offered by the Telephone Company under service
guarantee programs that are associated with the service being
provided.
(B) The Telephone Company reserves the right to refuse an
application for service made by, or for the benefit of, a
reseller who is indebted to the Telephone Company for
telephone service previously furnished.
(1) In the event that service is connected for a reseller who
is indebted to the Telephone Company for service previously
furnished to such reseller, the Telephone Company will notify
the reseller in writing via Certified U.S. Mail, that the
service will be terminated by the Telephone Company unless the
reseller satisfies the indebtedness within 10 days of the date
of the reseller's receipt of such notification.
(C) The services offered under the provisions of these terms and
conditions are subject to the availability of facilities,
including switching capacity, and necessary operational
support systems.
(1) If existing facilities will not enable the Telephone
Company to meet all outstanding service orders, such orders
will be handled in accordance with reasonable priority rules
that do not unreasonably discriminate between resellers
purchasing under these terms and conditions and end user
customers of the Telephone Company.
(D) Resold services offered by the Telephone Company are at least
technically equivalent to the corresponding service offerings
that the Telephone Company provides to its own end users
provided that the reseller complies with the regulations
contained in these terms and conditions.
11
<PAGE>
6.2 GENERAL REGULATIONS (CONT'D)
6.2.2 RESPONSIBILITY OF THE TELEPHONE COMPANY (CONT'D)
6.2.2.1 PROVISION OF SERVICE (CONT'D)
(E) The Telephone Company will provide service (including the
installation and repair thereof) to resellers at levels that
meet the capabilities, functions and performance levels
available to Telephone Company similarly situated end users
providing that the reseller complies with the regulations
contained in these terms and conditions.
(1) Telephone Company personnel dispatched to a reseller's end
user premises for purposes of installation or repair will not
accept requests on behalf of the reseller for new or modified
service beyond that requested by the reseller.
(F) To the extent the provision of repair and installation
services under these terms and conditions entails the
appearance by Telephone Company personnel at the premises of a
reseller's end user, the uniforms worn by such personnel, and
the vehicles and other equipment that they use, may be marked
in the conventional manner with the Telephone Company's name,
trademarks, service marks, and logos.
6.2.2.2 INTERRUPTION OF SERVICE
(A) Allowances for interruption of service are available to
resellers to the extent and under the same circumstances as
they would be available to Telephone Company end users under
MEPUC No. 15.
6.2.3 RESPONSIBILITY OF THE RESELLER
6.2.3.1 RESELLER NOTIFICATION AND COORDINATION
(A) Unless otherwise specified herein, whenever customer
notification is required, the Telephone Company is responsible
for providing notice only to the reseller who is the customer
of record.
(1) The reseller, and not the Telephone Company is responsible
for providing any notices, bill inserts or other information
as may be required to the reseller's end users.
(2) The Telephone Company will not provide resellers with
advance notice of its intent to offer a new retail service (or
to modify an existing retail service) except to the extent
that public notice of certain tariff changes is required by
the regulation or orders of the Public Utilities Commission or
other applicable law.
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6.2 GENERAL REGULATIONS (CONT'D)
6.2.3 RESPONSIBILITY OF THE RESELLER (CONT'D)
6.2.3.2 LIABILITY
(A) The reseller shall reimburse the Telephone Company for damages
to Telephone Company facilities utilized to provide services
under these terms and conditions caused by negligence or
willful act of the reseller or the reseller's end user or
resulting from the reseller's or reseller's end user's
improper use of the Telephone Company facilities, or due to
malfunction of any facilities or equipment provided by other
than the Telephone Company. Nothing in the foregoing provision
shall be interpreted to hold one reseller liable for another
reseller's actions. The Telephone Company will, upon
reimbursement for damages, cooperate with the reseller in
prosecuting a claim against the person causing such damage and
the reseller shall be subrogated to the right of recovery by
the Telephone Company for the damages to the extent of such
payment.
(B) With respect to claims of patent infringement made by third
persons, the reseller shall defend, indemnify, protect and
save harmless the Telephone Company from and against all
claims arising out of the combining with, or use in connection
with, the services provided under these terms and conditions,
any circuit, apparatus, system or method provided by the
reseller or reseller's end user.
(C) The reseller shall defend, indemnify and save harmless the
Telephone Company from and against suits, claims, losses or
damages including punitive damages, attorney's fees and court
cost by third persons arising out of the construction,
installation, operation, maintenance or removal of the
circuits, facilities or equipment connected to the Telephone
Company's services provided under these terms and conditions,
including, without limitation, Workmen's Compensation claims,
actions for infringement of copyright and / or unauthorized
use of program material, libel and slander actions based on
the content of communications transmitted over the reseller's
circuits, facilities or equipment, and proceedings to recover
taxes, fines, or penalties for failure of the reseller to
obtain or maintain in effect any necessary certificates,
permits, licenses, or other authority to acquire or operate
the services provided under these terms and conditions;
provided, however, the foregoing indemnification shall not
apply to suits, claims, and demands to recover damages for
damage to property, death or personal injury unless such
suits, claims or demands are based on the tortious conduct of
the reseller, its officers, agents or employees.
(D) The reseller shall defend, indemnify and save harmless the
Telephone Company from and against any suits, claims, losses
or damages, including punitive damages, attorneys fees and
court costs by the customer or third parties arising out of
any act or omission of the reseller or the reseller's end user
in the course of using services provided under these terms and
conditions.
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<PAGE>
6.2 GENERAL REGULATIONS (CONT'D)
6.2.3 RESPONSIBILITY OF THE RESELLER (CONT'D)
6.2.3.2 LIABILITY (CONT'D)
(E) In case of damage, loss, theft or destruction of equipment and
facilities furnished by the Telephone Company due to
negligence or willful act of the reseller or the reseller's
end user or other persons authorized to use the service, the
reseller or reseller's end user may be required to pay the
expense incurred by the Telephone Company to replace or
restore the equipment and facilities to its original
condition.
(F) The reseller assumes the responsibility for enforcement of all
tariff regulations and class of service restrictions imposed
for any particular service (e.g. prohibitions against unlawful
use, damage to Telephone Company property, distinctions
between residence and business) and any liability arising from
violations thereof.
6.2.3.3 CERTIFICATIONS AND PROOF OF EXEMPTIONS
(A) Upon reasonable request, the reseller shall certify to the
Telephone Company in writing that the services the reseller is
purchasing under these terms and conditions are being
purchased for resale.
(B) The reseller shall provide the Telephone Company with any
certificates or other documentation that may be required under
state law pertaining to tax exemptions.
(C) The reseller shall provide to the Telephone Company any
additional information that is reasonably necessary to enable
the Telephone Company to fulfill its obligations under these
terms and conditions.
6.2.3.4 REFERENCES TO THE TELEPHONE COMPANY
(A) The reseller may advise end users that certain services are
provided by the Telephone Company in connection with the
service the reseller furnishes to end users; however, the
reseller shall not state, imply or represent that the
Telephone Company jointly participates in or is part of any
partnership or joint business arrangement for the provision of
services to the reseller's customers.
6.2.4 CUSTOMER NOTIFICATION AND COORDINATION
6.2.4.1 PROVISION AND OWNERSHIP OF TELEPHONE NUMBERS
(A) The Telephone Company reserves the reasonable right to assign,
designate or change telephone numbers, or any other call
number designations associated with resold service, or the
Telephone Company serving central office prefixes associated
with such numbers, when necessary in the conduct of business.
any such decisions about the assignment, designation or change
of telephone numbers or office prefixes will be made in a
nondiscriminatory manner.
(B) Should it become necessary to make a change in such number(s),
the Telephone Company will give the reseller six months notice
of the change(s), including an explanation of the reason(s)
for the change(s), by Certified U.S. Mail.
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<PAGE>
6.2 GENERAL REGULATIONS (CONT'D)
6.2.4 CUSTOMER NOTIFICATION AND COORDINATION (CONT'D)
6.2.4.1 PROVISION AND OWNERSHIP OF TELEPHONE NUMBERS (CONT'D)
(1) In the case of emergency conditions, (e.g. a fire in a wire
center), it may be necessary to change a telephone number without six
months notice in order to provide service to the reseller.
6.3 ORDERING OF SERVICE
6.3.1 ORDERS FOR RESOLD SERVICES
6.3.1.1 GENERAL
(A) The reseller shall supply all the information reasonably
necessary for the Telephone Company to provide and bill for
the requested service, to include the reseller's end user in
its directory listing service and to otherwise fulfill its
obligations under these terms and conditions [e.g., end user
name and premises location, configuration of service, and
facility interface].
(1) The reseller is responsible to submit complete and
accurate orders. Failure to do so may result in service
discrepancies for which the Telephone Company will not be
responsible.
(B) If the reseller assumes the account of an existing Telephone
Company end user at the end user's existing premises, the
order must identify the end user's billing telephone number
and line(s) and indicate that the end user's existing service
(or any specified modification to and/or cancellation of the
existing service) is to be transferred to the reseller.
(1) Authorization to Assume an Account - A reseller placing an
order under which it will assume the account of an existing
Telephone Company end user customer, or the account of an
existing end user customer of another reseller, must obtain
appropriate authorization from that end user for the change of
service provider. The reseller must verify and confirm that
authorization is in accordance with the laws and provisions
that govern such matters as established or may be established
in the State of Maine.
(C) Resellers may not order services in a particular building or
other location where a reseller has not yet obtained end users
at the time that the reseller's order is placed with the
Telephone Company.
(D) Resellers may not order service in a particular building or
other location when doing so would preclude or delay other
potential providers from offering services in that particular
building or other location.
(E) Resellers may not order service under these terms and
conditions without a reasonable basis for believing that such
services will actually be needed by the reseller to meet
anticipated demand.
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<PAGE>
6.3 ORDERING OF SERVICE (CONT'D)
6.3.1 ORDERS FOR RESOLD SERVICES(CONT'D)
6.3.1.1 GENERAL (CONT'D)
(F) The Telephone- Company will not process any orders, complaints
or other requests received from the reseller's end user.
(G) Primary Interexchange Carrier (PIC) Changes- The Telephone
Company will only accept an order to change the PIC, whether
interLATA or intraLATA, for a resold Telephone Company
exchange service line from the reseller. The Telephone Company
will only accept an order to freeze the PIC from the reseller.
The reseller will be responsible for all PIC change charges.
(H) If the order is for modification or discontinuance of service,
the order shall identify the billing telephone number and
telephone number of the service and the changes desired, and
any additional information required by the Telephone Company.
6.3.1.2 AUTOMATED ORDER INTERFACE
(A) Orders for resold services and modifications to or
cancellation of an existing order must be placed by the
reseller with the Telephone Company through the appropriate
automated interface established by the Telephone Company. Such
interface will facilitate the following order processes:
1. Establishment of end user accounts
2. Assignment of telephone numbers
3. Entry of service orders into Telephone Company
systems
4. Installation scheduling and negotiation with end
users
5. Reservation of installation appointments
6. Entry of end user service and repair inquiries
7. Verification of the network status of an
associated telephone line in conjunction with
Telephone Company systems
8. Other processes that would facilitate the
processing of the reseller's order
(B) The Telephone Company will establish automated interface
specifications (e.g. formats) for data, delivery (transport)
and network descriptions, etc.
(1) Resellers must comply with methods, procedures and
operational guidelines in utilizing the interface
specifications established by the Telephone Company.
(2) Any use of the interface(s) by the reseller or any other
party for unauthorized purposes (e.g., access to data or to
enter false information) will be considered abuse or
fraudulent use of the interface and is prohibited. Such action
may result in the Telephone Company terminating the resellers
use of the interface.
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<PAGE>
6.3 ORDERING OF SERVICE (CONT'D)
6.3.1 ORDERS FOR RESOLD SERVICES(CONT'D)
6.3.1.2 AUTOMATED ORDER INTERFACE (CONT'D)
(C) If the Telephone Company determines or suspects that abuse or
fraudulent use of the interface has occurred, the Telephone
Company will, as required by law, refer the matter to the
appropriate law enforcement agency.
6.3.1.3 DISCLOSURE OF RESELLER INFORMATION TO OTHER RESELLERS OR TO TELEPHONE
COMPANY RETAIL MARKETING PERSONNEL
(A) General Rule - Subject to the following paragraph (B), neither
Telephone Company personnel involved in the marketing of
services to end user customers, nor other resellers, will have
access to information relating to specific orders or demand
forecasts provided by resellers under these terms and
conditions.
(B) Exceptions:
(1) Paragraph (A), above, shall not prohibit the disclosure to
any local exchange carrier (including the Telephone Company or
any reseller), of the fact that a particular end user who was
previously a customer of such carrier, is no longer one of its
customers.
(2) Paragraph (A), above, shall not prohibit the use by the
Telephone Company of aggregate data relating to sales to all
resellers in a particular geographic area for any
legitimate business purpose of the Telephone Company.
(3) Paragraph (A), above, shall not preclude the disclosure to
Telephone Company retail marketing personnel or to other
resellers of information pertaining to a reseller's customer
where the customer consents to and authorizes such disclosure.
(4) Paragraph (A), above, shall not prohibit attempts to sell
Telephone Company services by Telephone Company employees who
have access to information relating to specific orders placed
by resellers under these terms and conditions, so long as:
(a) the employee spends a deminimis amount of his or her time
involved in the marketing of Telephone Company services, and
(b) the employee does not utilize the reseller information in
such sales attempts.
(5) In the case of a customer who chooses to switch his/her/its
service from a reseller to the Telephone Company, or to
another reseller, Paragraph (A) above shall not prohibit the
disclosure to Telephone Company marketing personnel, or to
such other reseller, of information necessary to enable the
Telephone Company or such other reseller to assume the
account, including the customer's service configuration and
Billed Name and Address.
(6) Paragraph (A) above shall not preclude the disclosure to
Telephone Company marketing personnel of the identity of the
reseller providing service to an end user for the purpose of
responding to a question from the end user about the identity
of his/her/its service provider.
6.3. ORDERING OF SERVICE (CONT'D)
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<PAGE>
6.3.1 ORDERS FOR RESOLD SERVICE (CONT'D)
6.3.1.4 DISCLOSURE OF CUSTOMER INFORMATION
(A) General Rule - Subject to the following paragraph (B), the
Telephone Company will not provide information on any end user
customer to a reseller without the consent and authorization
of such customer.
(B) Exceptions:
(1) If a Telephone Company end user subsequently becomes an
end user of a reseller, the Telephone Company will provide the
reseller with all information necessary to enable it to assume
the end user's account, including the customer's service
configuration and Billed Name and Address.
(2) Paragraph (A) above shall not preclude disclosure of
information pursuant to industry-wide arrangements for the
exchange of information on end user credit histories,
consistent with Commission requirements.
6.3.1.5 EVIDENCE OF END USER CONSENT AND AUTHORIZATION
(A) Where the Telephone Company identifies that end user consent
is required for the disclosure of information, the Telephone
Company will obtain consent and appropriate authorization.
6.3.1.6 ADDITIONAL ENGINEERING AND SPECIAL CONSTRUCTION
(A) Additional charges will be applied to an order for service
when the Telephone Company determines additional engineering
or special construction is necessary to accommodate a reseller
request
(1) When it is required, the reseller will be so notified and
will be furnished with a written statement setting forth the
justification for the additional engineering and/or special
construction as well as an estimate of the charges in
conjunction with the terms and conditions specified in MEPUC
No.15.
6.3.2 RESPONSIBILITY OF THE TELEPHONE COMPANY
6.3.2.1 REFUSAL AND DISCONTINUANCE OF SERVICE
(A) If the reseller fails to comply with the rules and regulations
of these terms and conditions, including any payments to be
made by it on the dates and times herein specified, the
Telephone Company may, on thirty (30) days written notice by
Overnight Delivery or Certified U.S. Mail to the reseller,
refuse additional applications for service and/or refuse to
complete any pending orders for service at any time
thereafter. If the Telephone Company does not refuse
additional applications for service on the date specified in
the 30 days notice, and the reseller's noncompliance
continues, nothing contained herein shall preclude the
Telephone Company from refusing additional applications for
service without further notice.
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6.3. ORDERING OF SERVICE (CONT'D)
6.3.2 RESPONSIBILITY OF THE TELEPHONE COMPANY (CONT'D)
6.3.2.1 REFUSAL AND DISCONTINUANCE OF SERVICE (CONT'D)
(B) If the reseller fails to comply with the rules and regulations
of these terms and conditions, including any payments to be
made by it on the dates and times herein specified, the
following shall occur:
(1)The Telephone Company shall notify the reseller and the
Commission in writing of the reseller's failure to pay
amount(s) when due under these terms and conditions and the
reseller shall have failed to make such payment within thirty
(30) days of the giving by the Telephone Company of such
notice.
(2) The Telephone Company shall provide a second notice of
non-payment (the "Second Notice") in writing to the reseller
and the Commission following the thirty (30) day period
referred to in Section 6.3.2.1.(B)(1), and
(3) If by the tenth (10) day after the giving to the
Commission of the Second Notice, the Commission has not ruled
that the Telephone Company may not take termination actions,
then the service shall be discontinued. The reseller shall
have the burden of proof in any such proceeding before the
Commission of establishing that the Telephone Company is not
permitted to take the termination actions.
(C) Notwithstanding the foregoing, the Telephone Company will not
exercise its rights to refuse and discontinue service as
stated in 6.3.2.1 (A)(B) if the reseller submits charges to
the Telephone Company it believes in good faith were billed in
error and such charges are accepted by the Telephone Company
for investigation.
6.3.2.2 DISCONTINUANCE OF SERVICE FOR CAUSE WITHOUT NOTICE
(A) The Telephone Company may discontinue service or cancel an
application for service without notice in the event the
Telephone Company is prohibited from furnishing services by
order of a court or other government authority having
jurisdiction.
(B) In the event of fraudulent use of the Telephone Company's
network, including but not limited to fraudulent End User
orders for transfer of service, the Telephone Company will
discontinue service without notice and/or seek legal recourse
to recover all costs involved in enforcement of this
provision.
6.3.2.3 The Telephone Company will not incur any liability if it discontinues
services or cancels an application for services for any of the reasons
contained in 6.3.2.
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6.3. ORDERING OF SERVICE (CONT'D)
6.3.3 RESPONSIBILITY OF THE RESELLER
6.3.3.1 POINT OF CONTACT FOR END USERS
(A) The reseller shall serve as the single point of contact for
its end users on such matters as billing, requests for new
service, requests for the modification or discontinuance of
existing services, service trouble reports, repair requests,
complaints, etc. The reseller shall be obligated to transmit
such requests or reports to the Telephone Company through the
automated order interface to the extent reasonably necessary
to enable the Telephone Company to fulfill its obligations
under these terms and conditions.
6.3.3.2 FORECASTING OF SERVICE REQUIREMENTS
(A) To the extent reasonably necessary for the planning of
Telephone Company facilities, the reseller shall provide, upon
request of the Telephone Company, forecasts of the approximate
number of units of exchange and other services that the
reseller expects to require in specific geographic areas. Such
forecasts are considered by the Telephone Company as
confidential information of the reseller and will be treated
in accordance with the provisions specified in these terms and
conditions for confidential reseller information.
6.3.3.3 REFUSAL, DISCONTINUANCE OR TRANSFER OF SERVICE
(A) Where a reseller discontinues its provision of service to all
or substantially all of its end users, whether by its own
decision, as a result of involuntary bankruptcy or for any
other reason, the reseller must send advance written notice of
such discontinuance to the Telephone Company, the MEPUC and to
each of the reseller's end users. If service to the reseller
is discontinued by the Telephone Company, the reseller must
send written notice to each of its end users.
1. Such notice must advise the end users that unless
they take action to switch to a different carrier
with 15 days, provision of their service will be
discontinued. Where the end user elects a specific
carrier within the 15 day period, the relevant
charges associated with the change shall be paid by
that carrier.
2. Should the end user elect to transfer service to the
Telephone Company, the Telephone Company will provide
service to the end user in accordance with the terms,
conditions, rates and charges set forth in MEPUC No.
15 and not the rates specified herein.
(B) If a reseller end user subsequently becomes an end user of the
Telephone Company, the reseller must provide the Telephone
Company with all information necessary to enable the Telephone
Company to assume the end user's account, including the end
user's service configuration and billing name and address.
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6.4 ISSUANCE, PAYMENT AND CREDITING OF RESELLER BILLS
6.4.1 RESPONSIBILITY OF THE TELEPHONE COMPANY
6.4.1.1 GENERAL
(A) The Telephone Company bills only the reseller who is
considered the customer of record who is at all times
responsible for payment of the full amount of all charges
incurred. The Telephone Company will not be required to seek
payment from the reseller's end users prior to terminating the
reseller's service or pursuing any other remedies for
nonpayment by the reseller. The reseller will thus be the
obligor of the Telephone Company, and not the guarantor or
surety for any of the obligations of the reseller's end user.
(1) The reseller, as customer of record, is responsible for
any allocation of end user charges for resold service.
(2) Regardless of whether the reseller's end user is still
using service, the reseller is responsible for charges
incurred by the end user or reseller for all services on a
line until the reseller submits an order to discontinue such
service.
6.4.1.2 BILLING CONVENTION METHODS
(A) The Telephone Company shall bill all charges incurred by and
credits due to the reseller under these terms and conditions
attributable to services established or discontinued or
provided during the preceding billing period.
6.4.1.3 BILLING PERIODS
(A) The billing date of a bill for a reseller for service provided
under these terms and conditions is referred to as the bill
day. The period of service each bill covers is as follows.
(1) The Telephone Company will establish a bill day each month
for each reseller account.
(2) The bill will cover all non-usage sensitive service
charges and usage charges for the period beginning with the
day following the last bill day and extends up to and includes
the current bill day. Any known unbilled charges for prior
periods and any known unbilled adjustments will be applied to
this bill.
6.4.1.4 LATE PAYMENT PENALTY
(A) If any portion of the payment is received by the Telephone
Company after the payment date (refer to Section 6.4.1.5), or
if any portion of the payment is received by the Telephone
Company in funds which are not immediately available to the
Telephone Company, then a late payment penalty shall be due to
the Telephone Company.
(B) The late payment penalty shall be the portion of the payment
not received by the payment date times a late factor. The late
factor shall be the lesser of the following.
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6.4 ISSUANCE, PAYMENT AND CREDITING OF RESELLER BILLS (CONT'D)
6.4.1 RESPONSIBILITY OF THE TELEPHONE COMPANY (CONT'D)
6.4.1.4 LATE PAYMENT PENALTY (CONT'D)
(1)The rate of interest on reseller late payment penalties
shall be set by the MEPUC in accordance with Chapter 870 of
the MEPUC Rules and Regulations, or
(2) The rate of 0.0005 per day for the number of days from the
payment date to and including the date that the reseller
actually makes the payment to the Telephone Company.
6.4.1.5 PAYMENT DATE
(A) The payment date of bills rendered to resellers for service
provided under these terms and conditions is as follows:
(1) All bills rendered as set forth in this section are due
twenty-five (25) days from the date the bill is mailed.
(2) If such payment date falls on a Sunday or on a legal
holiday which is observed on a Monday, the payment date
shall be the first non holiday day following such Sunday or
legal holiday.
(3) If such payment date falls on a Saturday or on a legal
holiday which is observed on Tuesday, Wednesday, Thursday or
Friday, the payment date shall be the last non holiday day
preceding such Saturday or legal holiday.
6.4.1.6 MEDIUM OF PAYMENT
(A) Bills are payable in immediately available funds.
(1) Immediately Available Funds denotes a corporate or
personal check drawn on a bank account and funds which are
available for use by the receiving party on the same day on
which they are received and include U.S. Federal Reserve bank
wire transfers, U.S. Federal Reserve notes (paper cash), U.S.
coins and U.S. Postal Money Orders.
6.4.1.7 CUSTOMER DEPOSITS
(A) The Telephone Company will, in order to safeguard its
interests, require a reseller, if the reseller has a proven
history of late payments or if the reseller's parent or
holding company has a proven history of late payments to the
Telephone Company or if the reseller does not have established
credit (except for a reseller which is a successor of a
company which has established credit and the successor has no
history of late payments to the Telephone Company), to make a
deposit prior to or at any time after the provision of a
service to the reseller to be held by the Telephone Company as
a guarantee of the payment of rates and charges.
(B) Such deposit may not exceed the actual or estimated rates and
charges for the service for a two month period.
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6.4 ISSUANCE, PAYMENT AND CREDITING OF RESELLER BILLS (CONT'D)
6.4.1 RESPONSIBILITY OF THE TELEPHONE COMPANY (CONT'D)
6.4.1.7 CUSTOMER DEPOSITS (CONT'D)
(C) The fact that a deposit has been made in no way relieves the
reseller from complying with the Telephone Company's
regulations as to the prompt payment of bills.
(D) At such time as the provision of the service to the reseller
is terminated, the amount of the deposit will be credited to
the reseller's account and any credit balance which may remain
will be refunded.
(E) At the option of the Telephone Company, such a deposit will be
refunded or credited to the reseller's account when the
reseller has established credit or after the reseller has
established a one year prompt payment record at any time prior
to the termination of the provision of the service to the
reseller.
(F) In the case of a cash deposit, for the period the deposit is
held by the Telephone Company, the reseller will receive
interest. The rate of interest on reseller deposits shall be
set by the MEPUC in accordance with Chapter 870 of the MEPUC
Rules and Regulations. Interest will accrue for the number of
days from the date the reseller deposit is received by the
Telephone Company to and including the date such deposit is
credited to the reseller's account or the date the deposit is
refunded by the Telephone Company.
(G) Should a deposit be credited to the reseller account, as
indicated above, no interest will accrue on the deposit from
the date such deposit is credited to the reseller's account.
6.4.1.8 BILLING DISPUTE
In the event that a billing dispute occurs concerning any charges
billed to the reseller by the Telephone Company, the following
regulations apply:
(A) The first day of the dispute shall be the date on which the
reseller furnishes the Telephone Company with the account
number under which the bill has been rendered, the date of the
bill and the specific items on the bill being disputed.
(B) The date of resolution shall be the date on which the
Telephone Company completes its investigation of the dispute,
notifies the reseller of the disposition and, if the billing
dispute is resolved in favor of the reseller, applies credit
for the correct disputed amount, the disputed amount penalty
and/or late payment penalty as appropriate.
(C) If a billing dispute is resolved in favor of the Telephone
Company, any payments withheld pending resolution of the
dispute shall be subject to the late payment penalty (refer to
section 6.4.1.4). Further, the reseller will not receive
credit for the disputed amount of the disputed amount penalty.
23
<PAGE>
6.4 ISSUANCE, PAYMENT AND CREDITING OF RESELLER BILLS (CONT'D)
6.4.1 RESPONSIBILITY OF THE TELEPHONE COMPANY (CONT'D)
6.4.1.8 BILLING DISPUTE (CONT'D)
(D) If a reseller disputes a bill within three months of the
payment date and pays the total billed amount on or before the
payment date and the billing dispute is resolved in favor of
the reseller, the reseller will receive a credit for a
disputed amount penalty from the Telephone Company for the
period starting with the date of payment and ending on the
date of resolution. The credit for a disputed amount penalty
shall be as set forth following.
(E) If a reseller disputes a bill within three months of the
payment date and pays the total billed amount after the
payment date and the billing dispute is resolved in favor of
the reseller, the reseller will receive a credit for a
disputed amount penalty from the Telephone Company for the
period starting with the date of payment and ending on the
date of resolution. The late payment penalty applied to the
disputed amount resolved in the reseller's favor (refer to
Section 6.4.1.4) will be credited.
(F) If a reseller disputes a bill within three months of the
payment date and does not pay the disputed amount or does not
pay the billed amount (i.e., the nondisputed and disputed
amount), and the billing dispute is resolved in favor of the
reseller, the reseller will not receive a credit for a
disputed amount penalty from the Telephone Company. The late
payment penalty applied to the disputed amount resolved in the
reseller's favor (refer to Section 6.4.1.4) will be credited.
(G) If a reseller disputes a bill after three months from the
payment date and pays the total billed amount on or before the
dispute date, and the billing dispute is resolved in favor of
the reseller, the reseller will receive a credit for a
disputed amount penalty from the Telephone Company for the
period starting with the date of dispute and ending on the
date of the resolution. The credit for a disputed amount
penalty shall be as set forth following. The reseller shall
not receive a credit for the late payment penalty.
(H) If a reseller disputes a bill after three months from the
payment date and does not pay the disputed amount or does not
pay the billed amount (i.e., the nondisputed amount and
disputed amount) and the billing dispute is resolved in favor
of the reseller, the reseller will not receive a credit for a
disputed amount penalty from the Telephone Company. However,
if the reseller pays the disputed amount or the billed amount
after the date of dispute and before the date of resolution,
the reseller will receive a credit for a disputed amount
penalty from the Telephone Company for the period starting
with the date of payment and ending on the date of resolution
as a credit for a disputed amount penalty. The reseller will
receive a credit for the late payment penalty, if applicable,
from the Telephone Company.
24
<PAGE>
6.4 ISSUANCE, PAYMENT AND CREDITING OF RESELLER BILLS (CONT'D)
6.4.1 RESPONSIBILITY OF THE TELEPHONE COMPANY (CONT'D)
6.4.1.8 BILLING DISPUTE (CONT'D)
(1) The late payment penalty credit shall be the disputed
amount resolved in the reseller's favor times a late payment
penalty factor (refer to Section 6.4.1.4) for the period
starting with the date of dispute and ending on the date of
payment of the disputed amount or the date of resolution
whichever occurs first.
(2) The disputed amount penalty shall be the disputed amount
resolved in the reseller's favor times a penalty factor. The
penalty factor shall be the lesser of the following
calculations:
(a) The rate of interest on reseller late payment penalties
shall be set by the MEPUC in accordance with Chapter 870 of
the MEPUC Rules and Regulations, or
(b) The rate of 0.0005 per day for the number of days from the
first date to and including the last date of the period
involved.
(I) The reseller is responsible for monitoring the accuracy of the
Telephone Company's bills and for notifying the Telephone
Company of any discrepancies between such bills and the
services provided by the Telephone Company.
6.4.1.9 BILLING ADJUSTMENTS AND VERIFICATION
(A) Adjustments for the quantities of services established or
discontinued in any billing period beyond the minimum period
set forth for services in other sections of these terms and
conditions will be prorated to the number of days or major
fraction of days based on a 30 day month.
(B) The Telephone Company will, upon request and if available,
furnish the reseller such detailed information as may
reasonably be required for verification of any bill.
6.4.1.10 COMPUTATION OF BILLED CHARGES
(A) When a rate as set forth in these terms and conditions is
shown to more than two decimal places, the charges will be
determined using the rate shown. The resulting amount will
then be rounded to the nearest penny (i.e., rounded to two
decimal places).
6.4.1.11 COMPUTATION OF CREDIT ALLOWANCES
(A) Where credit adjustments apply, credit adjustments will be
computed by apportioning the total intrastate usage associated
with the honored claim into Day, Evening and Night and weekend
periods using the time of day distribution applicable to the
reseller. The usage will then be multiplied by the appropriate
Day, Evening and Night and Weekend rates.
25
<PAGE>
6.4 ISSUANCE, PAYMENT AND CREDITING OF RESELLER BILLS (CONT'D)
6.4.2 RESPONSIBILITY OF THE CUSTOMER
6.4.2.1 TRANSFER OF END USER ACCOUNT BALANCE
(A) Should a Telephone Company end user discontinue service in
order to become an end user of a reseller, the Telephone
Company will render a final bill to such end user. Balances
and/or credits in a Telephone end user's account will not be
carried over to the resellers account with the Telephone
Company.
6.4.2.2 END USER INFORMATION
(A) In order to accommodate billing and collection of end user
accounts, resellers must make the billing names and addresses
of their end users available to all telecommunication
carriers.
6.5 RESALE PROVISIONS
6.5.1 DESCRIPTION
6.5.1.1 GENERAL
(A) Resale is the sale to another person of telecommunications
services purchased from the Telephone Company. A customer
purchases for resale when such customer purchases a service
for the purpose of reselling it to another (rather than the
purpose of using the service itself).
(1) A purchasing agent who orders services for its principal,
and who does not itself agree to assume the obligations of a
reseller under these terms and conditions, is not purchasing
for resale within the meaning of these terms and conditions.
(2) The purchase of telecommunications services or unbundled
network elements for the purpose of provisioning a different
service (such as the purchase of the Telephone Company's
switched carrier access service for the purpose of
provisioning an interexchange carrier's toll service) is not
resale within the meaning of these terms and conditions.
(B) Where a reseller purchases Telephone Company exchange service
from the Telephone Company and resells it to an end user, such
reseller's end user will be able to access any and all
services that a Telephone Company end user would be able to
access on a Telephone Company exchange service line. Such
services to the extent provided by the Telephone Company will
be deemed to have been sold to the reseller by the Telephone
Company as they are utilized by the reseller's end user, and
the reseller will be responsible to the Telephone Company for
payment of such services. Telephone Company practices
applicable to the imposition of charges for Information
Provider services, where the Telephone Company bills and
collects for the relevant Information Provider, will apply to
resellers to the same extent as they apply to the Telephone
Company's end users.
26
<PAGE>
6.5 RESALE PROVISIONS (CONT'D)
6.5.1 DESCRIPTION (CONT'D)
6.5.1.2 SERVICES OFFERED FOR RESALE
(A) The services offered under these terms and conditions are
those that are offered by the Telephone Company to end users
under the regulations, terms and conditions of MEPUC No. 15,
except for public telephone service, and in accordance with
the following limitations:
(1) Service that are sold to the Telephone Company's end users
only in conjunction with the purchase of basic dial tone
service will be available for resale only in conjunction with
the resale of basic dial tone service and not on a stand alone
basis.
(2) Services in MEPUC No. 15 that have been designated as no
longer available for new installations or no longer offered
are not offered for resale except that such services are only
available for resale to the embedded base of end users who
were permitted to retain such service(s) in accordance with
the regulations contained in MEPUC No. 15.
(3) Promotional program offerings (e.g., discounts, waivers,
credits, certificates, premiums, discounted product trials or
other inducements that would apply to a particular end user
for a period of 90 days or less, and that are offered in order
to promote the sale of a service) are offered for resale,
however they are not subject to the resale discount specified
in Section 6.10.5.3.1.
(B) Lifeline may only be resold to Lifeline eligible end users.
The reseller is responsible for confirming the eligibility of
such end users for Lifeline. In addition, the reseller must
perform the Annual Deletion Process as required by the MEPUC.
(1) The Telephone Company (to the extent that it would
otherwise be eligible), and not the reseller will be eligible
for any universal service funding resulting from the
provision of Lifeline in conjunction with these terms and
conditions.
(C) Blocking - Resellers are allowed to purchase blocking services
to restrict end user access to particular capabilities to the
extent such services are available under and on the same terms
and conditions as set forth in MEPUC No. 15.
6.5.2 REGULATIONS
6.5.2.1 RESTRICTIONS
(A) CLASS OF CUSTOMER - This is a restriction contained in MEPUC
No. 15 that limits the availability of a service to a
particular type of customer, such as a business customer, a
residence customer, carrier, end user, etc.
(1) Where a resold service is subject to such restriction the
reseller may not resell such service to any customer not in
the relevant class. The reseller may purchase the service for
resale to a customer in the relevant class whether or not the
reseller itself is within the class.
27
<PAGE>
6.5 RESALE PROVISIONS (CONT'D)
6.5.2 REGULATIONS (CONT'D)
6.5.2.1 RESTRICTIONS (CONT'D)
(a) Business services may be resold to residence end users as
long as the end user is served by a business exchange line and
as long as all other services provided on that line are also
under the business class and charged for at the appropriate
business service rates and charges.
(2) Where a reseller resells a service to another person, and
such other person is itself a reseller rather than an end
user, the reseller purchasing from the Telephone Company must
require its end users (by tariff or by contract), to conform
to any applicable class of service restrictions for end users
and all other requirements of resellers under these terms and
conditions.
(B) Volume Discounts -The reseller may receive a volume discount
when its end users would have qualified for a volume discount
under the provisions contained in MEPUC No. 15.
(C) The reseller is not allowed to offer resold service to its
customers under any of the Telephone Company trademarks,
service marks, registered trademark, registered service mark
or brand-names, or use the logos of the Telephone Company or
the Telephone Company's affiliates without the expressed
written authorization of the Telephone Company.
6.5.3 APPLICATION OF RATES AND CHARGES
6.5.3.1 UNDERLYING SERVICES
(A) DISCOUNT - The rates and charges that apply for the underlying
services that are sold to a reseller in accordance with the
terms and conditions described herein, are specified in MEPUC
No. 15. The Telephone Company will discount the MEPUC No. 15
rates and charges by applying the resale discounts specified
in Section 6.10.5.3.1 of these terms and conditions to the
applicable MEPUC No. 15 rates and charges for resold
services offered under these terms and conditions in
accordance with Section 6.5.1.2.
The discount applicable to residential and business services,
contained in MEPUC No. 15, Part A, Sections 5.1, 5.2 and 5.4,
and the Exchange Line portion of Services in Part H varies
depending upon whether or not the Telephone Company provides
Operator Services and Directory Assistance (OSDA).
(1) Public Access Line service and Public Access Smart Line
service purchased for use by the reseller or any of its
affiliates who are independent payphone providers are not
subject to the wholesale discount and therefore, retail rates
apply. In all other cases, Public Access Line service and
Public Access Smart Line service are available for resale at
the wholesale discounted rates.
(B) The Telephone Company reserves the right to apply a different
avoided cost discount, for services provided pursuant to
Special Contract Arrangements, as approved by the Commission.
6.5 RESALE PROVISIONS (CONT'D)
28
<PAGE>
6.5.3 APPLICATION OF RATES AND CHARGES (CONT'D)
6.5.3.2 SERVICE ESTABLISHMENT
Service establishment charges apply to recover the
establishment costs for electronic interfaces and other
support systems (OSS).
(A) RECURRING ESTABLISHMENT CHARGES A recurring monthly charge per
reseller will be assessed during the five (5) year recovery
period. This charge provides for NYNEX region-wide access to
the OSS platform.
(B) NON-RECURRING ESTABLISHMENT CHARGES A Non-Recurring charge
per OSS Transaction will be assessed during the five (5) year
recovery period for developmental costs (includes development
and ongoing costs).
6.5.3.3 OTHER CHARGES
Charges to recover the ongoing costs to maintain the service
center for resellers and the electronic interface systems will
be assessed against all resellers.
(A) SERVICE CENTER MAINTENANCE CHARGE A monthly recurring charge
per resold line will be assessed to recover the cost of
maintaining the service center for resellers.
(B) ELECTRONIC INTERFACE MAINTENANCE CHARGE A Non-Recurring charge
per OSS Transaction will be assessed after the five year
recovery period for the recovery of ongoing costs associated
with maintaining the electronic interfaces.
(C) COMPLEX ORDER CHARGE A Non-Recurring charge per Centrex line
ordered will be applied to recover the manual processing
required for Centrex lines.
6.5.3.4 SPECIAL CONTRACT PRICING
Services that the Telephone Company provides to end users on a
customer specific special contract basis under MEPUC No. 15
will be made available for resale.
The discounts for Special Contract Arrangements shall not be
the discounts specified in 6.10.5.3.1 but shall be an
individually-determined discount based upon the Telephone
Company's avoided cost in respect of the nature and
configuration of the services to be provided under special
contract. At the request of the reseller, the Telephone
Company shall explain in a reasonably timely manner the
avoided cost calculation for special contracts.
29
<PAGE>
6.6 ALTERNATELY BILLED CALLS
An alternately billed call is any call which is billed to a number
other than the number originating the call, and includes credit card,
collect and third party calls.
The following procedures shall apply for alternately billed calls
originating or terminating over a Telephone Company line which has been
resold:
(1) In the case of a local call or an intraLATA toll call carried on the
Telephone Company's network originating from a reseller's end user
customer line that is served in a Telephone Company exchange within the
Telephone Company's serving area in the state of Maine, the Telephone
Company shall record, process and rate such a call at the Telephone
Company's tariffed rates and bill and collect payment from its
customer.
(2) In the case of a local call or an intraLATA toll call carried on the
Telephone Company's network originating from a Telephone Company end
user within the Telephone Company's serving area in the state of Maine
and charged to a reseller's end user customer line that is served in a
Telephone Company's exchange within the Telephone Company's serving
area in the state of Maine, the Telephone Company shall separately
record and process each such call and send an unrated record of all
such calls to the reseller on a daily basis for the reseller's billing
and collections purposes. The reseller shall pay the Telephone Company
for such calls at the wholesale discount rates. The reseller will pay
any additional costs. The Telephone Company shall bill such calls and
any additional costs on a monthly basis. The reseller shall rate the
calls, bill their retail customers for such calls and keep the revenues
collected.
(3) In the case of a local call or an intraLATA toll call originating
from a reseller's end user customer line that is served in a Telephone
Company exchange within the Telephone Company's serving area in the
state of Maine and charged to an out-of-region (as defined in the CATS
industry process) customer of a TC, the Telephone Company shall record,
process and rate such a call and forward such information to the TC
through Centralized Message Distribution ("CMDS"). Such TC, in turn,
shall bill and collect payment from its customers and remit to the
Telephone Company the amount billed which shall be adjusted for billing
and collection costs incurred by such out-of-region carrier at rates
utilized by the industry CATS settlement process.
(4) In the case of an out-of-region local call or an intraLATA toll call
originating and terminating outside of the state of Maine and charged
to a reseller's end user customer line that is served in a Telephone
Company exchange within the Telephone Company's serving area in the
state of Maine, for so long as the reseller cannot receive information
and charges regarding such calls directly from the out-of-region TC
through CMDS, the Telephone Company shall, upon receipt of such
information and charges from such out-of-region TC, retransmit such
information and charges to the reseller via the daily usage feed
charging a record transmission fee. The Telephone Company shall bill
the reseller for such
6.6 ALTERNATELY BILLED CALLS (CONT'D)
30
<PAGE>
calls on a monthly basis at the rates transmitted to the Telephone
Company from such out-of-region TC. The reseller shall bill and collect
payment from its customers. The reseller shall remit to the Telephone
Company the amount billed by the Telephone Company.
6.7 RESERVED FOR FUTURE USE
6.8 OTHER SERVICES
6.8.1 CALL USAGE DETAIL
6.8.1.1 DESCRIPTION
(A) Call usage detail is available to resellers for intraLATA toll
service. Call usage data is offered as intraLATA call usage
detail and is provided via transmission or tape/cartridge.
(B) IntraLATA Toll Call Usage Detail - Provides complete call
detail by retail billing telephone number and by line
consisting of calling telephone number, called telephone
number, call date, call connect time, and call elapsed time.
6.8.1.2 REGULATIONS
(A) Responsibility of the Telephone Company
(1) The lapsed time between usage recorded by the Telephone
Company and delivery to the reseller will not exceed eight
business days.
(2) The Telephone Company will store reseller usage data for
45 days from the date of transmission to the reseller.
6.8.1.3 APPLICATION OF RATES AND CHARGES
(A) Record Processing - A per record processed charge applies.
(1) A record consists of a call with called number, call date,
connect time, and elapsed time.
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<PAGE>
6.8 OTHER SERVICES (CONT'D)
6.8.1 CALL USAGE DETAIL (CONT'D)
6.8.1.3 APPLICATION OF RATES AND CHARGES (CONT'D)
(B) Data Transmission - A per record transmitted charge applies.
(C) Tape or Cartridge - Available in addition to or in place of
data transmission.
(1) When a tape or cartridge is provided in place of data
transmission, data transmission charges are not applicable and
a per tape or cartridge charge will apply. If a tape or
cartridge is requested in addition to data transmission, both
the per tape or cartridge charge and the per data transmission
charge applies.
6.8.2 ELECTRONIC CUSTOMER SERVICE RECORD RETRIEVAL
6.8.2.1 DESCRIPTION
(A) This service provides the reseller with the ability to
electronically request the customer service record of an end
user. The current customer service record will be formatted by
the Telephone Company and transmitted back to the reseller.
The customer service record reflects the most recent,
completed service order activity and provides the service and
equipment billed by the Telephone Company to a Telephone
Company end user or to a reseller.
6.8.2.2 APPLICATION OF RATES AND CHARGES
(A) A service record retrieval charge applies to each customer
service record electronically delivered to the reseller.
(B) A reseller may request any number of electronic customer
service records, but will only be charged for the number of
electronic customer service records successfully transmitted
to the reseller.
6.8.3 DIRECTORY SERVICES
6.8.3.1 Directory ASSISTANCE (DA) AND DIRECTORY LISTING SERVICES
(A) The Telephone Company will include in its published white
pages directories and in its directory assistance records, the
name, address and telephone number of the reseller's telephone
exchange service customers (one listing per end user line), in
accordance with the Telephone Company provisions relating to
alphabetical listings and to directory assistance as specified
in MEPUC No.15. Such listings will not be provided for any
lines for which the reseller purchases nonpublished and
nonlisted number service. Additional listings will be provided
under the terms and conditions set forth in MEPUC No.15.
(B) Yellow Page Listing - Upon request of the reseller the
Telephone Company will include in its published yellow page
directories a single line, light-face (non-bold) listing for
the reseller's telephone exchange service business end user.
(C) The Telephone Company will include in the "Information Pages"
or comparable section of its white page directories, for areas
served by the reseller, the reseller's customer service
telephone number which shall be provided by the reseller.
6.8 OTHER SERVICES (CONT'D)
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<PAGE>
6.8.4 ENHANCED UNIVERSAL EMERGENCY NUMBER SERVICE E-9-1-1
(A) If and when available, the Telephone Company will include the
reseller's telephone exchange service customers in the
relevant E-9-1-1 database(s).
(B) The Telephone Company will bill the reseller the E-9-1-1
surcharge, as ordered by the Commission. The E-9-1-1 surcharge
is not subject to the resale discount.
6.8.5 ANNOYANCE CALL BUREAU
(A) Resellers are entitled to use the services provided by the
Telephone Company's annoyance call bureau.
6.8.6 OPERATOR SERVICES/DIRECTORY ASSISTANCE SERVICE
6.8.6.1 At the reseller's option, the Telephone Company will re-route
the reseller's end-users' local and toll operator services and
directory assistance calls to an alternate operator services
provider. The Telephone Company will provide such re-routing
services on a first come, first served basis pursuant to a
mutually agreed-upon schedule. The schedule established will
depend upon the reseller's specific requirements, and in any
event be completed within twelve months of the request.
6.8.6.2 The rerouting of operator services and directory assistance
calls will be implemented at the Reseller's expense. The
charge will be determined on an individual case basis.
6.8.6.3 Trunks for Operator Services/Directory Assistance Routing can
be ordered in Section. 5.6.1.7.
6.8.6.4 The Telephone Company may request the reseller to provide
forecasts of its anticipated use of operator services and
directory assistance routing for planning purposes.
6.8.6.5 Resellers, must arrange for Operator Services/Directory
Assistance routing by submitting a Network Design Request as
specified in 5.6.1.1(D)(9).
6.8.6.6 At the reseller's option, the Telephone Company will provide
Operator Services and Directory Assistance announcement
services to the reseller when the reseller utilizes the
Telephone Company's Operator and Directory Assistance Services
for the reseller's end-users' local and toll Operator Services
and Directory Assistance calls. The reseller may choose a
branded or unbranded announcement. The Telephone Company will
provide such rebranding services on a first come, first served
basis pursuant to a mutually agreed-upon schedule. The
schedule established will depend upon the reseller's specific
requirements, after January 1, 1998, and in any event be
completed within twelve months of the request
6.8-6.7 The establishment of branding of operator services and
directory assistance call will be implemented at the
Reseller's expense. The charge will be determined on an
individual case basis. The rate, per branded announcement, is
detailed in Section 5.8.7(A)(1).
6.8-6.8 The Telephone Company may request the reseller to provide
forecasts of its anticipated use of operator services and
directory assistance branding for planning purposes.
33
<PAGE>
6.9 RESERVED FOR FUTURE USE
34
<PAGE>
MAINE RESALE AGREEMENT
SECTION 6.10
6.10 RATES AND CHARGES
6.10.5 RESALE
6.10.5.3.1 Discounts to Underlying Services
<TABLE>
<CAPTION>
- ------------------------------------------------------------------------------
ID Service Category Rate Element Rate
- ------- -------------------------- ---------------------------- --------------
<S> <C> <C> <C>
A. Discounts for all Business Services 23.76%
services except
those in
6.10.5.3.1(B)
---------------------------- --------------
Residence Services 19.80%
- ------- -------------------------- ---------------------------- --------------
B. Discounts only for Business Services 25.74%
services specified in
MEPUC No. 15,
Part A, Sections 5.1
---------------------------- --------------
5.2 and 5.4 and the Residence Services 23.03%
exchange line
portion of services
in Part H where the
reseller provides
OSDA
- ------- -------------------------- ---------------------------- --------------
</TABLE>
1
<PAGE>
6.10.5.3.2 Service Establishment Charges
<TABLE>
<CAPTION>
- --------------------------------------------------------------------------------
ID Service Category Rate Element Rate
- ------- ---------------------- --------------------------------------- ---------
<S> <C> <C> <C>
Recurring Monthly charge per reseller during $2606.00
Establishment the 5 year recovery period
Charge*
- ------- ---------------------- --------------------------------------- ---------
Non-Recurring Per OSS transaction during 7 yr. $ 1.25
Establishment period for recovery of development
Charges costs (included development and
ongoing costs)
- ------- ---------------------- --------------------------------------- ---------
</TABLE>
*This charge provides for NYNEX region-wide access to the OSS platform.
6.10.5.3.3 Other Charges
<TABLE>
<CAPTION>
- -------------------------------------------------------------------------------
ID Service Category Rate Element Rate
- ----- ----------------------- ----------------------------------- ----------
<S> <C> <C> <C>
Service Center Monthly charge per resold line $ 0.21
Maintenance
Charge
- ----- ----------------------- ----------------------------------- ----------
Electronic Interface Per OSS Transaction after the $ 0.41
Maintenance development costs are fully
Charge recovered (includes only ongoing
costs)
- ----- ----------------------- ----------------------------------- ----------
Complex Order Per Centrex line ordered $16.27
Charge
- ----- ----------------------- ----------------------------------- ----------
</TABLE>
2
<PAGE>
6.10.8 Optional Services
6.10.8.1 Call Usage Detail
<TABLE>
<CAPTION>
- -------------------------------------------------------------------------
ID Service Category Rate Element Rate
- -------- -------------------- -------------------------- -------------
<S> <C> <C> <C>
Record Processing Per Record Processed $ 0.004096
- -------- -------------------- -------------------------- -------------
Data Transmission Per Record Transmitted $ 0.000118
- -------- -------------------- -------------------------- -------------
Tape or Cartridge Per Tape or Cartridge $ 20.12
- -------- -------------------- -------------------------- -------------
</TABLE>
6.10.8.2 Electronic Customer Serivce Record Retrieval
<TABLE>
<CAPTION>
- --------------------------------------------------------------------
ID Service Category Rate Element Rate
- -------- --------------------- ----------------------- ----------
<S> <C> <C> <C>
Electronic $ 0.14
Customer Service Per Customer Record
Record Retrieval
- -------- --------------------- ----------------------- ----------
</TABLE>
6.10.8.6 Operator Services/Directory Assistance Services
<TABLE>
<CAPTION>
- ------------------------------------------------------------------------------
ID Service Category Rate Element Rate
- -------- --------------------- ------------------------------ -------------
<S> <C> <C> <C>
Establishment of ICB
Branding Nonrecurring Establishment
Charge
- -------- --------------------- ------------------------------ -------------
Branded Branding Surcharge per Call $ 0.064471
Announcement
Charge
- -------- --------------------- ------------------------------ -------------
</TABLE>
3
<PAGE>
APPENDIX 1, ATTACHMENT 5
Qualified Business Lines for Volume Commitment
MAINE
<TABLE>
<CAPTION>
- ------------------------------------------------------------------------------------------------------------------------------------
ACCESS LINES
- ------------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Unlimited Service (Premium) 1FB 1LB
- ------------------------------------------------------------------------------------------------------------------------------------
Unlimited Service (Economy) 1EF ADO
- ------------------------------------------------------------------------------------------------------------------------------------
Direct Inward Dial Trunks ND8 NDT
- ------------------------------------------------------------------------------------------------------------------------------------
PBX Trunks XMB XMB
- ------------------------------------------------------------------------------------------------------------------------------------
PBX Digital trunks T2DMX T4DOX
-----------------------------------------------------------------
T2DOX TDYMX
-----------------------------------------------------------------
T4DMX TDYOX
- ------------------------------------------------------------------------------------------------------------------------------------
PBX Analog trunks RM7 TG8 TBPCX TM7
-----------------------------------------------------------------
T1V TGJTM TCX TM9
-----------------------------------------------------------------
T2DIX TGQ TDD TMB
-----------------------------------------------------------------
T2DCX TGZ TDY1X TMC
-----------------------------------------------------------------
T3E THN TDYCX TMK
-----------------------------------------------------------------
T3U THO TEPCX TMR
-----------------------------------------------------------------
T3V THQ TF6 TMT
-----------------------------------------------------------------
T4U THU TFB TMU
-----------------------------------------------------------------
T4V THW TFC TP5CX
-----------------------------------------------------------------
T4X THZ TFK TS9
-----------------------------------------------------------------
T5E TJT TFQ TS90X
-----------------------------------------------------------------
T5K TKG TFR TW6
-----------------------------------------------------------------
T5N TKO TFT TYD
-----------------------------------------------------------------
T5O TKV TFU TZQ
-----------------------------------------------------------------
T86 TM2 TG2 TZZ
-----------------------------------------------------------------
T87 TM3 TG7 TJB
-----------------------------------------------------------------
TB2 TM5 TBB TM6
- ------------------------------------------------------------------------------------------------------------------------------------
CENTREX:**
- ------------------------------------------------------------------------------------------------------------------------------------
** Excludes:
1. Centrex systems priced under a special contract (ICB, FPO, LSO, Custom Pricing)
2. Centrex systems which serve multiple end user customers
- ------------------------------------------------------------------------------------------------------------------------------------
Intellipath
- ------------------------------------------------------------------------------------------------------------------------------------
Unlimited -DMSIOO E6EJX
- ------------------------------------------------------------------------------------------------------------------------------------
Unlimited - 5ESS E6EUX
- ------------------------------------------------------------------------------------------------------------------------------------
Intellipath Stations / Lines
- ------------------------------------------------------------------------------------------------------------------------------------
Primary Station - Principle premise R42
- ------------------------------------------------------------------------------------------------------------------------------------
Primary Station - Principle premise - Fully Restricted R45
- ------------------------------------------------------------------------------------------------------------------------------------
Primary Station - other than Principle premise R43
- ------------------------------------------------------------------------------------------------------------------------------------
Primary Station - other than Principle premise - Fully R46
Restricted
- ------------------------------------------------------------------------------------------------------------------------------------
</TABLE>
PAGE 1 OF 1
<PAGE>
APPENDIX 1, ATTACHMENT 6
PRODUCTS AND SERVICES ELIGIBLE FOR VTD DISCOUNT
Maine
<TABLE>
<CAPTION>
- ------------------------------------------------------------------------------------------------------------------------------------
ACCESS LINES
- ------------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Measured Business Service 1EF ADQ
- ------------------------------------------------------------------------------------------------------------------------------------
Flat Business Service 1FB 1LB
- ------------------------------------------------------------------------------------------------------------------------------------
Direct Inward Dial Trunks ND8 NDT
- ------------------------------------------------------------------------------------------------------------------------------------
PBX Trunks XMB XMB
- ------------------------------------------------------------------------------------------------------------------------------------
PBX Digital trunks T2DMX T4DOX
------------------------------------------------------------------
T2DOX TDYMX
------------------------------------------------------------------
T4DMX TDYOX
- ------------------------------------------------------------------------------------------------------------------------------------
PBX Analog trunks RM7 TG8 TBPCX TM7
------------------------------------------------------------------
T1V TGJTM TCX TM9
------------------------------------------------------------------
T2D1X TGQ TDD TMB
------------------------------------------------------------------
T2DCX TGZ TDYIX TMC
------------------------------------------------------------------
T3E THN TDYCX TMK
------------------------------------------------------------------
T3U THO TEPCX TMR
------------------------------------------------------------------
T3V THQ TF6 TMT
------------------------------------------------------------------
T4U THU TFB TMU
------------------------------------------------------------------
T4V THW TFC TP5CX
------------------------------------------------------------------
T4X THZ TFK TS9
------------------------------------------------------------------
T5E TJT TFQ TS90X
------------------------------------------------------------------
T5K TKG TFIR TW6
------------------------------------------------------------------
T5N TKO TFT TYD
------------------------------------------------------------------
T5O TKV TFU TZQ
------------------------------------------------------------------
T86 TM2 TG2 TZZ
------------------------------------------------------------------
T87 TM3 TG7 TJB
------------------------------------------------------------------
TB2 TM5 TBB TM6
- ------------------------------------------------------------------------------------------------------------------------------------
INTRA-LATA TOLL
*Must be associated with a resold VTD Qualified Business Line
- ------------------------------------------------------------------------------------------------------------------------------------
Message Rate Service N/A
- ------------------------------------------------------------------------------------------------------------------------------------
MTS, including Business Link Optional Calling Plan but OFL
excluding all other Optional Calling Plans
- ------------------------------------------------------------------------------------------------------------------------------------
FEATURES
*Must be associated with a resold VTD Qualified Business Line
- ------------------------------------------------------------------------------------------------------------------------------------
Touch Tone TTB
- ------------------------------------------------------------------------------------------------------------------------------------
Call Forwarding ESM
- ------------------------------------------------------------------------------------------------------------------------------------
Call Forwarding, Speed Calling 8 & Speed Calling 30 EZO
- ------------------------------------------------------------------------------------------------------------------------------------
Call Forwarding, Three Way Calling & Speed Calling 30 ESB
- ------------------------------------------------------------------------------------------------------------------------------------
Call Forwarding, Three Way Calling & Speed Calling 8 ESR
- ------------------------------------------------------------------------------------------------------------------------------------
Call Forwarding, Three Way Calling, Speed Calling 8 & US
Speed Calling 30
- ------------------------------------------------------------------------------------------------------------------------------------
Call Waiting ESX
- ------------------------------------------------------------------------------------------------------------------------------------
Call Waiting, Call Forwarding & Speed Calling 30 ESG
- ------------------------------------------------------------------------------------------------------------------------------------
Call Waiting, Call Forwarding & Speed Calling 8 ESA
- ------------------------------------------------------------------------------------------------------------------------------------
Call Waiting, Call Forwarding & Three Way Calling ETC
- ------------------------------------------------------------------------------------------------------------------------------------
Call Waiting, Call Forwarding, Speed Calling 8 & Speed EZQ
Calling 30
- ------------------------------------------------------------------------------------------------------------------------------------
Call Waiting, Call Forwarding, Three Way Calling & Speed ES5
Calling 30
- ------------------------------------------------------------------------------------------------------------------------------------
</TABLE>
PAGE 1 OF 2
<PAGE>
<TABLE>
- ----------------------------------------------------------------------------
<S> <C>
Call Waiting, Call Forwarding, Three Way Calling & Speed ES3
Calling 8
- ----------------------------------------------------------------------------
Call Waiting, Call Forwarding, Three Way Calling, Speed EZT
Calling 8 & Speed Calling 30
- ----------------------------------------------------------------------------
Call Waiting, Speed Calling 8 & Speed Calling 30 EZN
- ----------------------------------------------------------------------------
Call Waiting, Three Way Calling & Speed Calling 30 ET3
- ----------------------------------------------------------------------------
Call Waiting, Three Way Calling & Speed Calling 8 ET8
- ----------------------------------------------------------------------------
Call Waiting, Three Way Calling, Speed Calling 8 & EZR
Speed Calling 30
- ----------------------------------------------------------------------------
Speed Calling 30 E3D
- ----------------------------------------------------------------------------
Speed Calling 8 E8C
- ----------------------------------------------------------------------------
Three Way Calling ESC
- ----------------------------------------------------------------------------
Three Way Calling, Speed Calling 8 & Speed Calling 30 EZP
- ----------------------------------------------------------------------------
Call Forwarding 11 CFZ
----------
E5E
----------
GCZ
- ----------------------------------------------------------------------------
PHONE SMART SERVICES
#MUST BE ASSOCIATED WITH A RESOLD VTD QUALIFIED BUSINESS LINE
- ----------------------------------------------------------------------------
*69 NSS
- ----------------------------------------------------------------------------
*69 (Per Activation Charge)
- ----------------------------------------------------------------------------
*69 Denial HBS
- ----------------------------------------------------------------------------
Call Trace Denial HBG
- ----------------------------------------------------------------------------
Call Waiting ID NWT
- ----------------------------------------------------------------------------
Call Waiting ID with Name N7PXA
- ----------------------------------------------------------------------------
Call Trace (Per Activation Charge)
- ----------------------------------------------------------------------------
Caller ID NSD
- ----------------------------------------------------------------------------
Caller ID with Name NNK
- ----------------------------------------------------------------------------
Caller ID Manager NWL
- ----------------------------------------------------------------------------
Caller ID Manager with Name NNW
- ----------------------------------------------------------------------------
Per Call Blocking
- ----------------------------------------------------------------------------
Per Line Blocking NBJ
- ----------------------------------------------------------------------------
Repeat Dialing NSQ
- ----------------------------------------------------------------------------
Repeat Dialing (Per Activation Charge)
- ----------------------------------------------------------------------------
Repeat Dialing & *69 NSP
- ----------------------------------------------------------------------------
Repeat Dialing Denial HBQ
- ----------------------------------------------------------------------------
</TABLE>
Page 2 of 2
<PAGE>
Exhibit 10.15
NEW ENGLAND TELEPHONE AND TELEGRAPH COMPANY
RESALE SERVICE AGREEMENT
This Agreement is by and between New England Telephone and Telegraph
Company ("Company") d/b/a Bell Atlantic - Massachusetts and Wholesale Telecom &
Electric Corporation ("Customer").
WHEREAS, the Company will offer local exchange services ("Service(s)")
for resale;
WHEREAS, the Customer is a reseller operating in the Commonwealth of
Massachusetts,;
WHEREAS, the Company and the Customer have negotiated in good faith for
the resale of such Services pursuant to and consistent with the
Telecommunications Act of 1996.
NOW, THEREFORE, in consideration of the mutual obligations set forth
herein, and for other good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the Company and the Customer agree
as follows:
1. RESALE ARRANGEMENT
The Company will offer telecommunications services it provides at
retail to end users in the Commonwealth of Massachusetts for resale by the
Customer in accordance with the attached Terms and Conditions -- Resale
Services ("Terms and Conditions") contained in Attachment A. Attachment A is
incorporated herein as an integral and necessary part of the parties agreement.
Whenever reference is made herein to the Agreement, the reference includes
Attachment A.
2. TERM OF AGREEMENT
A. The Company will file the Agreement promptly following its execution
with the Department for approval pursuant to section 252 of the
Telecommunications Act of 1996. The Agreement will be effective in
accordance with the Department's order or decision which approves the
Agreement.
B. Upon execution of the Agreement by both parties, the Company and
Customer shall endeavor to jointly develop an implementation plan for
the services that Customer will resell.
C. Each Party agrees to fully support approval of the Agreement by
the Department without modification. The Parties, however, reserve
the right to seek regulatory relief and otherwise seek redress
from each other regarding performance and implementation of this
Agreement. In the event the Department rejects this
1
<PAGE>
Agreement in whole or in part, the Parties agree to meet and
negotiate in good faith to arrive at a mutually acceptable modification
of the rejected portion(s); provided that such rejected portion(s)
shall not affect the validity of the Remainder of this Agreement.
D. The Agreement is subject to change, modification, or
cancellation as may be required and mutually agreed by a either
Party based on any significant change in Federal Communications
Commission or Department rules which may impact the provision of
service under this Agreement or the rights and obligations of the
Parties under the Act. Either Party may terminate this Agreement
with 90 days written notice to the other Party.
3. CHARGES
The Customer shall pay the Company the charges contained in
Attachment A. The Parties understand that the charges contained in
Attachment A are interim charges subject to revision by the
Department. If the Department issues any decision or order which
approves for any telecommunications carrier different charges for
any of the services contained in Attachment A within six months
following the effective date of this Agreement, the Parties will
true-up the charges paid under this Agreement retroactive to the
effective date of the Agreement based upon the decision or order of
the Department. However, if the Department does not issue such a
decision or order within six months, the Parties agree that there
will be no true-up, and any new charges approved thereafter by the
Department will apply to the services provided under this Agreement
as of the date of the Department order or decision.
4. PROMOTIONAL MATERIAL
The Company shall provide the Customer with a reasonable amount
of information related to the use of the services it will resell for
Customer's use in its marketing and product materials. The Company, in
consultation with Customer, shall determine the type, quantity, and
availability of the information to be provided to Customer. The Company
shall also make available to Customer's personnel basic training related
to the use and operation of the services. The Company shall reasonably
determine the timing and content of such training. Such training and
promotional material shall be provided to the Customer only and the
Company is under no obligation to provide any training or promotional
material to any other person or entity the Customer may engage in the
sale, provision, or use of the Services.
2
<PAGE>
5. GOVERNING LAW
This Agreement shall be governed by and construed in accordance with
the laws of the Commonwealth of Massachusetts, except a provision of law
which would refer any issue to another jurisdiction.
6. ENTIRE AGREEMENT
This Agreement constitutes the entire understanding between the Parties
with respect to the subject matter hereof and supersedes all prior
understandings, oral or written representations, statements,
negotiations, proposals and undertakings in oral written form.
7. AMENDMENTS AND WAIVERS
A. This Agreement may be amended or additional provisions may be
added by written agreement signed by or on behalf of both parties.
No amendment or waiver of any provisions of this Agreement, and no
consent to any default under this Agreement, shall be effective
unless the same shall be in writing and signed by a duly authorized
representative on behalf of the party against whom such amendment,
waiver or consent is claimed, except as otherwise provided in this
Agreement preceding. In addition, no course of dealing or failure
of any party to enforce strictly any term, right or condition of
this Agreement shall be construed as a waiver of such term, right
or condition.
B Either party's failure at any time to enforce any of the
provisions of this Agreement or any right with respect thereto, or
to exercise any option herein provided, will in no way be construed
to be a waiver of such provisions, rights, or options or in any way
to affect the validity of this Agreement. The exercise by either
party of any rights or options under the terms herein shall not
preclude or prejudice the exercise thereafter of the same or other
rights under this Agreement.
8. ASSIGNMENT
Neither party may assign or transfer (whether by operation of law
or otherwise) this Agreement (or any rights or obligations hereunder)
to a third party without the prior written consent of the other party
which consent shall not be unreasonably withheld; provided, however,
each party may assign this Agreement to a corporate affiliate or an
entity under its common control or an entity acquiring all or
substantially all of its assets or equity by providing prior written
notice to the other party of such assignment or transfer. Any attempted
assignment or transfer that is not permitted shall be void AB INITIO.
All obligations and duties of any party shall be binding on all
successors in interest and assigns of such party.
3
<PAGE>
9. NOTICE AND DEMAND
Except as otherwise provided under this Agreement, all notices,
demands, or requests which may be given by any party to the other party
shall be in writing and shall be deemed to have been duly given on the
date delivered in person or deposited, postage prepaid, in the United
States Mail via Certified Mail or nationally recognized overnight
carrier, return receipt requested, and addressed as follows:
TO CUSTOMER: Wholesale Telecom & Electric Corporation
406 Centre Street, Suite B0
Boston, MA 02130
ATTN: Akhil Garland, President
TEL: (781) 229-9984
FAX: (781) 229-7956
TO COMPANY: Account Manager - Resale Services
222 Bloomingdale Road
2nd floor
White Plains, NY 10605
cc: NYNEX Corporation
General Counsel
1095 Avenue of the Americas
41st floor
New York, NY 10036
If personal delivery is selected as the method of giving notice
under this Section, a receipt of such delivery shall be obtained. The
address to which such notices, demands, requests, elections or other
communications are to be given by either party may be changed by written
notice given by such party to the other party pursuant to this Section.
10. THIRD-PARTY BENEFICIARIES
This Agreement shall not provide any person not a party to this
Agreement with any remedy, claim, liability, reimbursement, claim of
action or other right in excess of those existing without reference to
this Agreement.
11. FORCE MAJEURE
Neither party shall be deemed to be negligent, at fault, or otherwise
liable in any respect for any delay or failure in performance of any part
of this Agreement to the extent that
4
<PAGE>
such failure or delay is caused by acts of God, acts of civil or
military authority, government regulations, embargoes, epidemics, war,
terrorist acts, riots, insurrections, fires, explosions, earthquakes,
nuclear accidents, floods, strikes, power blackouts, volcanic action,
other major environmental disturbances, unusually severe weather
conditions, inability to secure products or services of other persons
or transportation facilities, or acts or omissions of transportation
common carriers or other causes beyond the control of the party
obligated to perform. If any force majeure condition occurs, the party
delayed or unable to perform shall give immediate notice to the other
Party and shall take all reasonable steps to correct the force majeure
condition. During the pendency of the force majeure, the duties of the
parties under this Agreement affected by the force majeure condition
shall be abated and shall resume without liability thereafter.
12. CONTINGENCY
Notwithstanding any other provision of this Agreement, this Agreement
is subject to change, modification, or cancellation as may be required
by a regulatory authority or court in the exercise of its lawful
jurisdiction.
13. COMPLIANCE
Each Party shall comply with all applicable federal, state, and local
laws, rules, and regulations applicable to its performance under this
Agreement.
14. NON-EXCLUSIVE AGREEMENT
This Agreement is non-exclusive. The Company reserves the right to
extend to others the services and rights provided for herein.
15. NON-PUBLICITY
Both the company and the customer agree that neither will use the
other's name without the written permission of the other in connection
with promotional, advertising or other marketing material.
16. SEVERABILITY
In the event any of the provisions of this Agreement are found
to be invalid by any administrative agency, arbitrator or court or
competent jurisdiction, the remaining provisions of this Agreement,
whether relating to similar or dissimilar subjects, shall nevertheless
be binding with the same effect as though the invalid provisions were
deleted, unless the result would be to substantially change the rights
or obligations of either party, in which event the parties shall seek to
negotiate in good faith revisions to the Agreement consistent with their
earlier intent. Failing further agreement, this Agreement shall
terminate and no party shall be liable to the other, except for
outstanding
5
<PAGE>
amounts due under this Agreement, including, but not limited to,
amounts due pursuant to the payment terms, the carryover pool, and any
other amounts which survive termination as stated in this Agreement.
17. EXECUTED IN COUNTERPARTS
This Agreement may be executed in any number of counterparts, each of
which shall be an original, but such counterparts shall together
constitute but one and the same document.
18. HEADINGS
The headings in this Agreement are for convenience and shall not be
construed to define or limit any of the terms herein or affect the
meanings or interpretation of this Agreement.
19. DISCLAIMER OF REPRESENTATIONS AND WARRANTIES
EXCEPT AS EXPRESSLY PROVIDED UNDER THIS AGREEMENT, NO PARTY
MAKES OR RECEIVES ANY WARRANTY, EXPRESS OR IMPLIED, WITH RESPECT TO THE
SERVICES, FUNCTIONS AND PRODUCTS IT PROVIDES UNDER OR CONTEMPLATED BY
THIS AGREEMENT AND THE PARTIES DISCLAIM THE IMPLIED WARRANTIES OF
MERCHANTABILITY OR OF FITNESS FOR A PARTICULAR PURPOSE.
20. JOINT WORK PRODUCT
This Agreement is the joint work product of the Parties and has been
negotiated by the Parties and their respective counsel and shall be
fairly interpreted in accordance with its terms and, in the event of any
ambiguities, no inferences shall be drawn against either party.
6
<PAGE>
IN WITNESS WHEREOF, the parties have executed this Agreement.
NEW ENGLAND TELEPHONE AND WHOLESALE TELECOM & ELECTRIC
TELEGRAPH COMPANY d/b/a BELL CORPORATION
ATLANTIC MASSACHUSETTS
By: /s/ [ILLEGIBLE] By: /s/ Akhil Garland
------------------------------ ------------------------------
Title: PRESIDENT - [ILLEGIBLE] Title: President
--------------------------- ---------------------------
Date: 2/23/98 Date: 1/18/98
---------------------------- ----------------------------
7
<PAGE>
6.1 TERMS AND CONDITIONS INFORMATION
6.1.1 General
6.1.1.1 Terms and Conditions Structure
A. The terms and conditions are divided into sections which
are structured numerically, (e.g., Section 6.1, 6.2, 6.3
etc.).
6.1.2 Referencing
6.1.2.1 Reference to Terms and Conditions
A. Whenever reference is made in these terms and conditions to
tariffs of the Telephone Company, the reference is to the
tariffs in force as of the effective date of these terms and
conditions, and to amendments thereto and successive issues
thereof. The regulations, rates and charges contained herein
are in addition to the applicable regulations, rates and
charges specified in tariffs of the Telephone Company which
may be referenced. To the extent that sections of referenced
tariffs violate the Telecommunications Act of 1996 or other
FCC regulations, they are void and not applicable under these
terms and conditions.
B. Upon completion of the investigation of these generally
available terms and conditions, the Telephone Company will, in
compliance with the Department's Order, file resale tariffs,
which when approved by the Department, will supersede these
terms and conditions.
6.1.2.2 Trademarks and Service Marks
A. Refer to D.P.U. Mass. No. 10.
6.1.3 Terms and Conditions Terminology
Unless otherwise defined herein, terminology contained within
these terms and conditions are as defined in D.P.U. Mass. No. 10.
6.1.3.1 Definitions
END USER - Any person purchasing service for their own use
rather than for sale to another person, party or entity etc.
PREMISES - This term as defined in D.P.U. Mass. No. 10 is a
reference to the premises at which the service is provided, and
not a reference to the reseller's premises.
8
<PAGE>
RESALE - The sale to another person of telecommunications
services purchased from the Telephone Company. A person purchases
for resale when such a person purchases a service for the purpose
of reselling it to another (rather than the purpose of using the
service itself).
RESELLER/CUSTOMER - Any individual, partnership, association,
joint stock company, trust, corporation, governmental entity or
other entity which subscribes to the telecommunications services
offered under these terms and conditions.
TELEPHONE COMPANY - The New England Telephone and Telegraph
Company.
6.2 GENERAL REGULATIONS
In addition to the general regulations contained herein, the general
regulations specified in D.P.U. Mass. No. 10 also apply.
6.2.1 Application of Terms and Conditions
6.2.1.1 Scope
A. Regulations, rates and charges in these terms and
conditions apply to the offering of Telephone Company
telecommunications services for resale.
B. Only a carrier authorized by law to resell
telecommunications services in the Commonwealth of
Massachusetts may purchase under these terms and
conditions. These terms and conditions are not intended to
enlarge, restrict, or otherwise affect any provision of
law relating to the authority to resell telecommunications
services.
1. Resellers do not surrender any right to purchase from
any of the Telephone Company's intrastate tariffs by
purchasing from these terms and conditions. However, the
discounts contained herein will apply only to purchases
from these terms and conditions. Resellers purchasing
services from the Telephone Company's intrastate tariffs
will do so through traditional retail channels.
C. In addition to the responsibilities and obligations
specified in D.P.U. Mass No. 10, the reseller must conform
to any applicable rules and regulations set forth by the
Department of Public Utilities.
D. The resale of telecommunications services and the
provision thereof by the Telephone Company as set forth in
these terms and conditions does not constitute a joint
undertaking nor does it constitute an agency, contractual
or any other type of relationship between the reseller and
the Telephone Company (other than that of purchaser and
seller) or between the Telephone Company and the
reseller's end user.
E. A reseller ordering a resold service under these terms and
conditions has all of the obligations that would be
imposed under the applicable Telephone Company tariff upon
an end user who orders the service directly from the
Telephone Company. Such obligations include, without
limitation, the obligation to pay for the service, whether
or not the reseller is being paid by its own customers.
The rate charged for such service, when sold to a reseller
9
<PAGE>
under these terms and conditions is to be determined in
accordance with rates and charges specified in these terms
and conditions.
6.2.2 Responsibility of the Telephone Company
6.2.2.1 Provision of Service
A. The Telephone Company's obligation to furnish service, or
to continue to' furnish service, is dependent on its
ability to obtain without charge, danger or undue
difficulty access to the premises where the service is to
be provided.
1. Should a reseller's end user request that a Telephone
Company technician prove his/her identity as an employee
of the Telephone Company before the end user will permit
access to their premises, the technician's Telephone
Company identification badge or the NYNEX registered
trademark/servicemark (logo) that is visibly displayed on
the technician's service vehicle will be evidence of such
proof. If the Telephone Company misses the scheduled
service appointment as a result of the reseller's end
user's refusal to permit access to the Telephone Company
technician, neither the reseller nor the reseller's end
user will be entitled to any waivers of charges for
missed service appointments that may be offered by the
Telephone Company under service guarantee programs that
are associated with the service being provided.
B. The Telephone Company reserves the right to refuse an
application for service made by, or for the benefit of, a
reseller who is indebted to the Telephone Company for
telephone service previously furnished.
1. In the event that service is connected for a reseller
who is indebted to the Telephone Company for service
previously furnished to such reseller, the Telephone
Company will notify the reseller in writing via Certified
U.S. Mail, that the service will be terminated by the
Telephone Company unless the reseller satisfies the
indebtedness within 10 days of the date of the reseller's
receipt of such notification.
C. The services offered under the provisions of these terms
and conditions are subject to the availability of
facilities, including switching capacity, and necessary
operational support systems.
1. If existing facilities will not enable the Telephone
Company to meet all outstanding service orders, such
orders will be handled in accordance with reasonable
priority rules that do not discriminate between resellers
purchasing under these terms and conditions and end user
customers of the Telephone Company.
D. Resold services offered by the Telephone Company are at
least technically equivalent to the corresponding service
offerings that the Telephone Company provides to its own
end users provided that the reseller complies with the
regulations contained in these terms and conditions.
E. The Telephone Company will provide service (including the
installation and repair thereof) to resellers at standards
that meet the capabilities, functions and performance
standards available to Telephone Company similarly
situated end
10
<PAGE>
users providing that the reseller complies with the
regulations contained in these terms and conditions.
1. Telephone Company personnel dispatched to a reseller's
end user premises for purposes of installation or repair
will not accept requests for new or modified service
beyond that requested by the reseller.
6.2.2.2 Interruption of Service
A. Allowances for interruption of service are available to
resellers to the extent and under the same circumstances
as they would be available to Telephone Company end users
under D.P.U. Mass. No. 10.
6.2.3 Responsibility of the Reseller
6.2.3.1 Reseller Notification and Coordination
A. Unless otherwise specified herein, whenever customer
notification is required, the Telephone Company is
responsible for providing notice only to the reseller who
is the customer of record.
1. The reseller, and not the Telephone Company is
responsible for providing any notices, bill inserts or
other information as may be required to the reseller's end
users.
6.2.3.2 Liability
A. The reseller shall reimburse the Telephone Company for
damages to Telephone Company facilities utilized to
provide services under these terms and conditions caused
by negligence or willful act of the reseller or the
reseller's end user or resulting from the reseller's or
reseller's end user's improper use of the Telephone
Company facilities, or due to malfunction of any
facilities or equipment provided by other than the
Telephone Company. Nothing in the foregoing provision
shall be interpreted to hold one reseller liable for
another reseller's actions. The Telephone Company will,
upon reimbursement for damages, cooperate with the
reseller in prosecuting a claim against the person causing
such damage and the reseller shall be subrogated to the
right of recovery by the Telephone Company for the damages
to the extent of such payment.
B. With respect to claims of patent infringement made by
third persons, the reseller shall defend, indemnify,
protect and save harmless the Telephone Company from and
against all claims arising out of the combining with, or
use in connection with, the services provided under these
terms and conditions, any circuit, apparatus, system or
method provided by the reseller or reseller's end user.
C. The reseller shall defend, indemnify and save harmless the
Telephone Company from and against suits, claims, losses
or damages including punitive damages, attorney's fees and
court cost by third persons arising out of the
construction, installation, operation, maintenance or
removal of the circuits, facilities or equipment connected
to the Telephone Company's services provided under these
terms and conditions, including, without limitation,
Workmen's Compensation claims, actions for infringement of
copyright and /
11
<PAGE>
or unauthorized use of program material, libel and slander
actions based on the content of communications transmitted
over the reseller's circuits, facilities or equipment, and
proceedings to recover taxes, fines, or penalties for
failure of the reseller to obtain or maintain in effect
any necessary certificates, permits, licenses, or other
authority to acquire or operate the services provided
under these terms and conditions; provided, however, the
foregoing indemnification shall not apply to suits,
claims, and demands to recover damages for damage to
property, death or personal injury unless such suits,
claims or demands are based on the tortious conduct of the
reseller, its officers, agents or employees.
D. The reseller shall defend, indemnify and save harmless the
Telephone Company from and against any suits, claims,
losses or damages, including punitive damages, attorneys
fees and court costs by the customer or third parties
arising out of any act or omission of the reseller or the
reseller's end user in the course of using services
provided under these terms and conditions.
E. In case of damage, loss, theft or destruction of equipment
and facilities furnished by the Telephone Company due to
negligence or willful act of the reseller or the
reseller's end user or other persons authorized to use the
service, the reseller or reseller's end user may be
required to pay the expense incurred by the Telephone
Company to replace or restore the equipment and facilities
to its original condition.
F. The reseller assumes the responsibility for enforcement of
all tariff regulations and class of service restrictions
imposed for any particular service (e.g. prohibitions
against unlawful use, damage to Telephone Company
property, distinctions between residence and business) and
any liability arising from violations thereof.
6.2.3.3 Certifications and Proof of Exemptions
A. Upon reasonable request the reseller shall certify to the
Telephone Company in writing that the services the
reseller is purchasing under these terms and conditions
are being purchased for resale.
B. The reseller shall provide the Telephone Company with any
certificates or other documentation that may be required
under state law pertaining to tax exemptions.
6.2.3.4 References to the Telephone Company
A. The reseller may advise end users that certain services
are provided by the Telephone Company in connection with
the service the reseller furnishes to end users; however,
the reseller shall not state, imply or represent that the
Telephone Company jointly participates in or is part of
any partnership or joint business arrangement for the
provision of services to the reseller's customers.
6.2.4 Customer Notification and Coordination
6.2.4.1 Provision and Ownership of Telephone Numbers
A. The Telephone Company reserves the reasonable right to
assign, designate or change telephone numbers, or any
other call number designations associated
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with resold service, or the Telephone Company serving
central office prefixes associated with such numbers, when
necessary in the conduct of business.
B. Should it become necessary to make a change in such
number(s), the Telephone Company will give the reseller
six months notice of the change(s), including an
explanation of the reason(s) for the change(s), by
Certified U.S. Mail.
1. In the case of emergency conditions, (e.g. a fire in a
wire center), it may be necessary to change a telephone
number without six months notice in order to provide
service to the reseller.
6.3 ORDERING OF SERVICE
6.3.1 Orders for Resold Services
6.3.1.1 General
A. The reseller shall supply all the information reasonably
necessary for the Telephone Company to provide and bill
for the requested service, to include the reseller's
customer in its directory listing service and to otherwise
fulfill its obligations under these terms and conditions
[e.g., customer name and premises location, configuration of
service, and facility interface].
1. The reseller is responsible to submit complete and
accurate orders. Failure to do so may result in service
discrepancies for which the Telephone Company will not be
responsible.
B. If the reseller assumes the account of an existing
Telephone Company end user at the end user's existing
premises, the order must identify the end user's billing
telephone number and line(s) and indicate that the end
user's existing service (or any specified modification to
and/or cancellation of the existing service) is to be
transferred to the reseller.
1. Authorization to Assume an Account - A reseller placing
an order under which it will assume the account of an
existing Telephone Company end user customer, or the
account of an existing end user customer of another
reseller, must obtain appropriate authorization from that
end user for the change of service provider. The reseller
must verify and confirm that authorization is in
accordance with the laws and provisions that govern such
matters as established or may be established in the
Commonwealth of Massachusetts.
C. Resellers may not order services in a particular building
or other location where a reseller has not yet obtained
end user customers at the time that the reseller's order
is placed with the Telephone Company.
D. Resellers may not order service in a particular building
or other location when doing so would preclude or delay
other potential providers from offering services in that
particular building or other location.
E. Resellers may not order service under these terms and
conditions without a reasonable basis for believing that
such services will actually be needed by the reseller to
meet anticipated demand.
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F. The Telephone Company will not process any orders,
complaints or other requests received from the reseller's
end user.
G. Primary Interchange Carrier (PIC) Changes-The Telephone
Company will only accept an order to change the PIC,
whether interLATA or intraLATA, for a resold Telephone
Company exchange service line from the reseller. The
Telephone Company will only accept an order to freeze the
PIC from the reseller. The reseller will be responsible
for all PIC change charges.
H. If the order is for modification or discontinuance of
service, the order shall identify the billing telephone
number and telephone number of the service and the changes
desired, and any additional information required by the
Telephone Company.
6.3.1.2 Automated Order Interface
A. Orders for resold services and modifications to or
cancellation of an existing order must be placed by the
reseller with the Telephone Company through the
appropriate automated interface established by the
Telephone Company. Such interface will facilitate the
following order processes.
1. Establishment of end user accounts
2. Assignment of telephone numbers
3. Entry of service orders into Telephone Company systems
4. Installation scheduling and negotiation with end users
5. Reservation of installation appointments
6. Entry of end user service and repair inquiries
7. Verification of the network status of an associated
telephone line in conjunction with Telephone Company systems
8. Other processes that would facilitate the processing of
the reseller's order.
B. The Telephone Company will establish automated interface
specifications (e.g. formats) for data, delivery
(transport) and network descriptions, etc.
1. Resellers must comply with methods, procedures and
operational guidelines in utilizing the interface
specifications established by the Telephone Company.
2. Any use of the interface(s) by the reseller or any
other party for unauthorized purposes (e.g., access to
data or to enter false information) will be considered
abuse or fraudulent use of the interface and is
prohibited. Such action may result in the Telephone
Company terminating the resellers use of the interface.
D. If the Telephone Company determines or suspects that abuse
or fraudulent use of the interface has occurred, the
Telephone Company will, as required by law, refer the
matter to the appropriate law enforcement agency.
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6.3.1.3 Disclosure of Reseller Information
A. Telephone Company personnel primarily involved in the
marketing of services to end user customers or other
resellers will not have access to order information
provided by the reseller to the Telephone Company except
under the following situations.
1. The Telephone Company will disclose to any local
exchange carrier the fact that a given end user who was
previously a customer of such carrier is no longer one of
the carriers customers.
2. In order for the Telephone Company to be able to
conduct its business, the Telephone Company will access
service information in order to aggregate data relating to
its sale of resold services to resellers.
3. Where a reseller's customer consents to and authorizes
the disclosure of information related to the customer's
order, the Telephone Company may disclose such data to
Telephone Company retail marketing personnel or to other
resellers.
4. If a Telephone Company end user subsequently becomes an
end user of a reseller, the Telephone Company will,
without the consent and authorization of the end user
customer, provide the reseller with all information
necessary to enable it to assume the end users account
including the customer's service configuration and billing
name and address.
5. The Telephone Company will disclose, without the
consent and authorization of the reseller's end user
customer, information pursuant to industry-wide
arrangements for the exchange of information on end users
credit histories, consistent with applicable legal
requirements.
B. Section 6.3.1.3A shall not prohibit attempts to sell
Telephone Company telecommunications services by Telephone
Company employees who have access to information relating
to specific orders placed by resellers under these terms
and conditions, so long as:
1. The employee spends a de-minimus amount of his or her
time involved in the marketing of Telephone Company
telecommunications services, and
2. The employee does not utilize the reseller information
in such sales.
C. In the case of a reseller's end user who requests a change
from their present reseller to the Telephone Company or to
another reseller, the Telephone Company will disclose the
information necessary to enable the Telephone Company or
other resellers to assume the account. Such information
includes the customer's service configuration, billing name
and address.
D. The Telephone Company will disclose the identity of the
reseller providing service to an end user for the purposes
of Telephone Company marketing personnel who are
responding to a question from an end user about the
identity of their service provider.
6.3.1.4 Evidence of End User Consent and Authorization
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A. Where the Telephone Company identifies that end user
consent is required for the disclosure of information, the
Telephone Company will obtain consent and authorization in
writing from the end user.
6.3.1.5 Additional Engineering and Special Construction
A. Additional charges will be applied to an order for service
when the Telephone Company determines additional
engineering or special construction is necessary to
accommodate a reseller request.
1. When it is required, the reseller will be so notified
and will be furnished with a written statement setting
forth the justification for the additional engineering
and/or special construction as well as an estimate of the
charges in conjunction with the terms and conditions
specified in D.P.U. Mass. No. 10.
6.3.2 Responsibility of the Telephone Company
6.3.2.1 Refusal and Discontinuance of Service
A. If the reseller fails to comply with the rules and
regulations of these terms and conditions, including any
payments to be made by it on the dates and times herein
specified, the Telephone Company may, on 30 days written
notice by Certified U.S. Mail to the reseller refuse
additional applications for service and/or refuse to
complete any pending orders for service at any time
thereafter. If the Telephone Company does not refuse
additional applications for service on the date specified
in the 30 days notice, and the reseller's noncompliance
continues, nothing contained herein shall preclude the
Telephone Company from refusing additional applications
for service without further notice.
B. If the reseller fails to comply with the rules and
regulations of these terms and conditions, including any
payments to be made by it on the dates and times herein
specified, the Telephone Company may, on 30 days written
notice by Certified U.S. Mail to the reseller, discontinue
the provision of the services involved at any time
thereafter. In the case of such discontinuance, all
applicable charges, including termination charges, shall
become due. If the Telephone Company does not discontinue
the provision of the services involved on the date
specified in the 30 days notice, and the reseller's
noncompliance continues, nothing contained herein shall
preclude the Telephone Company from discontinuing the
provision of the services involved without further notice.
6.3.3 Responsibility of the Reseller
6.3.3.1 Point of Contact for End Users
A. The reseller shall serve as the single point of contact
for its customers on such matters as billing, requests for
new service, requests for the modification or
discontinuance of existing services, service trouble
reports, repair requests, complaints. etc. The reseller
shall be obligated to transmit such requests or
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reports to the Telephone Company through the automated
order interface to the extent reasonably necessary to
enable the Telephone Company to fulfill its obligations
under these terms and conditions.
6.3.3.2 Forecasting of Service Requirements
A. To the extent reasonably necessary for the planning of
Telephone Company facilities, the reseller shall provide,
upon request of the Telephone Company, forecasts of the
approximate number of units of exchange and other services
that the reseller expects to require in specific
geographic areas. Such forecasts are considered by the
Telephone Company as confidential information of the
reseller and will be treated in accordance with the
provisions specified in these terms and conditions for
confidential reseller information.
6.3.3.3 Refusal, Discontinuance or Transfer of Service
A. Where a reseller discontinues its provision of service to
all or substantially all of its customers, whether by its
own decision, as a result of involuntary bankruptcy or for
any other reason, the reseller must send advance written
notice of such discontinuance to the Telephone Company and
to each of the reseller's end users. If service to the
reseller is discontinued by the Telephone Company, the
reseller must send written notice to each of its end users.
1. Such notice must advise the end users that unless they
take action to switch to a different carrier with 15 days,
provision of their service will be transferred to the
Telephone Company. Where the end user elects a specific
carrier within the 15 day period, the relevant charges
associated with the change shall be paid by that carrier.
(a). Should the end user's service be transferred to the
Telephone Company, the Telephone Company will provide
service to the end users at D.P.U. Mass. No. 10 rates, and
not the rates specified in these terms and conditions.
Where the end user does not elect a specific carrier
within the 15 day period, and as a result is transferred
to the Telephone Company, the reseller shall pay the
relevant charges associated with the change.
B. The reseller must provide the Telephone Company with any
information necessary to enable the Telephone Company to
assume the end users' accounts, including the end users'
service configurations and billing names and addresses.
6.4 ISSUANCE, PAYMENT AND CREDITING OF RESELLER BILLS
6.4.1 Responsibility of the Telephone Company
6.4.1.1 General
A. The Telephone Company bills only the reseller who is
considered the customer of record who is at all times
responsible for payment of the full amount of all charges
incurred.
1. The reseller as customer of record is responsible for
any allocation of end user charges for resold service.
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2. Regardless of whether the reseller's end user is still
using service, the reseller is responsible for charges
incurred by the end user or reseller for all services on a
line until the reseller submits an order to discontinue
such service.
6.4.1.2 Billing Convention Methods
A. The Telephone Company shall bill all charges incurred by
and credits due to the reseller under these terms and
conditions attributable to services established or
discontinued or provided during the preceding billing
period.
6.4.1.3 Billing Periods
A. The billing date of a bill for a reseller for service
provided under these terms and conditions is referred to
as the bill day. The period of service each bill covers is
as follows.
1. The Telephone Company will establish a bill day each month
for each reseller account.
2. The bill will cover all non-usage sensitive service
charges and usage charges for the period beginning with
the day following the last bill day and extends up to and
includes the current bill day. Any known unbilled
non-usage charges for prior periods and any known unbilled
adjustments will be applied to this bill.
6.4.1.4 Late Payment Penalty
A. If any portion of the payment is received by the Telephone
Company after the payment date (refer to Section 6.4.1.5),
or if any portion of the payment is received by the
Telephone Company in funds which are not immediately
available to the Telephone Company, then a late payment
penalty shall be due to the Telephone Company.
B. The late payment penalty shall be the portion of the
payment not received by the payment date times a late
factor. The late factor shall be the lesser of the
following.
1. The highest interest rate (in decimal value) which may
be levied by law for commercial transactions for the
number of days from the payment date to and including the
date that the reseller actually makes the payment to the
Telephone Company, or
2. The rate of 0.0005 per day for the number of days from
the payment date to and including the date that the
reseller actually makes the payment to the Telephone
Company.
6.4.1.5 Payment Date
A. The payment date of bills rendered to resellers for service
provided under these terms and conditions is as follows.
1. All bills rendered as set forth in this section are due
31 days after the bill day or by the next bill date,
whichever is the shortest interval.
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2. If such payment date falls on a Sunday or on a legal
holiday which is observed on a Monday, the payment date
shall be the first non holiday day following such Sunday
or legal holiday.
3. If such payment date falls on a Saturday or on a legal
holiday which is observed on Tuesday, Wednesday, Thursday
or Friday, the payment date shall be the last non holiday
day preceding such Saturday or legal holiday.
6.4.1.6 Medium of Payment
A. Bills are payable in immediately available funds.
1. Immediately Available Funds denotes a corporate or
personal check drawn on a bank account and funds which are
available for use by the receiving party on the same day
on which they are received and include U.S. Federal
Reserve bank wire transfers, U.S. Federal Reserve notes
(paper cash), U.S. coins and U.S. Postal Money Orders.
6.4.1.7 Customer Deposits
A. The Telephone Company will, in order to safeguard its
interests, require a reseller, if the reseller has a
proven history of late payments or if the reseller's
parent or holding company has a proven history of late
payments to the Telephone Company or if the reseller does
not have established credit (except for a reseller which
is a successor of a company which has established credit
and the successor has no history of late payments to the
Telephone Company), to make a deposit prior to or at any
time after the provision of a service to the reseller to
be held by the Telephone Company as a guarantee of the
payment of rates and charges.
B. Such deposit may not exceed the actual or estimated rates
and charges for the service for a two month period.
C. The fact that a deposit has been made in no way relieves
the reseller from complying with the Telephone Company's
regulations as to the prompt payment of bills.
D. At such time as the provision of the service to the
reseller is terminated, the amount of the deposit will be
credited to the reseller's account and any credit balance
which may remain will be refunded.
E. At the option of the Telephone Company, such a deposit
will be refunded or credited to the reseller's account
when the reseller has established credit or after the
reseller has established a one year prompt payment record
at any time prior to the termination of the provision of
the service to the reseller.
F. In the case of a cash deposit, the reseller will receive
interest as set forth in Section 6.4.1.4 for the period
the deposit is held by the Telephone Company. Interest
will accrue for the number of days from the date the
reseller deposit is received by the Telephone Company to
and including the date such deposit is credited to the
reseller's account or the date the deposit is refunded by
the Telephone Company.
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G. Should a deposit be credited to the reseller account, as
indicated above, no interest will accrue on the deposit from
the date such deposit is credited to the reseller's account.
6.4.1.8 Billing Dispute
In the event that a billing dispute occurs concerning any
charges billed to the reseller by the Telephone Company, the
following regulations apply:
A. The first day of the dispute shall be the date on which the
reseller furnishes the Telephone Company with the account
number under which the bill has been rendered, the date of the
bill and the specific items on the bill being disputed.
B. The date of resolution shall be the date on which the
Telephone Company completes its investigation of the dispute,
notifies the reseller of the disposition and, if the billing
dispute is resolved in favor of the reseller, applies credit
for the correct disputed amount, the disputed amount penalty
and/or late payment penalty as appropriate.
C. If a billing dispute is resolved in favor of the Telephone
Company, any payments withheld pending resolution of the
dispute shall be subject to the late payment penalty (refer to
Section 6.4.1.4). Further, the reseller will not receive
credit for the disputed amount of the disputed amount penalty.
D. If a reseller disputes a bill within three months of the
payment date and pays the total billed amount on or before the
payment date and the billing dispute is resolved in favor of
the reseller, the reseller will receive a credit for a
disputed amount penalty from the Telephone Company for the
period starting with the date of payment and ending on the
date of resolution. The credit for a disputed amount penalty
shall be as set forth following.
E. If a reseller disputes a bill within three months of the
payment date and pays the total billed amount after the
payment date and the billing dispute is resolved in favor of
the reseller, the reseller will receive a credit for a
disputed amount penalty from the Telephone Company for the
period starting with the date of payment and ending on the
date of resolution. The late payment penalty applied to the
disputed amount resolved in the reseller's favor (refer to
Section 6.4.1.4) will be credited.
F. If a reseller disputes a bill within three months of the
payment date and does not pay the disputed amount or does not
pay the billed amount (i.e., the nondisputed and disputed
amount), and the billing dispute is resolved in favor of the
reseller, the reseller will not receive a credit for a
disputed amount penalty from the Telephone Company. The late
payment penalty applied to the disputed amount resolved in the
reseller's favor (refer to Section 6.4.1.4) will be credited.
G. If a reseller disputes a bill after three months from the
payment date and pays the total billed amount on or before the
dispute date, and the billing dispute is resolved in favor of
the reseller, the reseller will receive a credit for a
disputed amount penalty from the telephone company for the
period starting with the date of dispute and ending on the
date of the resolution. The credit for a disputed amount
penalty shall be as set forth following. The reseller shall
not receive a credit for the late payment penalty.
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H. If a reseller disputes a bill after three months from the
payment date and does not pay the disputed amount or does not
pay the billed amount (i.e., the nondisputed amount and
disputed amount) and the billing dispute is resolved in favor
of the reseller, the reseller will not receive a credit for
a disputed amount penalty from the Telephone Company. However,
if the reseller pays the disputed amount or the billed amount
after the date of dispute and before the date of resolution,
the reseller will receive a credit for a disputed amount
penalty from the Telephone Company for the period starting
with the date of payment and ending on the date of resolution
as a credit for a disputed amount penalty. The reseller will
receive a credit for the late payment penalty, if applicable,
from the Telephone Company.
1. The late payment penalty credit shall be the disputed
amount resolved in the reseller's favor times a late payment
penalty factor (refer to Section 6.4.1.4) for the period
starting with the date of dispute and ending on the date of
payment of the disputed amount or the date of resolution
whichever occurs first.
2. The disputed amount penalty shall be the disputed amount
resolved in the reseller's favor times a penalty factor. The
penalty factor shall be the lesser of the following
calculations.
(a) The highest interest rate in decimal value, which may be
levied by law for commercial transactions for the number of
days from the first date to and including the last date of the
period involved.
(b) 0.0005 per day for the number of days from the first
date to and including the last date of the period involved.
I. The reseller is responsible for monitoring the accuracy of
the Telephone Company's bills and for notifying the Telephone
Company of any discrepancies between such bills and the
services provided by the Telephone Company.
6.4.1.9 Billing Adjustments and Verification
A. Adjustments for the quantities of services established or
discontinued in any billing period beyond the minimum period
set forth for services in other sections of these terms and
conditions will be prorated to the number of days or major
fraction of days based on a 30 day month.
B. The Telephone Company will, upon request and if available,
furnish the reseller such detailed information as may
reasonably be required for verification of any bill.
6.4.1.10 Computation of Billed Charges
A. When a rate as set forth in these terms and conditions is
shown to more than two decimal places, the charges will be
determined using the rate shown. The
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resulting amount will then be rounded to the nearest penny
(i.e., rounded to two decimal places).
6.4.2 Responsibility of the Customer
6.4.2.1 Transfer of End User Account Balance
A. Should a Telephone Company end user discontinue service in
order to become an end user of a reseller, the Telephone
Company will render a final bill to such end user. Balances
and/or credits in a Telephone end user's account will not be
carried over to the reseller's account with the Telephone
Company.
6.4.2.2 End User Information
A. In order to accommodate billing and collection of end user
accounts, resellers must make the billing names and addresses
of their end users available to all telecommunication carriers.
6.5 RESALE
6.5.1 Description
6.5.1.1 General
A. Resale is the sale to another person of telecommunications
services purchased from the Telephone Company. A person
purchases for resale when such person purchases a service for
the purpose of reselling it to another (rather than the
purpose of using the service itself).
1. A purchasing agent who orders services for its principal,
and who does not itself agree to assume the obligations of a
reseller under these terms and conditions, is not purchasing
for resale within the meaning of these terms and conditions.
2. The purchase of telecommunications services or unbundled
network elements for the purpose of provisioning a different
service (such as the purchase of the Telephone Company's
switched carrier access service for the purpose of
provisioning an interexchange carrier's toll service) is not
resale within the meaning of these terms and conditions.
B. Where a reseller purchases Telephone Company exchange
service from the Telephone Company and resells it to an end
user, such reseller's end user will be able to access any and
all services that a Telephone Company end user would be able
to access on a Telephone Company exchange service line. Such
services to the extent provided by the Telephone Company will
be deemed to have been sold to the reseller by the Telephone
Company as they are utilized by the reseller's end user, and
the reseller will be responsible to the Telephone Company for
payment of such services.
6.5.1.2 Services Offered for Resale
A. The services offered under these terms and conditions are
any and all features, functions and capabilities that are
separately offered by the Telephone Company to end users under
the regulations, terms and conditions of D.P.U.
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Mass. No. 10, except for public and semipublic telephone
service, and in accordance with the following limitations.
1. Services in D.P.U. Mass. No. 10 that have been designated
as no longer available for new installations or no longer
offered are not offered for resale except that such services
are only available for resale to the embedded base of end
users who were permitted to retain such service(s) in
accordance with the regulations contained in D.P.U. Mass. No.
10.
2. Promotional program offerings (e.g., discounts, waivers,
credits, certificates, premiums, discounted product trials or
other inducements that would apply to a particular customer
for a period of 90 days or less, and that are offered in order
to promote the sale of a service) are offered for resale,
however they are not subject to the resale discount specified
in Section 6.5.1.3.
3. Directory Assistance Services are offered for resale but
when associated with Residence, Centrex and/or PBX services
they are not subject to the resale discount specified in
Section 6.5.1.3 due to Massachusetts E-9-1-1 funding.
B. Lifeline - The resale of Lifeline is permitted only to
Lifeline eligible end users. The reseller is responsible for
confirming the eligibility of such end users for Lifeline.
1. The Telephone Company (to the extent it would otherwise be
eligible), and not the reseller will be eligible for any
universal service funding resulting from the provision of
Lifeline in conjunction with this tariff.
C. Linkup America may only be resold to Linkup America
eligible end users. The reseller is responsible for confirming
the eligibility of such end users for Linkup America.
D. Blocking - Resellers are allowed to purchase blocking
services to restrict end user access to particular
capabilities to the extent such services are available under
and on the same terms and conditions as set forth in D.P.U.
Mass. No. 10.
6.5.2 Regulations
6.5.2.1 Restrictions
A. Class of Customer - This is a restriction contained in
D.P.U. Mass. No. 10 that limits the availability of a service
to a particular type of customer, such as a business customer,
a residence customer, carrier, end user, etc.
1. Where a resold service is subject to such restriction the
reseller may not resell such service to any customer not in
the relevant class. The reseller may purchase the service for
resale to a customer in the relevant class whether or not the
reseller itself is within the class.
(a) Business services may be resold to residence end users
as long as the end user is served by a business exchange line
and as long as all other services provided on that line are
also under the business class and charged for at the
appropriate business service rates and charges.
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2. Where a reseller resells a service to another person,
and such other person is itself a reseller rather than an end
user, the reseller purchasing from the Telephone Company must
require its end users (by tariff or by contract), to conform to
any applicable class of service restrictions for end users and
all other requirements of resellers under these terms and
conditions.
B. Aggregation of Usage - Regulations on limitations on
aggregation of traffic contained in D.P.U. Mass. No. 10 are
applicable.
C. The reseller is not allowed to offer resold service to its
customers under any of the Telephone Company trademarks,
service marks, registered trademark, registered service mark
or brand-names, or use the logos of the Telephone Company or
the Telephone Company's affiliates without the expressed
written authorization of the Telephone Company.
6.5.3 Application of Rates and Charges
6.5.3.1 Underlying Services
A. Discount - The rates and charges that apply for the
underlying services that are sold to a reseller in accordance
with the terms and conditions described herein, are specified
in D.P.U. Mass. No. 10. The Telephone Company will discount
the D.P.U. Mass. No. 10 rates and charges by applying the
resale discounts specified in Section 6.10 of these terms and
conditions to the applicable D.P.U. Mass. No. 10 rates and
charges for resold services offered under these terms and
conditions in accordance with Section 6.5.1.2.
1. Public Access Line service purchased for use by the
reseller or any of its affiliates who are independent payphone
providers is not subject to the wholesale discount and
therefore retail rates apply. In all other cases Public Access
Line service is available for resale at wholesale discounted
rates.
6.5.3.2 Service Establishment
A. Service establishment charges apply to recover the
establishment costs for electronic interfaces and other
support systems.
6.5.3.3 Service Charges and Other Nonrecurring Charges
A. Service charges and other nonrecurring charges apply to
recover the establishment costs for electronic interfaces and
other support systems.
6.5.3.4 Monthly Rates
A. Other monthly rates apply to recover the ongoing costs to
maintain the service center for resellers and the automated
order interface systems.
6.5.3.5 Customer Specific Pricing (CSP)
A. Services that the Telephone Company provides to its end
users on a customer specific basis under D.P.U. Mass. No. 12
will be made available for resale, and upon request of the
reseller, the Telephone Company shall determine for the
24
<PAGE>
customer specific service configuration that is the
subject of the request wholesale rates that reflect NYNEX's
avoided costs associated with customer specific arrangement.
6.6 RESERVED FOR FUTURE USE
6.7 RESERVED FOR FUTURE USE
6.8 OPTIONAL SERVICES
6.8.1 Call Usage Detail
6.8.1.1 Description
A. Call usage detail is available to resellers for local calls
associated with the Telephone Company's resold message rate
service, and for intraLATA toll service. Call usage data is
offered as local call usage detail or intraLATA call usage
detail and is provided via transmission or tape/cartridge.
B. Local Call Usage Detail-Provided as complete call detail.
1. Complete Call Detail-Provided by retail billing telephone
number and by line, consisting of calling telephone number,
called telephone number, call date, call connect time, and
call elapsed time.
C. IntraLATA Call Usage Detail-Provides complete call detail
by retail billing telephone number and by line consisting of
calling telephone number, called telephone number, call date,
call connect time, and call elapsed time.
6.8.1.2 Regulations
A. Responsibility of the Telephone Company
1. The lapsed time between usage recorded by the Telephone
Company and delivery to the reseller will not exceed eight
business days.
2. The Telephone Company will store reseller usage data for 45
days from the date of transmission to the reseller.
6.8.1.3 Application of Rates and Charges
A. Record Processing - A per record processed charge applies.
1. A record consists of a call with called number, call date,
connect time, and elapsed time.
B. Data Transmission - A per record transmitted charge applies.
C. Tape or Cartridge - Available in addition to or in place of
data transmission.
1. When a tape or cartridge is provided in place of data
transmission, data transmission charges are not applicable and
a per tape or cartridge charge will
25
<PAGE>
apply. If a tape or cartridge is requested in addition to
data transmission, both the per tape or cartridge charge and the
per data transmission charge applies.
6.8.2 Electronic Customer Service Record Retrieval
6.8.2.1 Description
A. This service provides the reseller with the ability to
electronically request the customer service record of an end
user. The current customer service record will be formatted by
the Telephone Company and transmitted back to the reseller.
The customer service record reflects the most recent,
completed service order activity and provides the service and
equipment billed by the Telephone Company to a Telephone
Company end user or to a reseller.
6.8.2.2 Application of Rates and Charges
A. A service record retrieval charge applies to each customer
service record electronically delivered to the reseller.
B. A reseller may request any number of electronic customer
service records, but will only be charged for the number of
electronic customer service records successfully transmitted
to the reseller.
6.8.3 Directory Services
6.8.3.1 Directory Assistance (DA) and Directory Listing Services
A. The Telephone Company will include in its published white
pages directories and in its directory assistance records, the
name, address and telephone number of the reseller's telephone
exchange service customers (one listing per end user line), in
accordance with the Telephone Company tariff provisions
relating to alphabetical listings and to directory assistance
as specified in D.P.U. Mass. No. 10. Such listings will not be
provided for any lines for which the reseller purchases
nonpublished and nonlisted number service. Additional listing
will be provided under the terms and conditions set forth in
D.P.U. Mass. No. 10.
B. Yellow Page Listing - Upon request of the reseller, the
Telephone Company will include in its published yellow page
directories a single line, light-face (non-bold) listing for
the reseller's telephone exchange service business customer.
6.8.4 Enhanced Universal Emergency Number Service E-9-1-1
6.8.4.1 Description
A. The Telephone Company will include the resellers telephone
exchange service customers in the relevant E-9-1-1
database(s).
6.8.5 Annoyance Call Bureau
6.8.5.1 Description
A. Resellers are entitled to use the services provided by the
Telephone Company's annoyance call bureau.
26
<PAGE>
6.9 RESERVED FOR FUTURE USE
27
<PAGE>
6.10 RATES AND CHARGES
6.10.1 Terms and Conditions Information
There are no rates and charges contained in this section.
6.10.2 General Regulations
There are no rates and charges contained in this section.
6.10.3 Ordering of Service
There are no rates and charges contained in this section.
6.10.4 Issuance, Payment and Crediting of Reseller Bills
There are no rates and charges contained in this section.
6.10.5 Resale
Note: Discounts and rates are subject to "true-ups" as determined by the
Massachusetts DPU.
6.10.5.1 DISCOUNTS TO UNDERLYING SERVICES
<TABLE>
<CAPTION>
- -------------------------------------------------------------------------------------------------------
ID SERVICE CATEGORY RATE ELEMENT RATE USOC
- -------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
A. With Operator Business Services 24.99%
Provided Handling
and Directory
Assistance
Provided
---------------------------------------------------------------
Residence Services 24.99%
- -------------------------------------------------------------------------------------------------------
B. Without Operator Business Services 29.47%
Provided Handling
and Directory
Assistance
Provided
---------------------------------------------------------------
Residence Services 29.47%
- -------------------------------------------------------------------------------------------------------
6.10.5.2 SERVICE ESTABLISHMENT CHARGES
- -------------------------------------------------------------------------------------------------------
</TABLE>
28
<PAGE>
6.10.5.2 SERVICE ESTABLISHMENT CHARGES
<TABLE>
<CAPTION>
- -----------------------------------------------------------------------------------------------------------------------
ID SERVICE CATEGORY RATE ELEMENT RATE USOC
<S> <C> <C> <C> <C>
Non-Recurring Per OSS Transaction $1.08
Service
Establishment
Charge during 5
year recovery
period for recovery
of development
costs (includes
development and
ongoing costs)
- -----------------------------------------------------------------------------------------------------------------------
Recurring Monthly Per Reseller Per Month $2605.00
Establishment
Charge during 5
year recovery
period
- -----------------------------------------------------------------------------------------------------------------------
</TABLE>
6.10.5.3 SERVICE CHARGES AND OTHER NONRECURRING CHARGES
<TABLE>
<CAPTION>
- -----------------------------------------------------------------------------------------------------------------------
ID SERVICE CATEGORY RATE ELEMENT RATE USOC
- -----------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Non-Recurring OSS Transaction $0.26
Charge after development costs
have been fully recovered (includes
ongoing
maintenance costs)
- -----------------------------------------------------------------------------------------------------------------------
Centrex Line Per Centrex Line Order Processed $16.10
Processing Charge
to recover
additional support
costs
- -----------------------------------------------------------------------------------------------------------------------
</TABLE>
6.10.5.4 OTHER MONTHLY RATES
<TABLE>
<CAPTION>
- -----------------------------------------------------------------------------------------------------------------------
ID SERVICE CATEGORY RATE ELEMENT RATE USOC
- -----------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Recurring Per Resold Line $0.18
Maintenance
Charge to recover
the ongoing costs of
Resale Service
Center and
electronic interfaces
- -----------------------------------------------------------------------------------------------------------------------
</TABLE>
6.10.6 Reserved for Future Use
29
<PAGE>
There are no rates and charges contained in this section.
6.10.7 Reserved for Future Use
There are no rates and charges contained in this section.
6.10.8 Optional Services
Note: Rates are subject to "true-ups" as determined by the Massachusetts DPU.
6.10.8.1 CALL USAGE DETAIL
<TABLE>
<CAPTION>
- ---------------------------------------------------------------------------------------------------------
ID SERVICE CATEGORY RATE ELEMENT RATE USOC
- ---------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Record Processing Per Record Processed $0.00415
- ---------------------------------------------------------------------------------------------------------
Data Transmission Per Record Transmitted $0.000117
- ---------------------------------------------------------------------------------------------------------
Tape or Cartridge Per Tape or Cartridge $20.12
- ---------------------------------------------------------------------------------------------------------
</TABLE>
<TABLE>
<CAPTION>
6.10.8.2 ELECTRONIC CUSTOMER SERVICE RECORD RETRIEVAL
- ---------------------------------------------------------------------------------------------------------
ID SERVICE CATEGORY RATE ELEMENT RATE USOC
- ---------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Electronic
Customer Service Per Customer Record $0.13
Record Retrieval
- ---------------------------------------------------------------------------------------------------------
</TABLE>
6.10.9 Reserved for Future Use
There are no rates and charges contained in this section.
30
<PAGE>
APPENDIX 1, ATTACHMENT I
QUALIFIED BUSINESS LINES FOR VOLUME COMMITMENT
MASSACHUSETTS
<TABLE>
<CAPTION>
- --------------------------------------------------------------------------------------------------------------
ACCESS LINES
- --------------------------------------------------------------------------------------------------------------
<S> <S> <S> <S> <S>
Measured Business Service 1MB ALS
- --------------------------------------------------------------------------------------------------------------
Measured 4E BIM ALX
- --------------------------------------------------------------------------------------------------------------
Flat Business Service 1FB 1LB
- --------------------------------------------------------------------------------------------------------------
Direct Inward Dial Trunks ND8 NDT
- --------------------------------------------------------------------------------------------------------------
PBX Trunks XMB XFB
- --------------------------------------------------------------------------------------------------------------
PBX Digital trunks T2DMX T4DOX
------------------------------------------------------------------------
T2DOX TDYMX
------------------------------------------------------------------------
T4DMX TDYOX
- --------------------------------------------------------------------------------------------------------------
PBX Analog trunks RM7 TG8 TBPCX TM7
------------------------------------------------------------------------
TIV TGJTM TCX TM9
------------------------------------------------------------------------
T2DIX TGQ TDD TMB
------------------------------------------------------------------------
T2DCX TGZ TDYIX TMC
------------------------------------------------------------------------
T3E THN TDYCX TMK
------------------------------------------------------------------------
T3U THO TEPCX TMR
------------------------------------------------------------------------
T3V THQ TF6 TMT
------------------------------------------------------------------------
T4U THU TFB TMU
------------------------------------------------------------------------
T4V THW TFC TP5CX
------------------------------------------------------------------------
T4X THZ TFK TS9
------------------------------------------------------------------------
T5E TJT TFQ TS90X
------------------------------------------------------------------------
T5K TKG TFR TW6
------------------------------------------------------------------------
T5N TKO TFT TYD
------------------------------------------------------------------------
T50 TKV TFU TZQ
------------------------------------------------------------------------
T86 TM2 TG2 TZZ
------------------------------------------------------------------------
T87 TM3 TG7 TJB
------------------------------------------------------------------------
TB2 TM5 TBB TM6
- --------------------------------------------------------------------------------------------------------------
<CAPTION>
CENTREX: **
- ---------------------------------------------------------------------------------------------------------------
**EXCLUDES:
- ---------------------------------------------------------------------------------------------------------------
1. Centrex systems priced under a special contract (ICB, FPO, LSO, Custom Pricing)
2. Centrex systems which serve multiple end user customers
- ---------------------------------------------------------------------------------------------------------------
CENTREX PLUS
- ---------------------------------------------------------------------------------------------------------------
<S> <C>
Measured DMS HMHJX
- ---------------------------------------------------------------------------------------------------------------
Measured 5ESS HMHUX
- ---------------------------------------------------------------------------------------------------------------
Measured 4E DMS HNHJX
- ---------------------------------------------------------------------------------------------------------------
Unlimited DMS HFHJX
- ---------------------------------------------------------------------------------------------------------------
Measured 4E 5ESS HNHUX
- ---------------------------------------------------------------------------------------------------------------
Unlimited 5ESS HFHUX
- ---------------------------------------------------------------------------------------------------------------
CENTREX PLUS STATIONS/LINES
- ---------------------------------------------------------------------------------------------------------------
Primary station at principle location RXR
- ---------------------------------------------------------------------------------------------------------------
Primary- Off Prem same CO. RX3
- ---------------------------------------------------------------------------------------------------------------
INTELLIPATH
- ---------------------------------------------------------------------------------------------------------------
Measured - DMSIOO E6KJX
- ---------------------------------------------------------------------------------------------------------------
Measured - 5ESS E6KUX
- ---------------------------------------------------------------------------------------------------------------
UnfirTfited - DMS100 E6EJX
- ---------------------------------------------------------------------------------------------------------------
Unlimited - 5ESS E6EUX
- ---------------------------------------------------------------------------------------------------------------
Measured 4E - DMSIOO E7QJX
- ---------------------------------------------------------------------------------------------------------------
Measured 4E - 5ESS E7QUX
- ---------------------------------------------------------------------------------------------------------------
</TABLE>
PAGE 1 OF 2
<PAGE>
<TABLE>
<CAPTION>
- ---------------------------------------------------------------------------------------------------------------
INTELLIPATH STATIONS / LINES
- ---------------------------------------------------------------------------------------------------------------
<S> <C> <C>
Primary Station - Principle premise R42
- ---------------------------------------------------------------------------------------------------------------
Primary Station - Principle premise - Fully Restricted R45
- ---------------------------------------------------------------------------------------------------------------
Primary Station - other than Principle premise R43
- ---------------------------------------------------------------------------------------------------------------
Primary Station - other than Principle premise - Fully
Restricted R46
- ---------------------------------------------------------------------------------------------------------------
INTELLIPATH II
- ---------------------------------------------------------------------------------------------------------------
Measured - DMS1OO E7KJX EV7JX
- ---------------------------------------------------------------------------------------------------------------
Measured - 5ESS E7JUX EV7UX
- ---------------------------------------------------------------------------------------------------------------
Unlimited - DMS1OO EGDJX FV7JX
- ---------------------------------------------------------------------------------------------------------------
Unlimited - 5ESS EGDUX FV7UX
- ---------------------------------------------------------------------------------------------------------------
Measured 4E - DMS1OO EGQJX FVNJX
- ---------------------------------------------------------------------------------------------------------------
Measured 4E - 5ESS EGQUX FVNUX
- ---------------------------------------------------------------------------------------------------------------
INTELLIPATH II STATIONS / LINES
- ---------------------------------------------------------------------------------------------------------------
Primary Station - Principle premise RXR
- ---------------------------------------------------------------------------------------------------------------
Primary Station - Principle premise - Fully Restricted RX5
- ---------------------------------------------------------------------------------------------------------------
Primary Station - other than Principle premise RX3
- ---------------------------------------------------------------------------------------------------------------
Primary Station - other than Principle
premise - Fully Restricted RX6
- ---------------------------------------------------------------------------------------------------------------
</TABLE>
Page 2 of 2
<PAGE>
APPENDIX 1, ATTACHMENT 2
PRODUCT AND SERVICES ELIGIBLE FOR VTD DISCOUNT
MASSACHUSETTS
<TABLE>
<CAPTION>
- -----------------------------------------------------------------------------------------------------------------------------
ACCESS LINES
- -----------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Measured Business Service 1MB ALS
- -----------------------------------------------------------------------------------------------------------------------------
Measured 4E BIM ALX
- -----------------------------------------------------------------------------------------------------------------------------
Flat Business Service 1FB 1LB
- -----------------------------------------------------------------------------------------------------------------------------
Direct Inward Dial Trunks ND8 NDT
- -----------------------------------------------------------------------------------------------------------------------------
PBX Trunks
- -----------------------------------------------------------------------------------------------------------------------------
PBX Digital trunks T2DMX T4DOX
---------------------------------------------------------------------------------------
T2DOX TDYMX
---------------------------------------------------------------------------------------
T4DMX TDYOX
- -----------------------------------------------------------------------------------------------------------------------------
PBX Analog trunks RM7 TG8 TBPCX TM7
---------------------------------------------------------------------------------------
T1V TGJTM TCX TM9
---------------------------------------------------------------------------------------
T2D1X TGQ TDD TMB
---------------------------------------------------------------------------------------
T2DCX TGZ TDY1X TMC
---------------------------------------------------------------------------------------
T3E THN TDYCX TMK
---------------------------------------------------------------------------------------
T3U THO TEPCX TMR
---------------------------------------------------------------------------------------
T3V THQ TF6 TMT
---------------------------------------------------------------------------------------
T4U THU TFB TMU
---------------------------------------------------------------------------------------
T4V THW TFC TP5CX
---------------------------------------------------------------------------------------
T4X THZ TFK TS9
---------------------------------------------------------------------------------------
T5E TJT TFQ TS90X
---------------------------------------------------------------------------------------
T5K TKG TFR TW6
---------------------------------------------------------------------------------------
T5N TKO TFT TYD
---------------------------------------------------------------------------------------
T50 TKV TFU TZQ
---------------------------------------------------------------------------------------
T86 TM2 TG2 TZZ
---------------------------------------------------------------------------------------
T87 TM3 TG7 TJB
---------------------------------------------------------------------------------------
TB2 TM5 TBB TM6
<CAPTION>
- -----------------------------------------------------------------------------------------------------------------------------
INTRA-LATA TOLL
- -----------------------------------------------------------------------------------------------------------------------------
*MUST BE ASSOCIATED WITH A RESOLD VTD QUALIFIED BUSINESS LINE
- -----------------------------------------------------------------------------------------------------------------------------
<S> <C> <C>
Message Rate Service N/A
- -----------------------------------------------------------------------------------------------------------------------------
MTS, including Business Link Optional Calling Plan but OVP OV2
excluding all other Optional Calling Plans
- -----------------------------------------------------------------------------------------------------------------------------
FEATURES
- -----------------------------------------------------------------------------------------------------------------------------
*MUST BE ASSOCIATED WITH A RESOLD VTD QUALIFIED BUSINESS LINE
- -----------------------------------------------------------------------------------------------------------------------------
Touch Tone TTB
- -----------------------------------------------------------------------------------------------------------------------------
Call Forwarding ESM
- -----------------------------------------------------------------------------------------------------------------------------
Call Forwarding, Speed Calling 8 & Speed Calling 30 EZO
- -----------------------------------------------------------------------------------------------------------------------------
Call Forwarding, Three Way Calling & Speed Calling 30 ESB
- -----------------------------------------------------------------------------------------------------------------------------
Call Forwarding, Three Way Calling & Speed Calling 8 ESR
- -----------------------------------------------------------------------------------------------------------------------------
Call Forwarding, Three Way Calling, Speed Calling 8 & EZS
Speed Calling 30
- -----------------------------------------------------------------------------------------------------------------------------
Call Waiting ESX
- -----------------------------------------------------------------------------------------------------------------------------
Call Waiting, Call Forwarding & Speed Calling 30 ESG
- -----------------------------------------------------------------------------------------------------------------------------
Call Waiting, Call Forwarding & Speed Calling 8 ESA
- -----------------------------------------------------------------------------------------------------------------------------
Call Waiting, Call Forwarding & Three Way Calling ETC
- -----------------------------------------------------------------------------------------------------------------------------
Call Waiting, Call Forwarding, Speed Calling 8 & Speed EZQ
Calling 30
- -----------------------------------------------------------------------------------------------------------------------------
</TABLE>
PAGE 1 OF 2
<PAGE>
<TABLE>
<S> <C> <C> <C>
Call Waiting, Call Forwarding, Three Way Calling & Speed ES5
Calling 30
- -----------------------------------------------------------------------------------------------------------------------------
Call Waiting, Call Forwarding, Three Way Calling & Speed ES3
Calling 8
- -----------------------------------------------------------------------------------------------------------------------------
Call Waiting, Call Forwarding, Three Way Calling, Speed EZT
Calling 8 & Speed Calling 30
- -----------------------------------------------------------------------------------------------------------------------------
Call Waiting, Speed Calling 8 & Speed Calling 30 EZN
- -----------------------------------------------------------------------------------------------------------------------------
Call Waiting, Three Way Calling & Speed Calling 30 ET3
- -----------------------------------------------------------------------------------------------------------------------------
Call Waiting, Three Way Calling & Speed Calling 8 ET8
- -----------------------------------------------------------------------------------------------------------------------------
Call Waiting, Three Way Calling, Speed Calling 8 & EZR
Speed Calling 30
- -----------------------------------------------------------------------------------------------------------------------------
Speed Calling 30 E3D
- -----------------------------------------------------------------------------------------------------------------------------
Speed Calling 8 E8C
- -----------------------------------------------------------------------------------------------------------------------------
Three Way Calling ESC
- -----------------------------------------------------------------------------------------------------------------------------
Three Way Calling, Speed Calling 8 & Speed Calling 30 EZP
- -----------------------------------------------------------------------------------------------------------------------------
Call Forwarding II CFZ GCZ E5E
- -----------------------------------------------------------------------------------------------------------------------------
PHONE SMART SERVICES
- -----------------------------------------------------------------------------------------------------------------------------
"MUST BE ASSOCIATED WITH A RESOLD VTD QUALIFIED BUSINESS LINE
- -----------------------------------------------------------------------------------------------------------------------------
*69 NSS
- -----------------------------------------------------------------------------------------------------------------------------
*69 (Per Activation Charge)
- -----------------------------------------------------------------------------------------------------------------------------
*69 Denial HBS
- -----------------------------------------------------------------------------------------------------------------------------
Call Trace Denial HBG
- -----------------------------------------------------------------------------------------------------------------------------
Call Waiting ID NWT
- -----------------------------------------------------------------------------------------------------------------------------
Call Waiting ID with Name N7PXA
- -----------------------------------------------------------------------------------------------------------------------------
Call Trace (Per Activation Charge)
- -----------------------------------------------------------------------------------------------------------------------------
Caller ID NSD
- -----------------------------------------------------------------------------------------------------------------------------
Caller ID with Name NNK
- -----------------------------------------------------------------------------------------------------------------------------
Caller ID Manager NWL
- -----------------------------------------------------------------------------------------------------------------------------
Caller ID Manager with Name NNW
- -----------------------------------------------------------------------------------------------------------------------------
Per Call Blocking
- -----------------------------------------------------------------------------------------------------------------------------
Per Line Blocking NBJ
- -----------------------------------------------------------------------------------------------------------------------------
Repeat Dialing NSQ
- -----------------------------------------------------------------------------------------------------------------------------
Repeat Dialing (Per Activation Charge)
- -----------------------------------------------------------------------------------------------------------------------------
Repeat Dialing & *69 NSP
- -----------------------------------------------------------------------------------------------------------------------------
Repeat Dialing Denial HBQ
- -----------------------------------------------------------------------------------------------------------------------------
</TABLE>
Page 2 of 2
<PAGE>
EXHIBIT 10.16
AMENDMENT TO RESALE AGREEMENTS
This Amendment to Resale Agreements (this "Amendment"), dated as of
this ___ day of June, 1999 (the "Effective Date"), between New York Telephone
Company, d/b/a Bell Atlantic - Connecticut and Bell Atlantic - New York,
respectively, New England Telephone and Telegraph Company, d/b/a Bell
Atlantic - Maine, Bell Atlantic - Massachusetts, Bell Atlantic - New
Hampshire, Bell Atlantic - Rhode Island and Bell Atlantic - Vermont,
respectively, Bell Atlantic - Delaware, Inc., Bell Atlantic - District of
Columbia, Inc., Bell Atlantic - Maryland, Inc., Bell Atlantic - New Jersey,
Inc., Bell-Atlantic - Pennsylvania, Inc., Bell Atlantic - Virginia, Inc. and
Bell Atlantic - West Virginia, Inc. (individually and, collectively, as
applicable, "BA"), on the one hand, and collectively, as applicable, as
"Reseller", on the other hand (BA and Reseller individually being referred to
as a "Party" and, collectively, as the "Parties"). Reseller and
WHEREAS, BA and Reseller are parties to _____ (x) Resale
Agreements, for the States of [Delaware, Maryland, New Jersey, Pennsylvania,
Virginia, Vermont, West Virginia, the District of Columbia, Maine,
Massachusetts, New Hampshire and Rhode Island], respectively (the foregoing
______ (x) agreements being referred to as the "Resale Agreements"), and
Reseller purchases services from BA for resale in the State of New York under
BA's New York resale tariff, and ReseIler plans to purchase services from BA
for resale in the State of Connecticut under BA's Connecticut resale tariff
and in the Commonwealth of Massachusetts under BA's Massachusetts resale
tariff;
WHEREAS, Reseller wishes to obtain the Volume and Term Discount, the
Winback Discount and the lntraLATA Toll Discount, as applicable, referred to
herein on certain Eligible Services described herein that it purchases from BA
under the Resale Agreements and/or applicable BA resale tariffs, which Eligible
Services Reseller resells in respect of certain of the Qualified Business Lines
(as hereinafter defined), and BA is willing to provide such additional discounts
to Reseller, subject to the express terms and conditions set forth herein;
WHEREAS, entry by BA into this Amendment is a voluntary act, not
required by and, in excess of the prescriptions under, the Telecommunications
Act of 1996 (the "TelAct") or any other applicable law;
WHEREAS, while BA is entering into this Amendment to increase the
volume of resale business it conducts with resellers, because, among other
things, the arrangements set forth in this Amendment are new and untested in
the marketplace, BA is willing to enter into such arrangements with Reseller
and other resellers for only a limited time period and under certain
conditions (including, without limitation, as set forth
<PAGE>
in the next WHEREAS clause), after which BA will examine the effects of the
foregoing arrangements on its business and, at its sole option, determine
whether to continue this program in the future;
WHEREAS, BA is willing to enter into amendments such as this
Amendment (and to enter into modifications of the terms of such amendments,
at BA's sole option, in the future), and to provide the foregoing additional
discounts, only with a single reseller or with multiple resellers (such as
the Reseller Companies) that are commonly wholly owned and controlled
(directly or indirectly) by the same parent company, which itself must become
a party to this Amendment) that, not later than November 30, 1999, enter into
(and submit their first order under) an amendment to resale agreements, a
separate agreement incorporating by reference the terms of applicable BA
resale tariffs for a particular reseller or an agreement that does both (on
terms satisfactory to BA that are substantially identical to the terms
hereof), and BA is not willing and is not required under the TelAct or other
applicable law to provide any such additional discounts pursuant to
negotiations under Section 251 of the TelAct (or any successor provision
thereto)(although BA expresses no opinion as to whether and, how, another
reseller may adopt, under Section 252(i) of the TelAct, the terms of the
Resale Agreements as amended hereby).
NOW THEREFORE, in consideration of the mutual agreements set forth
below, and for other good and valuable consideration, the receipt and
sufficiency of which hereby are acknowledged, BA and Reseller hereby agree as
follows:
1. AMENDMENTS TO RESALE AGREEMENTS. Subject to the terms and
conditions set forth herein, the Parties hereby amend each of the Resale
Agreements and enter into a separate agreement incorporating by reference the
terms of BA's applicable resale Tariffs for the State of New York, the
Commonwealth of Massachusetts (and any other States within BA's local service
area, as of the date hereof, in which BA has a resale Tariff, from time to
time, under which Reseller purchases services from BA), as amended from time
to time, with respect only to Reseller, as follows:
(a) TERM OF RESALE AGREEMENTS. The stated term of each Resale
Agreement is hereby amended and restated so that each Resale Agreement,
unless terminated earlier in accordance with the terms thereof, shall expire
five (5) years from the date hereof, which date is May __, 2004. Such five
(5) year period commencing on the date hereof is referred to as the "Service
Term". Notwithstanding the foregoing, the right, if any, of a Party under any
Resale Agreement to terminate such Resale Agreement, other than due to a
breach thereof or at the end of the term thereof (as amended hereby), in each
case in accordance with the terms thereof, is hereby extinguished and shall
be of no effect.
(b) ANNUAL VOLUME COMMITMENT. (i) Subject to the terms and
conditions set forth herein, Reseller hereby agrees to purchase from BA,
under the
2
<PAGE>
Resale Agreements and/or applicable BA resale tariffs, for resale by Reseller,
an aggregate number of business customer local exchange access lines, each of
which lines is designated with one of the USOC codes set forth in Appendix 1
hereto (each a "Qualified Business Line" and, collectively, the "Qualified
Business Lines") for each year of the Service Term (such minimum amount being
the "Annual Volume Commitment") in accordance with the following schedule:
Year 1: at least 50,000 Qualified Business Lines;
Year 2: at least 100,000 Qualified Business Lines; and
Years 3-5: at least 200,000 Qualified Business Lines each year;
provided, however, that a line shall not be counted as a Qualified Business
Line (and thus shall not be counted for purposes of the Annual Volume
Commitment Determination set forth below, and shall not receive the Volume
and Term Discount, the Winback Discount or the IntraLATA Toll Discount
described below) if such line (A) has been assigned by a third party customer
of BA to Reseller or any other reseller; provided further that a line type
set forth in Appendix 1 hereto and assigned by a third party customer of BA
to Reseller, where the ordering and administration of such assignment is
handled by the BA TISOC, shall be counted as a Qualified Business Line (and
thus shall be counted for purposes of the Annual Volume Commitment
Determination set forth below) but shall not receive the Volume and Term
Discount, the Winback Discount or the IntraLATA Toll Discount described below
or (B) is being purchased from BA under non-tariff based pricing (as
determined by BA) including, without limitation, ICB pricing or custom
pricing; provided further that a tariffed non-ICB Centrex-Registered
Trademark- line (e.g., a CustoFlex-Registered Trademark- 2100,
CustoPak-Registered Trademark-, Centrex Plus-Registered Trademark-,
Intellipath-Registered Trademark- or Intellipath II-Registered Trademark-
line) shall be counted as a Qualified Business Line (and thus shall be
counted for purposes of the Annual Volume Commitment Determination set forth
below) but shall not receive the Volume and Term Discount, the Winback
Discount or the IntraLATA Toll Discount described below; provided further,
that for purposes of this Amendment, Qualified Business Lines are defined in
terms of DS0 equivalents and, by way of example, one FlexPath-Registered
Trademark- line purchased by Reseller from BA under a Resale Agreement or
applicable BA resale Tariff for resale would equal twenty-four (24) Qualified
Business Lines.
(ii) The Annual Volume Commitment may be purchased by Reseller
from BA under a single effective Resale Agreement or applicable BA resale
tariff, or under multiple, effective Resale Agreements and/or applicable BA
resale tariffs (at Reseller's sole option), and the number of Qualified
Business Lines purchased by Reseller under each of the Resale Agreements and
the applicable BA resale tariffs for resale shall be considered in the
aggregate to ascertain the Annual Volume Commitment Determination hereunder;
provided, however, that unless BA, in its sole discretion, determines
otherwise, a line shall not be counted as a Qualified Business Line (and thus
shall not be counted for purposes of the Annual Volume Commitment
Determination set forth below, and shall not receive the Volume and Term
Discount, the Winback Discount or the IntraLATA Toll Discount described
below) if it is not included within BA's local service area as of the date
hereof.
3
<PAGE>
(iii) For the avoidance of any doubt, Reseller's purchase of
Qualified Business Lines and Eligible Services pursuant to this Amendment is for
the sole purpose of resale thereof and, as such, Reseller may not utilize any
Qualified Business Line, Eligible Service or portion thereof for its own use or
that of its parent, subsidiaries or affiliates and, in addition, Reseller may
not utilize any Eligible Service or portion thereof except in connection with
purchase of a Qualified Business Line hereunder (i.e., Reseller may not purchase
telecommunications services from BA on a stand alone basis).
(c) BA INTRALATA TOLL SERVICE. Reseller hereby agrees, at all
times during the Service Term, to have not less than eighty percent (80%) of the
Qualified Business Lines purchased by Reseller from BA presubscribed to BA's
IntraLATA Toll service. Reseller further agrees, during each year of the Service
Term, to purchase from BA, on a resold basis under the Resale Agreements and/or
applicable BA resale tariffs, with respect to such Qualified Business Lines, an
aggregate total number of minutes of use of BA's IntraLATA Toll service of not
less than the respective amounts set forth in Section 1(h)(ix) hereof.
(d) ANNUAL VOLUME COMMITMENT DETERMINATION. On an annual basis
beginning at the end of the first year of the Service Term, BA shall determine
the number of Qualified Business Lines purchased by Reseller from BA during the
immediately preceding year. Such number shall be referred to herein as the
"Annual Volume Commitment Determination" and shall equal, with respect to the
determinations made following each of the first three (3) years of the Service
Term, the average of the Qualified Business Lines that Reseller purchased from
BA hereunder that are actually in service on the last day of each of the last
three (3) consecutive months of the year in question. With regard to subsequent
years, the respective Annual Volume Commitment Determinations shall be
calculated as follows: the number of Qualified Business Lines purchased by
Reseller from BA hereunder that are actually in service on the last day of each
respective calendar quarter of the year in question shall be added together,
and the resulting sum shall be divided by four (4).
(e) ANNUAL VOLUME COMMITMENT MEASUREMENT. On an annual basis
beginning at the end of the first year of the Service Term, BA shall compare
Reseller's actual annual attainment of Qualified Business Lines as determined
in accordance with Section 1(d) hereof to the defined target volumes in Table
1 below. Such comparison shall be referred to herein as the "Annual Volume
Commitment Measurement". As further set forth in Section 1(f) hereof, the
Annual Volume Commitment Measurement shall confirm the appropriate level of the
Volume and Term Discount for the year just completed and determine the
applicable Volume and Term Discount for the following year.
VOLUME & TERM MATRIX
4
<PAGE>
<TABLE>
<CAPTION>
- ------------------------------------------------------------------------------------------------------------------------
V & T Tier EOY 1 EOY 2 EOY 3 EOY 4 EOY 6
- ------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C>
Tier 1(A) greater than or greater than or greater than or greater than or greater than or
equal to 45k to 50K equal to 90K to 100K equal 180K to 200K equal 200K QBLs equal 200K QBLs
QBLs QBLs QBLs
Tier 1(B) greater than or greater than or greater than or
equal to 47.5k to 50K equal to 95K to 100K equal to 190K to 200K N/A N/A
QBLs QBLs QBLs
- ------------------------------------------------------------------------------------------------------------------------
Tier 2 30K to Tier 1 60K to Tier 1 150K to Tier 1 150K to Tier 1 150K to Tier 1
- ------------------------------------------------------------------------------------------------------------------------
Tier 3 N/A N/A 100K to Tier 2 100K to Tier 2 100K to Tier 2
- ------------------------------------------------------------------------------------------------------------------------
Tier 4 less than 30K less than 60K less than 100K less than 100K less than 100K
Terminate Terminate Terminate Terminate Terminate
Contract Contract Contract Contract Contract
- ------------------------------------------------------------------------------------------------------------------------
</TABLE>
TABLE 1
The Tier 1 target volumes for each of the first three (3) years of the
Service Term shall be set at two (2) separate ranges, Tier 1(A) and Tier
1(B). During this period of the Service Term when the Annual Volume
Commitment Determination falls within Tier 1, the actual "Tier 1 range (i.e.,
Tier 1(A) or Tier 1(B)) used for the Annual Volume Commitment Measurement
will be based on Reseller's attainment of the Annual Volume Commitment set
forth in Section 1(b) hereof. Specifically, if Reseller's Qualified Business
Line volume, as counted on the last day of the last month of the year in
question, is greater than or equal to the Annual Volume Commitment set forth
in Section 1(b) hereof for the same year, then Tier 1(A) will be used for the
Annual Volume Commitment Measurement. If Reseller's Qualified Business Line
volume, as counted on the last day of the last month of the year in question,
is less than the Annual Volume Commitment set forth in Section 1(b) hereof
for the same year, then Tier 1(B) will be used for the Annual Volume
Commitment Measurement.
(f) MINIMUM PURCHASE. (i) Subject to the terms of this
Amendment, for each year of the Service Term, Reseller shall purchase a
minimum quantity of Qualified Business Lines not less than the applicable
Annual Volume Commitment, as calculated using the Annual Volume Commitment
Determination.
(ii) If the Annual Volume Commitment Determination following the
first year of the Service Term does not yield a number of Qualified Business
Lines equal to at least 30,000, BA may, at its option, terminate this
Amendment. In case of such termination, Reseller shall, within thirty (30)
days of receipt of written demand therefor, pay to BA in immediately
available funds (in addition to any other amounts owed to BA under the Resale
Agreements and/or applicable BA resale tariffs), an amount equal to (A) all
of the discounts under this Amendment that Reseller received from the point
of termination back to the Effective Date of this Amendment, plus (B)
interest on such discounts dating back to the date received from BA
calculated using an interest rate equal to the greater of (1) the "Prime"
interest rate as set forth in The Wall Street Journal from time to time and
(2) the interest rate that Reseller demonstrates to BA's reasonable
5
<PAGE>
satisfaction that it has obtained (or can demonstrate to BA's reasonable
satisfaction that it could obtain) from a commercial lender for loan amounts
equal to not less than the entire amount to be paid to BA under the applicable
subsection (e.g., subsection 1(f)(ii) or 1(g)(i), etc.) of this Amendment with
a maturity of not less than one (1) year (the foregoing being the "Applicable
Interest Rate"), plus (C) any applicable taxes relating thereto, plus (D) a
handling fee equal to five percent (5%) of the amount of the discounts under
this Amendment that Reseller received.
(iii) If the Annual Volume Commitment Determination following the
second year of the Service Term does not yield a number of Qualified Business
Lines equal to at least 60,000, BA may, at its option, terminate this Amendment.
In case of such termination, Reseller shall, within thirty (30) days of receipt
of written demand therefor, pay to BA in immediately available funds (in
addition to any other amounts owed to BA under the Resale Agreements and/or
applicable BA resale tariffs), an amount equal to (A) all of the discounts
under this Amendment that Reseller received from the point of termination back
to the Effective Date of this Amendment, plus (B) interest on such discounts
dating back to the date received from BA calculated using the Applicable
Interest Rate, plus (C) any applicable taxes relating thereto, plus (D) a
handling fee equal to five percent (5%) of the amount of the discounts under
this Amendment that Reseller received.
(iv) If the Annual Volume Commitment Determination following the
third year of the Service Term does not yield a number of Qualified
Business Lines equal to at least 100,000, BA may, at its option, terminate
this Amendment. In case of such termination, Reseller shall, within thirty
(30) days of receipt of written demand therefor, pay to BA in immediately
available funds (in addition to any other amounts owed to BA under the
Resale Agreements and/or applicable BA resale tariffs), an amount equal to
(A) all of the discounts under this Amendment that Reseller received from the
point of termination back to the Effective Date of this Amendment, plus (B)
interest on such discounts dating back to the date received from BA
calculated using the Applicable Interest Rate, plus (C) any applicable taxes
relating thereto, plus (D) a handling fee equal to five percent (5%) of the
amount of the discounts under this Amendment that Reseller received.
(v) If the Annual Volume Commitment Determination following the
fourth year of the Service Term does not yield a number of Qualified Business
Lines equal to at least 100,000, BA may, at its option, terminate this
Amendment. In case of such termination, Reseller shall, Within thirty (30)
days of receipt of written demand therefor, pay to BA in immediately
available funds (in addition to any other amounts owed to BA under the Resale
Agreements and/or applicable BA resale tariffs), an amount equal to (A) all
of the discounts under this Amendment that Reseller received during the year
in question, plus (B) interest on such discounts dating back to the date
received from BA calculated using the Applicable Interest Rate, plus (C) any
applicable taxes relating thereto, plus (D) a handling fee equal to five
percent (5%) of the amount of the discounts under this Amendment that
Reseller received during the year in
6
<PAGE>
question.
(vi) BA will monitor Reseller's monthly volumes of Qualified
Business Lines during the fifth year of the Service Term to ensure compliance
with minimum commitment requirements, i.e., greater than or equal to 100,000
Qualified Business Lines. If Reseller's volumes should fall below 100,000 as
of the last day of any month, then BA may, at its option, terminate this
Amendment. In case of such termination, Reseller shall, within thirty (30)
days of receipt of written demand therefor, pay to BA in immediately
available funds (in addition to any other amounts owed to BA under the Resale
Agreements and/or applicable BA resale tariffs), an amount equal to (A) all
of the discounts under this Amendment that Reseller received during the year
in question, plus (B) interest on such discounts dating back to the date
received from BA calculated using the Applicable Interest Rate, plus (C) any
applicable taxes relating thereto, plus (D) a handling fee equal to five
percent (5%) of the amount of the discounts under this Amendment that
Reseller received during the year in question.
(g) TERMINATION CHARGE. (i) In each case during the first three
(3) years of the Service Term, if Reseller terminates any of the Resale
Agreements or this Amendment, or if BA in its discretion terminates any of
the Resale Agreements or this Amendment due to breach, or if Reseller ceases
to be a certified reseller (and does not restore its certification within
forty-five (45) days of the loss or expiration of certification) in each
State in which it has a Resale Agreement with BA or purchases services from
BA under an applicable BA resale tariff, Reseller shall, within thirty (30)
days of receipt of written demand therefor, pay to BA in immediately
available funds (in addition to any other amounts owed to BA under the Resale
Agreements and/or applicable BA resale tariffs), an amount equal to (A) all
of the discounts under this Amendment that Reseller received from the point
of termination back to the Effective Date of this Amendment (less the
amounts, if any, previously refunded by Reseller to BA under this Amendment),
plus (B) interest on such discounts dating back to the date received from BA
calculated using the Applicable Interest Rate, plus (C) any applicable taxes
relating thereto, plus (D) a handling fee equal to five percent (5%) of the
amount of the discounts under this Amendment that Reseller received.
(ii) In each case during the fourth and fifth years of the Service
Term, if Reseller terminates any of the Resale Agreements or this Amendment, or
if BA in its discretion terminates any of the Resale Agreements or this
Amendment due to breach, or if Reseller ceases to be a certified reseller (and
does not restore its certification within forty-five (45) days of the loss or
expiration of certification) in each State in which it has a Resale Agreement
with BA or purchases services from BA under an applicable BA resale tariff,
Reseller shall, within thirty (30) days of receipt of written demand therefor,
pay to BA in immediately available funds (in addition to any other amounts owed
to BA under the Resale Agreements and/or applicable BA resale tariffs), an
amount equal to (A) all of the discounts under this Amendment that Reseller
received during the number of months or portions thereof in the year of the
Service Term in which termination or loss of certification occurs, plus (B)
interest on such discounts
7
<PAGE>
dating back to the date received from BA calculated using the Applicable
Interest Rate, plus (C) any applicable taxes relating thereto, plus (D) a
handling fee equal to five percent (5%) of the amount of the discounts under
this Amendment that Reseller received during the year in question.
(h) ADDITIONAL DISCOUNTS. (i) Subject to Reseller having met
each of the conditions set forth in Section 2 of this Amendment, and subject
also to the other conditions set forth in this Amendment, Reseller shall
receive, on each of the Qualified Business Lines being purchased from BA and
resold hereunder as part of the Annual Volume Commitment, during the Service
Term only, an additional (A) four percent (4%) to twelve percent (12%)
discount, as applicable (the "Volume and Term Discount), in accordance with
the schedule set forth in Table 2 following, (B) an additional ten percent
(10%) discount (the "Winback Discount") to the extent applicable under
subsection (h)(ii) below and (C) an additional three percent (3%) discount
(the "IntraLATA Toll Discount"), to the extent applicable under subsection
(h)(ix) below, in each case on certain services, as set forth on Appendix 1
hereto (each an "Eligible Service" and, collectively, the "Eligible
Services"), that Reseller purchases under any of the Resale Agreements and/or
applicable BA resale tariffs; provided, however, such Volume and Term
Discount, Winback Discount and IntraLATA Toll Discount, at BA's sole option,
shall not apply to Qualified Business Lines in any month in excess of 500,000
purchased by Reseller from BA for resale; and provided further, that such
Volume and Term Discount, Winback Discount and IntraLATA Toll Discount shall
not apply to Centrex-Registered Trademark- lines (even with respect to such
lines that constitute Qualified Business Lines hereunder) purchased by
Reseller from BA for resale.
VOLUME AND TERM DISCOUNT SCHEDULE
<TABLE>
<CAPTION>
- -----------------------------------------------------------------------------------------------------------------------
V & T Tier EOY 1 EOY 2 EOY 3 EOY 4 EOY 5
- -----------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C>
Tier 1(A) greater than or greater than or greater than or greater than or greater than or
equal to 45k to 50K equal to 90K to 100K equal to 180K to 200K equal to 200K equal to 200K
QBLs QBLs QBLs QBLs QBLs
7% 10% 12% 12% 12%
- -----------------------------------------------------------------------------------------------------------------------
Tier 1(B) greater than or greater than or greater than or
equal to 47.5K to 50K equal to 95K to 100K equal to 190K to 200K N/A N/A
QBLs QBLs QBLs
7% 10% 12%
- -----------------------------------------------------------------------------------------------------------------------
Tier 2 30K to Tier 1 60K to Tier 1 150K to Tier 1 150K to Tier 1 150K to Tier 1
4% 7% 10% 10% 10%
- -----------------------------------------------------------------------------------------------------------------------
Tier 3 N/A N/A 100K to Tier 2 100K to Tier 2 100K to Tier 2
7% 7% 7%
- -----------------------------------------------------------------------------------------------------------------------
Tier 4 less than 30K less than 60K less than 100K less than 100K less than 100K
Terminate Terminate Terminate Terminate Terminate
Contract Contract Contract Contract Contract
- -----------------------------------------------------------------------------------------------------------------------
</TABLE>
Table 2
The Volume and Term Discount, Winback Discount and IntraLATA Toll
Discount on BA's applicable retail prices for the foregoing services is
exclusive of and, in addition to, the respective wholesale discounts to which
Reseller may be entitled under
8
<PAGE>
the Resale Agreements or applicable BA resale tariffs, as amended from time
to time, prior to giving effect to this Amendment (the "Existing Wholesale
Discounts"); provided, however, that to the extent Reseller obtains such
Eligible Services without also purchasing BA's operator services and
directory assistance, the amount of the Volume and Term Discount, Winback
Discount and IntraLATA Toll Discount shall be reduced, as necessary, to give
effect to an Existing Wholesale Discount based upon purchase by Reseller of
BA's operator services and directory assistance. Any services with respect to
a Qualified Business Line that Reseller purchases from BA under a Resale
Agreement or applicable BA resale tariff, but which are not Eligible
Services, or which are Eligible Services but are purchased by Reseller
pursuant to a BA promotional discount (given at the retail and/or the
wholesale level) or pursuant to or in connection with a volume, term or other
discount under an applicable BA tariff or contractual arrangement (regardless
of the parties thereto) other than the Resale Agreements, shall not qualify
for the Volume and Term Discount, Winback Discount or IntraLATA Toll Discount
and no such Volume and Term Discount, Winback Discount or IntraLATA Toll
Discount shall be applied thereto. With the exception of the Business Link,
Key Connections, and Rewarding Connections Optional Calling Plans, neither
the IntraLATA Toll Discount nor the Volume and Term Discount shall apply to
services (whether or not Eligible Services) purchased under an optional
calling plan, although minutes of use purchased by Reseller from BA under an
IntraLATA Toll optional calling plan shall be counted for purposes of
calculations to determine whether Reseller met the applicable MOU Target, as
defined and, further set forth in, subsection (ix) below.
(ii) Upon receipt by BA of written notice from Reseller, in which
Reseller represents and warrants that a Qualified Business Line (excluding
Centrex-Registered Trademark- lines that are Qualified Business Lines) was
not on the BA network (other than with respect to purchase of number
portability services from BA) for at least the immediately preceding ninety
(90) day period, but is now being converted to the BA network from a carrier
other than Reseller that is not an affiliate of Reseller, BA shall provide
to Reseller (unless BA reasonably believes, in its sole discretion, that
Reseller is materially inaccurate with respect to the foregoing notice
including, without limitation, due to such inaccuracy in Reseller's previous
notices) an additional Winback Discount on its purchase of Eligible Services
in respect of such line (effective from the date of conversion to the BA
network), so long as such line remains on the BA network (and the entity from
which the conversion to the BA network was made remains a non-affiliate of
Reseller), provided that the Winback Discount shall not apply beyond the
twelve (12) month period immediately after the date of such conversion. For
purposes of the foregoing, being on "the BA network" shall be determined by BA
in its sole reasonable discretion including, without limitation, with
reference to the end user customer's telephone number (as opposed to the end
user customer's name). Upon receipt of a request from BA, Reseller shall
provide to BA a copy of documentation reasonably requested by BA to support
Reseller's claim that a line is eligible for the Winback Discount. Such
documentation may include, but is not limited to, the following: (A) orders
or similar documentation for number portability from a CLEC network to the BA
network for the affected line; (B) orders or similar documentation
demonstrating that
9
<PAGE>
any lines being converted from a CLEC network to the BA network on a
disconnect/new connect basis (in lieu of number portability) are one in the
same; and (C) other documentation as reasonably requested by BA from time to
time. In addition to any other audit rights BA may have under the Resale
Agreements and/or applicable BA tariffs, BA shall have the right (but not the
obligation) to audit Reseller to ascertain whether Reseller is complying
with the foregoing requirements with respect to eligibility for the Winback
Discount.
(iii) Subject to repayment under the terms of this Amendment,
during the first year of the Service Term the Volume and Term Discount shall
equal seven percent (7%) if the Annual Volume Commitment Measurement reflects
Tier 1 volume attainment or four percent (4%) if the Annual Volume Commitment
Measurement reflects Tier 2 volume attainment.
(iv) Subject to repayment under the terms of this Amendment,
during the second year of the Service Term the Volume and Term Discount shall
equal ten percent (10%) if the Annual Volume Commitment Measurement reflects
Tier 1 volume attainment or seven percent (7%) if the Annual Volume
Commitment Measurement reflects Tier 2 volume attainment.
(v) Subject to repayment under the terms of this Amendment,
during the third through fifth years of the Service Term the Volume and Term
Discount shall equal twelve percent (12%) if the Annual Volume Commitment
Measurement reflects Tier 1 volume attainment or ten percent (10%) if the
Annual Volume Commitment Measurement reflects Tier 2 volume attainment or
seven percent (7%) if the Annual Volume Commitment Measurement reflects Tier
3 volume attainment.
(vi) As set forth in subsection (iii) above, upon the Effective
Date of this Amendment, Reseller will receive a seven percent (7%) Volume and
Term Discount on the assumption that Reseller will purchase, as measured
through the Annual Volume Commitment Measurement, Tier 1 volumes for the
first year of the Service Term. For each subsequent year of the Service Term,
the applicable discount will be from the same Tier used for the previous
year. For example, if Reseller purchased Qualified Business Line volumes in
year 2 that, as measured through the Annual Volume Commitment Measurement,
equated to the Tier 2 discount for year 2, then Reseller would enter year 3
with the applicable Tier 2 discount for year 3. See Table 2 in Section
1(h)(i).
(vii) For any year of the Service Term when the actual purchased
Qualified Business Line volumes, as calculated by the Annual Volume
Commitment Determination, equate to a lesser Volume and Term Discount than
what was actually billed, Reseller shall refund, for the applicable year in
question, an amount equal to the difference between the "billed" discount and
the "earned" discount. In case of such excess discounting, Reseller shall,
within thirty (30) days of receipt of written demand therefor, pay to BA in
immediately available funds (in addition to any other amounts
10
<PAGE>
owed to BA under the Resale Agreements and/or applicable BA resale tariffs),
an amount equal to (A) the difference between the "billed" and "earned"
Volume and Term Discounts under this Amendment that applied during the year
in question, plus (B) interest on the difference in Volume and Term Discounts
dating back to the date received from BA calculated using the Applicable
Interest Rate, plus (C) any applicable taxes relating thereto. Such payment
will be based on the actual lines in service on the last day of each month
during the year in question.
(viii) For any year of the Service Term when the actual purchased
Qualified Business Line volumes, as calculated by the Annual Volume
Commitment Determination, equate to a greater Volume and Term Discount than
what was actually billed, Reseller may request a credit, for the applicable
year in question, in an amount equal to the difference between the "billed"
discount and the "earned" discount. In case of such under-discounting, BA
shall, within thirty (30) days of receipt of written demand therefor, credit
the applicable Reseller account(s), an amount equal to (A) the difference
between the "billed" and "earned" Volume and Term Discounts under this
Amendment that applied during the year in question, plus (B) interest on the
difference in Volume and Term Discounts dating back to the date received from
BA equal to the "Prime" interest rate as set forth in The Wall Street Journal
from time to time, plus (C) any applicable taxes relating thereto.
(ix) (A) Notwithstanding the provisions of subsection (h)(i)
above to the contrary, if, during any year of the Service Term, Reseller
fails to (x) have at least eighty percent (80%) of its Qualified Business
Lines presubscribed to BA's IntraLATA Toll service (the "IntraLATA Toll
Presubscription Commitment"), the IntraLATA Toll Discount for the next
succeeding year of the Service Term shall be reduced by two percent (2%)
(i.e., from three percent (3%) to one percent (1%)) or (y) purchase from BA
at least the applicable minimum aggregate total number of minutes of use of
BA's IntraLATA Toll service as set forth below in this subsection (ix) (the
"MOU Target"), the IntraLATA Toll Discount for the next succeeding year of the
Service Term shall be reduced by one percent (1%) (i.e., from three percent
(3%) to two percent (2%)); provided, however, that, for the avoidance of any
doubt, if Reseller fails to meet the applicable requirements under both
subsections (x) and (y) above, the amount of the IntraLATA Toll Discount
for the next succeeding year of the Service Term shall be reduced to zero
(0); provided further that, if Reseller fails to meet the applicable
requirements under either or both of subsections (x) and (y) above in respect
of the fifth year (or other year if, for whatever reason, the last year of
the Service Term is not the fifth year) of the Service Term, Reseller shall,
within thirty (30) days of receipt of written demand therefor, pay to BA in
immediately available funds, the amount of the IntraLATA Toll Discount to
which it was not entitled during the fifth year (or other year if, for
whatever reason, the last year of the Service Term is not the fifth year) of
the Service Term (i.e., the two percent (2%) discount referenced above if
Reseller did not meet the eighty percent (80%) IntraLATA Toll Presubscription
Commitment, and the one percent (1%) discount referenced above if Reseller
did not meet the MOU Target requirement).
11
<PAGE>
(B) Reseller may, upon sixty (60) days written notice,
terminate the IntraLATA Toll Service Presubscription Commitment and MOU
Target requirement applicable under this Amendment for any BA jurisdiction
(i.e., a particular State or the District of Columbia) without incurring a
penalty. Upon the effective date of such termination, BA shall cease the
application of the IntraLATA Toll Discount for such jurisdiction and
determine, on a pro rata basis, Reseller's attainment of minutes of use and
BA presubscription commitments during the number of months or portions
thereof in the year of the Service Term in which termination occurs. If
Reseller fails to meet the applicable requirements under either or both of
subsections (x) and (y) above, Reseller shall, within thirty (30) days of
receipt of written demand therefor, pay to BA in immediately available funds,
the amount of the IntraLATA Toll Discount to which it was not entitled during
the number of months or portions thereof in the year of the Service Term in
which termination occurs (i.e., the two percent (2%) discount referenced
above if Reseller did not meet the eighty percent (80%) IntraLATA Toll
Presubscription Commitment, and the one percent (1%) discount referenced
above if Reseller did not meet the MOU Target requirement).
(C) During the first year of the Service Term, the MOU
Target shall equal the product of (x) forty (40), multiplied by (y) forty
percent (40%) of the sum obtained by adding the number of Qualified Business
Lines purchased by Reseller from BA hereunder as of the last day of the first
and last months, respectively, of the first year of the Service Term (the
resulting number of lines not to exceed 50,000), multiplied by (z) twelve
(12) months. By way of example only, if Reseller purchased from BA hereunder
20,000 Qualified Business Lines as of the last day of the first month of the
first year of the Service Term and 50,000 Qualified Business Lines as of the
last day of the last month of the first year of the Service Term, the MOU
Target for the first year of the Service Term would be the product of the
following: forty (40), multiplied by .40, multiplied by 70,000 (which is the
sum of 20,000 and 50,000), multiplied by twelve (12) -- which equals
13,440,000 minutes of use of BA's IntraLATA Toll service.
(D) During subsequent years of the Service Term, the MOU
Target shall be determined by BA as set forth below; provided, however, that
for the purposes of such calculations, at no time shall the average number of
minutes of use per month of BA's IntraLATA Toll service purchased hereunder
by Reseller from BA per Qualified Business Line (the "Average Monthly MOU Per
Line") be less than forty (40) minutes).
(E) During the second year of the Service Term, the MOU
Target shall equal the product of (x) the greater of forty (40) or the
Average Monthly MOU Per Line during the first year of the Service Term
multiplied by .90, multiplied by (y) forty percent (40%) of the sum obtained
by adding the number of Qualified Business Lines purchased by Reseller from
BA hereunder as of the last day of the first and last months, respectively,
of the second year of the Service Term (the resulting number of lines not to
exceed 100,000), multiplied by (z) twelve (12) months. By way of example
only, if Reseller's Average Monthly MOU Per Line for the first year of the
Service Term was
12
<PAGE>
sixty (60) and Reseller purchased from BA hereunder 60,000 Qualified Business
Lines as of the last day of the first month of the second year of the Service
Term and 100,000 Qualified Business Lines as of the last day of the last
month of the second year of the Service Term, the MOU Target for the second
year of the Service Term would be the product of the following: 54 (which is
the product of 60 and .90), multiplied by .40, multiplied by 160,000 (which
is the sum of 60,000 and 100,000), multiplied by twelve (12) -- which equals
41,472,000 minutes of use of BA's IntraLATA Toll service.
(F) During the third year of the Service Term, the MOU
Target shall equal the product of (x) the greater of forty (40) or the
Average Monthly MOU Per Line during the second year of the Service Term
multiplied by .90, multiplied by (y) forty percent (40%) of the sum obtained
by adding the number of Qualified Business Lines purchased by Reseller from
BA hereunder as of the last day of the first and last months, respectively,
of the third year of the Service Term (the resulting number of lines not to
exceed 200,000), multiplied by (z) twelve (12) months. By way of example
only, if Reseller's Average Monthly MOU Per Line for the second year of the
Service Term was sixty (60) and Reseller purchased from BA hereunder 110,000
Qualified Business Lines as of the last day of the first month of the third
year of the Service Term and 200,000 Qualified Business Lines as of the last
day of the last month of the third year of the Service Term, the MOU Target
for the third year of the Service Term would be the product of the following:
54 (which is the product of 60 and .90), multiplied by .40, multiplied by
310,000 (which is the sum of 110,000 and 200,000), multiplied by twelve (12)
- -- which equals 80,352,000 minutes of use of BA's IntraLATA Toll service.
(G) The respective MOU Targets for each of the fourth and
fifth years of the Service Term shall equal the product of (x) the greater of
forty (40) or the Average Monthly MOU Per Line during the immediately
preceding year of the Service Term multiplied by .90, multiplied by (y)
eighty percent (80%) of the Annual Volume Commitment Determination for the
immediately preceding year of the Service Term (the resulting number not to
exceed 200,000), multiplied by (z) twelve (12) months. By way of example
only, if Reseller's Average Monthly MOU Per Line for the fourth year of the
Service Term was sixty (60) and the Annual Volume Commitment Determination
for the fifth year of the Service Term was 200,000, the MOU Target for the
fifth year of the Service Term would be the product of the following: 54
(which is the product of 60 and .90), multiplied by .80, multiplied by
200,000, multiplied by twelve (12) -- which equals 103,680,000 minutes of
use of BA's IntraLATA Toll service
(x) Notwithstanding any provisions of this subsection (h) to the
contrary, the amount of the Volume and Term Discount, the Winback Discount
and the IntraLATA Toll Discount in any State shall be reduced, if and as
necessary, to the extent that, absent such reduction, the sum of the Volume
and Term Discount, the IntraLATA Toll Discount and the Existing Wholesale
Discount in effect from time to time in such State would exceed the sum of
the amount of the Existing Wholesale Discount in effect on the date hereof in
such State plus fifteen percent (15%).
13
<PAGE>
2. CONDITIONS TO APPLICATION OF ADDITIONAL DISCOUNTS. BA may,
at its sole discretion, withhold from Reseller some or all of the Volume and
Term Discount, Winback Discount and IntraLATA Toll Discount under one, some
or all of the Resale Agreements and/or applicable BA tariffs, at any time
and, from time to time, if Reseller does not place its first order for an
Eligible Service hereunder by November 30, 1999, or if Reseller materially
defaults in performing any of its material obligations under any Resale
Agreement, applicable BA tariff or other contractual arrangement between
Reseller (or any affiliate of Reseller) and BA (or any affiliate of BA), and
such default is not cured at the time BA prepares the applicable monthly
bill(s) for submittal to Reseller. Such a material default includes, without
limitation, failure by Reseller to fulfill any of the obligations set forth
in the subsections of this Section 2, the breach of which, for the avoidance
of doubt, however, shall not affect the respective Existing Wholesale
Discounts to which Reseller may be entitled under the Resale Agreements or
applicable BA resale tariffs prior to giving effect to this Amendment. In
such case, if BA exercises its discretion and withholds some or all of the
Volume and Term Discount, Winback Discount or IntraLATA Toll Discount, once
the default is cured BA may, at its sole option, release none, some or all of
the withheld portion of the Volume and Term Discount, Winback Discount or
IntraLATA Toll Discount. If BA opts not to release all of any such withheld
portions, Reseller shall have no right to any of the unreleased amounts.
(a) ELECTRONIC ORDERS. Notwithstanding any provisions of a
Resale Agreement or applicable BA resale tariff to the contrary, all orders
submitted by Reseller to BA pursuant to any of the Resale Agreements or
applicable BA resale tariffs, whether or not in respect of Eligible Services
set forth in Appendix 1 hereto, shall be submitted via an electronic
interface approved by BA for the provisioning of services under a resale
arrangement.
(b) ASSIGNMENTS AND MERGERS/ACQUISITIONS. Without the
prior written consent of BA (which may be withheld by BA in its sole
discretion), a Reseller Company shall not assign any of its respective rights
or obligations under any of the Resale Agreements or under this Amendment (or
under any other resale agreement or related agreement, in the case of another
entity that becomes a Reseller Company), and shall not accept an assignment
to it of any of the respective rights or obligations of another entity under
a resale agreement or related agreement with BA. If a Reseller Company merges
with another entity or acquires another entity (or if the parent company of
the Reseller Companies (currently Reseller Holdings) is acquired by another
entity), which other entity in any case, prior to such merger or acquisition,
was not a party to a resale volume and term discount arrangement with BA, the
applicable Reseller Company may elect to count Qualified Business Lines being
purchased by such other entity from BA as Qualified Business Lines hereunder
for purposes of the Annual Volume Commitment Determination (and such lines
shall be eligible for the discounts available under this Amendment in
accordance with the terms hereof); provided that upon BA's request, the
Reseller Company and/or such other entity (which shall then be deemed to be a
Reseller Company) shall first execute such documents as BA reasonably deems
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necessary to give effect to the terms of this Amendment, particularly to
amend the terms and conditions of the applicable resale agreements of the
other entity in a manner substantially identical to the terms and conditions
of this Amendment; provided further that BA may, at its discretion, cease
counting Qualified Business Lines being purchased in respect of the acquired,
acquiring or merged with Reseller Company as Qualified Business Lines
hereunder for purposes of the Annual Volume Commitment Determination (and
such lines shall cease being eligible for the discounts available under this
Amendment and any such related documents) if any of the applicable Reseller
Companies (to include the other entity acquired, acquiring or to which
merged) fails, within one hundred eighty (180) days of the effective date of
such merger or acquisition, to exclusively utilize the same type of
electronic interface (e.g., Web-GUI, EDI, etc.), to include, without
limitation, the applicable version thereof, with BA on a State by State basis
(to include the District of Columbia), as the type of such electronic
interface (to include, without limitation, the applicable version thereof)
used by the other Reseller Companies for such jurisdiction; the foregoing
shall also apply in the case of Reseller Inc., Reseller LLC or Reseller
Holdings ceasing to utilize the same such type of electronic interface (to
include, without limitation, the applicable version thereof) with BA on a
State by State basis. If a Reseller Company merges with another entity or
acquires another entity (or if the parent company of the Reseller Companies
(currently Reseller Holdings) is acquired by another entity), which other
entity in any case, prior to such merger or acquisition, was a party to a
resale volume and term discount arrangement with BA, the Reseller Company
and/or such other entity, as applicable, shall be responsible for fulfilling
their respective obligations to BA under both this Amendment and such other
resale volume and term discount arrangement.
(c) ORDER QUALITY. At least ninety-five percent (95%) of
Reseller's orders submitted to BA during each month of the Service Term
(whether or not in respect of Eligible Services set forth in Appendix 1
hereto) shall not contain errors or omissions such that they are rejected by
BA or require queries from BA to Reseller. In addition, Reseller shall submit
such orders so that at least ninety percent (90%) of Flow Through Eligible
Orders actually flow through; a "Flow Through Eligible Order" does not
require manual intervention by BA. Upon the first billing cycle month of the
Service Term in which one or both of the above conditions is not met,
Reseller agrees, upon reasonable request by BA, to meet with BA promptly and
in good faith to determine the reasons that the foregoing percentage(s) was
not met and to develop a plan for improvement. If Reseller does not meet
either of such conditions for a second consecutive month, Reseller agrees,
upon reasonable request by BA, to meet with BA promptly and in good faith to
determine the reasons that the foregoing percentage(s) was not met and to
develop a plan for improvement. If Reseller does not meet either of such
conditions for a third consecutive month, Reseller shall be deemed to have
materially defaulted in performing under this subsection, and BA may, at its
sole option, not apply the Volume and Term Discount, Winback Discount and/or
IntraLATA Toll Discount to Eligible Services purchased by Reseller from BA
under the Resale Agreements and/or applicable BA resale tariffs until
Reseller first meets both such conditions in a subsequent month of the
Service Term.
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(d) FORECASTS. Reseller shall provide to BA accurate and
timely forecasts in accordance with BA's forecasting requirements as in
effect from time to time (as currently set forth in Section 8.4 of Volume 1
of BA's Resale Handbook series), at least twice a year during the Service
Term, of the Eligible Services under each Resale; Agreement or applicable BA
resale tariff that Reseller anticipates purchasing from BA.
(e) COOPERATION WITH BA PROCESSES/JOINT EFFORTS TO INCREASE
EFFICIENCY. Each Party shall use commercially reasonable efforts to comply
with the other Party's reasonable requests aimed at increasing the efficiency
of the ordering and maintenance processes under the Resale Agreements and/or
applicable BA resale tariffs. Such requests may include, without limitation
that Reseller personnel attend training sessions from time to time regarding
ordering, that Reseller use certain reference materials designated by BA that
are designed to limit the number of calls made to BA's Help Desk, that
Reseller participate in Industry Change Control meetings held from time to
time by BA, that Reseller use pre-order functionalities established by BA to
validate addresses, to determine feature availability, to reserve telephone
numbers and the like, and that representatives of the Parties meet, from time
to time, to discuss means by which such efficiency can be improved,.
3. LIMITED AMENDMENTS. The amendments set forth in this
Amendment shall be limited precisely as written and shall not be deemed to
(a) be an amendment to or waiver of any other term or condition of the Resale
Agreements or of any other instrument, tariff, SGAT or agreement referred to
therein; or (b) prejudice any right or remedy that either Party may have in
the future under or in connection with the Resale Agreements or any
instrument, tariff, SGAT or agreement referred to therein. For the avoidance
of doubt, any and all amounts due to BA under the terms of this Amendment
shall be subject, in addition to the specific remedies set forth in this
Amendment, also (at BA's sole option) to the remedies and procedures set
forth in the Resale Agreements and/or applicable BA tariffs; provided,
however, that in the event Reseller shall fail to (a) purchase a quantity of
Qualified Business Lines at least equal to the applicable Annual Volume
Commitment, (b) have at least eighty percent (80%) of its Qualified Business
Lines, presubscribed to BA's IntraLATA Toll Service or (c) satisfy the
applicable MOU Target, Reseller's liability, and BA's sole claim and
recourse, with respect to any such failure, shall be limited to (w) not
providing to Reseller the applicable discounts under this Amendment, (x)
repayment of all of the discounts under this Amendment that Reseller received
during the period in question, together with interest on such discounts
dating back to the date received from BA calculated using the Applicable
Interest Rate, as well as any applicable taxes relating thereto and a
handling fee equal to five percent (5%) of the amount of the discounts under
this Amendment that Reseller received during the period in question and (z)
termination of this Amendment, to the extent applicable, in each case in
accordance with the terms of this Amendment..
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4. RATIFICATION OF RESALE AGREEMENTS: NO CHALLENGES. This
Amendment shall be construed in connection with and, as a part of, the Resale
Agreements, and all terms, conditions, representations, warranties,
covenants, and agreements set forth in the Resale Agreements, except as
herein amended or waived, are hereby ratified and confirmed and shall remain
in full force and effect. In addition, Reseller hereby expressly agrees not
to challenge the reasonableness, enforceability, validity, legality or the
like, of any term or condition in any of the Resale Agreements or in this
Amendment, either before a court or regulatory authority of competent
jurisdiction, or otherwise.
5. CLAIMS. (a) DEFINITION OF CLAIMS. For purposes of this Amendment,
"Claims" means any and all manner of liabilities, obligations, causes of
action, in law or equity, complaints, actions, demands, suits, debts, dues,
judgments, executions, costs, expenses and other claims of any and every
kind, arising under any theory of contract, tort, fraud, breach of duty,
strict liability, or any other theory of liability, based on any federal,
State, or local law, code, statute, rule or regulation or the common or civil
law of any jurisdiction, known or unknown, fixed or contingent, suspected or
unsuspected, or latent, concealed or hidden, that a Party asserted or could
have asserted against the other Party as of the Effective Date or before such
date; provided, however, that "Claims" shall not include any right, duty or
obligation that by the terms of Section 5(c)(ii) hereof remains in full force
and effect and is not limited or waived.
(b) DEFINITION OF PARTIES. For purposes of and, in connection
with, the release contained in this Amendment, references to a Party include
such Party and each of its shareholders, parents, subsidiaries, assigns,
predecessors and successors in interest, partners, agents and affiliates, and
the officers, directors, employees, controlling persons, shareholders,
servants, representatives, attorneys, administrators, partners, agents and
affiliates of each of them and all parties acting by, through, under or in
concert with each of them, past or present.
(c) RELEASE OF CLAIMS. (i) On the Effective Date, Reseller
hereby, releases, remixes, acquits and forever discharges BA from and against
any and all Claims of Reseller against BA.
(ii) Each Party agrees that with respect to those
agreements between them, as amended by the terms of this Amendment and any
other documents entered into in connection herewith, the lawful obligations
and duties of such agreements shall be in full force and effect as of the
Effective Date and henceforth.
(d) DELIVERY OF RELEASES IN FUTURE. Reseller agrees, for the
benefit of BA and at its own expense, that now and in the future it will
execute and deliver to BA any releases of judgment, liens, bonds or
encumbrances (whether statutory, common law or otherwise) in favor of
Reseller arising out of or with respect to the Claims of Reseller or the
subject matter thereof, and any releases of mortgage, termination statements
or other similar instruments that are necessary or advisable to release and
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discharge of record all liens, security interests and other encumbrances in
favor of Reseller under or with respect to the Claims of Reseller and that it
will now and in the future pay all taxes (other than taxes imposed on or
measured by the income of BA), costs or expenses, if any, upon any documents
or transactions relating thereto.
(e) FULL AND FINAL RELEASE. This Amendment is a full and final
release applying not only to such of the Claims of Reseller as are presently
known, anticipated or disclosed to either of the Parties but also to all such
Claims of Reseller which are presently unknown, unanticipated and undisclosed
to either or both of the Parties and which may have arisen prior to the
Effective Date.
(f) REPRESENTATIONS. (i) Each Party represents, warrants and
agrees that in executing and entering into this Amendment, it is not relying
and has not relied upon any representation, promise or statement made by
anyone which is not recited, contained or embodied in this Amendment. Each
Party understands and expressly assumes the risk that any fact not recited,
contained or embodied herein or therein may turn out hereafter to be other
than, different from, or contrary to the facts now known to it or believed by
it to be true. Each Party further understands that the other Party may
possess material information regarding Claims that it has not shared or
revealed to the other Party. Nevertheless, Reseller intends by this
Amendment, and with the advice of its own independently selected counsel, to
release fully, finally and forever all Claims of Reseller and to agree that
this Amendment shall be effective in all respects notwithstanding any such
difference in facts, and shall not be subject to termination, modification or
rescission by reason of any such difference in facts.
(ii) Reseller represents and warrants that it has not
heretofore assigned or transferred or purported to assign or transfer to any
person or entity all or any part of or any interest in any Claim of Reseller.
Reseller agrees to indemnify and to hold harmless BA against any claim,
contention, demand, cause of action, obligation or liability of any nature,
character or description whatsoever, including the payment of attorneys' fees
and costs actually incurred, whether or not litigation is commenced, which
may be based upon or which may arise out of or in connection with any such
assignment or transfer or purported assignment or transfer of any Claim of
Reseller.
(g) NO LIABILITY. This Amendment is not intended to be and
shall not be deemed, construed or treated in any respect as an admission of
liability by any person or entity for any purpose.
(h) CONDITION PRECEDENT FOR BA ENTRY INTO AMENDMENT. The entry
by BA into this Amendment is premised, among other things, on BA not being
aware of having any Claims against Reseller or any affiliate of Reseller. As
such, to the extent that another reseller would wish to enter into an
arrangement with BA similar or identical to this Amendment, pursuant to
Section 252(i) of the TelAct or otherwise, BA would have no obligation to
enter into any such arrangement with such other reseller to
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the extent that BA was aware of any Claims it might have against such other
reseller or any affiliate of such reseller.
6. FINAL AGREEMENT. This Amendment constitutes the full and
only agreement between the Parties with respect to its subject matter,
supersedes all previous agreements between them concerning such subject
matter and cannot be amended except by a writing duly signed by each of them.
7. AUTHORITY. Each of the Parties hereby covenants, warrants
and represents to the other Party that it has full power, right and authority
to execute, deliver, enter into and perform this Amendment.
8. CHOICE OF LAW. THIS AMENDMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE INTERNAL LAWS OF THE STATE OF NEW YORK FOR
ALL PURPOSES, INCLUDING BOTH CONSTRUCTION AND REMEDY, WITHOUT REGARD TO
CHOICE OF LAW RULES (OTHER THAN SECTION 5-1401 OF THE NEW YORK GENERAL
OBLIGATIONS LAW (OR ANY SUCCESSOR PROVISION THERETO)).
9. JURISDICTION. The Parties hereby irrevocably submit to the
venue and to both subject matter and personal jurisdiction in the Courts of
the State of New York and of the United States of America for the Southern
District of New York.
10. COUNTERPARTS. This Amendment may be executed and delivered
in counterparts and may be delivered by facsimile transmission and shall be
binding upon each of the Parties and on their respective successors and
assigns.
11. HEADINGS. The headings contained in this Amendment are for
ease of reference only and shall be of no legal effect.
12. NO SEVERABILITY. If any of the provisions of this
Amendment are held to be invalid or unenforceable by a court or regulatory
authority of competent jurisdiction, BA may elect, at its sole option, to
terminate this Amendment or to enter into a mutually agreeable further
amendment to the Resale Agreements and/or agreement incorporating by
reference the terms of applicable BA resale tariffs (with respect only to
Reseller). In case of such termination, Reseller shall nonetheless remain
obligated to pay to BA all amounts, if any, due to BA pursuant to and, on
terms set forth in, this Amendment that have accrued as of the date of
termination.
13. TERMINATION RIGHT. BA is entering into this Amendment to
increase the volume of resale business it conducts with resellers, especially
in the short term. In addition, given that the procedures set forth herein
are new, the overall impact of such procedures on BA's business is uncertain.
Accordingly, BA is limiting the time period during which arrangements such as
those set forth in this Amendment shall be available. As such, if during the
period beginning on the date hereof and ending
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November 30, 1999, Reseller shall not have placed its first order with BA for
an Eligible Service pursuant to the terms of this Amendment, BA may, at its
sole option, terminate this Amendment. In addition and, consistent with the
foregoing, to the extent that another reseller would wish to enter into an
arrangement with BA similar or identical to this Amendment, pursuant to
Section 252(i) of the TelAct or otherwise, BA would not be under any
obligation to enter into any such arrangement with such other reseller after
November 30, 1999.
14. MINIMUM VOLUME REPRESENTATION. Reseller represents and
warrants that, during the month immediately preceding the date hereof, it
purchased from BA, for resale, not less than 20,000 Qualified Business Lines.
15. RIGHT OF SETOFF. In addition to any other remedies
available to BA under the Resale Agreements, and/or applicable BA tariffs
and/or other contractual arrangements between BA and Reseller, if Reseller
does not pay to BA any amount due to BA under a Resale Agreement, and/or an
applicable BA tariff and/or other contractual arrangement between BA and
Reseller, BA may, at its sole option, set off such overdue amounts from the
amount of the Volume and Term Discount, Winback Discount, IntraLATA Toll
Discount and/or Existing Wholesale Discount.
16. BANKRUPTCY-RELATED PROVISIONS.
(a) PRE-PETITION WAIVER OF AUTOMATIC STAY. Reseller hereby
acknowledges and agrees that in the event it becomes the subject of a
bankruptcy, insolvency, liquidation or similar proceeding affecting the
rights of creditors under State or Federal law that it shall waive and shall
not assert or seek any automatic stay (including a stay imposed by operation
of 11 U.S.C. Sections 105, 362 or 366), injunction or similar bar on BA
exercising its rights or remedies available to it under any of the Resale
Agreements, this Amendment, applicable BA tariffs or applicable law,
including terminating any of the Resale Agreements and/or this Amendment,
terminating or curtailing service to Reseller or Reseller's customers,
transferring such customers to a new service provider, terminating any
license, possessory interest or lease arrangement or agreement with
Reseller, or repossessing any property owned by BA.
(b) ASSUMPTION OR REJECTION OF AGREEMENTS. In the event that a
case is commenced pursuant to 11 U.S.C. Section 101 ET SEQ. or similar Federal
or State insolvency law, by or against Reseller, Reseller agrees, within
thirty (30) days of such commencement, to elect either to assume or reject
the Resale Agreements (as amended hereby) and this Amendment and to file a
motion in its bankruptcy case and seek approval of such election within that
30-day time period.
(c) JURISDICTION TO MODIFY TERMS. Notwithstanding any other
provisions of this Amendment, any of the Resale Agreements or applicable BA
tariffs, this Amendment and the Resale Agreements are subject to change,
modification or cancellation as may be required by a regulatory authority or
court in the execution of its
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lawful jurisdiction, other than a court exercising jurisdiction pursuant to
28 U.S.C. Section 1334.
(d) ACCELERATED BILLING. Reseller hereby acknowledges and
agrees that in the event it becomes the subject of a bankruptcy, insolvency,
liquidation or similar proceeding affecting the rights of creditors under
State or Federal law, BA may, at its option, bill Reseller for weekly service
charges under the Resale Agreements (as amended hereby) and/or applicable BA
tariffs, which amounts shall be due and payable within five (5) business days
of receipt by Reseller of the particular invoice.
(e) PREPAYMENT. Reseller hereby acknowledges and agrees that
in the event it becomes the subject of a bankruptcy, insolvency, liquidation
or similar proceeding affecting the rights of creditors under State or
Federal law, BA may, at its option, bill Reseller up to one (1) month in
advance of receipt by Reseller of BA services under the Resale Agreements (as
amended hereby) and/or applicable BA tariffs, and in such case Reseller shall
be required to prepay BA for such BA services, which amounts in respect
thereof shall be due and payable within five (5) business days of receipt by
Reseller of the particular invoice.
17. OTHER BA RESALE TERM AND VOLUME DISCOUNT PLANS. If BA
enters into, with a party other than Reseller, a resale term and volume
discount plan that contains terms and conditions that are materially
different than the terms and conditions set forth in this Amendment, upon
receipt of a written request from Reseller, BA agrees to promptly begin good
faith negotiations with Reseller in order to modify this Amendment or to
enter into a new contract with terms and conditions consistent with those in
the term and volume discount plan with the other party. In addition, upon
receipt of a written request from Reseller from time to time, BA shall inform
Reseller whether it has entered into any such other resale term and volume
discount plan and, if such plan is not subject to a non-disclosure
obligation, provide a copy of such plan to Reseller.
18. JOINT AND SEVERAL LIABILITY OF RESELLER COMPANIES. Each
Reseller Company (including all entities that become a Reseller Company)
shall be jointly and severally liable for any and all liabilities of any and
all Reseller Companies under this Amendment, the Resale Agreements, any other
resale agreements and related documents, applicable BA tariffs or otherwise;
provided, however, that for the avoidance of any doubt, the entry by Reseller
into this Amendment shall not be construed in any way as authorizing (or
requiring) Reseller to provide any telecommunications service.
19. LETTER OF CREDIT. Not later than the Effective Date of
this Amendment, Reseller shall obtain and provide to BA an unconditional,
irrevocable standby letter of credit naming BA as the beneficiary thereof and
otherwise in form and substance satisfactory to BA from a financial
institution acceptable to BA, in an amount equal to five hundred thousand
dollars ($500,000), in respect of charges (including, without limitation,
both recurring and non-recurring charges) for the services, facilities or
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arrangements provided or to be provided by BA to Reseller (whether under any
Resale Agreement (as amended hereby), BA tariff or otherwise); provided,
however, that not later than one (1) year after the Effective Date of this
Amendment. Reseller shall increase the amount of such letter of credit to one
million dollars ($1,000,000); provided further that, not later than two (2)
years after the Effective Date of this Amendment, Reseller shall increase
the amount of such letter of credit to two million dollars ($2,000,000). BA
may (but is not obligated to) draw on the letter of credit upon notice to
Reseller in respect of any amounts billed to Reseller that are not paid
within the applicable time period for payment thereof. The fact that Reseller
provides the foregoing letter of credit shall in no way relieve Reseller from
compliance with BA's regulations as to advance payments and payment for
service, nor constitute a waiver or modification of the applicable terms of
the Resale Agreements, BA's tariffs or otherwise pertaining to the
discontinuance of service for nonpayment of any sums due to BA for the
services, facilities or arrangements rendered.
IN WITNESS WHEREOF, the Parties have caused this Amendment to be duly
executed as of the day and year first above written.
NEW YORK TELEPHONE COMPANY
By: _______________________________________
Name: Jacob Goldberg
Title: President, Telecom Industry Services
NEW ENGLAND TELEPHONE AND
TELEGRAPH COMPANY
By: _______________________________________
Name: Jacob Goldberg
Title: President, Telecom Industry Services
BELL ATLANTIC - DISTRICT OF
COLUMBIA, INC.
By: _______________________________________
Name: Jacob Goldberg
Title: President, Telecom Industry Services
BELL ATLANTIC - DELAWARE, INC.
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By: _______________________________________
Name: Jacob Goldberg
Title: President, Telecom Industry Services
BELL ATLANTIC - MARYLAND, INC.
By: _______________________________________
Name: Jacob Goldberg
Title: President, Telecom Industry Services
BELL ATLANTIC - NEW JERSEY, INC.
By: _______________________________________
Name: Jacob Goldberg
Title: President, Telecom Industry Services
BELL ATLANTIC - PENNSYLVANIA, INC.
By: _______________________________________
Name: Jacob Goldberg
Title: President, Telecom Industry Services
BELL ATLANTIC - VIRGINIA, INC.
By: _______________________________________
Name: Jacob Goldberg
Title: President, Telecom Industry Services
BELL ATLANTIC - WEST VIRGINIA,
INC.
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By: _______________________________________
Name: Jacob Goldberg
Title: President, Telecom Industry Services
RESELLER
By: _______________________________________
Name:
Title:
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Exhibit 10.17
General Terms and Conditions - Part A
Page 1
AGREEMENT
THIS AGREEMENT is made by and between BellSouth Telecommunications,
Inc., ("BellSouth"), a Georgia corporation, and Essential.com, Inc.
("Essential.com"), a Delaware corporation, and shall be deemed effective as of
NOVEMBER 5, 1999. This Agreement may refer to either BellSouth or Essential.com.
or both as a "Party" or "Parties."
WITNESSETH
WHEREAS, BellSouth is a local exchange telecommunications company
authorized to provide telecommunications services in the states of Alabama,
Florida, Georgia, Kentucky, Louisiana, Mississippi, North Carolina, South
Carolina, and Tennessee; and
WHEREAS, Essential.com is an alternative local exchange
telecommunications company ("CLEC") authorized to provide telecommunications
services in the states of Alabama, Florida, Georgia, Kentucky, Louisiana,
Mississippi, North Carolina, South Carolina, and Tennessee; and
WHEREAS, the Parties wish to resell BellSouth's telecommunications
services and/or interconnect their facilities, purchase network elements and
other services, and exchange traffic specifically for the purposes of fulfilling
their obligations pursuant to sections 251 and 252 of the Telecommunications Act
of 1996 ("the Act").
NOW THEREFORE, in consideration of the mutual agreements contained
herein, BellSouth and Essential.com agree as follows:
1. PURPOSE
The Parties agree that the rates, terms and conditions contained
within this Agreement, including all Attachments, comply and conform
with each Parties' obligations under sections 251 and 252 of the Act.
The resale, access and interconnection obligations contained herein
enable Essential.com to provide competing telephone exchange service
to residential and business subscribers within the territory of
BellSouth. The Parties agree that Essential.com will not be considered
to have offered telecommunications services to the public in any state
within BellSouth's region until such time as it has ordered services
for resale or interconnection facilities for the purposes of providing
business and/or residential local exchange service to customers.
<PAGE>
General Terms and Conditions - Part A
Page 2
2. TERM OF THE AGREEMENT
2.1 The term of this Agreement shall be two years, beginning NOVEMBER 5,
1999, and shall apply to the state(s) of Alabama, Florida, Georgia,
Kentucky, Louisiana, Mississippi, North Carolina, South Carolina, and
Tennessee. If as of the expiration of this Agreement, a Subsequent
Agreement (as defined in Section 2.2 below) has not been executed by
the Parties, this Agreement shall continue on a month-to-month basis
while a Subsequent Agreement is being negotiated. The Parties' rights
and obligations with respect to this Agreement after expiration shall
be as set forth in Section 2.4 below.
2.2 The Parties agree that by no later than one hundred and eighty (180)
days prior to the expiration of this Agreement, they shall commence
negotiations with regard to the terms, conditions and prices of resale
and/or local interconnection to be effective beginning on the
expiration date of this Agreement ("Subsequent Agreement").
2.3 If, within one hundred and thirty-five (135) days of commencing the
negotiation referred to in Section 2.2, above, the Parties are unable
to satisfactorily negotiate new resale and/or local interconnection
terms, conditions and prices, either Party may petition the Commission
to establish appropriate local interconnection and/or resale
arrangements pursuant to 47 U.S.C. 252. The Parties agree that, in
such event, they shall encourage the Commission to issue its order
regarding the appropriate local interconnection and/or resale
arrangements no later than the expiration date of this Agreement. The
Parties further agree that in the event the Commission does not issue
its order prior to the expiration date of this Agreement, or if the
Parties continue beyond the expiration date of this Agreement to
negotiate the local interconnection and/or resale arrangements without
Commission intervention, the terms, conditions and prices ultimately
ordered by the Commission, or negotiated by the Parties, will be
effective retroactive to the day following the expiration date of this
Agreement.
2.4 Notwithstanding the foregoing, in the event that as of the date of
expiration of this Agreement and conversion of this Agreement to a
month-to-month term, the Parties have not entered into a Subsequent
Agreement and either no arbitration proceeding has been filed in
accordance with Section 2.3 above, or the Parties have not mutually
agreed (where permissible) to extend the arbitration window for
petitioning the applicable Commission(s) for resolution of those terms
upon which the Parties have not agreed, then either Party may
terminate this Agreement upon sixty (60) days notice to the other
Party. In the event that BellSouth terminates this Agreement as
provided above, BellSouth shall continue to offer services to
Essential.com pursuant to the terms, conditions and rates set forth in
BellSouth's Statement of Generally Available Terms (SGAT) to the
extent an SGAT has been approved by the applicable Commission(s). If
any state Commission has not approved a BellSouth SGAT, then upon
BellSouth's termination of this Agreement as provided herein,
BellSouth will continue to
<PAGE>
General Terms and Conditions - Part A
Page 3
provide services to Essential.com pursuant to BellSouth's then current
standard interconnection agreement. In the event that the SGAT or
BellSouth's standard interconnection agreement becomes effective as
between the Parties, the Parties may continue to negotiate a
Subsequent Agreement, and the terms of such Subsequent Agreement shall
be effective retroactive to the day following expiration of this
Agreement.
3. ORDERING PROCEDURES
3.1 Essential.com shall provide BellSouth its Carrier Identification Code
(CIC), Operating Company Number (OCN), Group Access Code (GAC) and
Access Customer Name and Address (ACNA) code as applicable prior to
placing its first order.
3.2 The Parties agree to adhere to the BellSouth Local Interconnection and
Facility Based Ordering Guide and Resale Ordering Guide, as
appropriate for the services ordered.
3.3 Essential.com shall pay charges for Operational Support Systems (OSS)
as set forth in this Agreement in Attachment 1 and/or in Attachment 2,
3, 5 and 7 as applicable.
4. PARITY
When Essential.com purchases, pursuant to Attachment 1 of this
Agreement, telecommunications services from BellSouth for the purposes
of resale to end users, BellSouth shall provide said services so that
the services are equal in quality, subject to the same conditions, and
provided within the same provisioning time intervals that BellSouth
provides to its affiliates, subsidiaries and end users. To the extent
technically feasible, the quality of a Network Element, as well as the
quality of the access to such Network Element provided by BellSouth to
Essential.com shall be at least equal in quality to that which
BellSouth provides to itself. The quality of the interconnection
between the networks of BellSouth and the network of Essential.com
shall be at a level that is equal to that which BellSouth provides
itself, a subsidiary, an Affiliate, or any other party. The
interconnection facilities shall be designed to meet the same
technical criteria and service standards that are used within
BellSouth's network and shall extend to a consideration of service
quality as perceived by end users and service quality as perceived by
Essential.com.
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General Terms and Conditions - Part A
Page 4
5. WHITE PAGES LISTINGS
BellSouth shall provide Essential.com and their customers access to
white pages directory listings under the following terms:
5.1 LISTINGS. BellSouth or its agent will include Essential.com
residential and business customer listings in the appropriate White
Pages (residential and business) or alphabetical directories.
Directory listings will make no distinction between Essential.com and
BellSouth subscribers.
5.2 RATES. Subscriber primary listing information in the White Pages shall
be provided at no charge to Essential.com or its subscribers provided
that Essential.com provides subscriber listing information to
BellSouth at no charge
5.3 PROCEDURES FOR SUBMITTING ESSENTIAL.COM SUBSCRIBER INFORMATION.
BellSouth will provide to Essential.com a magnetic tape or computer
disk containing the proper format for submitting subscriber listings.
Essential.com will be required to provide BellSouth with directory
listings and daily updates to those listings, including new, changed,
and deleted listings, in an industry-accepted format. These procedures
are detailed in BellSouth's Local Interconnection and Facility Based
Ordering Guide.
5.4 UNLISTED/NON-PUBLISHED SUBSCRIBERS. Essential.com will be required to
provide to BellSouth the names, addresses and telephone numbers of all
Essential.com customers that wish to be omitted from directories.
5.5 INCLUSION OF ESSENTIAL.COM CUSTOMERS IN DIRECTORY ASSISTANCE DATABASE.
BellSouth will include and maintain Essential.com subscriber listings
in BellSouth's directory assistance databases at no charge. BellSouth
and Essential.com will formulate appropriate procedures regarding
lead time, timeliness, format and content of listing information.
5.6 LISTING INFORMATION CONFIDENTIALITY. BellSouth will accord
Essential.com's directory listing information the same level of
confidentiality that BellSouth accords its own directory listing
information, and BellSouth shall limit access to Essential.com's
customer proprietary confidential directory information to those
BellSouth employees who are involved in the preparation of listings.
5.7 OPTIONAL LISTINGS. Additional listings and optional listings will be
offered by BellSouth at tariffed rates as set forth in the General
Subscriber Services Tariff.
5.8 DELIVERY. BellSouth or its agent shall deliver White Pages directories
to Essential.com subscribers at no charge.
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General Terms and Conditions - Part A
Page 5
6. BONA FIDE REQUEST/NEW BUSINESS REQUEST PROCESS FOR FURTHER UNBUNDLING
If Essential.com is a facilities based provider or a facilities based
and resale provider, this section shall apply. BellSouth shall, upon
request of Essential.com, provide to Essential.com access to its
network elements at any technically feasible point for the provision
of Essential.com's telecommunications service where such access is
necessary and failure to provide access would impair the ability of
Essential.com to provide services that it seeks to offer. Any request
by Essential.com for access to a network element, interconnection
option, or for the provisioning of any service or product that is not
already available shall be treated as a Bona Fide Request/New Business
Request, and shall be submitted to BellSouth pursuant to the Bona Fide
Request/New Business Request process set forth following.
6.1 A Bona Fide Request/New Business Request shall be submitted in writing
to Essential.com's Account Manager by Essential.com and shall
specifically identify the requested service date, technical
requirements, space requirements and/or such specifications that
clearly define the request such that BellSouth has sufficient
information to analyze and prepare a response. Such a request also
shall include a Essential.com's designation of the request as being
(i) pursuant to the Telecommunications Act of 1996 or (ii) pursuant to
the needs of the business.
7. COURT ORDERED REQUESTS FOR CALL DETAIL RECORDS AND OTHER SUBSCRIBER
INFORMATION.
To the extent technically feasible, BellSouth maintains call detail
records for Essential.com end users for limited time periods and can
respond to subpoenas and court ordered requests for this information.
BellSouth shall maintain such information for Essential.com end users
for the same length of time it maintains such information for its own
end users.
7.1 Essential.com agrees that BellSouth will respond to subpoenas and
court ordered requests delivered directly to BellSouth for the purpose
of providing call detail records when the targeted telephone numbers
belong to Essential.com end users. Billing for such requests will be
generated by BellSouth and directed to the law enforcement agency
initiating the request
7.2 Essential.com agrees that in cases where Essential.com receives
subpoenas or court ordered requests for call detail records for
targeted telephone numbers belonging to Essential.com end users,
Essential.com will advise the law enforcement agency initiating the
request to redirect the subpoena or court ordered request to
BellSouth. Billing for call detail information will be generated by
BellSouth and directed to the law enforcement agency initiating the
request.
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General Terms and Conditions - Part A
Page 6
7.3 In cases where the timing of the response to the law enforcement
agency prohibits Essential.com from having the subpoena or court
ordered request redirected to BellSouth by the law enforcement
agency, Essential.com will furnish the official request to
BellSouth for providing the call detail information. BellSouth
will provide the call detail records to Essential.com and bill
Essential.com for the information. Essential.com agrees to
reimburse BellSouth for the call detail information provided.
7.4 Essential.com will provide Essential.com end user and/or other
customer information that is available to Essential.com in
response to subpoenas and court orders for their own customer
records. BellSouth will redirect subpoenas and court ordered
requests for Essential.com end user and/or other customer
information to Essential.com for the purpose of providing this
information to the law enforcement agency.
8. LIABILITY AND INDEMNIFICATION
8.1 BELLSOUTH LIABILITY. BellSouth shall take financial responsibility
for its own actions in causing, or its lack of action in
preventing, unbillable or uncollectible Essential.com revenues.
8.2 ESSENTIAL.COM LIABILITY. In the event that Essential.com consists
of two (2) or more separate entities as set forth in the preamble
to this Agreement, all such entities shall be jointly and
severally liable for the obligations of Essential.com under this
Agreement.
8.3 LIABILITY FOR ACTS OR OMISSIONS OF THIRD PARTIES. Neither
BellSouth nor Essential.com shall be liable for any act or
omission of another telecommunications company providing a portion
of the services provided under this Agreement.
8.4 LIMITATION OF LIABILITY.
8.4.1 Each Party's liability to the other for any loss, cost, claim,
injury or 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 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.
8.4.2 LIMITATIONS IN TARIFFS. A Party may, in its sole discretion,
provide in its tariffs and contracts with its Customer and third
parties that relate to any service, product or function provided
or contemplated under this Agreement, that to the maximum extent
permitted by Applicable Law, such Party shall not be liable to
Customer or third Party for (i) any Loss relating to or arising
out of this Agreement whether in contract, tort or otherwise, that
exceeds the amount such Party would have
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General Terms and Conditions - Part A
Page 7
charged that applicable person for the service, product or
function that gave rise to such Loss and (ii) Consequential
Damages. To the extent that a Party elects not to place in its
tariffs or contracts such limitations of liability, and the other
Party incurs a Loss as a result thereof, such Party shall
indemnify and reimburse the other Party for that portion of the
Loss that would have been limited had the first Party included in
its tariffs and contracts the limitations of liability that such
other Party included in its own tariffs at the time of such Loss.
8.4.3 Neither BellSouth nor Essential.com shall be liable for damages to
the other's terminal location, POI or other company's customers'
premises resulting from the furnishing of a service, including,
but not limited to, the installation and removal of equipment or
associated wiring, except to the extent caused by a company's
negligence or willful misconduct or by a company's failure to
properly ground a local loop after disconnection.
8.4.4 Under no circumstance shall a Party be responsible or liable for
indirect, incidental, or consequential damages, including, but not
limited to, economic loss or lost business or profits, damages
arising from the use or performance of equipment or software, or
the loss of use of software or equipment, or accessories attached
thereto, delay, error, or loss of data. In connection with this
limitation of liability, each Party recognizes that the other
Party may, from time to time, provide advice, make
recommendations, or supply other analyses related to the Services,
or facilities described in this Agreement, and, while each Party
shall use diligent efforts in this regard, the Parties acknowledge
and agree that this limitation of liability shall apply to
provision of such advice, recommendations, and analyses.
8.5 INDEMNIFICATION FOR CERTAIN CLAIMS. The Party providing services
hereunder, its affiliates and its parent company, shall be
indemnified, defended and held harmless by the Party receiving
services hereunder against any claim, loss or damage arising from
the receiving company's use of the services provided under this
Agreement pertaining to (1) claims for libel, slander or invasion
of privacy arising from the content of the receiving company's own
communications, or (2) any claim, loss or damage claimed by the
customer of the Party receiving services arising from such
company's use or reliance on the providing company's services,
actions, duties, or obligations arising out of this Agreement.
8.6 DISCLAIMER. EXCEPT AS SPECIFICALLY PROVIDED TO THE CONTRARY IN
THIS AGREEMENT, NEITHER PARTY MAKES ANY REPRESENTATIONS OR
WARRANTIES TO THE OTHER PARTY CONCERNING THE SPECIFIC QUALITY OF
ANY SERVICES, OR FACILITIES PROVIDED UNDER THIS AGREEMENT. THE
PARTIES DISCLAIM, WITHOUT LIMITATION, ANY WARRANTY OR GUARANTEE OF
MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, ARISING FROM
COURSE OF PERFORMANCE, COURSE OF DEALING, OR FROM USAGES OF TRADE.
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General Terms and Conditions - Part A
Page 8
9. INTELLECTUAL PROPERTY RIGHTS AND INDEMNIFICATION
9.1 NO LICENSE. No patent, copyright, trademark or other proprietary
right is licensed, granted or otherwise transferred by this
Agreement. Essential.com is strictly prohibited from any use,
including but not limited to in sales, in marketing or advertising
of telecommunications services, of any BellSouth name, service
mark or trademark.
9.2 OWNERSHIP OF INTELLECTUAL PROPERTY. Any intellectual property
which originates from or is developed by a Party shall remain in
the exclusive ownership of that Party. Except for a limited
license to use patents or copyrights to the extent necessary for
the Parties to use any facilities or equipment (including
software) or to receive any service solely as provided under this
Agreement, no license in patent, copyright, trademark or trade
secret, or other proprietary or intellectual property right now or
hereafter owned, controlled or licensable by a Party, is granted
to the other Party or shall be implied or arise by estoppel. It is
the responsibility of each Party to ensure at no additional cost
to the other Party that it has obtained any necessary licenses in
relation to intellectual property of third Parties used in its
network that may be required to enable the other Party to use any
facilities or equipment (including software), to receive any
service, or to perform its respective obligations under this
Agreement.
9.3 INDEMNIFICATION. The Party providing a service pursuant to this
Agreement will defend the Party receiving such service or data
provided as a result of such service against claims of
infringement arising solely from the use by the receiving Party of
such service and will indemnify the receiving Party for any
damages awarded based solely on such claims in accordance with
Section 8 of this Agreement.
9.4 CLAIM OF INFRINGEMENT. In the event that use of any facilities or
equipment (including software), becomes, or in reasonable judgment
of the Party who owns the affected network is likely to become,
the subject of a claim, action, suit, or proceeding based on
intellectual property infringement, then said Party shall promptly
and at its sole expense, but subject to the limitations of
liability set forth below:
9.4.1 modify or replace the applicable facilities or equipment
(including software) while maintaining form and function, or
9.4.2 obtain a license sufficient to allow such use to continue.
9.4.3 In the event 9.4.1 or 9.4.2 are commercially unreasonable, then
said Party may, terminate, upon reasonable notice, this contract
with respect to use of, or services provided through use of, the
affected facilities or equipment (including software), but solely
to the extent required to avoid the infringement claim.
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General Terms and Conditions - Part A
Page 9
9.5 EXCEPTION TO OBLIGATIONS. Neither Party's obligations under this
Section shall apply to the extent the infringement is caused by:
(i) modification of the facilities or equipment (including
software) by the indemnitee; (ii) use by the indemnitee of the
facilities or equipment (including software) in combination with
equipment or facilities (including software) not provided or
authorized by the indemnitor provided the facilities or equipment
(including software) would not be infringing if used alone; (iii)
conformance to specifications of the indemnitee which would
necessarily result in infringement; or (iv) continued use by the
indemnitee of the affected facilities or equipment (including
software) after being placed on notice to discontinue use as set
forth herein.
9.6 EXCLUSIVE REMEDY. The foregoing shall constitute the Parties' sole
and exclusive remedies and obligations with respect to a third
party claim of intellectual property infringement arising out of
the conduct of business under this Agreement.
10. TREATMENT OF PROPRIETARY AND CONFIDENTIAL INFORMATION
10.1 CONFIDENTIAL INFORMATION. It may be necessary for BellSouth and
Essential.com to provide each other with certain confidential
information, including trade secret information, including but not
limited to, technical and business plans, technical information,
proposals, specifications, drawings, procedures, customer account
data, call detail records and like information (hereinafter
collectively referred to as "Information"). All Information shall
be in writing or other tangible form and clearly marked with a
confidential, private or proprietary legend and that the
Information will be returned to the owner within a reasonable
time. The Information shall not be copied or reproduced in any
form. BellSouth and Essential.com shall receive such Information
and not disclose such Information. BellSouth and Essential.com
shall protect the Information received from distribution,
disclosure or dissemination to anyone except employees of
BellSouth and Essential.com with a need to know such Information
and which employees agree to be bound by the terms of this
Section. BellSouth and Essential.com will use the same standard
of care to protect Information received as they would use to
protect their own confidential and proprietary Information.
10.2 EXCEPTION TO OBLIGATION. Notwithstanding the foregoing, there will
be no obligation on BellSouth or Essential.com to protect any
portion of the Information that is: (1) made publicly available by
the owner of the Information or lawfully disclosed by a Party
other than BellSouth or Essential.com; (2) lawfully obtained from
any source other than the owner of the Information; or (3)
previously known to the receiving Party without an obligation to
keep it confidential.
<PAGE>
General Terms and Conditions - Part A
Page 10
11. ASSIGNMENTS
Any assignment by either Party to any non-affiliated entity of any
right, obligation or duty, or of any other interest hereunder, in
whole or in part, without the prior written consent of the other
Party shall be void. A Party may assign this Agreement or any
right, obligation, duty or other interest hereunder to an
Affiliate company of the Party without the consent of the other
Party. All obligations and duties of any Party under this
Agreement shall be binding on all successors in interest and
assigns of such Party. No assignment or delegation hereof shall
relieve the assignor of its obligations under this Agreement in
the event that the assignee fails to perform such obligations.
12. RESOLUTION OF DISPUTES
Except as otherwise stated in this Agreement, the Parties agree
that if any dispute arises as to the interpretation of any
provision of this Agreement or as to the proper implementation of
this Agreement, either Party may petition the Commission for a
resolution of the dispute. However, each Party reserves any rights
it may have to seek judicial review of any ruling made by the
Commission concerning this Agreement.
13. TAXES
13.1 DEFINITION. For purposes of this Section, the terms "taxes" and
"fees" shall include but not limited to federal, state or local
sales, use, excise, gross receipts or other taxes or tax-like fees
of whatever nature and however designated (including tariff
surcharges and any fees, charges or other payments, contractual or
otherwise, for the use of public streets or rights of way, whether
designated as franchise fees or otherwise) imposed, or sought to
be imposed, on or with respect to the services furnished hereunder
or measured by the charges or payments therefore, excluding any
taxes levied on income.
13.2 TAXES AND FEES IMPOSED DIRECTLY ON EITHER PROVIDING PARTY OR
PURCHASING PARTY.
13.2.1 Taxes and fees imposed on the providing Party, which are not
permitted or required to be passed on by the providing Party to
its customer, shall be borne and paid by the providing Party.
13.2.2 Taxes and fees imposed on the purchasing Party, which are not
required to be collected and/or remitted by the providing Party,
shall be borne and paid by the purchasing Party.
13.3 TAXES AND FEES IMPOSED ON PURCHASING PARTY BUT COLLECTED AND
REMITTED BY PROVIDING PARTY.
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General Terms and Conditions - Part A
Page 11
13.3.1 Taxes and fees imposed on the purchasing Party shall be borne by
the purchasing Party, even if the obligation to collect and/or
remit such taxes or fees is placed on the providing Party.
13.3.2 To the extent permitted by applicable law, any such taxes and/or
fees shall be shown as separate items on applicable billing
documents between the Parties. Notwithstanding the foregoing, the
purchasing Party shall remain liable for any such taxes and fees
regardless of whether they are actually billed by the providing
Party at the time that the respective service is billed.
13.3.3 If the purchasing Party determines that in its opinion any such
taxes or fees are not payable, the providing Party shall not bill
such taxes or fees to the purchasing Party if the purchasing Party
provides written certification, reasonably satisfactory to the
providing Party, stating that it is exempt or otherwise not
subject to the tax or fee, setting forth the basis therefor, and
satisfying any other requirements under applicable law. If any
authority seeks to collect any such tax or fee that the purchasing
Party has determined and certified not to be payable, or any such
tax or fee that was not billed by the providing Party, the
purchasing Party may contest the same in good faith, at its own
expense. In any such contest, the purchasing Party shall promptly
furnish the providing Party with copies of all filings in any
proceeding, protest, or legal challenge, all rulings issued in
connection therewith, and all correspondence between the
purchasing Party and the taxing authority.
13.3.4 In the event that all or any portion of an amount sought to be
collected must be paid in order to contest the imposition of any
such tax or fee, or to avoid the existence of a lien on the assets
of the providing Party during the pendency of such contest, the
purchasing Party shall be responsible for such payment and shall
be entitled to the benefit of any refund or recovery.
13.3.5 If it is ultimately determined that any additional amount of such
a tax or fee is due to the imposing authority, the purchasing
Party shall pay such additional amount, including any interest and
penalties thereon.
13.3.6 Notwithstanding any provision to the contrary, the purchasing
Party shall protect, indemnify and hold harmless (and defend at
the purchasing Party's expense) the providing Party from and
against any such tax or fee, interest or penalties thereon, or
other charges or payable expenses (including reasonable attorney
fees) with respect thereto, which are incurred by the providing
Party in connection with any claim for or contest of any such tax
or fee.
13.3.7 Each Party shall notify the other Party in writing of any
assessment, proposed assessment or other claim for any additional
amount of such a tax or fee by a taxing authority; such notice to
be provided, if possible, at least ten (10) days prior to the date
by which a response, protest or other appeal must be filed, but in
no event later than thirty (30) days after receipt of such
assessment, proposed assessment or claim.
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General Terms and Conditions - Part A
Page 12
13.4 TAXES AND FEES IMPOSED ON PROVIDING PARTY BUT PASSED ON TO
PURCHASING PARTY.
13.4.1 Taxes and fees imposed on the providing Party, which are permitted
or required to be passed on by the providing Party to its
customer, shall be borne by the purchasing Party.
13.4.2 To the extent permitted by applicable law, any such taxes and/or
fees shall be shown as separate items on applicable billing
documents between the Parties. Notwithstanding the foregoing, the
purchasing Party shall remain liable for any such taxes and fees
regardless of whether they are actually billed by the providing
Party at the time that the respective service is billed.
13.4.3 If the purchasing Party disagrees with the providing Party's
determination as to the application or basis for any such tax or
fee, the Parties shall consult with respect to the imposition and
billing of such tax or fee. Notwithstanding the foregoing, the
providing Party shall retain ultimate responsibility for
determining whether and to what extent any such taxes or fees are
applicable, and the purchasing Party shall abide by such
determination and pay such taxes or fees to the providing Party.
The providing Party shall further retain ultimate responsibility
for determining whether and how to contest the imposition of such
taxes and fees; provided, however, that any such contest
undertaken at the request of the purchasing Party shall be at the
purchasing Party's expense.
13.4.4 In the event that all or any portion of an amount sought to be
collected must be paid in order to contest the imposition of any
such tax or fee, or to avoid the existence of a lien on the assets
of the providing Party during the pendency of such contest, the
purchasing Party shall be responsible for such payment and shall
be entitled to the benefit of any refund or recovery.
13.4.5 If it is ultimately determined that any additional amount of such
a tax or fee is due to the imposing authority, the purchasing
Party shall pay such additional amount, including any interest and
penalties thereon.
13.4.6 Notwithstanding any provision to the contrary, the purchasing
Party shall protect indemnify and hold harmless (and defend at the
purchasing Party's expense) the providing Party from and against
any such tax or fee, interest or penalties thereon, or other
reasonable charges or payable expenses (including reasonable
attorney fees) with respect thereto, which are incurred by the
providing Party in connection with any claim for or contest of any
such tax or fee.
13.4.7 Each Party shall notify the other Party in writing of any
assessment, proposed assessment or other claim for any additional
amount of such a tax or fee by a taxing authority; such notice to
be provided, if possible, at least ten (10) days prior to the date
by which a response, protest or other appeal must be filed, but in
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General Terms and Conditions - Part A
Page 13
no event later than thirty (30) days after receipt of such
assessment, proposed assessment or claim.
13.5 MUTUAL COOPERATION. In any contest of a tax or fee by one Party,
the other Party shall cooperate fully by providing records,
testimony and such additional information or assistance as may
reasonably be necessary to pursue the contest. Further, the other
Party shall be reimbursed for any reasonable and necessary
out-of-pocket copying and travel expenses incurred in assisting in
such contest.
14. FORCE MAJEURE
In the event performance of this Agreement, or any obligation
hereunder, is either directly or indirectly prevented, restricted,
or interfered with by reason of fire, flood, earthquake or like
acts of God, wars, revolution, civil commotion, explosion, acts of
public enemy, embargo, acts of the government in its sovereign
capacity, labor difficulties, including without limitation,
strikes, slowdowns, picketing, or boycotts, unavailability of
equipment from vendor, changes requested by Customer, or any other
circumstances beyond the reasonable control and without the fault
or negligence of the Party affected, the Party affected, upon
giving prompt notice to the other Party, shall be excused from
such performance on a day-to-day basis to the extent of such
prevention, restriction, or interference (and the other Party
shall likewise be excused from performance of its obligations on a
day-to-day basis until the delay, restriction or interference has
ceased); provided however, that the Party so affected shall use
diligent efforts to avoid or remove such causes of non-performance
and both Parties shall proceed whenever such causes are removed or
cease.
15. YEAR 2000 COMPLIANCE
Each Party warrants that it has implemented a program the goal of
which is to ensure that all software, hardware and related
materials (collectively called "Systems") delivered, connected
with BellSouth or supplied in the furtherance of the terms and
conditions specified in this Agreement: (i) will record, store,
process and display calendar dates falling on or after January 1,
2000, in the same manner, and with the same functionality as such
software records, stores, processes and calendar dates falling on
or before December 31, 1999; and (ii) shall include without
limitation date data century recognition, calculations that
accommodate same century and multicentury formulas and date
values, and date data interface values that reflect the century.
16. MODIFICATION OF AGREEMENT
16.1 BellSouth shall make available, pursuant to 47 USC Section 252
and the FCC rules and regulations regarding such availability,
to Essential.com any interconnection, service, or network
element provided under any other agreement filed and approved
pursuant to 47 USC Section 252. The Parties shall adopt all
rates, terms and conditions
<PAGE>
General Terms and Conditions - Part A
Page 14
concerning such other interconnection, service or network element
and any other rates, terms and conditions that are interrelated or
were negotiated in exchange for or in conjunction with the
interconnection, service or network element being adopted. The
adopted interconnection, service, or network element and agreement
shall apply to the same states as such other agreement and for the
identical term of such other agreement.
16.2 If Essential.com. changes its name or makes changes to its company
structure or identity due to a merger, acquisition, transfer or
any other reason, it is the responsibility of Essential.com to
notify BellSouth of said change and request that an amendment to
this Agreement, if necessary, be executed to reflect said change.
16.3 No modification, amendment, supplement to, or waiver of the
Agreement or any of its provisions shall be effective and binding
upon the Parties unless it is made in writing and duly signed by
the Parties.
16.4 Execution of this Agreement by either Party does not confirm or
infer that the executing Party agrees with any decision(s) issued
pursuant to the Telecommunications Act of 1996 and the
consequences of those decisions on specific language in this
Agreement. Neither Party waives its rights to appeal or otherwise
challenge any such decision(s) and each Party reserves all of its
rights to pursue any and all legal and/or equitable remedies,
including appeals of any such decision(s).
16.5 In the event that any final and nonappealable legislative,
regulatory, judicial or other legal action materially affects any
material terms of this Agreement, or the ability of Essential.com.
or BellSouth to perform any material terms of this Agreement,
Essential.com or BellSouth may, on thirty (30) days' written
notice require that such terms be renegotiated, and the Parties
shall renegotiate in good faith such mutually acceptable new terms
as may be required. In the event that such new terms are not
renegotiated within ninety (90) days after such notice, the
Dispute shall be referred to the Dispute Resolution procedure set
forth in Section 12.
16.6 If any provision of this Agreement, or the application of such
provision to either Party or circumstance, shall be held invalid,
the remainder of the Agreement, or the application of any such
provision to the Parties or circumstances other than those to
which it is held invalid, shall not be effective thereby, provided
that the Parties shall attempt to reformulate such invalid
provision to give effect to such portions thereof as may be valid
without defeating the intent of such provision.
17. WAIVERS
A failure or delay of either Party to enforce any of the
provisions hereof, to exercise any option which is herein
provided, or to require performance of any of the provisions
hereof shall in no way be construed to be a waiver of such
provisions or options, and each Party, notwithstanding such
failure, shall have the right thereafter
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General Terms and Conditions - Part A
Page 15
to insist upon the specific performance of any and all of the
provisions of this Agreement.
18. GOVERNING LAW
This Agreement shall be governed by, and construed and enforced in
accordance with, the laws of the State of Georgia, without regard
to its conflict of laws principles.
19. ARM'S LENGTH NEGOTIATIONS
This Agreement was executed after arm's length negotiations
between the undersigned Parties and reflects the conclusion of the
undersigned that this Agreement is in the best interests of all
Parties.
20. NOTICES
20.1 Every notice, consent, approval, or other communications required
or contemplated by this Agreement shall be in writing and shall be
delivered in person or given by postage prepaid mail, address to:
BELLSOUTH TELECOMMUNICATIONS, INC.
CLEC Account Team
9th Floor
600 North 19th Street
Birmingham, Alabama 35203
and
General Attorney - COU
Suite 4300
675 W. Peachtree St.
Atlanta, GA 30375
Essential.com, Inc.
3 BURLINGTON WOODS DRIVE
Fourth Floor
Burlington, MA 01803
Attn: Pat Grady
(781) 229-9599x156
or at such other address as the intended recipient previously
shall have designated by written notice to the other Party.
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General Terms and Conditions - Part A
Page 16
20.2 Where specifically required, notices shall be by certified or
registered mail. Unless otherwise provided in this Agreement,
notice by mail shall be effective on the date it is officially
recorded as delivered by return receipt or equivalent, and in the
absence of such record of delivery, it shall be presumed to have
been delivered the fifth day, or next business day after the fifth
day, after it was deposited in the mails.
20.3 BellSouth shall provide Essential.com notice via Internet posting
of price changes and of changes to the terms and conditions of
services available for resale.
21. RULE OF CONSTRUCTION
No rule of construction requiring interpretation against the
drafting Party hereof shall apply in the interpretation of this
Agreement.
22. HEADINGS OF NO FORCE OR EFFECT
The headings of Articles and Sections of this Agreement are for
convenience of reference only, and shall in no way define, modify
or restrict the meaning or interpretation of the terms or
provisions of this Agreement.
23. MULTIPLE COUNTERPARTS
This Agreement may be executed multiple counterparts, each of
which shall be deemed an original, but all of which shall together
constitute but one and the same document.
24. IMPLEMENTATION OF AGREEMENT
If Essential.com is a facilities based provider or a facilities
based and resale provider, this section shall apply. Within 60
days of the execution of this Agreement, the Parties will adopt a
schedule for the implementation of the Agreement. The schedule
shall state with specificity time frames for submission of
including but not limited to, network design, interconnection
points, collocation arrangement requests, pre-sales testing and
full operational time frames for the business and residential
markets. An implementation template to be used for the
implementation schedule is contained in Attachment 10 of this
Agreement.
25. FILING OF AGREEMENT
Upon execution of this Agreement it shall be filed with the
appropriate state regulatory agency pursuant to the requirements
of Section 252 of the Act. If the regulatory agency imposes any
filing or public interest notice fees regarding the filing or
approval of the Agreement, Essential.com shall be responsible for
<PAGE>
General Terms and Conditions - Part A
Page 17
publishing the required notice and the publication and/or notice
costs shall be borne by Essential.com.
26. ENTIRE AGREEMENT
This Agreement and its Attachments, incorporated herein by this
reference, sets forth the entire understanding and supersedes
prior Agreements between the Parties relating to the subject
matter contained herein and merges all prior discussions between
them, and neither Party shall be bound by any definition,
condition, provision, representation, warranty, covenant or
promise other than as expressly stated in this Agreement or as is
contemporaneously or subsequently set forth in writing and
executed by a duly authorized officer or representative of the
Party to be bound thereby.
THIS AGREEMENT MAY INCLUDE ATTACHMENTS WITH PROVISIONS FOR THE
FOLLOWING SERVICES:
Network Elements and Other Services
Local Interconnection
Resale
Collocation
THE FOLLOWING SERVICES ARE INCLUDED AS OPTIONS FOR PURCHASE BY
ESSENTIAL.COM. ESSENTIAL.COM SHALL ELECT SAID SERVICES BY WRITTEN
REQUEST TO ITS ACCOUNT MANAGER IF APPLICABLE.
Optional Daily Usage File (ODUF)
Enhanced Optional Daily Usage File (EODUF)
Access Daily Usage File (ADUF)
Line Information Database (LIDB) Storage
Centralized Message Distribution Service (CMDS)
Calling Name (CNAM)
<PAGE>
General Terms and Conditions - Part A
Page 18
IN WITNESS WHEREOF, the Parties have executed this Agreement the day and year
above first written.
BELLSOUTH TELECOMMUNICATIONS, INC. ESSENTIAL.COM, INC.
/s/ Jerry D. Hendrix /s/ Akhil Garland
- ------------------------------------- -------------------------------
Signature Signature
- ------------------------------------- -------------------------------
Jerry D. Hendrix Akhil Garland
- ------------------------------------- -------------------------------
Name Name
Sr. Director - Interconnection Svcs President & CEO
- ------------------------------------- -------------------------------
Title Title
11/1/99 10-27-99
- ------------------------------------- -------------------------------
Date Date
<PAGE>
General Terms and Conditions - Part A
Page 19
DEFINITIONS
AFFILIATE is defined as a person that (directly or indirectly) owns or controls,
is owned or controlled by, or is under common ownership or control with, another
person. For purposes of this paragraph, the term "own" means to own an equity
interest (or equivalent thereof) of more than 10 percent.
CENTRALIZED MESSAGE DISTRIBUTION SYSTEM is the Telcordia (formerly BellCore)
administered national system, based in Kansas City, Missouri, used to exchange
Exchange Message Interface (EMI) formatted data among host companies.
COMMISSION is defined as the appropriate regulatory agency in each of
BellSouth's nine state region, Alabama, Florida, Georgia, Kentucky, Louisiana,
Mississippi, North Carolina, South Carolina, and Tennessee.
DAILY USAGE FILE is the compilation of messages or copies of messages in
standard Exchange Message Interface (EMI) format exchanged from BellSouth to an
CLEC.
EXCHANGE MESSAGE INTERFACE is the nationally administered standard format for
the exchange of data among the Exchange Carriers within the telecommunications
industry.
INFORMATION SERVICE means the offering of a capability for generating,
acquiring, storing, transforming, processing, retrieving, utilizing, or making
available information via telecommunications, and includes electronic
publishing, but does not include any use of any such capability for the
management, control, or operation of a telecommunications system or the
management of a telecommunications service.
INTERCOMPANY SETTLEMENTS (ICS) is the revenue associated with charges billed by
a company other than the company in whose service area such charges were
incurred. ICS on a national level includes third number and credit card calls
and is administered by Telcordia (formerly BellCore)'s Calling Card and Third
Number Settlement System (CATS). Included is traffic that originates in one
Regional Bell Operating Company's (RBOC) territory and bills in another RBOC's
territory.
INTERMEDIARY FUNCTION is defined as the delivery of traffic from Essential.com;
a CLEC other than Essential.com or another telecommunications carrier through
the network of BellSouth or Essential.com to an end user of Essential.com; a
CLEC other than Essential.com or another telecommunications carrier.
LOCAL INTERCONNECTION is defined as 1) the delivery of local traffic to be
terminated on each Party's local network so that end users of either Party have
the ability to reach end users of the other Party without the use of any access
code or substantial delay in the processing of the call; 2) the LEC network
features, functions, and capabilities set forth in this Agreement; and 3)
<PAGE>
General Terms and Conditions - Part A
Page 20
Service Provider Number Portability sometimes referred to as temporary telephone
number portability to be implemented pursuant to the terms of this Agreement.
LOCAL TRAFFIC is defined as any telephone call that originates in one exchange
and terminates in either the same exchange, or other local calling area
associated with the originating exchange as defined and specified in Section A3
of BellSouth's General Subscriber Service Tariff. As clarification of this
definition and for reciprocal compensation, Local Traffic does not include
traffic that originates from or terminates to or through an enhanced service
provider or information service provider. As further clarification, Local
Traffic does not include calls that do not transmit information of the user's
choosing. In any event, neither Party will pay reciprocal compensation to the
other if the "traffic" to which such reciprocal compensation would otherwise
apply was generated, in whole or in part, for the purpose of creating an
obligation on the part of the originating carrier to pay reciprocal compensation
for such traffic.
MESSAGE DISTRIBUTION is routing determination and subsequent delivery of message
data from one company to another. Also included is the interface function with
CMDS, where appropriate.
MULTIPLE EXCHANGE CARRIER Access BILLING ("MECAB") means the document prepared
by the Billing Committee of the Ordering and Billing Forum ("OBF:), which
functions under the auspices of the Carrier Liaison Committee of the Alliance
for Telecommunications Industry Solutions ("ATIS") and by Telcordia (formerly
BellCore) as Special Report SR-BDS-000983, Containing the recommended guidelines
for the billing of Exchange Service access provided by two or more LECs and/or
CLECs or by one LEC in two or more states within a single LATA.
NETWORK ELEMENT is defined to mean a facility or equipment used in the provision
of a telecommunications service. Such term may include, but is not limited to,
features, functions, and capabilities that are provided by means of such
facility or equipment, including but not limited to, subscriber numbers,
databases, signaling systems, and information sufficient for billing and
collection or used in the transmission, routing, or other provision of a
telecommunications service. BellSouth offers access to the Network Elements,
unbundled loops; network interface device; sub-loop elements; local switching;
transport; tandem switching; operator systems; signaling; access to call-related
databases; dark fiber as set forth in Attachment 2 of this Agreement.
NON-INTERCOMPANY SETTLEMENT SYSTEM (NICS) is the Telcordia (formerly BellCore)
system that calculates non-intercompany settlements amounts due from one company
to another within the same RBOC region. It includes credit card, third number
and collect messages.
PERCENT OF INTERSTATE USAGE (PIU) is defined as a factor to be applied to
terminating access services minutes of use to obtain those minutes that should
be rated as interstate access services minutes of use. The numerator includes
all interstate "non-intermediary" minutes of use, including interstate minutes
of use that are forwarded due to service provider number portability less any
interstate minutes of use for Terminating Party Pays services, such as 800
Services. The denominator includes all "non-intermediary", local , interstate,
intrastate, toll and access minutes of use adjusted for service provider number
portability less all minutes attributable to terminating Party pays services.
<PAGE>
General Terms and Conditions - Part A
Page 21
PERCENT LOCAL USAGE (PLU) is defined as a factor to be applied to intrastate
terminating minutes of use. The numerator shall include all "non-intermediary"
local minutes of use adjusted for those minutes of use that only apply local due
to Service Provider Number Portability. The denominator is the total intrastate
minutes of use including local, intrastate toll, and access, adjusted for
Service Provider Number Portability less intrastate terminating Party pays
minutes of use.
REVENUE ACCOUNTING OFFICE (RAO) STATUS COMPANY is a local exchange
company/alternate local exchange company that has been assigned a unique RAO
code. Message data exchanged among RAO status companies is grouped (i.e.
packed) according to From/To/Bill RAO combinations.
SERVICE CONTROL POINTS ("SCPs") are defined as databases that store information
and have the ability to manipulate data required to offer particular services.
SIGNAL TRANSFER POINTS ("STPs") are signaling message switches that interconnect
Signaling Links to route signaling messages between switches and databases. STPs
enable the exchange of Signaling System 7 ("SS7") messages between switching
elements, database elements and STPs. STPs provide access to various BellSouth
and third party network elements such as local switching and databases.
SIGNALING LINKS are dedicated transmission paths carrying signaling messages
between carrier switches and signaling networks. Signal Link Transport is a set
of two or four dedicated 56 kbps transmission paths between Essential.com
designated Signaling Points of Interconnection that provide a diverse
transmission path and cross connect to a BellSouth Signal Transfer Point.
TELECOMMUNICATIONS means the transmission, between or among points specified by
the user, of information of the user's choosing, without change in the form or
content of the information as sent and received.
TELECOMMUNICATIONS SERVICE means the offering of telecommunications for a fee
directly to the public, or to such classes of users as to be effectively
available directly to the public, regardless of the facilities used.
TELECOMMUNICATIONS ACT OF 1996 ("ACT") means Public Law 104-104 of the United
States Congress effective February 8, 1996. The Act amended the Communications
Act of 1934 (47, U.S.C. Section 1 et. seq.).
<PAGE>
Attachment 1
Page 1
ATTACHMENT 1
RESALE
<PAGE>
<TABLE>
<CAPTION>
Attachment 1
Page 2
TABLE OF CONTENTS
<S> <C>
1. DISCOUNT RATES ..........................................................3
2. DEFINITION OF TERMS .....................................................3
3. GENERAL PROVISIONS ............................... ......................3
4. BELLSOUTH'S PROVISION OF SERVICES TO ESSENTIAL.COM ......................7
5. MAINTENANCE OF SERVICES..................................................7
6. ESTABLISHMENT OF SERVICE.................................................8
7. PAYMENT AND BILLING ARRANGEMENTS ........................................9
8. DISCONTINUANCE OF SERVICE ...............................................11
9. LINE INFORMATION DATABASE (LIDB).........................................12
10. RAO HOSTING..............................................................13
11. OPTIONAL DAILY USAGE FILE (ODUF).........................................13
12. ENHANCED OPTIONAL DAILY USAGE FILE (EODUF)...............................13
13. CALLING NAME DELIVERY (CNAM) DATABASE SERVICE............................13
EXHIBIT A - APPLICABLE DISCOUNTS/OSS RATES ..................................14
EXHIBIT B - RESALE RESTRICTIONS .............................................17
EXHIBIT C - LINE INFORMATION DATABASE (LIDB) STORAGE AGREEMENT ..............19
EXHIBIT D - CMDS/RAO HOSTING ................................................26
EXHIBIT E - OPTIONAL DAILY USAGE FILE (ODUF) ................................29
EXHIBIT F - ENHANCED OPTIONAL DAILY USAGE FILE (EODUF) ......................32
EXHIBIT G - CALLING NAME DELIVERY (CNAM) DATABASE SERVICES ..................34
EXHIBIT H - ODUF/EODUF/CMDS RATES ....................................Exhibit H
</TABLE>
<PAGE>
Attachment 1
Page 3
RESALE
1. DISCOUNT RATES
The rates pursuant by which Essential.com is to purchase services from
BellSouth for resale shall be at a discount rate off of the retail rate for
the telecommunications service. The discount rates shall be as set forth in
Exhibit A, attached hereto and incorporated herein by this reference. Such
discount shall reflect the costs avoided by BellSouth when selling a service
for wholesale purposes.
2. DEFINITION OF TERMS
2.1 CUSTOMER OF RECORD means the entity responsible for placing
application for service; requesting additions, rearrangements,
maintenance or discontinuance of service; payment in full of
charges incurred such as non-recurring, monthly recurring, toll,
directory assistance, etc.
2.2 DEPOSIT means assurance provided by a customer in the form of
cash, surety bond or bank letter of credit to be held by
BellSouth.
2.3 END USER means the ultimate user of the telecommunications
services.
2.4 END USER CUSTOMER LOCATION means the physical location of the
premises where an end user makes use of the telecommunications
services.
2.5 NEW SERVICES means functions, features or capabilities that are
not currently offered by BellSouth. This includes packaging of
existing services or combining a new function, feature or
capability with an existing service.
2.6 OTHER/COMPETITIVE LOCAL EXCHANGE COMPANY (OLEC/CLEC) means a
telephone company certificated by the public service commissions
of BellSouth's franchised area to provide local exchange service
within BellSouth's franchised area.
2.7 RESALE means an activity wherein a certificated CLEC, such as
Essential.com subscribes to the telecommunications services of
BellSouth and then reoffers those telecommunications services to
the public (with or without "adding value").
2.8 RESALE SERVICE AREA means the area, as defined in a public service
commission approved certificate of operation, within which an
CLEC, such as Essential.com, may offer resold local exchange
telecommunications service.
3. GENERAL PROVISIONS
3.1 All of the negotiated rates, terms and conditions set forth in
this Attachment pertain to the resale of BellSouth's retail
telecommunications services and other services specified in this
Attachment. Essential.com may resell the tariffed local exchange
and toll telecommunications services of BellSouth contained in the
General Subscriber Service Tariff and Private Line Service Tariff
subject to the terms, and conditions specifically set forth
herein. Notwithstanding the foregoing, the exclusions and
limitations on services available for resale will be as set forth
in Exhibit B, attached hereto and incorporated herein by this
reference.
<PAGE>
Attachment 1
Page 4
BellSouth shall make available telecommunications services for
resale at the rates set forth in Exhibit A to this Agreement and
subject to the exclusions and limitations set forth in Exhibit B
to this Agreement. BellSouth does not however waive its rights to
appeal or otherwise challenge any decision regarding resale that
resulted in the discount rates contained in Exhibit A or the
exclusions and limitations contained in Exhibit B. BellSouth
reserves the right to pursue any and all legal and/or equitable
remedies, including appeals of any decisions. If such appeals or
challenges result in changes in the discount rates or exclusions
and limitations, the parties agree that appropriate modifications
to this Agreement will be made promptly to make its terms
consistent with the outcome of the appeal.
3.2 Essential.com may purchase resale services from BellSouth for
their own use in operating their business. The resale discount
will apply to those services under the following conditions:
3.2.1 Essential.com must resell services to other end users.
3.2.2 Essential.com must order services through resale interfaces,
i.e., the Local Carrier Service Center (LCSC) and/or appropriate
Resale Account Teams pursuant to Section 3 of the General Terms
and Conditions.
3.2.3 Essential.com cannot be an alternative local exchange
telecommunications company for the single purpose of selling to
themselves.
3.3 The provision of services by BellSouth to Essential.com does not
constitute a joint undertaking for the furnishing of any service.
3.4 Essential.com will be the customer of record for all services
purchased from BellSouth. Except as specified herein, BellSouth
will take orders from, bill and expect payment from Essential.com
for all services.
3.5 Essential.com will be BellSouth's single point of contact for all
services purchased pursuant to this Agreement. BellSouth shall
have no contact with the end user except to the extent provided
for herein.
3.6 BellSouth will continue to bill the end user for any services that
the end user specifies it wishes to receive directly from
BellSouth.
3.7 BellSouth maintains the right to serve directly any end user
within the service area of Essential.com. BellSouth will continue
to directly market its own telecommunications products and
services and in doing so may establish independent relationships
with end users of Essential.com.
3.8 Neither Party shall interfere with the right of any person or
entity to obtain service directly from the other Party.
3.9 Current telephone numbers may normally be retained by the end
user. However, telephone numbers are the property of BellSouth and
are assigned to the service furnished. Essential.com has no
property right to the telephone number or any other call number
designation associated with services furnished by BellSouth, and
no right to the continuance of service through any particular
central office. BellSouth reserves the right to change such
numbers, or the central office designation associated with such
numbers, or both, whenever BellSouth deems it necessary to do so
in the conduct of its business.
<PAGE>
Attachment 1
Page 5
3.10 For the purpose of the resale of BellSouth's telecommunications
services by Essential.com, BellSouth will provide Essential.com
with an on line access to telephone numbers for reservation on a
first come first serve basis. Such reservations of telephone
numbers, on a pre-ordering basis shall be for a period of nine (9)
days. Essential.com acknowledges that there may be instances where
there is a shortage of telephone numbers in a particular Common
Language Location Identifier Code (CLLIC) and in such instances
BellSouth may request that Essential.com cancel its reservations
of numbers. Essential.com shall comply with such request.
Further, upon Essential.com's request, and for the purpose of the
resale of BellSouth's telecommunications services by
Essential.com, BellSouth will reserve up to 100 telephone numbers
per CLLIC, for Essential.com's sole use. Such telephone number
reservations shall be valid for ninety (90) days from the
reservation date. Essential.com acknowledges that there may be
instances where there is a shortage of telephone numbers in a
particular CLLIC and in such instances BellSouth shall use its
best efforts to reserve for a ninety (90) day period a sufficient
quantity of Essential.com's reasonable need in that particular
CLLIC.
3.11 BellSouth may provide any service or facility for which a charge
is not established herein, as long as it is offered on the same
terms to Essential.com.
3.12 Service is furnished subject to the condition that it will not be
used for any unlawful purpose.
3.13 Service will be discontinued if any law enforcement agency advises
that the service being used is in violation of the law.
3.14 BellSouth can refuse service when it has grounds to believe that
service will be used in violation of the law.
3.15 BellSouth accepts no responsibility to any person for any unlawful
act committed by Essential.com or its end users as part of
providing service to Essential.com for purposes of resale or
otherwise.
3.16 BellSouth will cooperate fully with law enforcement agencies with
subpoenas and court orders for assistance with BellSouth's end
users. Law enforcement agency subpoenas and court orders regarding
end users of Essential.com will be directed to Essential.com.
BellSouth will bill Essential.com for implementing any requests
by law enforcement agencies regarding Essential.com end users.
3.17 The characteristics and methods of operation of any circuits,
facilities or equipment provided by any person or entity other
than BellSouth shall not:
3.17.1 Interfere with or impair service over any facilities of
BellSouth, its affiliates, or its connecting and concurring
carriers involved in its service;
3.17.2 Cause damage to BellSouth's plant;
3.17.3 Impair the privacy of any communications; or
3.17.4 Create hazards to any BellSouth employees or the public.
3.18 Essential.com. assumes the responsibility of notifying BellSouth
regarding less than standard operations with respect to services
provided by Essential.com.
<PAGE>
Attachment 1
Page 6
3.19 Facilities and/or equipment utilized by BellSouth to provide
service to Essential.com remain the property of BellSouth.
3.20 White page directory listings will be provided in accordance with
regulations set forth in Section A6 of the General Subscriber
Services Tariff and will be available for resale.
3.21 BellSouth provides electronic access to customer record
information. Access is provided through the Local Exchange
Navigation System (LENS) and the Telecommunications Access Gateway
(TAG). Customer Record Information includes but is not limited to,
customer specific information in CRIS and RSAG. Essential.com
agrees not to view, copy, or otherwise obtain access to the
customer record information of any customer without that
customer's permission, and further agrees that Essential.com will
obtain access to customer record information only in strict
compliance with applicable laws, rules, or regulations of the
State in which the service is provided.
3.22 All costs incurred by BellSouth to develop and implement
operational interfaces shall be recovered from Resellers who
utilize the services. Charges for use of Operational Support
Systems (OSS) shall be as set forth in Exhibit A of this
attachment.
3.23 Where available to BellSouth's end users, BellSouth shall provide
the following telecommunications services at a discount to allow
for voice mail services:
- Simplified Message Desk Interface - Enhanced ("SMDI-E")
- Simplified Message Desk Interface ("SMDI") Message Waiting
Indicator ("MWI") stutter dialtone and message waiting
light feature capabilities
- Call Forward on Busy/Don't Answer ("CF-B/DA")
- Call Forward on Busy ("CF/B")
- Call Forward Don't Answer ("CF/DA")
Further, BellSouth messaging services set forth in BellSouth's
Messaging Service Information Package shall be made available for
resale without the wholesale discount.
3.24 BellSouth's Inside Wire Maintenance Service Plans may be made
available for resale at rates, terms and conditions as set forth
by BellSouth and without the wholesale discount.
3.25 All costs incurred by BellSouth for providing services requested
by Essential.com that are not covered in the BellSouth tariffs
shall be recovered from the Essential.com(s) who utilize those
services.
3.26 Recovery of charges associated with implementing Number
Portability through monthly charges assessed to end users has been
authorized by the FCC. This end user line charge will be billed to
Resellers of BellSouth's telecommunications services and will be
as filed in FCC No. 1. This charge will not be discounted.
<PAGE>
Attachment 1
Page 7
4. BELLSOUTH'S PROVISION OF SERVICES TO ESSENTIAL.COM
4.1 Essential.com agrees that its resale of BellSouth services shall
be as follows:
4.1.1 The resale of telecommunications services shall be limited
to users and uses conforming to the class of service
restrictions.
4.1.2 Hotel and Hospital PBX services are the only
telecommunications services available for resale to
Hotel/Motel and Hospital end users, respectively.
Similarly, Access Line Service for Customer Provided Coin
Telephones is the only local service available for resale
to Independent Payphone Provider (IPP) customers. Shared
Tenant Service customers can only be sold those local
exchange access services available in BellSouth's A23
Shared Tenant Service Tariff in the states of Florida,
Georgia, North Carolina and South Carolina, and in A27 in
the states of Alabama, Kentucky, Louisiana, Mississippi and
Tennessee.
4.1.3 BellSouth reserves the right to periodically audit services
purchased by Essential.com to establish authenticity of
use. Such audit shall not occur more than once in a
calendar year. Essential.com shall make any and all records
and data available to BellSouth or BellSouth's auditors on
a reasonable basis. BellSouth shall bear the cost of said
audit.
4.2 Resold services can only be used in the same manner as specified
in BellSouth's Tariffs. Resold services are subject to the same
terms and conditions as are specified for such services when
furnished to an individual end user of BellSouth in the
appropriate section of BellSouth's Tariffs. Specific tariff
features, e.g. a usage allowance per month, shall not be
aggregated across multiple resold services.
4.3 Essential.com may resell services only within the specific resale
service area as defined in its certificate.
4.4 Telephone numbers transmitted via any resold service feature are
intended solely for the use of the end user of the feature. Resale
of this information is prohibited.
5. MAINTENANCE OF SERVICES
5.1 Essential.com will adopt and adhere to the standards contained in
the applicable CLEC Work Center Operational Understanding
Agreement regarding maintenance and installation of service.
5.2 Services resold under BellSouth's Tariffs and facilities and
equipment provided by BellSouth shall be maintained by BellSouth.
5.3 Essential.com or its end users may not rearrange, move,
disconnect, remove or attempt to repair any facilities owned by
BellSouth, other than by connection or disconnection to any
interface means used, except with the written consent of
BellSouth.
5.4 Essential.com accepts responsibility to notify BellSouth of
situations that arise that may result in a service problem.
5.5 Essential.com will be BellSouth's single point of contact for all
repair calls on behalf of Essential.com's end users. The parties
agree to provide one another with toll-free contact numbers for
such purposes.
<PAGE>
Attachment 1
Page 8
5.6 Essential.com will contact the appropriate repair centers in
accordance with procedures established by BellSouth.
5.7 For all repair requests, Essential.com accepts responsibility for
adhering to BellSouth's prescreening guidelines prior to referring
the trouble to BellSouth.
5.8 BellSouth will bill Essential.com for handling troubles that are
found not to be in BellSouth's network pursuant to its standard
time and material charges. The standard time and material charges
will be no more than what BellSouth charges to its retail
customers for the same services.
5.9 BellSouth reserves the right to contact Essential.com's end users,
if deemed necessary, for maintenance purposes.
6. ESTABLISHMENT OF SERVICE
6.1 After receiving certification as a local exchange company from
the appropriate regulatory agency, Essential.com will provide the
appropriate BellSouth service center the necessary documentation
to enable BellSouth to establish a master account for
Essential.com's resold services. Such documentation shall include
the Application for Master Account, proof of authority to provide
telecommunications services, an Operating Company Number ("OCN")
assigned by the National Exchange Carriers Association ("NECA")
and a tax exemption certificate, if applicable. When necessary
deposit requirements are met, BellSouth will begin taking orders
for the resale of service.
6.2 Service orders will be in a standard format designated by
BellSouth.
6.3 When notification is received from Essential.com that a current
end user of BellSouth will subscribe to Essential.com's service,
standard service order intervals for the appropriate class of
service will apply.
6.4 BellSouth will not require end user confirmation prior to
establishing service for Essential.com's end user customer.
Essential.com must, however, be able to demonstrate end user
authorization upon request.
6.5 Essential.com will be the single point of contact with BellSouth
for all subsequent ordering activity resulting in additions or
changes to resold services except that BellSouth will accept a
request directly from the end user for conversion of the end
user's service from Essential.com to BellSouth or will accept a
request from another CLEC for conversion of the end user's service
from Essential.com to the other LEC. BellSouth will notify
Essential.com that such a request has been processed.
6.6 If BellSouth determines that an unauthorized change in local
service to Essential.com has occurred, BellSouth will reestablish
service with the appropriate local service provider and will
assess Essential.com as the CLEC initiating the unauthorized
change, the unauthorized change charge described in F.C.C. Tariff
No. 1, Section 13 or applicable state tariff. Appropriate
nonrecurring charges, as set forth in Section A4. of the General
Subscriber Service Tariff, will also be assessed to Essential.com.
These charges can be adjusted if Essential.com provides
satisfactory proof of authorization.
6.7 In order to safeguard its interest, BellSouth reserves the right
to secure the account with a suitable form of security deposit,
unless satisfactory credit has already been established.
<PAGE>
Attachment 1
Page 9
6.7.1 Such security deposit shall take the form of an irrevocable
Letter of Credit or other forms of security acceptable to
BellSouth. Any such security deposit may be held during the
continuance of the service as security for the payment of
any and all amounts accruing for the service.
6.7.2 If a security deposit is required, such security deposit
shall be made prior to the inauguration of service.
6.7.3 Such security deposit may not exceed two months' estimated
billing.
6.7.4 The fact that a security deposit has been made in no way
relieves Essential.com from complying with BellSouth's
regulations as to advance payments and the prompt payment
of bills on presentation nor does it constitute a waiver or
modification of the regular practices of BellSouth
providing for the discontinuance of service for non-payment
of any sums due BellSouth.
6.7.5 BellSouth reserves the right to increase the security
deposit requirements when, in its sole judgment,
circumstances so warrant and/or gross monthly billing has
increased beyond the level initially used to determine the
security deposit.
6.7.6 In the event that Essential.com defaults on its account,
service to Essential.com will be terminated and any
security deposits held will be applied to its account.
6.7.7 Interest on a security deposit shall accrue and be paid in
accordance with the terms in the appropriate BellSouth
tariff.
7. PAYMENT AND BILLING ARRANGEMENTS
7.1 Prior to submitting orders to BellSouth for local service, a
master account must be established for Essential.com. The
Essential.com is required to provide the following before a master
account is established: proof of PSC/PUC certification, the
Application for Master Account, an Operating Company Number.
("OCN") assigned by the National Exchange Carriers Association
("NECA") and a tax exemption certificate, if applicable.
7.2 BellSouth shall bill Essential.com on a current basis all
applicable charges and credits.
7.3 Payment of all charges will be the responsibility of
Essential.com. Essential.com shall make payment to BellSouth
for all services billed. BellSouth is not responsible for
payments not received by Essential.com from Essential.com's end
user. BellSouth will not become involved in billing disputes
that may arise between Essential.com and its end user. Payments
made to BellSouth as payment on account will be credited to an
accounts receivable master account and not to an end user's
account.
7.4 BellSouth will render bills each month on established bill days
for each of Essential.com's accounts.
7.5 BellSouth will bill Essential.com in advance charges for all
services to be provided during the ensuing billing period except
charges associated with service usage, which will be billed in
arrears. Charges will be calculated on an individual end user
account level, including, if applicable, any charge for usage or
usage allowances. BellSouth will also bill Essential.com, and
Essential.com will be responsible for and remit to BellSouth, all
charges applicable to resold
<PAGE>
Attachment 1
Page 10
services including but not limited to 911 and E911 charges,
telecommunications relay charges (TRS), and franchise fees.
7.6 The payment will be due by the next bill date (i.e., same date in
the following month as the bill date) and is payable in
immediately available funds. Payment is considered to have been
made when received by BellSouth.
7.6.1 If the payment due date falls on a Sunday or on a Holiday
which is observed on a Monday, the payment due date shall
be the first non-Holiday day following such Sunday or
Holiday. If the payment due date falls on a Saturday or on
a Holiday which is observed on Tuesday, Wednesday,
Thursday, or Friday, the payment due date shall be the last
non-Holiday day preceding such Saturday or Holiday. If
payment is not received by the payment due date, a late
payment penalty, as set forth in section 7.8 following,
shall apply.
7.6.2 If Essential.com requests multiple billing media or
additional copies of bills, BellSouth will provide these at
an appropriate charge to Essential.com.
7.6.3 Billing Disputes
7.6.3.1 Each Party agrees to notify the other Party upon
the discovery of a billing dispute. In the event of
a billing dispute, the Parties will endeavor to
resolve the dispute within sixty (60) calendar days
of the Bill Date on which such disputed charges
appear. Resolution of the dispute is expected to
occur at the first level of management resulting in
a recommendation for settlement of the dispute and
closure of a specific billing period. If the issues
are not resolved within the allotted time frame,
the following resolution procedure will begin:
7.6.3.2 If the dispute is not resolved within sixty (60)
days of the Bill Date, the dispute will be escalated
to the second level of management for each of the
respective Parties for resolution. If the dispute is
not resolved within ninety (90) days of the Bill
Date, the dispute will be escalated to the third
level of management for each of the respective
Parties for resolution
7.6.3.3 If the dispute is not resolved within one hundred
and twenty (120) days of the Bill Date, the dispute
will be escalated to the fourth level of management
for each of the respective Parties for resolution.
7.6.3.4 If a Party disputes a charge and does not pay such
charge by the payment due date, such charges shall
be subject to late payment charges as set forth in
the Late Payment Charges provision of this
Attachment. If a Party disputes charges and the
dispute is resolved in favor of such Party, the
other Party shall credit the bill of the disputing
Party for the amount of the disputed charges along
with any late payment charges assessed no later than
the second Bill Date after the resolution of the
dispute. Accordingly, if a Party disputes charges
and the dispute is resolved in favor of the other
Party, the disputing Party shall pay the other Party
the amount of the disputed charges and any
associated late payment charges assessed no later
than the second bill payment due date after the
resolution of the dispute. BellSouth shall only
assess interest on previously assessed late payment
charges in a state where it has authority pursuant
to its tariffs.
<PAGE>
Attachment 1
Page 11
7.7 Upon proof of tax exempt certification from Essential.com, the
total amount billed to Essential.com will not include any taxes
due from the end user to reflect the tax exempt certification and
local tax laws. Essential.com will be solely responsible for the
computation, tracking, reporting, and payment of taxes applicable
to Essential.com's end user.
7.8 If any portion of the payment is received by BellSouth after the
payment due date as set forth preceding, or if any portion of the
payment is received by BellSouth in funds that are not immediately
available to BellSouth, then a late payment penalty shall be due
to BellSouth. The late payment penalty shall be the portion of the
payment not received by the payment due date times a late factor
and will be applied on a per bill basis. The late factor shall be
as set forth in Section A2 of the General Subscriber Services
Tariff and Section B2 of the Private Line Service Tariff.
7.9 Any switched access charges associated with interexchange carrier
access to the resold local exchange lines will be billed by, and
due to, BellSouth. No additional charges are to be assessed to
Essential.com
7.10 BellSouth will not perform billing and collection services for
Essential.com as a result of the execution of this Agreement. All
requests for billing services should be referred to the
appropriate entity or operational group within BellSouth.
7.11 Pursuant to 47 CFR Section 51.617, BellSouth will bill
Essential.com end user common line charges identical to the end
user common line charges BellSouth bills its end users.
7.12 In general, BellSouth will not become involved in disputes between
Essential.com and Essential.com's end user customers over resold
services. If a dispute does arise that cannot be settled without
the involvement of BellSouth, Essential.com shall contact the
designated Service Center for resolution. BellSouth will make
every effort to assist in the resolution of the dispute and will
work with Essential.com to resolve the matter in as timely a
manner as possible. Essential.com may be required to submit
documentation to substantiate the claim.
8. DISCONTINUANCE OF SERVICE
8.1 The procedures for discontinuing service to an end user are as
follows:
8.1.1 Where possible, BellSouth will deny service to
Essential.com's end user on behalf of, and at the request
of, Essential.com. Upon restoration of the end user's
service, restoral charges will apply and will be the
responsibility of Essential.com.
8.1.2 At the request of Essential.com, BellSouth will disconnect
a Essential.com end user customer.
8.1.3 All requests by Essential.com for denial or disconnection
of an end user for nonpayment must be in writing.
8.1.4 Essential.com will be made solely responsible for notifying
the end user of the proposed disconnection of the service.
8.1.5 BellSouth will continue to process calls made to the
Annoyance Call Center and will advise Essential.com when it
is determined that annoyance calls are originated from one
<PAGE>
Attachment 1
Page 12
of their end user's locations. BellSouth shall be
indemnified, defended and held harmless by Essential.com
and/or the end user against any claim, loss or damage
arising from providing this information to Essential.com.
It is the responsibility of Essential.com to take the
corrective action necessary with its end users who make
annoying calls. Failure to do so will result in BellSouth's
disconnecting the end user's service.
8.1.6 BellSouth may disconnect and reuse facilities when the
facility is in a denied state and BellSouth has received an
order to establish new service or transfer of service from
an end user or an end user's CLEC at the same address
served by the denied facility.
8.2 The procedures for discontinuing service to Essential.com are as
follows:
8.2.1 BellSouth reserves the right to suspend or terminate
service for nonpayment or in the event of prohibited,
unlawful or improper use of the facilities or service,
abuse of the facilities, or any other violation or
noncompliance by Essential.com of the rules and
regulations of BellSouth's Tariffs.
8.2.2 If payment of account is not received by the bill day in
the month after the original bill day, BellSouth may
provide written notice to Essential.com, that additional
applications for service will be refused and that any
pending orders for service will not be completed if payment
is not received by the fifteenth day following the date of
the notice. In addition BellSouth may, at the same time,
give thirty days notice to the person designated by
Essential.com to receive notices of noncompliance, and
discontinue the provision of existing services to
Essential.com at any time thereafter.
8.2.3 In the case of such discontinuance, all billed charges, as
well as applicable termination charges, shall become due.
8.2.4 If BellSouth does not discontinue the provision of the
services involved on the date specified in the thirty days
notice and Essential.com's noncompliance continues, nothing
contained herein shall preclude BellSouth's right to
discontinue the provision of the services to Essential.com
without further notice.
8.2.5 If payment is not received or arrangements made for payment
by the date given in the written notification,
Essential.com's services will be discontinued. Upon
discontinuance of service on a Essential.com's account,
service to Essential.com's end users will be denied.
BellSouth will also reestablish service at the request of
the end user or Essential.com upon payment of the
appropriate connection fee and subject to BellSouth's
normal application procedures. Essential.com is solely
responsible for notifying the end user of the proposed
disconnection of the service.
8.2.6 If within fifteen days after an end user's service has been
denied no contact has been made in reference to restoring
service, the end user's service will be disconnected.
9. LINE INFORMATION DATABASE (LIDB)
9.1 BellSouth will store in its Line Information Database (LIDB)
records relating to service only in the BellSouth region. The LIDB
Storage Agreement is included in this Attachment as Exhibit C.
9.2 BellSouth will provide LIDB Storage upon written request to
Essential.com Account Manager stating requested activation date.
<PAGE>
Attachment 1
Page 13
10. RAO HOSTING
10.1 The RAO Hosting Agreement is included in this Attachment as
Exhibit D. Rates for BellSouth's Centralized Message
Distribution System (CMDS) are as set forth in Exhibit H of
this Attachment.
10.2 BellSouth will provide RAO Hosting upon written request to
its Account Manager stating requested activation date.
11. Optional Daily Usage File (ODUF)
11.1 The Optional Daily Usage File (ODUF) Agreement with terms
and conditions is included in this Attachment as Exhibit E.
Rates for ODUF are as set forth in Exhibit H of this
Attachment.
11.2 BellSouth will provide Optional Daily Usage File (ODUF)
service upon written request to its Account Manager stating
requested activation date.
12. ENHANCED OPTIONAL DAILY USAGE FILE (EODUF)
12.1 The Enhanced Optional Daily Usage File (EODUF) service
Agreement with terms and conditions is included in this
Attachment as Exhibit F. Rates for EODUF are as set forth
in Exhibit H of this Attachment.
12.2 BellSouth will provide Enhanced Optional Daily Usage File
(EODUF) service upon written request to its Account Manager
stating requested activation date.
13. CALLING NAME DELIVERY (CNAM) DATABASE SERVICE
13.1 Calling Name Delivery (CNAM) Database Service Agreement is
included in this Attachment as Exhibit G. Rates for CNAM
are as set forth in Exhibit H of this Attachment.
13.2 BellSouth will provide Calling Name Delivery (CNAM)
Database service upon written request to its Account
Manager stating requested activation date.
<PAGE>
Attachment 1
Page 14
EXHIBIT A
PAGE 1
APPLICABLE DISCOUNTS
The telecommunications services available for purchase by
Essential.com for the purposes of resale to Essential.com end users shall be
available at the following discount off of the retail rate.
<TABLE>
<CAPTION>
DISCOUNT*
- ----------------------------------------------------------------------------------------------------------
STATE RESIDENCE BUSINESS CSAs***
- ----------------------------------------------------------------------------------------------------------
<S> <C> <C> <C>
ALABAMA 16.3% 16.3%
- ----------------------------------------------------------------------------------------------------------
FLORIDA 21.83% 16.81%
- ----------------------------------------------------------------------------------------------------------
GEORGIA 20.3% 17.3%
- ----------------------------------------------------------------------------------------------------------
KENTUCKY 16.79% 15.54%
- ----------------------------------------------------------------------------------------------------------
LOUISIANA 20.72% 20.72% 9.05%
- ----------------------------------------------------------------------------------------------------------
MISSISSIPPI 15.75% 15.75%
- ----------------------------------------------------------------------------------------------------------
NORTH CAROLINA 21.5% 17.6%
- ----------------------------------------------------------------------------------------------------------
SOUTH CAROLINA 14.8% 14.8% 8.98%
- ----------------------------------------------------------------------------------------------------------
TENNESSEE" 16% 16%
- ----------------------------------------------------------------------------------------------------------
</TABLE>
* When a CLEC provides Resale service in a cross boundary area (areas that
are part of the local serving area of another state's exchange) the
rates, regulations and discounts for the tariffing state will apply.
Billing will be from the serving state.
** In Tennessee, if CLEC provides its own operator services and directory
services, the discount shall be 21.56%. CLEC must provide written
notification to BellSouth within 30 days prior to providing its own
operator services and directory services to qualify for the higher
discount rate of 21.56%.
*** Unless noted in this column, the discount for Business will be the
applicable discount rate for CSAs.
<PAGE>
Attachment 1
Page 15
EXHIBIT A
PAGE 2
OPERATIONAL SUPPORT SYSTEMS (OSS) RATES
BellSouth has developed and made available the following mechanized systems by
which Essential.com may submit LSRs electronically.
LENS Local Exchange Navigation System
EDI Electronic Data Interface
EDI-PC Electronic Data Interface - Personal Computer
TAG Telecommunications Access Gateway
LSRs submitted by means of one of these interactive interfaces will incur an OSS
electronic ordering charge as specified in the Table below. An individual LSR
will be identified for billing purposes by its Purchase Order Number (PON). LSRs
submitted by means other than one of these interactive interfaces (mail, fax,
courier, etc.) will incur a manual order charge as specified in the table below:
<TABLE>
<CAPTION>
- ---------------------------------------------------------------------------------------------------------------------
OPERATIONAL ELECTRONIC MANUAL
SUPPORT SYSTEMS PER LSR RECEIVED FROM THE CLEC PER LSR RECEIVED FROM THE CLEC
(OSS) RATES BY ONE OF THE OSS INTERACTIVE BY MEANS OTHER THAN ONE OF THE
INTERFACES OSS INTERACTIVE INTERFACES
- ---------------------------------------------------------------------------------------------------------------------
<S> <C> <C>
OSS LSR CHARGE $3.50 $19.99
- ---------------------------------------------------------------------------------------------------------------------
USOC SOMEC SOMAN
- ---------------------------------------------------------------------------------------------------------------------
</TABLE>
Note: In addition to the OSS charges, applicable discounted service order and
related discounted charges apply per the tariff.
DENIAL/RESTORAL OSS CHARGE
In the event Essential.com provides a list of customers to be denied and
restored, rather than an LSR, each location on the list will require a separate
PON and, therefore will be billed as one LSR per location.
CANCELLATION OSS CHARGE
Essential.com will incur an OSS charge for an accepted LSR that is later
canceled by Essential.com.
Note: Supplements or clarifications to a previously billed LSR will not incur
another OSS charge.
THRESHOLD BILLING PLAN
The Parties agree that Essential.com will incur the mechanized rate for all
LSRs, both mechanized and manual, if the percentage of mechanized LSRs to total
LSRs meets or exceeds the threshold percentages shown below:
<TABLE>
<CAPTION>
Year Ratio: Mechanized/Total LSRs
<S> <C>
1999 70%
2000 80%
2001 90%
</TABLE>
The threshold plan will be discontinued in 2002.
BellSouth will track the total LSR volume for each CLEC for each quarter. At the
end of that time period, a Percent Electronic LSR calculation will be made for
that quarter based on the LSR data tracked in the LCSC. If this
<PAGE>
Attachment 1
Page 16
percentage exceeds the threshold volume, all of that CLECs' future manual LSRs
will be billed at the mechanized LSR rate. To allow time for obtaining and
analyzing the data and updating the billing system, this billing change will
take place on the first day of the second month following the end of the quarter
(e.g. May 1 for 1Q, Aug 1 for 2Q, etc.). There will be no adjustments to the
amount billed for previously billed LSRs.
The Parties agree that any charges BellSouth is unable to bill on April 15, 1999
will be trued up on or about July 1, 1999.
<PAGE>
Attachment 1
Page 17
EXHIBIT B
PAGE 1 OF 2
<TABLE>
<CAPTION>
EXCLUSIONS AND LIMITATIONS
ON SERVICES AVAILABLE FOR RESALE
- ---------------------------------------------------------------------------------------------------------------------------------
AL FL GA KY LA
Type of ----------------------------------------------------------------------------------------------
Service Resale? Discount? Resale? Discount? Resale? Discount? Resale? Discount? Resale? Discount?
- ---------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C>
1 Grandfathered Services
(Note 1) Yes Yes Yes Yes Yes Yes Yes Yes Yes Yes
- ---------------------------------------------------------------------------------------------------------------------------------
2 Contract Service Arrangements Yes Yes Yes Yes Yes Yes Yes Yes Yes Yes
- ---------------------------------------------------------------------------------------------------------------------------------
3 Promotions - > 90 Days
(Note 2) Yes Yes Yes Yes Yes Yes Yes Yes Yes Yes
- ---------------------------------------------------------------------------------------------------------------------------------
4 Promotions - < 90 Days
(Note 2) Yes No Yes No Yes No No No Yes No
- ---------------------------------------------------------------------------------------------------------------------------------
5 Lifeline/Link Up Services Yes Yes Yes Yes Yes Yes Note 4 Note 4 Yes Yes
- ---------------------------------------------------------------------------------------------------------------------------------
6 911 /E911 Services Yes Yes Yes Yes Yes Yes Yes Yes No No
- ---------------------------------------------------------------------------------------------------------------------------------
7 N11 Services Yes Yes Yes Yes Yes Yes No No No No
- ---------------------------------------------------------------------------------------------------------------------------------
8 AdWatch-SM- Svc (See Note 6) Yes No Yes No Yes No Yes No Yes No
- ---------------------------------------------------------------------------------------------------------------------------------
9 MemoryCall-Registered
Trademark- Service Yes No Yes No Yes No Yes No Yes No
- ---------------------------------------------------------------------------------------------------------------------------------
10 Mobile Services Yes No Yes No Yes No Yes No Yes No
- ---------------------------------------------------------------------------------------------------------------------------------
11 Federal Subscriber Line
Charges Yes No Yes No Yes No Yes No Yes No
- ---------------------------------------------------------------------------------------------------------------------------------
12 Non-Recurring Charges Yes Yes Yes Yes Yes Yes Yes Yes Yes Yes
- ---------------------------------------------------------------------------------------------------------------------------------
13 End User Line Charge -
Number Portability Yes No Yes No Yes No Yes No Yes No
- ---------------------------------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------------
<CAPTION>
MS NC SC TN
-----------------------------------------------------------------------------
Type of -----------------------------------------------------------------------------
Service Resale? Discount? Resale? Discount? Resale? Discount? Resale? Discount?
- ----------------------------------------------------------------------------------------------------------------
1 Grandfathered Services
(Note 1) Yes Yes Yes Yes Yes Yes Yes Yes
- ----------------------------------------------------------------------------------------------------------------
2 Contract Service Arrangements Yes Yes Yes Yes Yes Yes Yes Yes
- ----------------------------------------------------------------------------------------------------------------
3 Promotions - > 90 Days
(Note 2) Yes Yes Yes Yes Yes Yes Yes Note 3
- ----------------------------------------------------------------------------------------------------------------
4 Promotions - > 90 Days
(Note 2) Yes No Yes No Yes No No No
- ----------------------------------------------------------------------------------------------------------------
5 Lifeline/Link Up Services Yes Yes Yes Yes Yes Yes Yes Note 4
- ----------------------------------------------------------------------------------------------------------------
6 911 /E911 Services Yes Yes Yes Yes Yes Yes Yes Yes
- ----------------------------------------------------------------------------------------------------------------
7 N11 Services No No No No Yes Yes Yes Yes
- ----------------------------------------------------------------------------------------------------------------
8 AdWatch-SM- Svc (See Note 6) Yes No Yes No Yes No Yes No
- ----------------------------------------------------------------------------------------------------------------
9 MemoryCall-Registered
Trademark- Service Yes No Yes No Yes No Yes No
- ----------------------------------------------------------------------------------------------------------------
10 Mobile Services Yes No Yes No Yes No Yes No
- ----------------------------------------------------------------------------------------------------------------
11 Federal Subscriber Line
Charges Yes No Yes No Yes No Yes No
- ----------------------------------------------------------------------------------------------------------------
12 Non-Recurring Charges Yes Yes Yes Yes Yes Yes Yes No
- ----------------------------------------------------------------------------------------------------------------
13 End User Line Charge -
Number Portability Yes No Yes No Yes No Yes No
- ----------------------------------------------------------------------------------------------------------------
</TABLE>
APPLICABLE NOTES:
1 GRANDFATHERED SERVICES can be resold only to existing subscribers of the
grandfathered service.
2 Where available for resale, PROMOTIONS will be made available only to end
users who would have qualified for the promotion had it been provided by
BellSouth directly.
3 In Tennessee, long-term PROMOTIONS (offered for more than ninety (90)
days) may be obtained at one of the following rates:
(a) the stated tariff rate, less the wholesale discount;
(b) the promotional rate (the promotional rate offered by
BellSouth will not be discounted further by the wholesale discount
rate)
<PAGE>
Attachment 1
Page 18
EXHIBIT B
PAGE 2 OF 2
4. LIFELINE/LINK UP services may be offered only to those subscribers who
meet the criteria that BellSouth currently applies to subscribers of
these services.
5 Some of BellSouth's local exchange and toll telecommunications services
are not available in certain central offices and areas.
6 AdWatch-SM- Service is tariffed as BellSouth-Registered Trademark- AIN
Virtual Number Call Detail Service.
<PAGE>
Attachment 1
Page 19
EXHIBIT C
LINE INFORMATION DATA BASE (LIDB)
STORAGE AGREEMENT
I. SCOPE
A. This Agreement sets forth the terms and conditions pursuant to
which BST agrees to store in its LIDB certain information at the request of the
Local Exchange Company and pursuant to which BST, its LIDB customers and Local
Exchange Carrier shall have access to such information. Local Exchange Carrier
understands that BST provides access to information in its LIDB to various
telecommunications service providers pursuant to applicable tariffs and agrees
that information stored at the request of Local Exchange Carrier, pursuant to
this Agreement, shall be available to those telecommunications service
providers. The terms and conditions contained in the attached Addendum(s) are
hereby made a part of this Agreement as if fully incorporated herein.
B. LIDB is accessed for the following purposes:
1. Billed Number Screening
2. Calling Card Validation
3. Fraud Control
C. BST will provide seven days per week, 24-hours per day, fraud
monitoring on Calling Cards, bill-to-third and collect calls made to numbers in
BST's LIDB, provided that such information is included in the LIDB query. BST
will establish fraud alert thresholds and will notify the Local Exchange Company
of fraud alerts so that the Local Exchange Company may take action it deems
appropriate. Local Exchange Company understands and agrees BST will administer
all data stored in the LIDB, including the data provided by Local Exchange
Company pursuant to this Agreement, in the same manner as BST's data for BST's
end user customers. BST shall not be responsible to Local Exchange Company for
any lost revenue which may result from BST's administration of the LIDB pursuant
to its established practices and procedures as they exist and as they may be
changed by BST in its sole discretion from time to time.
<PAGE>
Attachment 1
Page 20
EXHIBIT C
Local Exchange Company understands that BST currently has in effect
numerous billing and collection agreements with various interexchange carriers
and billing clearing houses. Local Exchange Company further understands that
these billing and collection customers of BST query BST's LIDB to determine
whether to accept various billing options from end users. Additionally, Local
Exchange Company understands that presently BST has no method to differentiate
between BST's own billing and line data in the LIDB and such data which it
includes in the LIDB on Local Exchange Company's behalf pursuant to this
Agreement. Therefore, until such time as BST can and does implement in its LIDB
and its supporting systems the means to differentiate Local Exchange Company's
data from BST's data and the parties to this Agreement execute appropriate
amendments hereto, the following terms and conditions shall apply:
(a) The Local Exchange Company agrees that it will accept
responsibility for telecommunications services billed by BST for its billing and
collection customers for Local Exchange Customer's end user accounts which are
resident in LIDB pursuant to this Agreement. Local Exchange Company authorizes
BST to place such charges on Local Exchange Company's bill from BST and agrees
that it shall pay all such charges. Charges for which Local Exchange Company
hereby takes responsibility include, but are not limited to, collect and third
number calls.
(b) Charges for such services shall appear on a separate BST bill page
identified with the name of the entity for which BST is billing the charge.
(c) Local Exchange Company shall have the responsibility to render a
billing statement to its end users for these charges, but Local Exchange
Company's obligation to pay BST for the charges billed shall be independent of
whether Local Exchange Company is able or not to collect from the Local Exchange
Company's end users.
(d) BST shall not become involved in any disputes between Local
Exchange Company and the entities for which BST performs billing and collection.
BellSouth will not issue adjustments for charges billed on behalf of an entity
to Local Exchange Company. It
<PAGE>
Attachment 1
Page 21
EXHIBIT C
shall be the responsibility of the Local Exchange Company and the other entity
to negotiate and arrange for any appropriate adjustments.
II. TERM
This Agreement will be effective as of _____________ 199__, and
will continue in effect for one year, and thereafter may be continued until
terminated by either party upon thirty (30) days written notice to the other
party.
III. FEES FOR SERVICE AND TAXES
A. The Local Exchange Company will not be charged a fee for storage
services provided by BST to the Local Exchange Company, as described in Section
I of this Agreement.
B. Sales, use and all other taxes (excluding taxes on BST's income)
determined by BST or any taxing authority to be due to any federal, state or
local taxing jurisdiction with respect to the provision of the service set forth
herein will be paid by the Local Exchange Company. The Local Exchange Company
shall have the right to have BST contest with the imposing jurisdiction, at the
Local Exchange Company's expense, any such taxes that the Local Exchange Company
deems are improperly levied.
IV. INDEMNIFICATION
To the extent not prohibited by law, each party will indemnify the
other and hold the other harmless against any loss, cost, claim, injury, or
liability relating to or arising out of negligence or willful misconduct by
the indemnifying party or its agents or contractors in connection with the
indemnifying party's provision of services, provided, however, that any
indemnity for any loss, cost, claim, injury or liability arising out of or
relating to errors or omissions in the provision of services under this
Agreement shall be limited as otherwise specified in this Agreement. The
indemnifying party under this Section agrees to defend any suit brought
against the other party for any such loss, cost, claim, injury or liability.
The indemnified party agrees to notify the other party promptly, in writing,
of any written claims, lawsuits, or demands for which the other party is
responsible under this Section and to cooperate in every reasonable way to
facilitate defense or settlement of
<PAGE>
Attachment 1
Page 22
EXHIBIT C
claims. The indemnifying party shall not be liable under this Section for
settlement by the indemnified party of any claim, lawsuit, or demand unless the
defense of the claim, lawsuit, or demand has been tendered to it in writing and
the indemnifying party has unreasonably failed to assume such defense.
V. LIMITATION OF LIABILITY
Neither party shall be liable to the other party for any lost
profits or revenues or for any indirect, incidental or consequential damages
incurred by the other party arising from this Agreement or the services
performed or not performed hereunder, regardless of the cause of such loss or
damage.
VI. MISCELLANEOUS
A. It is understood and agreed to by the parties that BST may provide
similar services to other companies.
B. All terms, conditions and operations under this Agreement shall be
performed in accordance with, and subject to, all applicable local, state or
federal legal and regulatory tariffs, rulings, and other requirements of the
federal courts, the U. S. Department of Justice and state and federal regulatory
agencies. Nothing in this Agreement shall be construed to cause either party to
violate any such legal or regulatory requirement and either party's obligation
to perform shall be subject to all such requirements.
C. The Local Exchange Company agrees to submit to BST all advertising,
sales promotion, press releases, and other publicity matters relating to this
Agreement wherein BST's corporate or trade names, logos, trademarks or service
marks or those of BST's affiliated companies are mentioned or language from
which the connection of said names or trademarks therewith may be inferred or
implied; and the Local Exchange Company further agrees not to publish or use
advertising, sales promotions, press releases, or publicity matters without
BST's prior written approval.
D. This Agreement constitutes the entire agreement between the Local
Exchange Company and BST which supersedes all prior agreements or contracts,
oral or written representations, statements, negotiations, understandings,
proposals and undertakings with respect to the subject matter hereof.
E. Except as expressly provided in this Agreement, if any part of this
Agreement is held or
<PAGE>
Attachment 1
Page 23
EXHIBIT C
construed to be invalid or unenforceable, the validity of any other Section of
this Agreement shall remain in full force and effect to the extent permissible
or appropriate in furtherance of the intent of this Agreement.
F. Neither party shall be held liable for any delay or failure in
performance of any part of this Agreement for any cause beyond its control and
without its fault or negligence, such as acts of God, acts of civil or military
authority, government regulations, embargoes, epidemics, war, terrorist acts,
riots, insurrections, fires, explosions, earthquakes, nuclear accidents, floods,
strikes, power blackouts, volcanic action, other major environmental
disturbances, unusually severe weather conditions, inability to secure products
or services of other persons or transportation facilities, or acts or omissions
of transportation common carriers.
G. This Agreement shall be deemed to be a contract made under the laws
of the State of Georgia, and the construction, interpretation and performance of
this Agreement and all transactions hereunder shall be governed by the domestic
law of such State.
RESALE ADDENDUM
TO LINE INFORMATION DATA BASE (LIDB)
STORAGE AGREEMENT
This is a Resale Addendum to the Line Information Data Base Storage
Agreement dated __________________199__, between BellSouth Telecommunications,
Inc. ("BST"), and Local Exchange Company ("Local Exchange Company"), effective
the ______ day of _________, 199__.
I. GENERAL
This Addendum sets forth the terms and conditions for Local Exchange
Company's provision of billing number information to BST for inclusion in BST's
LIDB. BST will store in its LIDB the billing number information provided by
Local Exchange Company, and BST will provide responses to on-line, call-by-call
queries to this information for purposes specified in Section I.B. of the
Agreement.
<PAGE>
Attachment 1
Page 24
EXHIBIT C
II. DEFINITIONS
A. Billing number - a number used by BST for the purpose of
identifying an account liable for charges. This number may be a line or a
special billing number.
B. Line number - a ten digit number assigned by BST that identifies a
telephone line associated with a resold local exchange service, or with a SPNP
arrangement.
C. Special billing number - a ten digit number that identifies a
billing account established by BST in connection with a resold local exchange
service or with a SPNP arrangement.
D. Calling Card number - a billing number plus PIN number assigned by
BST.
E. PIN number - a four digit security code assigned by BST which is
added to a billing number to compose a fourteen digit calling card number.
F. Toll billing exception indicator - associated with a billing number
to indicate that it is considered invalid for billing of collect calls or third
number calls or both, by the Local Exchange Company.
G. Billed Number Screening - refers to the activity of determining
whether a toll billing exception indicator is present for a particular billing
number.
H. Calling Card Validation - refers to the activity of determining
whether a particular calling card number exists as stated or otherwise provided
by a caller.
I. Billing number information - information about billing number or
Calling Card number as assigned by BST and toll billing exception indicator
provided to BST by the Local Exchange Company.
III. RESPONSIBILITIES OF PARTIES
A. BST will include billing number information associated with resold
exchange lines or SPNP arrangements in its LIDB. The Local Exchange Company will
request any toll billing exceptions via the Local Service Request (LSR) form
used to order resold exchange lines, or the SPNP service request form used to
order SPNP arrangements.
B. Under normal operating conditions, BST shall include the billing
number information in its LIDB upon completion of the service order establishing
either the resold local exchange service or the SPNP
<PAGE>
Attachment 1
Page 25
EXHIBIT C
arrangement, provided that BST shall not be held responsible for any delay or
failure in performance to the extent such delay or failure is caused by
circumstances or conditions beyond BST's reasonable control. BST will store in
its LIDB an unlimited volume of the working telephone numbers associated with
either the resold local exchange lines or the SPNP arrangements. For resold
local exchange lines or for SPNP arrangements, BST will issue line-based calling
cards only in the name of Local Exchange Company. BST will not issue line based
calling cards in the name of Local Exchange Company's individual end users. In
the event that Local Exchange Company wants to include calling card numbers
assigned by the Local Exchange Company in the BST LIDB, a separate agreement is
required.
C. BST will provide responses to on-line, call-by-call queries to the
stored information for the specific purposes listed in the next paragraph.
D. BST is authorized to use the billing number information to perform
the following functions for authorized users on an on-line basis:
1 . Validate a 14 digit Calling Card number where the first 10 digits
are a line number or special billing number assigned by BST, and where the last
four digits (PIN) are a security code assigned by BST.
2. Determine whether the Local Exchange Company has identified the
billing number as one which should not be billed for collect or third number
calls, or both.
<PAGE>
Attachment 1
Page 26
EXHIBIT D
RAO HOSTING
1 RAO Hosting, Calling Card and Third Number Settlement System (CATS) and
Non-Intercompany Settlement System (NICS) services provided to
Essential.com by BellSouth will be in accordance with the methods and
practices regularly adopted and applied by BellSouth to its own
operations during the term of this Agreement, including such revisions as
may be made from time to time by BellSouth.
2 Essential.com shall furnish all relevant information required by
BellSouth for the provision of RAO Hosting, CATS and NICS.
3 Applicable compensation amounts will be billed by BellSouth to
Essential.com on a monthly basis in arrears. Amounts due from one Party
to the other (excluding adjustments) are payable within thirty (30) days
of receipt of the billing statement.
4 Essential.com must have its own unique RAO code. Requests for
establishment of RAO status where BellSouth is the selected Centralized
Message Distribution System (CMDS) interfacing host, require written
notification from Essential.com to the BellSouth RAO Hosting coordinator
at least eight (8) weeks prior to the proposed effective date. The
proposed effective date will be mutually agreed upon between the Parties
with consideration given to time necessary for the completion of required
Telcordia (formerly BellCore) functions. BellSouth will request the
assignment of an RAO code from its connecting contractor, currently
Telcordia (formerly BellCore), on behalf of Essential.com and will
coordinate all associated conversion activities.
5 BellSouth will receive messages from Essential.com that are to be
processed by BellSouth, another LEC or CLEC in the BellSouth region or a
LEC outside the BellSouth region.
6 BellSouth will perform invoice sequence checking, standard EMI format
editing, and balancing of message data with the EMI trailer record counts
on all data received from Essential.com.
7 All data received from Essential.com that is to be processed or billed by
another LEC or CLEC within the BellSouth region will be distributed to
that LEC or CLEC in accordance with the agreement(s) which may be in
effect between BellSouth and the involved LEC or CLEC.
8 All data received from Essential.com that is to be placed on the CMDS
network for distribution outside the BellSouth region will be handled in
accordance with the agreement(s) which may be in effect between BellSouth
and its connecting contractor (currently Telcordia (formerly BellCore)).
9 BellSouth will receive messages from the CMDS network that are destined
to be processed by Essential.com and will forward them to Essential.com
on a daily basis.
10 Transmission of message data between BellSouth and Essential.com will be
via CONNECT:Direct.
11. All messages and related data exchanged between BellSouth and
Essential.com will be formatted in accordance with accepted industry
standards for EMI formatted records and packed between appropriate EMI
header and trailer records, also in accordance with accepted industry
standards.
12 Essential.com will ensure that the recorded message detail necessary to
recreate files provided to Bellsouth will be maintained for back-up
purposes for a period of three (3) calendar months beyond the related
message dates.
<PAGE>
Attachment 1
Page 27
EXHIBIT D
13 Should it become necessary for Essential.com to send data to BellSouth
more than sixty (60) days past the message date(s), Essential.com will
notify BellSouth in advance of the transmission of the data. If there
will be impacts outside the BellSouth region, BellSouth will work with
its connecting contractor and Essential.com to notify all affected
Parties.
14 In the event that data to be exchanged between the two Parties should
become lost or destroyed, both Parties will work together to determine
the source of the problem. Once the cause of the problem has been jointly
determined and the responsible Party (BellSouth or Essential.com)
identified and agreed to, the company responsible for creating the data
(BellSouth or Essential.com) will make every effort to have the affected
data restored and retransmitted. If the data cannot be retrieved, the
responsible Party will be liable to the other Party for any resulting
lost revenue. Lost revenue may be a combination of revenues that could
not be billed to the end users and associated access revenues. Both
Parties will work together to estimate the revenue amount based upon
historical data through a method mutually agreed upon. The resulting
estimated revenue loss will be paid by the responsible Party to the other
Party within three (3) calendar months of the date of problem resolution,
or as mutually agreed upon by the Parties.
15 Should an error be detected by the EMI format edits performed by
BellSouth on data received from Essential.com, the entire pack containing
the affected data will not be processed by BellSouth. BellSouth will
notify Essential.com of the error condition. Essential.com will correct
the error(s) and will resend the entire pack to BellSouth for processing.
In the event that an out-of-sequence condition occurs on subsequent
packs, Essential.com will resend these packs to BellSouth after the pack
containing the error has been successfully reprocessed by BellSouth.
16 In association with message distribution service, BellSouth will provide
Essential.com with associated intercompany settlements reports (CATS and
NICS) as appropriate.
17 In no case shall either Party be liable to the other for any direct or
consequential damages incurred as a result of the obligations set out in
this agreement.
18 RAO COMPENSATION
18.1 Rates for message distribution service provided by BellSouth for
Essential.com are as set forth in Exhibit A to this Attachment.
18.2 Rates for data transmission associated with message distribution service
are as set forth in Exhibit A to this Attachment.
18.3 Data circuits (private line or dial-up) will be required between
BellSouth and Essential.com for the purpose of data transmission. Where a
dedicated line is required, Essential.com will be responsible for
ordering the circuit, overseeing its installation and coordinating the
installation with BellSouth. Essential.com will also be responsible for
any charges associated with this line. Equipment required on the
BellSouth end to attach the line to the mainframe computer and to
transmit successfully ongoing will be negotiated on a case by case basis.
Where a dial-up facility is required, dial circuits will be installed in
the BellSouth data center by BellSouth and the associated charges
assessed to Essential.com. Additionally, all message toll charges
associated with the use of the dial circuit by Essential.com will be the
responsibility of Essential.com. Associated equipment on the BellSouth
end, including a modem, will be negotiated on a case by case basis
between the Parties.
<PAGE>
Attachment 1
Page 28
EXHIBIT D
18.4 All equipment, including modems and software, that is required on the
Essential.com end for the purpose of data transmission will be the
responsibility of Essential.com.
19 INTERCOMPANY SETTLEMENTS MESSAGES
19.1 This Section addresses the settlement of revenues associated with traffic
originated from or billed by Essential.com as a facilities based provider
of local exchange telecommunications services outside the BellSouth
region. Only traffic that originates in one Bell operating territory and
bills in another Bell operating territory is included. Traffic that
originates and bills within the same Bell operating territory will be
settled on a local basis between Essential.com and the involved
company(ies), unless that company is participating in NICS.
19.2 Both traffic that originates outside the BellSouth region by
Essential.com and is billed within the BellSouth region, and traffic that
originates within the BellSouth region and is billed outside the
BellSouth region by Essential.com, is covered by this Agreement (CATS).
Also covered is traffic that either is originated by or billed by
Essential.com, involves a company other than Essential.com, qualifies for
inclusion in the CATS settlement, and is not originated or billed within
the BellSouth region (NICS).
19.3 Once Essential.com is operating within the BellSouth territory, revenues
associated with calls originated and billed within the BellSouth region
will be settled via Telcordia (formerly BellCore)'s, its successor or
assign, NICS system.
19.4 BellSouth will receive the monthly NICS reports from Telcordia (formerly
BellCore), its successor or assign, on behalf of Essential.com. BellSouth
will distribute copies of these reports to Essential.com on a monthly
basis.
19.5 BellSouth will receive the monthly Calling Card and Third Number
Settlement System (CATS) reports from Telcordia (formerly BellCore), its
successor or assign, on behalf of Essential.com. BellSouth will
distribute copies of these reports to Essential.com on a monthly basis.
19.6 BellSouth will collect the revenue earned by Essential.com from the Bell
operating company in whose territory the messages are billed (CATS), less
a per message billing and collection fee of five cents ($0.05), on behalf
of Essential.com. BellSouth will remit the revenue billed by
Essential.com to the Bell operating company in whose territory the
messages originated, less a per message billing and collection fee of
five cents ($0.05), on behalf on Essential.com. These two amounts will be
netted together by BellSouth and the resulting charge or credit issued to
Essential.com via a monthly Carrier Access Billing System (CABS)
miscellaneous bill.
19.7 BellSouth will collect the revenue earned by Essential.com within the
BellSouth territory from another CLEC also within the BellSouth territory
(NICS) where the messages are billed, less a per message billing and
collection fee of five cents ($0.05), on behalf of Essential.com.
Bellsouth will remit the revenue billed by Essential.com within the
BellSouth region to the CLEC also within the Bellsouth region, where the
messages originated, less a per message billing and collection fee of
five cents ($0.05). These two amounts will be netted together by
BellSouth and the resulting charge or credit issued to Essential.com via
a monthly Carrier Access Billing System (CABS) miscellaneous bill.
BellSouth and Essential.com agree that monthly netted amounts of less
than fifty dollars ($50.00) will not be settled.
<PAGE>
Attachment 1
Page 29
EXHIBIT E
OPTIONAL DAILY USAGE FILE
1 Upon written request from Essential.com, BellSouth will provide the
Optional Daily Usage File (ODUF) service to Essential.com pursuant to the
terms and conditions set forth in this section.
2 The Essential.com shall furnish all relevant information required by
BellSouth for the provision of the Optional Daily Usage File.
3 The Optional Daily Usage Feed will contain billable messages that were
carried over the BellSouth Network and processed in the BellSouth Billing
System, but billed to a Essential.com customer. Charges for delivery of
the Optional Daily Usage File will appear on the Essential.coms' monthly
bills. The charges are as set forth in Exhibit A to this Attachment.
4 The Optional Daily Usage Feed will contain both rated and unrated
messages. All messages will be in the standard Alliance for
Telecommunications Industry Solutions (ATIS) EMI record format.
5 Messages that error in the billing system of the Essential.com, will be
the responsibility of the Essential.com. If, however, the Essential.com
should encounter significant volumes of errored messages that prevent
processing by the Essential.com within its systems, BellSouth will work
with the Essential.com to determine the source of the errors and the
appropriate resolution.
6 The following specifications shall apply to the Optional Daily Usage
Feed.
6.1 USAGE TO BE TRANSMITTED
6.1.1 The following messages recorded by BellSouth will be transmitted to the
Essential.com:
- message recording for per use/per activation type services
(examples: Three Way Calling, Verify, Interrupt, Call
Return, ETC.)
- measured billable Local
- Directory Assistance messages
- intraLATA Toll
- WATS & 800 Service
- N11
- Information Service Provider Messages
- Operator Services Messages
- Operator Services Message Attempted Calls (UNE only)
- Credit/Cancel Records
- Usage for Voice Mail Message Service
<PAGE>
Attachment 1
Page 30
EXHIBIT E
6.1.2 Rated Incollects (originated in BellSouth and from other companies) can
also be on Optional Daily Usage File. Rated Incollects will be
intermingled with BellSouth recorded rated and unrated usage. Rated
Incollects will not be packed separately.
6.1.3 BellSouth will perform duplicate record checks on records processed to
Optional Daily Usage File. Any duplicate messages detected will be
deleted and not sent to Essential.com.
6.1.4 In the event that Essential.com detects a duplicate on Optional Daily
Usage File they receive from BellSouth, Essential.com will drop the
duplicate message (Essential.com will not return the duplicate to
BellSouth).
6.2 PHYSICAL FILE CHARACTERISTICS
6.2.1 The Optional Daily Usage File will be distributed to Essential.com via an
agreed medium with CONNECT:Direct being the preferred transport method.
The Daily Usage Feed will be a variable block format (2476) with an LRECL
of 2472. The data on the Daily Usage Feed will be in a non-compacted EMI
format (175 byte format plus modules). It will be created on a daily
basis (Monday through Friday except holidays). Details such as dataset
name and delivery schedule will be addressed during negotiations of the
distribution medium. There will be a maximum of one dataset per workday
per OCN.
6.2.2 Data circuits (private line or dial-up) may be required between BellSouth
and Essential.com for the purpose of data transmission. Where a dedicated
line is required, Essential.com will be responsible for ordering the
circuit, overseeing its installation and coordinating the installation
with BellSouth. Essential.com will also be responsible for any charges
associated with this line. Equipment required on the BellSouth end to
attach the line to the mainframe computer and to transmit successfully
ongoing will be negotiated on a case by case basis. Where a dial-up
facility is required, dial circuits will be installed in the BellSouth
data center by BellSouth and the associated charges assessed to
Essential.com. Additionally, all message toll charges associated with the
use of the dial circuit by Essential.com. will be the responsibility of
Essential.com. Associated equipment on the BellSouth end, including a
modem, will be negotiated on a case by case basis between the parties.
All equipment, including modems and software, that is required on
Essential.com end for the purpose of data transmission will be the
responsibility of Essential.com.
6.3 PACKING SPECIFICATIONS
6.3.1 A pack will contain a minimum of one message record or a maximum of
99,999 message records plus a pack header record and a pack trailer
record. One transmission can contain a maximum of 99 packs and a minimum
of one pack.
6.3.2 The OCN, From RAO, and Invoice Number will control the invoice
sequencing. The From RAO will be used to identify to Essential.com which
BellSouth RAO that is sending the message. BellSouth and Essential.com
will use the invoice sequencing to control data exchange. BellSouth will
be notified of sequence failures identified by Essential.com. and resend
the data as appropriate.
THE DATA WILL BE PACKED USING ATIS EMI RECORDS.
6.4 PACK REJECTION
6.4.1 Essential.com will notify BellSouth within one business day of rejected
packs (via the mutually agreed medium). Packs could be rejected because
of pack sequencing discrepancies or a critical edit failure on the Pack
Header or Pack Trailer records (i.e. out-of-balance condition on grand
totals, invalid data populated). Standard ATIS EMI Error Codes will be
used. Essential.com will not be required to return the actual
<PAGE>
Attachment I
Page 31
EXHIBIT E
rejected data to BellSouth. Rejected packs will be corrected and
retransmitted to Essential.com by BellSouth.
6.5 Control Data
Essential.com will send one confirmation record per pack that is received
from BellSouth. This confirmation record will indicate Essential.com
received the pack and the acceptance or rejection of the pack. Pack
Status Code(s) will be populated using standard ATIS EMI error codes for
packs that were rejected by Essential.com for reasons stated in the
above section.
6.6 TESTING
6.6.1 Upon request from Essential.com, BellSouth shall send test files to
Essential.com for the Optional Daily Usage File. The parties agree to
review and discuss the file's content and/or format. For testing of usage
results, BellSouth shall request that Essential.com set up a production
(LIVE) file. The live test may consist of Essential.com's employees
making test calls for the types of services Essential.com requests on the
Optional Daily Usage File. These test calls are logged by Essential.com,
and the logs are provided to BellSouth. These logs will be used to verify
the files. Testing will be completed within 30 calendar days from the
date on which the initial test file was sent.
<PAGE>
ATTACHMENT I
PAGE 32
EXHIBIT F
ENHANCED OPTIONAL DAILY USAGE FILE
1 Upon written request from Essential.com, BellSouth will provide the
Enhanced Optional Daily Usage File (EODUF) service to Essential.com
pursuant to the terms and conditions set forth in this section. EODUF
will only be sent to existing ODUF subscribers who request the EODUF
option.
2 The Essential.com shall furnish all relevant information required by
BellSouth for the provision of the Enhanced Optional Daily Usage File.
3 The Enhanced Optional Daily Usage File (EODUF) will provide usage data
for local calls originating from resold Flat Rate Business and
Residential Lines. Charges for delivery of the Enhanced Optional Daily
Usage File will appear on the Essential.coms' monthly bills. The charges
are as set forth in Exhibit A to this Attachment.
4 All messages will be in the standard Alliance for Telecommunications
Industry Solutions (ATIS) EMI record format.
5 Messages that error in the billing system of the Essential.com will be
the responsibility of the Essential.com. If, however, the Essential.com
should encounter significant volumes of errored messages that prevent
processing by the Essential.com within its systems, BellSouth will work
with the Essential.com to determine the source of the errors and the
appropriate resolution.
6 The following specifications shall apply to the Optional Daily Usage
Feed.
6.1 USAGE TO BE TRANSMITTED
6.1.1 The following messages recorded by BellSouth will be transmitted to
Essential.com:
Customer usage data for flat rated local call originating from CLEC end
user lines (1FB or 1FR). The EODUF record for flat rate messages will
include:
Date of Call
From Number
To Number
Connect Time
Conversation Time
Method of Recording
From RAO
Rate Class
Message Type
Billing Indicators
Bill to Number
6.1.2 BellSouth will perform duplicate record checks on EODUF records processed
to Optional Daily Usage File. Any duplicate messages detected will be
deleted and not sent to Essential.com.
<PAGE>
Attachment 1
Page 33
EXHIBIT F
6.1.3 In the event that Essential.com detects a duplicate on Enhanced Optional
Daily Usage File they receive from BellSouth, Essential.com will drop the
duplicate message (Essential.com will not return the duplicate to
BellSouth).
6.2 PHYSICAL FILE CHARACTERISTICS
6.2.1 The Enhanced Optional Daily Usage Feed will be distributed to
Essential.com over their existing Optional Daily Usage File (ODUF) feed.
The EODUF messages will be intermingled among Essential.com's Optional
Daily Usage File (ODUF) messages. The EODUF will be a variable block
format (2476) with an LRECL of 2472. The data on the EODUF will be in a
non-compacted EMI format (175 byte format plus modules). It will be
created on a daily basis (Monday through Friday except holidays).
6.2.2 Data circuits (private line or dial-up) may be required between BellSouth
and Essential.com for the purpose of data transmission. Where a dedicated
line is required, Essential.com will be responsible for ordering the
circuit, overseeing its installation and coordinating the installation
with BellSouth. Essential.com will also be responsible for any charges
associated with this line. Equipment required on the BellSouth end to
attach the line to the mainframe computer and to transmit successfully
ongoing will be negotiated on a case by case basis. Where a dial-up
facility is required, dial circuits will be installed in the BellSouth
data center by BellSouth and the associated charges assessed to
Essential.com. Additionally, all message toll charges associated with the
use of the dial circuit by Essential.com. will be the responsibility of
Essential.com. Associated equipment on the BellSouth end, including a
modem, will be negotiated on a case by case basis between the parties.
All equipment, including modems and software, that is required on
Essential.com. end for the purpose of data transmission will be the
responsibility of Essential.com.
6.3 PACKING SPECIFICATIONS
6.3.1 A pack will contain a minimum of one message record or a maximum of
99,999 message records plus a pack header record and a pack trailer
record. One transmission can contain a maximum of 99 packs and a minimum
of one pack.
6.3.2 The Operating Company Number (OCN), From Revenue Accounting Office (RAO),
and Invoice Number will control the invoice sequencing. The From RAO will
be used to identify to Essential.com which BellSouth RAO that is sending
the message. BellSouth and Essential.com will use the invoice sequencing
to control data exchange. BellSouth will be notified of sequence failures
identified by Essential.com and resound the data as appropriate.
THE DATA WILL BE PACKED USING ATIS EMI RECORDS.
<PAGE>
Attachment 1
Page 34
EXHIBIT G
CALLING NAME DELIVERY (CNAM) DATABASE SERVICES
1.00 DEFINITIONS
For the purpose of this Attachment, the following terms shall be defined as:
CALLING NAME DELIVERY DATABASE SERVICE (CNAM) - The ability to associate a name
with the calling party number, allowing the end user subscriber (to which a call
is being terminated) to view the calling party's name before the call is
answered. This service also provides Essential.com the opportunity to load and
store its subscriber names in the BellSouth CNAM SCPs.
CALLING PARTY NUMBER (CPN) - The number of the calling party that is delivered
to the terminating switch using common channel signaling system 7 (CCS7)
technology, and that is contained in the Initial Address Message (IAM) portion
of the CCS7 call setup.
COMMON CHANNEL SIGNALING SYSTEM 7 (CCS7) - A network signaling technology in
which all signaling information between two or more nodes is transmitted over
high-speed data links, rather than over voice circuits.
SERVICE CONTROL POINTs (SCPs) - The real-time data base systems that contain the
names to be provided in response to queries received from CNAM SSPs.
SERVICE MANAGEMENT SYSTEM (SMS) - The main operations support system of CNAM
DATABASE SERVICE. CNAM records are loaded into the SMS, which in turn downloads
into the CNAM SCP.
SERVICE SWITCHING POINTs (SSPs) - Features of computerized switches in the
telephone network that determine that a terminating line has subscribed to CNAM
service, and then communicate with CNAM SCPs in order to provide the name
associated with the calling party number.
SUBSYSTEM NUMBER (SSN) - The address used in the Signaling Connection Control
Part (SCCP) layer of the SS7 protocol to designate an application at an end
signaling point. A SSN for CNAM at the end office designates the CNAM
application within the end office. BellSouth uses the CNAM SSN of 232.
ATTACHMENT
2.01 This Attachment contains the terms and conditions where BellSouth will
provide to the Essential.com access to the BellSouth CNAM SCP for query
or record storage purposes.
2.02 Essential.com shall submit to BellSouth a notice of its intent to access
and utilize BellSouth CNAM Database Services pursuant to the terms and
conditions of this Attachment. Said notice shall be in writing, no less
than 60 days prior to Essential.com's access to BellSouth's CNAM Database
Services and shall be addressed to Essential.com's Account Manager.
3.00 PHYSICAL CONNECTION AND COMPENSATION
3.01 BellSouth's provision of CNAM Database Services to Essential.com.
requires interconnection from Essential.com Essential.com to BellSouth
CNAM Service Control Points (SCPs). Such interconnections shall be
established pursuant to Attachment 3 of this Agreement. The appropriate
charge for access to and use of the BellSouth CNAM Database service shall
be as set forth in this Attachment.
3.02 In order to formulate a CNAM query to be sent to the BellSouth CNAM SCP,
Essential.com Essential.com shall provide its own CNAM SSP.
Essential.com's Essential.com CNAM SSPs must be compliant with TR-NWT-
001188, "CLASS Calling Name Delivery Generic Requirements".
<PAGE>
Attachment 1
Page 35
EXHIBIT G
3.03 If Essential.com elects to access the BellSouth CNAM SCP via a third
party CCS7 transport provider, the third party CCS7 provider shall
interconnect with the BellSouth CCS7 network according to BellSouth's
Common Channel Signaling Interconnection Guidelines and Telcordia
(formerly BellCore)'s CCS Network Interface Specification document,
TR-TSV-000905. In addition, the third party provider shall establish CCS7
interconnection at the BellSouth Local Signal Transfer Points (LSTPs)
serving the BellSouth CNAM SCPs that Essential.com desires to query.
3.04 OUT-OF-REGION CUSTOMERS. If the customer queries the BellSouth CNAM SCP
via a third party national SS7 transport provider, the third party SS7
provider shall interconnect with the BellSouth CCS7 network according to
BellSouth's Common Channel Signaling Interconnection Guidelines and
Bellcore's CCS Network Interface Specification document, TR-TSV-000905.
In addition, the third party provider shall establish SS7 interconnection
at one or more of the BellSouth Gateway Signal Transfer Points (STPs).
The payment of all costs associated with the transport of SS7 signals via
a third party will be established by mutual agreement of the parties and
writing shall, by this reference become an integral part of this
Agreement.
4.00 CNAM RECORD INITIAL LOAD AND UPDATES
4.01 The mechanism to be used by Essential.com for initial CNAM record load
and/or updates shall be determined by mutual agreement. The initial load
and all updates shall be provided by Essential.com in the BellSouth
specified format and shall contain records for every working telephone
number that can originate phone calls. It is the responsibility of
Essential.com to provide accurate information to BellSouth on a current
basis.
4.02 Updates to the SMS shall occur no less than once a week, reflect service
order activity affecting either name or telephone number, and involve
only record additions, deletions or changes.
4.03 Essential.com CNAM records provided for storage in the BellSouth CNAM SCP
shall be available, on a SCP query basis only, to all parties querying
the BellSouth CNAM SCP. Further, CNAM service shall be provided by each
party consistent with state and/or federal regulation.
<PAGE>
Attachment 1
Exhibit H
Rates - Page 1
BELLSOUTH/CLEC-1 RATES
ODUF/EDOUF/CMDS/CNAM
The rates contained within this Exhibit were negotiated as a whole within the
negotiations of the terms and conditions contained within the Attachment and
each rate, term and condition is interdependent upon the other rates, terms
and conditions within this Attachment.
<TABLE>
<CAPTION>
- -----------------------------------------------------------------------------------------------------------------------------
RATES BY STATE
- -----------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C>
DESCRIPTION USOC AL FL GA KY
- -----------------------------------------------------------------------------------------------------------------------------
ODUF/EODUF/CMDS
- -----------------------------------------------------------------------------------------------------------------------------
ODUF: RECORDING, PER MESSAGE N/A $0.0002 $0.008 $0.008 $0.0008611
- -----------------------------------------------------------------------------------------------------------------------------
ODUF: MESSAGE PROCESSING, PER MESSAGE N/A $0.0033 $0.004 $0.004 $0.0032357
- -----------------------------------------------------------------------------------------------------------------------------
EODUF: MESSAGE PROCESSING, PER MESSAGE N/A $0.004 $0.004 $0.004 $0.004
- -----------------------------------------------------------------------------------------------------------------------------
CMDS: MESSAGE PROCESSING, PER MESSAGE N/A $0.004 $0.004 $0.004 $0.004
- -----------------------------------------------------------------------------------------------------------------------------
ODUF: MESSAGE PROCESSING, PER MAGNETIC TAPE PROVISIONED N/A $55.19 $54.95 $54.95 $55.68
- -----------------------------------------------------------------------------------------------------------------------------
EODUF: MESSAGE PROCESSING, PER MAGNETIC TAPE PROVISIONED N/A $47.30 $47.30 $47.30 $47.30
- -----------------------------------------------------------------------------------------------------------------------------
ODUF: DATA TRANSMISSION (CONNECT:DIRECT), PER MESSAGE N/A $0.00004 $0.001 $0.001 $0.0000365
- -----------------------------------------------------------------------------------------------------------------------------
EODUF: DATA TRANSMISSION (CONNECT:DIRECT), PER MESSAGE N/A $0.0000364 $0.0000364 $0.0000364 $0.0000364
- -----------------------------------------------------------------------------------------------------------------------------
CMDS: DATA TRANSMISSION (CONNECT:DIRECT), PER MESSAGE N/A $0.001 $0.001 $0.001 $0.001
- -----------------------------------------------------------------------------------------------------------------------------
CALLING NAME (CNAM) QUERY SERVICE
- -----------------------------------------------------------------------------------------------------------------------------
CNAM (DATABASE OWNER), PER QUERY N/A $0.016 $0.016 $0.016 $0.016
- -----------------------------------------------------------------------------------------------------------------------------
CNAM (NON-DATABASE OWNER), PER QUERY* N/A $0.01 $0.01 $0.01 $0.01
- -----------------------------------------------------------------------------------------------------------------------------
NRC, APPLICABLE WHEN ESSENTIAL.COM USES THE CHARACTER BASED
USER INTERFACE (CHUI) METHOD TO
TRANSMIT THE NAMES TO THE BELLSOUTH CNAM DATABASE N/A $595.00 $595.00 $595.00 $595.00
- -----------------------------------------------------------------------------------------------------------------------------
* VOLUME AND TERM ARRANGEMENTS ARE ALSO AVAILABLE.
- -----------------------------------------------------------------------------------------------------------------------------
</TABLE>
<TABLE>
<CAPTION>
- -----------------------------------------------------------------------------------------------------------------------------
RATES BY STATE
- -----------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C>
DESCRIPTION LA MS NC SC TN
- -----------------------------------------------------------------------------------------------------------------------------
ODUF/EODUF/CMDS
- -----------------------------------------------------------------------------------------------------------------------------
ODUF: RECORDING, PER MESSAGE $0.00019 $0.0001179 $0.008 $0.0002862 $0.008
- -----------------------------------------------------------------------------------------------------------------------------
ODUF: MESSAGE PROCESSING, PER MESSAGE $0.0024 $0.0032089 $0.004 $0.0032344 $0.004
- -----------------------------------------------------------------------------------------------------------------------------
EODUF: MESSAGE PROCESSING, PER MESSAGE $0.004 $0.004 $0.004 $0.004 $0.004
- -----------------------------------------------------------------------------------------------------------------------------
CMDS: MESSAGE PROCESSING, PER MESSAGE $0.004 $0.004 $0.004 $0.004 $0.004
- -----------------------------------------------------------------------------------------------------------------------------
ODUF: MESSAGE PROCESSING, PER MAGNETIC TAPE PROVISIONED $47.30 $54.62 $54.95 $54.72 $54.95
- -----------------------------------------------------------------------------------------------------------------------------
EODUF: MESSAGE PROCESSING, PER MAGNETIC TAPE PROVISIONED $47.30 $47.30 $47.30 $47.30 $47.30
- -----------------------------------------------------------------------------------------------------------------------------
ODUF: DATA TRANSMISSION (CONNECT:DIRECT), PER MESSAGE $0.00003 $0.0000354 $0.001 $0.0000357 $0.001
- -----------------------------------------------------------------------------------------------------------------------------
EODUF: DATA TRANSMISSION (CONNECT:DIRECT), PER MESSAGE $0.0000364 $0.0000364 $0.0000364 $0.0000364 $0.0000364
- -----------------------------------------------------------------------------------------------------------------------------
CMDS: DATA TRANSMISSION (CONNECT:DIRECT), PER MESSAGE $0.001 $0.001 $0.001 $0.001 $0.001
- -----------------------------------------------------------------------------------------------------------------------------
CALLING NAME (CNAM) QUERY SERVICE
- -----------------------------------------------------------------------------------------------------------------------------
CNAM (DATABASE OWNER), PER QUERY $0.016 $0.016 $0.016 $0.016 $0.016
- -----------------------------------------------------------------------------------------------------------------------------
CNAM (NON-DATABASE OWNER), PER QUERY* $0.01 $0.01 $0.01 $0.01 $0.01
- -----------------------------------------------------------------------------------------------------------------------------
NRC, APPLICABLE WHEN ESSENTIAL.COM USES THE CHARACTER BASED
USER INTERFACE (CHUI) METHOD TO
TRANSMIT THE NAMES TO THE BELLSOUTH CNAM DATABASE $595.00 $595.00 $595.00 $595.00 $595.00
- -----------------------------------------------------------------------------------------------------------------------------
* VOLUME AND TERM ARRANGEMENTS ARE ALSO AVAILABLE.
- -----------------------------------------------------------------------------------------------------------------------------
</TABLE>
NOTES:
If no rate is identified in the contract, the rate for the specific service or
function will be as set forth in applicable BellSouth tariff or as negotiated by
the parties upon request by either party.
- --------------------------------------------------------------------------------
<PAGE>
March 2, 2000
MARY VELEZ
ILLINOIS
Attached is a copy of the signed Resale Agreement for essential.com, Inc. This
is a generic resale agreement. Information specific to the CLEC is:
SBC Account Manager: Sharmaine Summerville
Account Manager Telephone: 312-335-6724
CLEC Officer Name: John Duffy
Vice President of Business Development, Telecom
3 Burlington Woods Drive, 4th Floor
Burlington, MA 01803
Phone: 781-229-9599,ext. 136
Fax: 781-229-9499
If you have any questions, please call me on (214) 464-8330.
/s/ Terri D. Mansir
Terri D. Mansir
Manager-Negotiations Support
Attachment - Signed Agreement
<PAGE>
STATE OF ILLINOIS )
)
COUNTY OF COOK )
VERIFICATION
Willena D. Slocum, being duly sworn, states on oath that she is
Project Manager-Contract Negotiations Support for Southwestern Bell Telephone
Company/Illinois Bell Telephone Company Negotiations and Interconnection, and
that the facts stated in the foregoing Joint Petition for Approval of Negotiated
Agreement and Statement in Support of Joint Petition for Approval are true and
correct to the best of her knowledge, information and belief.
/s/ Willena D. Slocum
-----------------------------------------
Willena D. Slocum
Subscribed and sworn to before me this _____ day of ___________, 2000.
-----------------------------------------
Notary Public
<PAGE>
March 2, 2000
DAVE STIPPLER
INDIANA
Attached is a copy of the signed Resale Agreement for essential.com, Inc. This
is a generic resale agreement. Information specific to the CLEC is:
SBC Account Manager: Sharmaine Summerville
Account Manager Telephone: 312-335-6724
CLEC Officer Name: John Duffy
Vice President of Business Development, Telecom
3 Burlington Woods Drive, 4th Floor
Burlington, MA 01803
Phone: 781-229-9599,ext. 136
Fax: 781-229-9499
If you have any questions, please call me on (214) 464-8330.
/s/ Terri D. Mansir
Terri D. Mansir
Manager-Negotiations Support
Attachment - Signed Agreement
<PAGE>
March 2, 2000
MICHAEL HOLMES
MICHIGAN
Attached is a copy of the signed Resale Agreement for essential.com, Inc. This
is a generic resale agreement. Information specific to the CLEC is:
SBC Account Manager: Sharmaine Summerville
Account Manager Telephone: 312-335-6724
CLEC Officer Name: John Duffy
Vice President of Business Development, Telecom
3 Burlington Woods Drive, 4th Floor
Burlington, MA 01803
Phone: 781-229-9599,ext. 136
Fax: 781-229-9499
If you have any questions, please call me on (214) 464-8330.
/s/ Terri D. Mansir
Terri D. Mansir
Manager-Negotiations Support
Attachment - Signed Agreement
<PAGE>
March 2, 2000
JON F. KELLY
OHIO
Attached is a copy of the signed Resale Agreement for essential.com, Inc. This
is a generic resale agreement. Information specific to the CLEC is:
SBC Account Manager: Sharmaine Summerville
Account Manager Telephone: 312-335-6724
CLEC Officer Name: John Duffy
Vice President of Business Development, Telecom
3 Burlington Woods Drive, 4th Floor
Burlington, MA 01803
Phone: 781-229-9599,ext. 136
Fax: 781-229-9499
If you have any questions, please call me on (214) 464-8330.
/s/ Terri D. Mansir
Terri D. Mansir
Manager-Negotiations Support
Attachment - Signed Agreement
<PAGE>
March 2, 2000
MIKE CAUBLE
WISCONSIN
Attached is a copy of the signed Resale Agreement for essential.com, Inc. This
is a generic resale agreement. Information specific to the CLEC is:
SBC Account Manager: Sharmaine Summerville
Account Manager Telephone: 312-335-6724
CLEC Officer Name: John Duffy
Vice President of Business Development, Telecom
3 Burlington Woods Drive, 4th Floor
Burlington, MA 01803
Phone: 781-229-9599,ext. 136
Fax: 781-229-9499
If you have any questions, please call me on (214) 464-8330.
/s/ Terri D. Mansir
Terri D. Mansir
Manager-Negotiations Support
Attachment - Signed Agreement
<PAGE>
--------------------------------------------------------------
/s/ [ILLEGIBLE]
WILLENA SLOCUM (INITIAL) 2/25/00
-------
DATE
LARRY COOPER (SIGN) /s/ [ILLEGIBLE] FEB 25 2000
-------
DATE
--------------------------------------------------------------
EXECUTIVE SUMMARY
RESALE AGREEMENT
FOR
essential.com, INC.
essential.com, Inc. has signed a generic Resale Agreement for Illinois, Indiana,
Michigan, Ohio and Wisconsin. No changes have been made to the agreement other
than the CLEC name and notice information.
Devang Patel 312 867-5470 is the account manager for essential.com, Inc.
PLEASE RETURN TO TERRI MANSIR 214 464-8330 AFTER SIGNATURE FOR FURTHER
PROCESSING.
<PAGE>
RESALE AGREEMENT
by and among
Illinois Bell Telephone Company,
Indiana Bell Telephone Company Incorporated,
Michigan Bell Telephone Company,
Nevada Bell Telephone Company,
The Ohio Bell Telephone Company,
Pacific Bell Telephone Company,
The Southern New England Telephone Company
Southwestern Bell Telephone Company,
Wisconsin Bell, Inc. d/b/a Ameritech Wisconsin
and
essential.com, Inc.
<PAGE>
TABLE OF CONTENTS
1. INTRODUCTION ..........................................................5
2. DEFINITIONS ...........................................................6
3. INTERPRETATION, CONSTRUCTION AND SEVERABILITY ........................17
4. DESCRIPTION AND CHARGES FOR SERVICES .................................21
5. GENERAL RESPONSIBILITIES OF THE PARTIES ..............................22
6. EFFECTIVE DATE, TERM, AND TERMINATION ................................23
7. FRAUD BY END USER(S) .................................................25
8. DEPOSITS (SBC-12STATE) ...............................................27
9. BILLING AND PAYMENT OF CHARGES .......................................30
10. NONPAYMENT AND PROCEDURES FOR DISCONNECTION ..........................35
11. TERMS AND CONDITIONS FOR RESALE OF SERVICES ..........................39
12. ADDITIONAL TERMS APPLICABLE TO RESALE OF SERVICES ....................49
13. ANCILLARY SERVICES ...................................................49
14. NETWORK AND SERVICE ORDER CONDITIONS .................................51
15. DISPUTE RESOLUTION ...................................................52
16. AUDITS - Applicable in SBC-12STATE only ..............................56
17. RESPONSIBILITIES OF SWBT .............................................59
18. DISCLAIMER OF REPRESENTATIONS AND WARRANTIES .........................61
19. LIMITATION OF LIABILITY ..............................................61
20. RESPONSIBILITIES OF CLEC ............................................63
21. INDEMNITY ............................................................65
<PAGE>
22. REMEDIES ............................................................71
23. INTELLECTUAL PROPERTY ...............................................71
24. NOTICES .............................................................72
25. PUBLICITY AND USE OF TRADEMARKS OR SERVICE MARKS ....................74
26. NO LICENSE ..........................................................75
27. CONFIDENTIALITY .....................................................75
28. INTERVENING LAW .....................................................80
29. GOVERNING LAW .......................................................81
30. REGULATORY APPROVAL .................................................81
31. CHANGES IN END USER LOCAL EXCHANGE SERVICE PROVIDER
SELECTION ...........................................................81
32. COMPLIANCE AND CERTIFICATION ........................................84
33. LAW ENFORCEMENT .....................................................84
34. RELATIONSHIP OF THE PARTIES/INDEPENDENT CONTRACTOR ..................86
35. NO THIRD PARTY BENEFICIARIES; DISCLAIMER OF AGENCY ..................86
36. ASSIGNMENT ..........................................................86
37. DELEGATION TO AFFILIATE .............................................87
38. SUBCONTRACTING ......................................................88
39. FORCE MAJEURE .......................................................88
40. TAXES ...............................................................89
41. NON-WAIVER ..........................................................92
42. CUSTOMER INQUIRIES ..................................................93
<PAGE>
43. EXPENSES ............................................................93
44. CONFLICT OF INTEREST ................................................93
45. AMENDMENTS AND MODIFICATIONS ........................................94
46. SURVIVAL ............................................................94
47. APPENDICES INCORPORATED BY REFERENCE ................................94
48. AUTHORITY ...........................................................95
49. COUNTERPARTS ........................................................95
50. ENTIRE AGREEMENT.....................................................95
<PAGE>
RESALE AGREEMENT
STAND-ALONE
This Agreement under Sections 251 and 252 of the Telecommunications
Act of 1996 (the "Agreement"), is dated as of February 25, 2000 among SBC
Communications Inc. covering ILLINOIS BELL TELEPHONE COMPANY, INDIANA BELL
TELEPHONE COMPANY INCORPORATED, MICHIGAN BELL TELEPHONE COMPANY, NEVADA BELL
TELEPHONE COMPANY (A NEVADA CORPORATION), THE OHIO BELL TELEPHONE COMPANY,
PACIFIC BELL TELEPHONE COMPANY (A CALIFORNIA CORPORATION), THE SOUTHERN NEW
ENGLAND TELEPHONE COMPANY (A CONNECTICUT CORPORATION) AND SOUTHWESTERN BELL
TELEPHONE COMPANY (A MISSOURI CORPORATION), AND WISCONSIN BELL, INC. D/B/A
AMERITECH WISCONSIN, and essential.com, Inc. (CLEC), (a Delaware corporation),
shall apply to the state(s) of Illinois, Indiana, Michigan, Ohio and Wisconsin.
WHEREAS, pursuant to the Telecommunications Act of 1996 (the "Act"),
the Parties wish to establish terms for the purchase by CLEC of certain ILLINOIS
BELL TELEPHONE COMPANY, INDIANA BELL TELEPHONE COMPANY INCORPORATED, MICHIGAN
BELL TELEPHONE COMPANY, NEVADA BELL TELEPHONE COMPANY (A NEVADA CORPORATION),
THE OHIO BELL TELEPHONE COMPANY, PACIFIC BELL TELEPHONE COMPANY (A CALIFORNIA
CORPORATION), THE SOUTHERN NEW ENGLAND TELEPHONE COMPANY (A CONNECTICUT
CORPORATION) AND SOUTHWESTERN BELL TELEPHONE COMPANY (A MISSOURI CORPORATION),
AND WISCONSIN BELL, INC. D/B/A AMERITECH WISCONSIN, retail Telecommunications
Services and certain other services for resale by CLEC to its local exchange End
User(s) within the state(s) listed on page 1 in the preamble to this Agreement;
NOW, THEREFORE, the Parties hereby agree as follows:
WHEREAS, for purposes of this Agreement, CLEC intends to operate where
ILLINOIS BELL TELEPHONE COMPANY, INDIANA BELL TELEPHONE COMPANY INCORPORATED,
MICHIGAN BELL TELEPHONE COMPANY, NEVADA BELL TELEPHONE COMPANY (A NEVADA
CORPORATION), THE OHIO BELL TELEPHONE COMPANY, PACIFIC BELL TELEPHONE COMPANY (A
CALIFORNIA CORPORATION), THE SOUTHERN NEW ENGLAND TELEPHONE COMPANY (A
CONNECTICUT CORPORATION) AND SOUTHWESTERN BELL TELEPHONE COMPANY (A MISSOURI
CORPORATION), AND WISCONSIN BELL, INC D/B/A AMERITECH WISCONSIN are the
incumbent Local Exchange Carrier(s) and CLEC, a competitive Local Exchange
Carrier, has or, prior to purchasing resale services, Telecommunications
Services or any other functions, facilities, products or services hereunder,
will have been granted authority to provide certain local Telephone Exchange
Services in the foregoing ILEC Service areas by the appropriate State
Commission(s);
1. INTRODUCTION
1.1 This Agreement sets forth the rates, terms and conditions
for those services available for sale at retail to End Users
that are made available by ILLINOIS BELL TELEPHONE COMPANY,
INDIANA BELL TELEPHONE COMPANY INCORPORATED, MICHIGAN BELL
TELEPHONE COMPANY, NEVADA BELL TELEPHONE COMPANY (A
<PAGE>
NEVADA CORPORATION), THE OHIO BELL TELEPHONE COMPANY, PACIFIC BELL TELEPHONE
COMPANY (A CALIFORNIA CORPORATION), THE SOUTHERN NEW ENGLAND TELEPHONE
COMPANY (A CONNECTICUT CORPORATION) SOUTHWESTERN BELL TELEPHONE COMPANY (A
MISSOURI CORPORATION), AND WISCONSIN BELL, INC. D/B/A AMERITECH WISCONSIN to
CLECs for resale.
2. DEFINITIONS
2.1 Capitalized Terms used in this Agreement shall have the
respective meanings specified herein, in the definition
section of each Appendix, Attachment, Exhibit or Schedule
attached hereto, and/or as defined elsewhere in this
Agreement.
2.2 GENERAL DEFINITIONS
2.2.1 "A-LINK" means a diverse pair of facilities
connecting local end office switching centers with
Signaling Transfer Points.
2.2.2 "ACT" means the Communications Act of 1934 [47
U.S.C. 153(R)], as amended by the
Telecommunications Act of 1996, Public Law
104-104, 110 Stat. 56 (1996) codified throughout
47 U.S.C.
2.2.3 "AFFILIATE" is As Defined in the Act.
2.2.4 "ALTERNATE BILLING SERVICE (ABS)" means a service
that allows End Users to bill calls to accounts
that may not be associated with the originating
line. There are three types of ABS calls: calling
card, collect and third number billed calls.
2.2.5 AM-IL - As used herein, AM-IL means the applicable
SBC owned ILEC doing business in Illinois.
2.2.6 AM-IN - As used herein, AM-IN means the applicable
SBC owned ILEC doing business in Indiana.
2.2.7 AM-MI - As used herein, AM-MI means the applicable
SBC owned doing business in Michigan.
2.2.8 AM-OH - As used herein, AM-OH means the applicable
SBC owned ILEC doing business in Ohio.
2.2.9 AM-WI - As used herein, AM-WI means the applicable
SBC owned ILEC doing business in Wisconsin.
<PAGE>
2.2.10 "APPLICABLE LAW" means all laws, statutes, common
law, regulations, ordinances, codes, rules,
guidelines, orders, permits, tariffs and
approvals, including those relating to the
environment or health and safety, of any
Governmental Authority that apply to the Parties
or the subject matter of this Agreement.
2.2.11 "AS DEFINED IN THE ACT" means as specifically
defined by the Act.
2.2.12 "AS DESCRIBED IN THE ACT" means as described in or
required by the Act.
2.2.13 "AUTOMATED MESSAGE ACCOUNTING" (AMA) is a
structure inherent in switch technology that
initially records Telecommunication message
information. AMA format is contained in the
Automated Message Accounting document published by
Telcordia (formerly known as Bellcore) as
GR-1100-CORE, which defines and amends the
industry standard for message recording.
2.2.14 "BILLED NUMBER SCREENING" (BNS) means a validation
of toll billing exception (TBE) data and
performance of public telephone checks; i.e.,
determining if a billed line is a public
(including those classified as semipublic)
telephone number.
2.2.15 "BUSINESS DAY" means Monday through Friday,
excluding holidays on which the applicable SBC
ILEC does not provision new retail services and
products.
2.2.16 "BUSY LINE VERIFICATION" (BLV) means a service
whereby an End User requests an operator to
confirm the busy status of a line.
2.2.17 "CABS" means the Carrier Access Billing System.
2.2.18 "CALLING CARD SERVICE" means a service that
enables a calling End User to bill a telephone
call to a calling card number with or without the
help of an operator.
2.2.19 "CALLING NAME DELIVERY SERVICE (CNDS)" means a
service that enables a terminating End User to
identify the calling party by a displayed name
before a call is answered. The calling party's
name is retrieved from a Calling Name Database and
delivered to the End User's premise between the
first and second ring for display on compatible
End User premises equipment.
<PAGE>
2.2.20 "CALLING NAME INFORMATION" means a
Telecommunications Carrier's records of its End
Users names associated with one or more assigned
ten-digit telephone numbers.
2.2.21 "CALLING NUMBER DELIVERY" means a feature that
enables an End User to view the directory number
of the calling party on a display unit.
2.2.22 "CALLING PARTY NUMBER" (CPN) means a Signaling
System 7 "SS7" parameter whereby the ten (10)
digit number of the calling Party is forwarded
from the End Office.
2.2.23 "CENTRALIZED MESSAGE DISTRIBUTION SYSTEM" (CMDS)
means the transport system that LECs use to
exchange outcollect and Carrier Access Billing
System "CABS" access messages among each other and
other Parties connected to CMDS.
2.2.24 "CNAM QUERY" means a LIDB Service Application that
allows CLEC to query a Calling Name Database for
Calling Name Information in order to deliver that
information to CLEC's local CNDS subscribers.
2.2.25 "CNAM QUERY RATE" means a rate that applies to
each CNAM Query received at the SCP where the
Calling Name Database resides.
2.2.26 "COMMISSION" means the applicable State agency
with regulatory authority over Telecommunications.
Unless the context otherwise requires, use of the
term "COMMISSIONS" means all of the thirteen
agencies listed in this Section. The following is
a list of the appropriate State agencies:
2.2.26.1 THE ARKANSAS PUBLIC SERVICE COMMISSION
(AR-PSC);
2.2.26.2 THE PUBLIC UTILITIES COMMISSION OF THE
STATE OF CALIFORNIA (CA-PUC);
2.2.26.3 THE CONNECTICUT DEPARTMENT OF PUBLIC
UTILITY CONTROL (CT-DPUC);
2.2.26.4 THE ILLINOIS COMMERCE COMMISSION
(IL-CC);
2.2.26.5 THE INDIANA UTILITIES REGULATORY
COMMISSION (IN-URC);
2.2.26.6 THE KANSAS CORPORATION COMMISSION
(KS-CC);
2.2.26.7 THE MICHIGAN PUBLIC SERVICE COMMISSION
(MI-PSC);
2.2.26.8 THE MISSOURI PUBLIC SERVICE COMMISSION
(MO-PSC);
2.2.26.9 THE PUBLIC UTILITIES COMMISSION OF
NEVADA (NV-PUC);
2.2.26.10 THE PUBLIC UTILITIES COMMISSION OF OHIO
(PUC-OH);
2.2.26.11 THE OKLAHOMA CORPORATION COMMISSION
(OK-CC);
2.2.26.12 THE PUBLIC UTILITY COMMISSION OF TEXAS
(PUC-TX); AND
2.2.26.13 THE PUBLIC SERVICE COMMISSION OF
WISCONSIN
<PAGE>
2.2.27 "CONSEQUENTIAL DAMAGES" means Losses claimed to
have resulted from any indirect, incidental,
reliance, special, consequential, punitive,
exemplary, multiple or any other Loss, including
damages claimed to have resulted from harm to
business, loss of anticipated revenues, savings,
or profits, or other economic Loss claimed to have
been suffered not measured by the prevailing
Party's actual damages, and regardless of whether
the Parties knew or had been advised of the
possibility that such damages could result in
connection with or arising from anything said,
omitted, or done hereunder or related hereto,
including willful acts or omissions.
2.2.28 "CUSTOMER USAGE DATA" means the Telecommunications
Services usage data of a CLEC End User measured in
minutes, sub-minute increments, message units, or
otherwise, that is recorded by SBC-13STATE and
forwarded to CLEC.
2.2.29 "CUSTOM LOCAL AREA SIGNALING SERVICE FEATURES"
(CLASS FEATURES) means certain Common Channel
Signaling based features available to End Users,
including: Automatic Call Back; Call Trace;
Distinctive Ringing/Call Waiting; Selective Call
Forward; and Selective Call Rejection.
2.2.30 "END USERS" means a third-party residence or
business that subscribes to Telecommunications
Services provided by any of the Parties at retail.
As used herein, the term "End Users" does not
include any of the Parties to this Agreement with
respect to any item or service obtained under this
Agreement.
2.2.31 "CUSTOMER NAME AND ADDRESS INFORMATION" (CNA)
means the name, service address and telephone
numbers of a Party's End Users for a particular
Exchange Area. CNA includes nonpublished listings,
coin telephone information and published listings.
2.2.32 "DELAYING EVENT" means (a) any failure of a Party
to perform any of its obligations set forth in
this Agreement, caused in whole or in part by:
2.2.32.1 the failure of the other Party to
perform any of its obligations set forth
in this Agreement, including but not
limited to a Party's failure to provide
the other Party with accurate and
complete Service Orders;
<PAGE>
2.2.32.2 any delay, act or failure to act by the
other Party or its End User, agent or
subcontractor; or
2.2.32.3 any Force Majeure Event.
2.2.33 "DIALING PARITY" is As Defined in the Act. As used
in this Agreement, Dialing Parity refers to both
Local Dialing Parity and Toll Dialing Parity.
2.2.34 "DIGITAL SIGNAL LEVEL" is one of several
transmission rates in the time-division multiplex
hierarchy.
2.2.34.1 "DIGITAL SIGNAL LEVEL O" (DS-0) is
the 64 Kbps zero-level signal in the
time-division multiplex hierarchy.
2.2.34.2 "DIGITAL SIGNAL LEVEL 1" (DS-1) is the
1.544 Mbps first-level signal in the
time-division multiplex hierarchy.
2.2.34.3 "DIGITAL SIGNAL LEVEL 3" (DS-3) is the
44.736 Mbps third-level signal in the
time-division multiplex hierarchy.
2.2.34.4 "DIGITAL SUBSCRIBER LINE" (DSL) is as
defined in the applicable Appendix DSL
and/or the applicable tariff, as
appropriate.
2.2.35 "ELECTRONIC FILE TRANSFER" is any system or
process that utilizes an electronic format and
protocol to send or receive data files.
2.2.36 "ENHANCED SERVICE PROVIDER" (ESP) is a provider of
enhanced services as those services are defined in
47 CFR Section 64.702.
2.2.37 "EXCHANGE ACCESS" is As Defined in the Act.
2.2.38 "EXCHANGE AREA" means an area, defined by the
Commission, for which a distinct local rate
schedule is in effect.
2.2.39 "EXCHANGE MESSAGE INTERFACE" (EMI) (formerly
Exchange Message Record - EMR) is the standard
used for exchange of Telecommunications message
information among Telecommunications Carriers for
billable, non-billable, sample, settlement and
study data. EMI format is contained in Telcordia
Practice BR-010-200-010, CRIS Exchange Message
Record.
2.2.40 "EXCHANGE SERVICE" means Telephone Exchange
Service, As Defined in the Act.
2.2.41 "FCC" means the Federal Communications Commission.
<PAGE>
2.2.42 "FOREIGN EXCHANGE" (FX) means a service whereby
calls either originated by or delivered to a
customer who has purchased FX service from the
state or interstate tariffs of either Party. FX
also includes, but is not limited to, FX-like
services provided by either Party where calls are
originated from and/or delivered to numbers which
are assigned to a Rate Center within one local
calling area but where the Party receiving the
call is physically located outside of that local
calling area. FX service can be either interLATA
or intraLATA. InterLATA FX, where the originating
and receiving parties are physically located in
different LATAs, is considered equivalent to FGA
and the intercarrier compensation mechanism is the
same as FGA. IntraLATA FX, when provided by two or
more local exchange carriers "LECs", is considered
a jointly provided service and meet-point billed
by those providing it utilizing a mutually agreed
to meet-point billing, or meet-point billing like
procedure.
2.2.43 "GOVERNMENTAL AUTHORITY" means any federal, state,
local, foreign, or international court,
government, department, commission, board, bureau,
agency, official, or other regulatory,
administrative, legislative, or judicial authority
with jurisdiction over the subject matter at
issue.
2.2.44 "GROUP RECORD" means information in LIDB and/or
the LIDB administrative system that is common to
all telephone numbers in an NPA-NXX or all Special
Billing Numbers in an NPA-0/lXX.
2.2.45 "INCUMBENT LOCAL EXCHANGE CARRIER" (ILEC) is As
Defined in the Act.
2.2.46 "INTELLECTUAL PROPERTY" means copyrights, patents,
trademarks, trade secrets, mask works and all
other intellectual property rights.
2.2.47 "INTEGRATED SERVICES DIGITAL NETWORK" (ISDN) means
a switched network service that provides
end-to-end digital connectivity for the
simultaneous transmission of voice and data. Basic
Rate Interface-ISDN (BRI-ISDN) provides for a
digital transmission of two 64 Kbps bearer
channels and one 16 Kbps data channel (2B+D).
2.2.48 "INTEREXCHANGE CARRIER" (IXC) means a carrier that
provides, directly or indirectly, interLATA or
intraLATA Telephone Toll Services.
2.2.49 "INTERLATA" is As Defined in the Act.
2.2.50 "INTERNET SERVICE PROVIDER" (ISP) is an Enhanced
Service Provider that provides Internet Services,
and is defined in paragraph 341 of the FCC's First
Report and Order in CC Docket No.97-158.
<PAGE>
2.2.51 "INTRALATA TOLL TRAFFIC" means the IntraLATA
traffic between two locations within one LATA
where one of the locations lies outside of the
normal local calling area as defined by the
applicable Commission.
2.2.52 "LIDB EDITOR" means an SCP tool that bypasses the
LIDB administrative system and provides emergency
access to LIDB for data administration.
2.2.53 "LINE INFORMATION DATA BASE" (LIDB) means a
transaction-oriented database system that
functions as a centralized repository for data
storage and retrieval. LIDB is accessible through
CCS networks. LIDB contains records associated
with End User line numbers and special billing
numbers. LIDB accepts queries from other network
elements and provides return result, return error,
and return reject responses as appropriate.
Examples of information that Data Owners might
store in LIDB and in their Line Records are: ABS
Validation Data, Originating Line Number Screening
(OLNS) data, ZIP Code data, and Calling Name
Information.
2.2.54 "LIDB SERVICE APPLICATIONS" means the query types
accepted for access to LIDB information.
2.2.55 "LINE RECORD" means information in LIDB and/or the
LIDB administrative system that is specific to a
single telephone number or Special Billing Number.
2.2.56 "LOCAL ACCESS TRANSPORT AREA" (LATA) is As Defined
in the Act.
2.2.57 "LOCAL EXCHANGE CARRIER" (LEC) is As Defined in
the Act.
2.2.58 "LOCAL NUMBER PORTABILITY" means the ability of
users of Telecommunications Services to retain, at
the same location, the presence of a previously
existing telephone number(s).
2.2.59 "LOCAL SERVICE PROVIDER" (LSP) is the LEC that
provides retail local Exchange Service to an End
User. The LSP may or may not provide any physical
network components to support the provision of
that End User's service.
2.2.60 "LOSS" or "LOSSES" means any and all losses, costs
(including court costs), claims, damages
(including fines, penalties, and criminal or civil
judgments and settlements), injuries, liabilities
and expenses (including attorneys' fees).
2.2.61 "NORTH AMERICAN NUMBERING PLAN" (NANP) A numbering
architecture in which every station in the NANP
Area is identified by a unique ten-digit
<PAGE>
address consisting of a three-digit NPA code, a
three digit central office code of the form NXX,
and a four-digit line number of the form XXXX.
2.2.62 "NUMBERING PLAN AREA" (NPA) also called area code.
An NPA is the 3-digit code that occupies the A, B,
C positions in the 10-digit NANP format that
applies throughout the NANP Area. NPAs are of the
form NXX, where N represents the digits 2-9 and X
represents any digit 0-9. In the NANP, NPAs are
classified as either geographic or non-geographic.
a) Geographic NPAs are NPAs which correspond to
discrete geographic areas within the NANP Area. b)
Non-geographic NPAs are NPAs that do not
correspond to discrete geographic areas, but which
are instead assigned for services with attributes,
functionalities, or requirements that transcend
specific geographic boundaries. The common
examples are NPAs in the N00 format, e.g., 800.
2.2.63 "NUMBER PORTABILITY" is As Defined in the Act.
2.2.64 "NXX" OR "CENTRAL OFFICE CODE" is the three-digit
switch entity indicator that is defined by the
fourth through sixth digits of a 10-digit
telephone number within the NANP. Each NXX Code
contains 10,000 station numbers.
2.2.65 "ORDERING AND BILLING FORUM" (OBF) is a forum
comprised of local telephone companies and
inter-exchange carriers whose responsibility is to
create and document Telecommunication industry
guidelines and standards.
2.2.66 "PARTY" means either CLEC or SBC use of the term
"Party" includes each of the ILECs that is a party
to this Agreement. "PARTIES" means both CLEC and
SBC; use of the term "PARTIES" includes each of
the ILECs that is a party to this Agreement.
2.2.67 "PERMANENT NUMBER PORTABILITY" (PNP) is a long
term method of providing LNP using LRN.
2.2.68 "REFERENCE OF CALLS" refers to a process by which
calls are routed to an announcement that states
the new telephone number of a Customer.
2.2.69 SBC COMMUNICATIONS INC. (SBC) means the holding
company which owns the following ILECs: Illinois
Bell Telephone Company, Indiana Bell Telephone
Company Incorporated, Michigan Bell Telephone
Company, Nevada Bell Telephone Company, The Ohio
Bell Telephone Company, Pacific Bell Telephone
Company, The Southern New England Telephone
<PAGE>
Company, Southwestern Bell Telephone Company,
and/or Wisconsin Bell, Inc. d/b/a Ameritech
Wisconsin.
2.2.70 SBC-AMERITECH - As used herein, SBC-AMERITECH
means the applicable SBC owned ILEC(s) doing
business in Illinois, Indiana, Michigan, Ohio, and
Wisconsin.
2.2.71 SBC-7STATE - As used herein, SBC-7STATE means the
applicable SBC owned ILEC(s) doing business in
Arkansas, California, Kansas, Missouri, Nevada,
Oklahoma, and Texas.
2.2.72 SBC-8STATE - As used herein, SBC-8STATE means the
applicable SBC owned ILEC(s) doing business in
Arkansas, California, Connecticut, Kansas,
Missouri, Nevada, Oklahoma, and Texas.
2.2.73 SBC-10STATE - As used herein, SBC-10STATE means an
the applicable SBC owned ILEC(s) doing business in
Arkansas, Illinois, Indiana, Kansas, Michigan,
Missouri, Ohio, Oklahoma, Texas, and Wisconsin.
2.2.74 SBC-12STATE - As used herein, SBC-12STATE means
the applicable SBC owned ILEC(s) doing business in
Arkansas, California, Illinois, Indiana, Kansas,
Michigan, Missouri, Nevada, Ohio, Oklahoma, Texas,
and Wisconsin.
2.2.75 SBC-13STATE - As used herein, SBC-13STATE means
the applicable SBC owned ILEC(s) doing business in
Arkansas, California, Connecticut, Illinois,
Indiana, Kansas, Michigan, Missouri, Nevada, Ohio,
Oklahoma, Texas, and Wisconsin.
2.2.76 "SLEUTH" means an off-line administration system
that monitors suspected occurrences of ABS-related
fraud.
2.2.77 "SPECIAL BILLING NUMBER" SBN means a Line Record
in LIDB that is based on an NXX-o/1XX numbering
format. NXX-0/lXX numbering formats are similar to
NPA-NXX formats except that the fourth digit of an
SBN is either a zero (0) or a one (1).
2.2.78 "STATE ABBREVIATION" means the following:
2.2.78.1 "AR" means Arkansas
2.2.78.2 "CA" means California
2.2.78.3 "CT" means Connecticut
2.2.78.4 "IL" means Illinois
<PAGE>
2.2.78.5 "IN" means Indiana
2.2.78.6 "KS" means Kansas
2.2.78.7 "MV means Michigan
2.2.78.8 "MO" means Missouri
2.2.78.9 "NV" means Nevada
2.2.78.10 "OH" means Ohio
2.2.78.11 "OK" means Oklahoma
2.2.78.12 "TX" means Texas
2.2.78.13 "WI" means Wisconsin
2.2.79 SWBT-AR - As used herein, SWBT-AR means the
applicable SBC owned ILEC doing business in
Arkansas.
2.2.80 SWBT-KS - As used herein, SWBT-KS means the
applicable SBC owned ILEC doing business in
Kansas.
2.2.81 SWBT-MO - As used herein, SWBT-MO means the
applicable SBC owned ILEC doing business in
Missouri.
2.2.82 SWBT-OK - As used herein, SWBT-OK means the
applicable SBC owned ILEC doing business in
Oklahoma.
2.2.83 SWBT-TX - As used herein, SWBT-TX means the
applicable SBC owned ILEC doing business in Texas.
2.2.84 "TAPE LOAD FACILITY" means data entry points at
the LIDB administrative system and/or the SCPs
where LIDB resides.
2.2.85 "TELECOMMUNICATIONS" is As Defined in the Act.
2.2.86 "TELECOMMUNICATIONS CARRIER" is As Defined in the
Act.
2.2.87 "TELECOMMUNICATIONS SERVICE" is As Defined in the
Act.
2.2.88 "TELEPHONE EXCHANGE SERVICE" is As Defined in the
Act.
2.2.89 "TELEPHONE TOLL SERVICE" is As Defined in the Act.
2.2.90 "TOLL BILLING EXCEPTION SERVICE" (TBE) means a
service that allows End Users to restrict third
number billing or collect calls to their lines.
2.2.91 "TOLL FREE SERVICE" is service provided with any
dialing sequence that invokes toll-free, 800-like,
service processing, for example for illustration
<PAGE>
only, 800 or 800-like services. Toll Free Service
includes but is not limited to calls placed to
800/888 NPA Service Access Codes (SAC).
2.2.92 "TRANSLATION TYPE" means a code in the the
Signaling Connection Control Part (SCCP) of the
SS7 signaling message. Signal Transfer Points
(STPs) use Translation Types to identify the
routing table used to route a LIDB query. All LIDB
queries that use the same Translation Type are
routed to the same LIDB for a particular Line
Record or, prior to number portability, for a
particular NPA-NXX.
2.3 DEFINITIONS APPLICABLE SBC-12STATE ONLY
2.3.1 "PERMANENT NUMBER PORTABILITY" (PNP) is a database
method of providing LNP that is consistent with
the Act and complies with the long-term LNP
performance criteria set forth in 47 C.F.R.
Section 52.3(a).
2.3.2 "PLAIN OLD TELEPHONE SERVICE" (POTS) means
telephone service for the transmission of human
speech.
2.4 DEFINITIONS APPLICABLE TO SBC-8STATE ONLY
2.4.1 "ACCESSIBLE LETTERS" are correspondence used to
communicate pertinent information regarding
SBC-8STATE to the client/End User community.
2.5 DEFINITIONS APPLICABLE TO SBC-SWBT ONLY
2.5.1 "LINE VALIDATION ADMINISTRATION SYSTEM" (LVAS)
means the LIDB administrative system FOR SBC-SWBT.
2.6 DEFINITIONS APPLICABLE TO SNET ONLY
2.6.1 "800 SERIES" is a Telecommunications Service for
business or residence that allows calls to be made
to a specific location at no charge to the calling
party. Use of the "800" Service Access Code (e.g.,
800, 888) denotes calls that are to be billed to
the receiving party. A computer database in the
provider's network translates the 800 series
number into a conventional 7 or 10 digit phone
number for network switching and routing.
2.6.2 "DATABASE ADMINISTRATIVE SERVICE LIDB OPERATING
GUIDELINES" (OPERATING GUIDELINES) means the
document developed by SNET that provides detailed
instructions as to the working parameters of
SNET's provision of the LIDB Administrative System
to CLEC, as may be updated
<PAGE>
by SNET from time to time. SNET shall provide such
Operating Guidelines to CLEC upon execution of
this Agreement.
2.6.3 "LIDB/AS" means the LIDB administrative system for
SNET.
2.7 DEFINITIONS APPLICABLE TO SBC-AMERITECH ONLY
2.7.1 "AUTOMATIC ROUTE SELECTION" or "ARS" means a
service feature associated with a specific
grouping of lines that provides for automatic
selection of the least expensive or most
appropriate transmission facility for each call
based on criteria programmed into the system.
2.7.2 "ENHANCED LECLINK" is a customer access service to
the national distribution of billing records via
Telcordia's Centralized Message Distribution
System (CMDS).
2.8 DEFINITIONS APPLICABLE TO SNET and SBC-AMERITECH ONLY
2.8.1 "CENTRALIZED AMA" (CAMA) is an arrangement where
the AMA equipment is centralized in, for example,
a Tandem and is used by offices that do not have
LAMA (Local AMA). The End Office Switch must send
ANI digits to the CAMA office for billing a
calling subscriber.
3. INTERPRETATION, CONSTRUCTION AND SEVERABILITY
3.1 DEFINITIONS
3.1.1 For purposes of this Agreement, certain terms have
been defined in this Agreement to encompass
meanings that may differ from, or be in addition
to, the normal connotation of the defined word.
Unless the context clearly indicates otherwise,
any term defined or used in the singular will
include the plural. Whenever the context may
require, any pronoun shall include the
corresponding masculine, feminine and neuter
forms. The words "include," "includes" and
"including" shall be deemed to be followed by the
phrase "without limitation" and/or "but not
limited to". The words "will" and "shall" are used
interchangeably throughout this Agreement and the
use of either connotes a mandatory requirement.
The use of one or the other will not mean a
different degree of right or obligation for either
Party. A defined word intended to convey its
special meaning is capitalized when used. Other
terms that are capitalized and not defined in this
Agreement will have the meaning in the Act, or in
the absence of their inclusion in the Act, their
customary usage in the Telecommunications industry
as of the Effective Date.
<PAGE>
3.2 HEADINGS NOT CONTROLLING
3.2.1 The headings and numbering of Sections, Parts,
Appendices Schedules and Exhibits to this
Agreement are for convenience only and shall not
be construed to define or limit any of the terms
herein or affect the meaning or interpretation of
this Agreement.
3.2.2 This Agreement incorporates several Appendices
which, together with their associated Attachments,
Exhibits, Schedules and Addenda, constitute the
entire Agreement between the Parties. In order to
facilitate use and comprehension of the Agreement,
the Appendices may be grouped under broad
headings. It is understood that these groupings
are for convenience of reference only, and are not
intended to limit the applicability that any
particular appendix, attachment, exhibit, schedule
or addenda may otherwise have.
3.3 REFERENCED DOCUMENTS
3.3.1 Unless the context shall otherwise specifically
require, and subject to Section 34, whenever any
provision of this Agreement refers to a technical
reference, technical publication, CLEC Practice,
SBC-13STATE Practice, any publication of
telecommunications industry administrative or
technical standards, or any other document
specifically incorporated into this Agreement
(collectively, a "Referenced Instrument"), it will
be deemed to be a reference to the then-current
version or edition (including any amendments,
supplements, addenda, or successors) of each
Referenced Instrument that is in effect, and will
include the then-current version or edition
(including any amendments, supplements, addenda,
or successors) of any other Referenced Instrument
incorporated by reference therein.
3.4 REFERENCES
3.4.1 References herein to Sections, Paragraphs,
Exhibits, Parts, Schedules, and Appendices shall
be deemed to be references to Sections, Paragraphs
and Parts of, and Exhibits, Schedules and
Appendices to, this Agreement unless the context
shall otherwise require.
3.5 TARIFF REFERENCES
3.5.1 Wherever any Commission approved tariff provision
or rate is cited or quoted herein, it is
understood that said cite encompasses any
revisions or modifications to said tariff.
<PAGE>
3.5.2 Wherever any Commission approved tariff provision
or rate is incorporated, cited or quoted herein,
it is understood that said incorporation or
reference applies only to the entity within the
state whose Commission approved that tariff.
3.6 CONFLICT IN PROVISIONS
3.6.1 In the event of a conflict between the provisions
of this Agreement and the Act, the provisions of
the Act shall govern.
3.6.2 If any definitions, terms or conditions in any
given Appendix, Attachment, Exhibit, Schedule or
Addenda differ from those contained in this
Agreement, the definitions, terms or conditions
contained in the Appendix, Attachment, Exhibit,
Schedule or Addenda will supersede those contained
in this Agreement, but only in regard to the
services or activities listed in that particular
Appendix, Attachment, Exhibit, Schedule or
Addenda. In particular, if an Appendix contains a
Term length that differs from the Term length in
this Agreement, the Term length of that Appendix
will control the length of time that services or
activities are to occur under that Appendix, but
will not affect the Term length of the remainder
of this Agreement.
3.6.3 In the event of a conflict between any provision
in this Agreement and any provision in the
DPUC-ordered tariffs covering the services that
are the subject of this Agreement with SNET, such
DPUC-ordered tariffs will prevail.
3.7 JOINT WORK PRODUCT
3.7.1 This Agreement is the joint work product of the
Parties and has been negotiated by the Parties and
their respective counsel and shall be fairly
interpreted in accordance with its terms and, in
the event of any ambiguities, no inferences shall
be drawn against either Party.
3.8 SEVERABILITY
3.8.1 If any provision of this Agreement is rejected or
held to be illegal, invalid or unenforceable, each
Party agrees that such provision shall be enforced
to the maximum extent permissible so as to effect
the intent of the Parties, and the validity,
legality and enforceability of the remaining
provisions of this Agreement shall not in any way
be affected or impaired thereby. If necessary to
effect the intent of the Parties, the Parties
shall negotiate in good faith to amend this
Agreement to replace the unenforceable language
with enforceable language that reflects such
intent as closely as possible.
<PAGE>
The Parties negotiated the terms and conditions of
this Agreement as a total arrangement and it is
intended to be nonseverable.
3.9 NON-VOLUNTARY PROVISIONS
3.9.1 This Agreement incorporates certain rates, terms
and conditions that were not voluntarily
negotiated by SBC-13STATE, but instead resulted
from determinations made in arbitration under
Section 252 of the Act or from other requirements
of regulatory agencies or state law (individually
and collectively, a "Non-Voluntary Arrangement").
SBC-13STATE has identified some, but not all, of
the Non-Voluntary Arrangements contained in this
Agreement, by designating such provisions with
asterisks. If any Non-Voluntary Arrangement is
modified as a result of any order or finding by
the FCC, the appropriate Commission or a court of
competent jurisdiction, any Party may, by
providing written notice to the other Party,
require that any affected Non-Voluntary
Arrangement (and any related rates, terms and
conditions) be deleted or renegotiated, as
applicable, in good faith and this Agreement
amended accordingly. If such modifications to this
Agreement are not executed within sixty (60) days
after the date of such notice, a Party may pursue
its rights under Section 19. Within thirty (30)
days following receipt of a written request from
CLEC, SBC-13STATE will identify any Non-Voluntary
Arrangements that may not otherwise be designated
such in this Agreement.
3.9.2 The Parties acknowledge that the Non-Voluntary
Arrangements contained in this Agreement shall not
be available in any state other than the state
that originally imposed/required such
Non-Voluntary Arrangement. By way of example only,
the Parties acknowledge that the PUCO's imposition
in Ohio of the Minimum Telephone Service Standards
(and all terms and conditions relating thereto)
shall not apply in or be "portable to" any state
other than Ohio.
3.10 STATE-SPECIFIC RATES, TERMS AND CONDITIONS
3.10.1 For ease of administration, this multi-state
Agreement contains certain specified rates, terms
and conditions that apply only in a designated
state. To the extent. that this Agreement contains
specified rates, terms and conditions which apply
only in a given state, such rates, terms and
conditions shall not apply and shall have no
effect in any other state(s) to which this
Agreement is submitted for approval under Section
252(e) of the Act.
3.10.2 SUCCESSOR RATES. Certain of the rates, prices and
charges set forth in the applicable Appendix
Pricing have been established by the appropriate
<PAGE>
Commissions in cost proceedings or dockets
initiated under or pursuant to the Act. If during
the Term that Commission or the FCC changes a
rate, price or charge in an order or docket that
applies to any of the services available
hereunder, the Parties agree to amend this
Agreement to incorporate such new rates, prices
and charges, with such rates, prices and charges
to be effective as of the date specified in such
order or docket (including giving effect to any
retroactive application, if so ordered). If either
Party refuses to execute an amendment to this
Agreement within sixty (60) days after the date of
such order or docket, the other Party may pursue
its rights under Section 15.
3.11 Scope of Obligations
3.11.1 Notwithstanding anything to the contrary contained
herein, SBC-13STATE's obligations under this
Agreement shall apply only to:
3.11.1.1 the specific operating area(s) or
portion thereof in which SBC-13 STATE is
then deemed to be the ILEC under the Act
(the "ILEC Territory"), and
3.11.1.2 assets that SBC-13STATE owns or leases
and which are used in connection with
SBC-13STATE's provision to CLEC of any
services for resale provided or
contemplated under this Agreement, the
Act or any tariff or ancillary agreement
referenced herein (individually and
collectively, the "ILEC Assets").
4. DESCRIPTION AND CHARGES FOR SERVICES
4.1 A list of Telecommunications Services currently available
for resale at the wholesale discount rate set by the
appropriate Commission is set forth in Appendix Pricing.
Except as otherwise expressed herein, consistent with SBC
13STATE's obligation under Section 251(c)(4)(A) of the Act
and any other applicable limitations or restrictions, CLEC
may resell other Telecommunications Services offered at
retail by SBC-13STATE at the discount set forth in the
Appendix Pricing.
4.2 SBC-13STATE will offer products and services to CLEC for
resale pursuant to relevant decisions of the appropriate
Commission.
4.3 Telecommunications Services will be offered by SBC-13STATE
to CLEC for resale on terms and conditions that are
reasonable and nondiscriminatory.
<PAGE>
5. GENERAL RESPONSIBILITIES OF THE PARTIES
5.1 At all times during the Term, each Party shall keep and
maintain in force at each Party's expense all insurance
required by Applicable Law (e.g. workers' compensation
insurance) as well as general liability insurance in the
amount of (at least) $10,000,000 for personal injury or
death to any one person, property damage resulting from any
one incident, and automobile liability with coverage for
bodily injury and for property damage. Upon request from the
other Party, each Party shall provide to the other Party
evidence of such insurance (which may be provided through a
program of self-insurance). This Section 5.1 is a general
statement of insurance requirements and shall be in addition
to any specific requirement of insurance referenced
elsewhere in this Agreement or a Referenced Instrument.
5.2 The Parties acknowledge that calls will be placed to local
service accounts of Third Parties. To ensure that these
calls are properly accounted for and billed to the
appropriate local service account of such Third Parties, the
Parties have established clearinghouse procedures to
accomplish these objectives by various appendices to this
Agreement.
5.3 In the event that CLEC makes any corporate name change
(including addition or deletion of a d/b/a), change in
OCN/AECN, or makes or accepts a transfer or assignment of
interconnection trunks or facilities (including leased
facilities), or a change in any other CLEC identifier
(collectively, a "CLEC Change"), CLEC shall submit
written notice to SBC-13STATE within thirty (30) days of
the first action taken to implement such CLEC Change.
Within thirty (30) days following receipt of that notice,
the Parties shall negotiate rates to compensate
SBC-13STATE for the costs to be incurred by SBC-13STATE
to make the CLEC Change to the applicable SBC-13STATE
databases, systems, records and/or recording
announcement(s) for CLEC branded/repair calls. In
addition, CLEC shall compensate SBC-13STATE for any
service order charges and/or service request charges
associated with such CLEC Change. SBC-13STATE's agreement
to implement a CLEC Change is conditioned upon CLEC's
agreement to pay all reasonable charges billed to CLEC
for such CLEC Change.
5.4 Each Party shall be responsible for labor relations with
its own employees. Each Party agrees to notify the other
Party as soon as practicable whenever such Party has
knowledge that a labor dispute concerning its employees is
delaying or threatens to delay such Party's timely
performance of its obligations under this Agreement and
shall endeavor to minimize impairment of service to the
other Party (for example, by using its management personnel
to perform work or by other means) in the event of a labor
dispute to the extent permitted by Applicable Law.
<PAGE>
5.5 Each Party shall act in good faith in its performance under
this Agreement and, in each case in which a Party's consent
or agreement is required or requested hereunder, such Party
shall not unreasonably withhold or delay such consent or
agreement.
6. EFFECTIVE DATE, TERM, AND TERMINATION
6.1 This Effective Date of this Agreement shall be ten (10)
calendar days after the Commission approves this Agreement
under Section 252(e) of the Act or, absent such Commission
approval, the date this Agreement is deemed approved under
Section 252(e)(4) of the Act.
6.2 The term of this Agreement shall commence upon the Effective
Date of this Agreement and shall expire on May 11, 2001 (the
"TERM"). Absent the receipt by one Party of written notice
from the other Party at least within 180 days prior to the
expiration of the Term to the effect that such Party does
not intend to extend the Term, this Agreement shall remain
in full force and effect on and after the expiration of the
Term until terminated by either Party pursuant to Section
6.3 or 6.4.
6.3 Notwithstanding any other provision of this Agreement,
either Party may terminate this Agreement and the provision
of any Interconnection, Resale Services, Network Elements,
functions, facilities, products or services provided
pursuant to this Agreement, at the sole discretion of the
terminating Party, in the event that the other Party fails
to perform a material obligation or breaches a material term
of this Agreement and the other Party fails to cure such
nonperformance or breach within forty-five (45) calendar
days after written notice thereof. Any termination of this
Agreement pursuant to this Section 6.3 shall take effect
immediately upon delivery of written notice to the other
Party that it failed to cure such nonperformance or breach
within forty-five (45) calendar days after written notice
thereof.
6.4 If pursuant to Section 6.2, this Agreement continues in full
force and effect after the expiration of the Term, either
Party may terminate this Agreement after delivering written
notice to the other Party of its intention to terminate this
Agreement, subject to Sections 6.5 and 6.6. Neither Party
shall have any liability to the other Party for termination
of this Agreement pursuant to this Section 6.4 other than
its obligations under Sections 6.5 and 6.6.
6.5 Upon termination or expiration of this Agreement in
accordance with Sections 6.2, 6.3 or 6.4:
6.5.1 Each Party shall continue to comply with its
obligations set forth in Section 46; and
<PAGE>
6.5.2 Each Party shall promptly pay all amounts owed
under this Agreement or place any Disputed Amounts
into an escrow account that complies with Section
9.3 hereof;
6.5.3 Each Party's confidentiality obligations shall
survive; and
6.5.4 Each Party's indemnification obligations shall
survive.
6.6 If either Party serves notice of expiration pursuant to
Section 6.2 or Section 6.4, CLEC shall have ten (10) days to
provide SBC-13STATE written confirmation if CLEC wishes to
pursue a successor agreement with SBC-13STATE or terminate
its agreement. CLEC shall identify the action to be taken on
each applicable (13) state(s). If CLEC wishes to pursue a
successor agreement with SBC-13STATE, CLEC shall attach to
its written confirmation or notice of
expiration/termination, as applicable, a written request to
commence negotiations with SBC-13STATE under Sections
251/252 of the Act and identify each of the state(s) the
successor agreement will cover. Upon receipt of CLEC's
Section 252(a)(1) request, the Parties shall commence good
faith negotiations on a successor agreement
6.7 The rates, terms and conditions of this Agreement shall
continue in full force and effect until the earlier of (i)
the effective date of its successor agreement, whether such
successor agreement is established via negotiation,
arbitration or pursuant to Section 252(i) of the Act; or
(ii) the date that is ten (10) months after the date on
which SBC-13STATE received CLEC's Section 252(a)(1) request;
provided, however, when a successor agreement becomes
effective, the terms, rates and charges of such successor
Agreement shall apply retroactively back to the date this
Agreement is terminated or expires, whichever is later, and
that the retroactive true-up shall be completed within
90 days following the effective date of such successor
Agreement.
6.8 If at any time during the Section 252(a)(1) negotiation
process (prior to or after the expiration date or
termination date of this Agreement), CLEC withdraws its
Section 252(a)(1) request, CLEC must include in its notice
of withdrawal a request to adopt a successor agreement under
Section 252(i) of the Act or affirmatively state that CLEC
does not wish to pursue a successor agreement with
SBC-13STATE for a given state. The rates, terms and
conditions of this Agreement shall continue in full force
and effect for a period of ninety (90) days after the date
CLEC provides notice of withdrawal of its Section 252(a)(1)
request. On the ninety-first (91) day following
SBC-13STATE's receipt of CLEC's notice of withdrawal of its
Section 252(a)(1) request, unless CLEC provided SBC-13STATE
notice of a Section 252(i) adoption in the interim, the
Parties shall, subject to Section 6.5, have no further
obligations under this Agreement.
<PAGE>
6.9 If CLEC does not affirmatively state that it wishes to
pursue a successor agreement with SBC-13STATE in its, as
applicable, notice of expiration or termination or the
written confirmation required after receipt of SBC-13STATE's
notice of expiration or termination, then the rates, terms
and conditions of this Agreement shall continue in full
force and effect for a period of ninety (90) days after the
date CLEC provided or received notice of expiration or
termination. On the ninety-first (91) day following CLEC
provided or received notice of expiration or termination,
the Parties shall, subject to Section 6.5, have no further
obligations under this Agreement.
6.10 In the event of termination of this Agreement pursuant to
Section 6.9, SBC-13STATE and CLEC shall cooperate in good
faith to effect an orderly transition of service under this
Agreement; provided that CLEC shall be solely responsible
(from a financial, operational and administrative
standpoint) to ensure that its End Users have been
transitioned to a new LEC by the expiration date,
termination date of this Agreement.
7. FRAUD BY END USER(S)
7.1 SBC-13STATE shall not be liable to CLEC for any fraud
associated with CLEC's End Users' accounts, including 1+
IntraLATA toll, ported numbers, and Alternate Billing
Service (ABS). ABS is a service that allows a customer to
bill calls to account(s) that might not be associated with
the originating line. There are three types of ABS calls:
calling card, collect, and third number billed calls.
7.2 The Parties agree to cooperate with one another to
investigate, minimize, and take corrective action in cases
of fraud involving 1+ IntraLATA toll calls, ABS, and ported
numbers. The Parties' fraud minimization procedures are to
be cost-effective and implemented so as not to unduly burden
or harm one Party as compared with the other.
7.3 In cases of suspected fraudulent activity by an End User, at
a minimum, the cooperation referenced in Section 20.2 will
include providing to the other Party, upon request,
information concerning End Users who terminate services
furnished by that Party without paying all outstanding
charges. The Party seeking such information is responsible
for securing the End User's permission to obtain such
information.
7.4 SBC-AMERITECH, SBC-SWBT, PACIFIC AND SNET will provide
notification messages to CLEC on suspected occurrences of
ABS-related fraud on CLEC accounts stored in the applicable
LIDB. PACIFIC will provide such alert messages by e-mail.
SBC-AMERITECH, SBC-SWBT AND SNET WILL provide via fax.
<PAGE>
7.4.1 SWBT (ON BEHALF OF ITSELF AND SNET) AND PACIFIC
will use a Sleuth system to determine suspected
occurrences of ABS-related fraud for CLEC using
the same criteria SWBT AND PACIFIC use to monitor
fraud on their respective accounts.
7.4.2 CLEC understands that Sleuth alerts only identify
potential occurrences of fraud. CLEC understands
and agrees that it will need to perform its own
investigations to determine whether a fraud
situation actually exists. CLEC understands and
agrees that it will also need to determine what,
if any, action CLEC should take as a result of a
Sleuth alert.
7.4.3 The Parties will provide contact names and numbers
to each other for the exchange of Sleuth alert
notification information twenty-four (24) hours
per day seven (7) days per week.
7.4.4 For each alert notification provided to CLEC, CLEC
may request a corresponding thirty-day (30-day)
historical report of ABS-related query processing.
CLEC may request up to three reports per alert.
7.5 In SBC-SWBT AND PACIFIC, ABS-related alerts are provided to
CLEC at no additional charge, except as set forth in Section
7.6.
7.6 In PACIFIC, 1+ IntraLATA toll fraud alerts are offered for
Resale only under the product name Traffic Alert Referral
Service (TARS). For TARS, CLEC agrees to pay a recurring
usage rate as outlined in Appendix Pricing.
7.6.1 Traffic Alert Referral Service
7.6.1.1 Traffic Alert Referral Service ("TARS")
is a service that monitors traffic
patterns associated with a CLEC's resold
lines. On no less than thirty (30)
calendar days written notice, CLEC may
order PACIFIC's TARS. In providing TARS
to CLEC, PACIFIC notifies CLEC of
traffic abnormalities that indicate the
possible occurrence of intraLATA fraud
and furnishes to CLEC information on all
1+ alerts. CLEC understands and agrees
that PACIFIC will use electronic mail to
provide such information and that such
information will only be available via
electronic mail at the present time. It
is the responsibility of CLEC to provide
PACIFIC with the correct email address.
Information will be provided on a
per-alert basis and will be priced on a
per-alert basis. PACIFIC grants to CLEC
a non-exclusive right to use the TARS
information provided by PACIFIC. CLEC
will not permit anyone but its duly
authorized employees or agents to
inspect or use this information. CLEC
<PAGE>
agrees to pay PACIFIC a recurring usage
rate as set forth in Appendix Pricing in
the "Other (RESALE)" category listed as
"Traffic Alert Referral Service."
7.6.1.2 CLEC shall be liable for all fraud
associated with any resale service to
which it subscribes. PACIFIC takes no
responsibility, will not investigate,
and will make no adjustments to CLEC's
account(s) in cases of fraud or any
other related End User dispute.
7.6.1.3 In addition to any other indemnity
obligations in this Agreement or any
Appendix attached hereto, PACIFIC shall
not be liable for any damages to CLEC or
to any other person or entity for
PACIFIC's actions or the conduct of its
employees in providing TARS to CLEC.
CLEC shall indemnify, defend, and hold
PACIFIC harmless from any and all
claims, lawsuits, costs, damages,
liabilities, losses, and expenses,
including reasonable attorney fees,
resulting from or in connection with
CLEC's use of PACIFIC's TARS, except
when such claims, lawsuits, costs,
damages, liabilities, losses, or
expenses are proximately caused by the
willful misconduct or gross negligence
of PACIFIC or its employees.
8. DEPOSITS (SBC-12STATE)
8.1 The deposit requirements set forth in this Section 8 apply
to the services furnished by SBC-12STATE under this
Agreement.
8.2 If CLEC has not established a minimum of twelve (12)
consecutive months good credit history with all telephone
company affiliates of SBC (that is, AMERITECH, NEVADA,
PACIFIC, SNET and SWBT) where CLEC is doing or has done
business as a local service provider, CLEC shall remit an
initial cash deposit to SBC-12STATE prior to the furnishing
of services in each state covered by this Agreement. The
deposit required by the previous sentence shall be
determined as follows:
8.2.1 for NEVADA, PACIFIC and SWBT, if immediately prior
to the Effective Date, CLEC was not operating as a
Local Service Provider in a state covered by this
Agreement, the initial deposit for that state
shall be in the amount of $17,000; or
8.2.2 for NEVADA, PACIFIC and SWBT, if immediately prior
to the Effective Date, CLEC was operating as a
Local Service Provider in a state
<PAGE>
covered by this Agreement, the deposit for that
state shall be in the amount calculated using the
method set forth in Section 8.7 of this Agreement;
or
8.2.3 for SBC-AMERITECH, subject to external credit
check verification and/or financial statement
review, SBC-AMERITECH may require two (2) to four
(4) months of projected average monthly billings
as a deposit.
8.2.4 If CLEC has established a minimum of twelve (12)
consecutive months good credit history with all
ILEC Affiliates of SBC (that is, AMERITECH,
NEVADA, PACIFIC, SNET and SWBT) with which CLEC is
doing or has done business as a Local Service
Provider, SBC-12STATE shall waive the initial
deposit requirement; PROVIDED, HOWEVER, that the
terms and conditions set forth in Section 8.1
through Section 8.10 of this Agreement shall
continue to apply in each state for the Term. In
determining whether CLEC has established a minimum
of twelve (12) consecutive months good credit
history with each ILEC Affiliate of SBC with which
CLEC is doing or has done business, CLEC's payment
record with each ILEC Affiliate of SBC for the
most recent twelve (12) months occurring within
the twenty-four (24) month period immediately
prior to the Effective Date shall be considered.
8.3 Any cash deposit for one state shall be held by SBC-12STATE
as a guarantee of payment of charges billed to CLEC,
provided, however, SBC-12STATE may exercise its right to
credit any cash deposit to CLEC's account upon the
occurrence of any one of the following events:
8.3.1 when SBC-12STATE sends CLEC the second delinquency
notification for that state during the most recent
twelve (12) months; or
8.3.2 when SBC-12STATE suspends CLEC's ability to
process orders in accordance with Section
10.5.1.1 or 10.6.1.1, as applicable; or
8.3.3 when CLEC files for protection under the
bankruptcy laws; or
8.3.4 when an involuntary petition in bankruptcy is
filed against CLEC and is not dismissed within
sixty (60) days; or
8.3.5 when this Agreement expires or terminates; or
8.3.6 during the month following the expiration of
twelve (12) months after that cash deposit was
remitted, SBC-12STATE shall credit any cash
deposit to CLEC's account so long as CLEC has not
been sent more than one delinquency notification
letter for that state during the most recent
twelve (12) months.
<PAGE>
8.3.7 For the purposes of this Section 8.3, interest
will be calculated as specified Section 9.1.4.1
through 9.1.4.3 and shall be credited to CLEC's
account at the time that the cash deposit is
credited to CLEC's account.
8.4 So long as CLEC maintains timely compliance with its payment
obligations, SBC-12STATE will not increase the deposit
amount required. If CLEC fails to maintain timely compliance
with its payment obligations, SBC-12STATE reserves the
right to require additional deposit(s) in accordance with
Section 8.5 through Section 8.10, inclusive.
8.5 If during the first six (6) months of operations in a state
under this Agreement, CLEC has been sent one delinquency
notification letter by SBC-12STATE, the deposit amount for
that state shall be re-evaluated based upon CLEC's actual
billing totals and shall be increased if CLEC's actual
billing average:
8.5.1 for NEVADA, PACIFIC or SWBT for a two (2) month
period exceeds the deposit amount held; or
8.5.2 for AMERITECH for a two (2) to four (4) month
period exceeds the deposit amount held.
8.6 Throughout the Term, any time CLEC has been sent two (2)
delinquency notification letters for any one state by
SBC-12STATE, the deposit amount for that state shall be
re-evaluated based upon CLEC's actual billing totals and
shall be increased if CLEC's actual billing average:
8.6.1 or NEVADA, PACIFIC or SWBT for a two (2) month
period exceeds the deposit amount held; or
8.6.2 for AMERITECH for a two (2) to four (4) month
period exceeds the deposit amount held.
8.7 Whenever a deposit is re-evaluated as specified in Section
8.5 or Section 8.6, such deposit shall be calculated in an
amount equal to the average billing to CLEC for that state
for a two (2) to four (4) month period. The most recent
three (3) months billing on all of CLEC's CBAs/ESBAs/ASBS
("CBA" is utilized in SWBT only; "ESBA" is utilized in
PACIFIC and NEVADA only; "ASBS" is utilized in AMERITECH
only) and BANs for services furnished within that state
shall be used to calculate CLEC's monthly average.
8.7.1 In SBC-7STATE only, after calculating the amount
equal to the average billing to CLEC for that
state for a two (2) month period, add the amount
of any charges that would be applicable to
transfer all of CLEC's then-existing End-Users of
resale services to SBC-7STATE in the event of
<PAGE>
CLEC's disconnection for non-payment of charges.
The resulting sum is the amount of the deposit.
8.8 Whenever a deposit is re-evaluated as specified in Section
8.5 and Section 8.6, CLEC shall remit the additional deposit
amount to SBC-12STATE within thirty (30) calendar days of
receipt of written notification from SBC-12STATE requiring
such deposit. If CLEC fails to furnish the required deposit
within thirty (30) calendar days of receipt of written
notice requesting such deposit, SBC-12STATE shall begin the
process set forth in Section 10.2. If CLEC continues to fail
to furnish the required deposit at the expiration of the
fourteen (14) calendar days specified in Section 10.2, then
SBC-12STATE shall begin the procedure(s) set forth in
Sections 10.5.1 and 10.6. 1, as appropriate for the state.
8.9 This cash deposit requirement may be satisfied in whole or
in part with an irrevocable bank letter of credit acceptable
to SBC-12STATE. No interest shall be paid by SBC-12STATE for
any portion of the deposit requirement satisfied by an
irrevocable bank letter of credit. SBC-12STATE may demand
payment from the issuing bank of any irrevocable bank letter
of credit upon the occurrence of any of the events listed in
Section 8.3.1 through 8.3.5 hereof
8.10 The fact that SBC-12STATE holds either a cash deposit or
irrevocable bank letter of credit does not relieve CLEC from
timely compliance with its payment obligations under this
Agreement.
8.11 For Deposit requirements for SNET, see the applicable DPUC
ordered tariff.
9. BILLING AND PAYMENT OF CHARGES
9.1 Unless otherwise stated, SBC-13STATE will render monthly
bill(s) to CLEC for services provided hereunder at the rates
set forth in the applicable Appendix Pricing, as set forth
in applicable tariffs or other documents specifically
referenced herein and, as applicable, as agreed upon by the
Parties or authorized by a Party.
9.1.1 Remittance in FULL of all bills rendered by
SBC-AMERITECH, SBC-SWBT AND PACIFIC IS due within
thirty (30) days of each bill date (the "BILL DUE
DATE") and shall be paid in accordance with the
terms of Section 9.2 of this Agreement.
9.1.2 Remittance in full of all bills rendered by NEVADA
is due in accordance with the terms set forth in
the Commission C2-A Tariff, with the date on which
amounts are due referred to herein as the "BILL
DUE DATE".
9.1.3 Remittance in fall of all bills rendered by SNET
is due in accordance with the terms set forth in
the Connecticut Access Service Tariff approved by
<PAGE>
the DPUC, with the date on which amounts are due
referred to herein as the "Bill DUE DATE".
9.1.4 If CLEC fails to remit payment for any charges for
services by the Bill Due Date, or if a payment or
any portion of a payment is received from CLEC
after the Bill Due Date, or if a payment or any
portion of a payment is received in funds which
are not immediately available to SBC-13STATE as of
the Bill Due Date (individually and collectively,
"PAST DUE"), then a late payment charge shall be
assessed as provided in Sections 9.1.4.1 through
9.1.4.3, as applicable.
9.1.4.1 If any charge incurred under this
Agreement that is billed out of any
SBC-8STATE billing system other than the
SBC-SWBT Customer Records Information
System (CRIS) is Past Due, the unpaid
amounts shall bear interest from the
Bill Due Date until paid at the lesser
of (i) the rate used to compute the Late
Payment Charge in the applicable
SBC-8STATE intrastate access services
tariff in that state and (ii) the
highest rate of interest that may be
charged under Applicable Law, compounded
daily from the Bill Due Date to and
including the date that the payment is
actually made and available.
9.1.4.2 If any charge incurred under this
Agreement that is billed out of
SBC-SWBT'S CRIS is Past Due, the unpaid
amounts shall bear interest from the
Bill Due Date until paid. The interest
rate applied to SBC-SWBT CRIS-billed
Past Due unpaid amounts shall be the
lesser of (i) the rate used to compute
the Late Payment Charge contained in the
applicable SBC-SWBT intrastate retail
Commission-approved tariff governing
Late Payment Charges to SBC-SWBT'S
retail End Users that are business End
Users in that state and (ii) the highest
rate of interest that may be charged
under Applicable Law, compounded daily
from the Bill Due Date to and including
the date that the payment is actually
made and available.
9.1.4.3 If any charge incurred under this
Agreement that is billed out of any
SBC-AMERITECH billing system is Past
Due, the unpaid amounts shall accrue
interest from the Due Date at the lesser
of (i) one and one-half percent (1 1/2%)
per month and (ii) the highest rate of
interest that may be charged under
Applicable Law, compounded daily from
the Bill Due Date to and including the
date that the payment is actually made
and available.
<PAGE>
9.2 CLEC shall make all payments to SBC-12STATE via electronic
funds credit transfers through the Automated Clearing House
Association (ACH) network to the financial institution
designated by SBC-12STATE. Remittance information will be
communicated together with the funds transfer via the ACH
network. CLEC shall use the CCD+ or the CTX transaction set.
CLEC and SBC-12STATE shall abide by the National Automated
Clearing House Association (NACHA) Rules and Regulations.
Each ACH credit transfer shall be received by SBC-12STATE no
later than the Bill Due Date of each bill or Late Payment
Charges will apply. SBC-12STATE shall not be liable for any
delays in receipt of funds or errors in entries caused by
CLEC or Third Parties, including CLEC's financial
institution. CLEC is responsible for its own banking fees.
9.2.1 CLEC shall make all payments to SNET in
"immediately available funds." All payments to
SNET shall be made using one of the methods set
forth in the Connecticut Access Service Tariff
approved by the CT-DPUC or via electronic funds
credit transfers through the Automated Clearing
House Association (ACH) network to the financial
institution designated by SNET. If CLEC makes
payment through funds transfer via the ACH
network, remittance information will be
communicated together with the funds transfer via
the ACH network. If CLEC makes payment through
funds transfer via the ACH network, CLEC shall use
the CCD+ or the CTX transaction set. CLEC and SNET
shall abide by the National Automated Clearing
House Association (NACHA) Rules and Regulations.
Each payment shall be received by SNET no later
than the Bill Due Date of each bill or Late
Payment Charges will apply. SNET shall not
be liable for any delays in receipt of funds or
errors in entries caused by CLEC or Third Parties,
including CLEC's financial institution. CLEC is
responsible for its own banking fees.
9.3 If any portion of an amount due to SBC-13STATE for services
furnished under this Agreement is subject to a bona fide
dispute, CLEC shall, prior to the Bill Due Date, give
written notice to SBC-13STATE of the amounts it disputes
("Disputed Amounts") and include in such written notice the
specific details and reasons for disputing each item, as
listed in Section 18.4.1. CLEC shall pay when due (i) all
undisputed amounts, and (ii) all Disputed Amounts into an
interest bearing escrow account with a Third Party escrow
agent mutually agreed upon by the Parties. To be acceptable,
the Third Party escrow agent must meet all of the following
criteria:
9.3.1 The financial institution proposed as the Third
Party escrow agent must be located within the
continental United States;
9.3.2 The financial institution proposed as the Third
Party escrow agent may not be an Affiliate of
either Party; and
<PAGE>
9.3.3 The financial institution proposed as the Third
Party escrow agent must be authorized to handle
Automatic Clearing House (ACH) (credit
transactions) (electronic funds) transfers.
9.3.4 In addition to the foregoing requirements for the
Third Party escrow agent, CLEC and the financial
institution proposed as the Third Party escrow
agent must agree that the escrow account will meet
all of the following criteria:
9.3.4.1 The escrow account must be an interest
bearing account;
9.3.4.2 All charges associated with opening and
maintaining the escrow account will be
borne by CLEC;
9.3.4.3 That none of the funds deposited into
the escrow account or the interest
earned thereon may be subjected to the
financial institution's charges for
serving as the Third Party escrow agent;
9.3.4.4 All interest earned on deposits to the
escrow account shall be disbursed to the
Parties in the same proportion as the
principal; and
9.3.4.5 Disbursements from the escrow account
shall be limited to those:
9.3.4.5.1 authorized in writing by both
CLEC and SBC-13STATE (that is,
signature(s) from
representative(s) of CLEC only
are not sufficient to properly
authorize any disbursement);
or
9.3.4.5.2 made in accordance with the
final, non-appealable order of
the arbitrator appointed
pursuant to the provisions of
Section 15.7; or
9.3.4.5.3 made in accordance with the
final, non-appealable order of
the court that had
jurisdiction to enter the
arbitrator's award pursuant to
Section 15.7.
9.4 Disputed Amounts in escrow shall be subject to Late Payment
Charges as set forth in Section 9.1.
9.5 Issues related to Disputed Amounts shall be resolved in
accordance with the procedures identified in the Dispute
Resolution provisions set forth in Section 15.
<PAGE>
9.6 If CLEC disputes any charges for services furnished under
this Agreement and any portion of the dispute is resolved in
favor of CLEC, the Parties shall cooperate to ensure that
all of the following actions are taken:
9.6.1 SBC-13STATE shall credit the invoice of CLEC for
that portion of the Disputed Amounts resolved in
favor of CLEC, together with any Late Payment
Charges assessed with respect thereto no later
than the second Bill Due Date after the resolution
of the Dispute;
9.6.2 within fifteen (15) calendar days after resolution
of the Dispute, the portion of the escrowed
Disputed Amounts resolved in favor of CLEC shall
be released to CLEC, together with any accrued
interest thereon;
9.6.3 within. fifteen (15) calendar days after
resolution of the Dispute, the portion of the
Disputed Amounts resolved in favor of SBC-13STATE
shall be released to SBC-13STATE, together with
any accrued interest thereon; and
9.6.4 no later than the third Bill Due Date after the
resolution of the dispute regarding the Disputed
Amounts, CLEC shall pay SBC-13STATE the difference
between the amount of accrued interest SBC-13STATE
received from the escrow disbursement and the
amount of Late Payment Charges SBC-13STATE is
entitled to receive pursuant to Section 9. 1.
9.7 Failure by CLEC to pay any charges determined to be owed to
SBC-13STATE within the time specified in Section 9.6 shall
be grounds for termination of this Agreement.
9.8 Exchange of Billing Message Information
9.8.1 SBC-13 STATE will provide CLEC a specific Daily
Usage File ("DUF" OR "USAGE EXTRACT") for usage
sensitive services furnished hereunder ("CUSTOMER
USAGE DATA"). Such Customer Usage Data shall be
provided by SBC-13STATE in accordance with
Exchange Message Interface (EMI) guidelines
supported by OBF. Any exceptions to the supported
formats will be noted in the DUF implementation
requirements documentation for each ILEC. The DUF
shall include (i) specific daily usage, including
both Local Traffic (if and where applicable) and
LEC-carried IntraLATA Toll Traffic, in EMI format
for usage sensitive services furnished in
connection with each service to the extent that
similar usage sensitive information is provided to
retail End Users of SBC-13STATE within that state,
(ii) with sufficient detail to enable CLEC to bill
its End Users for usage sensitive services
furnished by SBC-13STATE in connection with
services furnished by SBC-13STATE under this
<PAGE>
Agreement. Procedures and processes for
implementing the interfaces with SBC-AMERITECH,
PACIFIC, NEVADA , SNET , and SBC-SWBT will be
included in implementation requirements
documentation.
9.8.2 To establish file transmission for the DUF, CLEC
must provide a separate written request for each
state to SBC-AMERITECH, PACIFIC, NEVADA, SNET AND,
SBC-SWBT no less than sixty (60) calendar days
prior to the desired first transmission date for
each file.
9.8.3 Call detail for LEC-carried calls that are
alternately billed to CLEC End Users will be
forwarded to CLEC as rated call detail on the DUF
9.8.4 SBC-SWBT shall bill CLEC for DUF furnished by
SBC-SWBT in accordance with the price(s) provided
in the applicable Appendix Pricing under
"Electronic Billing Information."
9.8.5 Interexchange call detail on services furnished to
CLEC under this Agreement for resale that is
forwarded to SBC-13STATE for billing, which would
otherwise be processed by SBC-13STATE for its
retail End Users, will be returned to the IXC and
will not be passed through to CLEC. This call
detail will be returned to the IXC with a
transaction code indicating that the returned call
originated from a resold account. Billing for
Information Services and other ancillary services
traffic on resold accounts will be passed through
when SBC-13STATE records the message.
9.8.6 SBC-AMERITECH, NEVADA and PACIFIC Ancillary
Services messages originated on or billed to a
resold account in those seven (7) states shall be
subject to the rates, terms and conditions of
Appendix Message Exchange.
9.8.7 CLEC shall be responsible for providing all
billing information to each of its End Users,
regardless of the method used to provision the End
User's service.
10. NONPAYMENT AND PROCEDURES FOR DISCONNECTION
10.1 If CLEC is furnished services under the terms of this
Agreement in more than one (1) state, Sections 10.1 through
10.7, inclusive, shall be applied separately for each such
state.
10.2 Failure to pay charges may be grounds for termination of
this Agreement. If CLEC fails to pay by the Bill Due Date,
any and all charges billed to it under this Agreement,
including any Late Payment Charges or miscellaneous charges
<PAGE>
("UNPAID CHARGES"), and any portion of such Unpaid Charges
remain unpaid fifteen (15) calendar days after the Bill Due
Date, SBC-13STATE shall notify CLEC in writing that in order
to avoid disruption or disconnection of the services
furnished under this Agreement, CLEC must remit all Unpaid
Charges to SBC-13STATE within fourteen (14) calendar days
following receipt of SBC-13STATE's notice.
10.3 If CLEC desires to dispute any portion of the Unpaid
Charges, CLEC shall take all of the following actions not
later than fourteen (14) calendar days following receipt of
SBC-13STATE's notice of Unpaid Charges:
10.3.1 notify SBC-13STATE in writing which portion(s) of
the Unpaid Charges it disputes, including the
total amount disputed ("DISPUTED AMOUNTS")
including all of the specific details listed in
Section 10.4.1, together with the reasons for its
dispute; and
10.3.2 immediately pay to SBC-13STATE all undisputed
Unpaid Charges; and
10.3.3 pay all Disputed Amounts into an interest bearing
escrow account that complies with all of the
requirements set forth in Section 9.3.
10.3.4 Evidence that CLEC has established an interest
bearing escrow account that complies with all of
the terms set forth in Section 9.3 of this
Agreement and deposited a sum equal to the
Disputed Amounts into that escrow account must be
furnished to SBC-13STATE before the Unpaid Charges
will be deemed to be "disputed" under Section
15.4.1.
10.4 Issues related to Disputed Amounts shall be resolved in
accordance with the procedures identified in the Dispute
Resolution provision set forth in Section 15.
10.5 SBC-AMERITECH only
10.5.1 Notwithstanding anything to the contrary herein,
if CLEC fails to (i) pay any undisputed amounts by
the Bill Due Date, (ii) pay the disputed portion
of a past due bill into an interest-bearing escrow
account with a Third Party escrow agent, (iii) pay
any revised deposit or (iv) make a payment in
accordance with the terms of any mutually agreed
upon payment arrangement, SBC-AMERITECH may, in
addition to exercising any other rights or
remedies it may have under Applicable Law, provide
written demand to CLEC for failing to comply with
the foregoing. If CLEC does not satisfy the
written demand within five (5) Business Days of
receipt, SBC-AMERITECH may exercise any, or all,
of the following options:
<PAGE>
10.5.1.1 assess a late payment charge and where
appropriate, a dishonored check charge;
10.5.1.2 require provision of a deposit or
increase an existing deposit pursuant to
a revised deposit request;
10.5.1.3 refuse to accept new, or complete
pending, orders; and/or
10.5.1.4 discontinue service.
10.5.2 Notwithstanding anything to the contrary in this
Agreement, SBC-AMERITECH's exercise of any of the
above options:
10.5.2.1 shall not delay or relieve CLEC's
obligation to pay all charges on each
and every invoice on or before the
applicable Bill Due Date, and
10.5.2.2 Sections 10.5.1.3 and 10.5.1.4 shall
exclude any affected order or service
from any applicable performance interval
or Performance Benchmark.
10.5.3 Once disconnection has occurred, additional
charges may apply.
10.6 SBC-7STATE ONLY
10.6.1 If any Unpaid Charges remain unpaid and undisputed
twenty-nine (29) calendar days past the Bill Due
Date of such Unpaid Charges, SBC-7STATE shall
notify CLEC and the Commission in writing that
unless all Unpaid Charges are paid within sixteen
(16) calendar days following CLEC's receipt of
such notice, all services furnished to CLEC under
this Agreement shall be disconnected. This notice
shall further specify that SBC-7STATE shall cause
any of CLEC's End Users provisioned with such
services to be defaulted to SBC-7STATE local
service.
10.6.1.1 On the same day that it sends the letter
required by Section 13.6.1, SBC-7STATE
will suspend acceptance of any new order
and completion of any pending order
(other than a disconnect order) from
CLEC for any service that could be
furnished under this Agreement.
10.6.1.2 Section 10.6.1.1 shall exclude any
affected order for service(s) from any
applicable performance interval and
computation of any Performance
Measurement.
<PAGE>
10.6.2 If any Unpaid Charges remain unpaid and undisputed
forty (40) calendar days past the Bill Due Date of
the Unpaid Charges, CLEC shall, at its sole
expense, notify its End Users and the Commission
that the End Users' service may be disconnected
due to CLEC's failure to pay Unpaid Charges, and
that its End Users must affirmatively select a new
local service provider within five (5) calendar
days. This notice shall also advise each of CLEC's
End Users that SBC-7STATE will transfer
provisioning of the End User's account to
SBC-7STATE at the end of the five (5) calendar day
period should the End User fail to select a new
local service provider in the interim.
10.6.3 If any Unpaid Charges for services furnished to
CLEC under this Agreement remain unpaid and
undisputed forty-five (45) calendar days past the
Bill Due Date of such Unpaid Charges, SBC-7STATE
shall disconnect all services furnished to CLEC
under this Agreement.
10.6.3.1 On the same date that services are
disconnected, SBC-7STATE shall cause
CLEC's End Users to be transferred
directly to SBC-7STATE's local service.
To the extent available at retail from
SBC-7STATE, the End Users transferred to
SBC-7STATE's local service shall receive
the same services provided through CLEC
immediately prior to the time of
transfer; provided, however, SBC-7STATE
reserves the right to toll restrict
(both interLATA and intraLATA) such
transferred End Users.
10.6.3.2 Applicable conversion charges and
service establishment charges for
transferring End Users from CLEC to
SBC-7STATE as specified in this Section
10.6 shall be billed to CLEC.
10.6.3.3 SBC-7STATE shall inform the Commission
of the names of all End Users
transferred through this process.
10.6.4 Within five (5) calendar days of the transfer,
SBC-7STATE shall notify all transferred End Users
that because of CLEC's failure to pay SBC-7STATE,
their local service is now being provided by
SBC-7STATE. SBC-7STATE shall also notify each
transferred End User that the End User has thirty
(30) calendar days to select a new local service
provider.
10.6.5 If any End User transferred to SBC-7STATE's local
service pursuant to Section 10.6.3 of this
Agreement fails to select a new local service
provider within thirty (30) calendar days of the
transfer to SBC-7STATE's local service, SBC-7STATE
shall terminate the End User's service.
<PAGE>
10.6.5.1 The transferred End User shall be
responsible for any and all charges
incurred during the selection period.
10.6.5.2 SBC-7STATE shall notify the Commission
of the names of all End Users whose
service has been terminated pursuant to
this Section 10.6.5.
10.6.6 SBC-7STATE may discontinue service to CLEC as
provided in Section 10.6.3 and shall have no
liability to CLEC or CLEC's End Users in the event
of such disconnection or any transfer of End Users
to SBC-7STATE's service in connection with such
disconnection.
10.6.7 Nothing in this Agreement shall be interpreted to
obligate SBC-7STATE to continue to provide service
to any transferred End User beyond the thirty (30)
calendar day selection period. Nothing herein
shall be interpreted to limit any and all
disconnection rights SBC-7STATE has with regard to
such End Users under Applicable Law; provided,
however,
10.6.7.1 in PACIFIC only, following expiration of
the selection period and disconnection
of such End Users, where facilities
permit, PACIFIC will furnish transferred
and subsequently disconnected
residential End Users with "quick dial
tone."
10.6.8 Once the letter required by Section 10.6.1 has
been sent to CLEC, SBC-7STATE shall not accept any
order (other than a disconnect order) from CLEC
until
10.6.8.1 all Unpaid Charges are paid, and
10.6.8.1.1 CLEC has furnished SBC-7STATE
a cash deposit calculated
pursuant to the terms and
conditions of Section 8.
10.7 Disconnection for SNET, see the applicable DPUC ordered
tariff.
11. TERMS AND CONDITIONS FOR RESALE OF SERVICES
11.1 Except as otherwise expressly provided herein, for
Telecommunications Services included within this Agreement
that are offered by SBC-13STATE to SBC-13STATE's End Users
through tariff(s), the rules and regulations associated with
SBC-13STATE's retail tariff(s) shall apply when the services
are resold by CLEC, with the exception of any tariff resale
restrictions; provided, however, any tariff restrictions on
further resale by the End User shall continue to apply. Use
limitations on any service resold by CLEC to its End Users
shall be in parity with
<PAGE>
the use limitations applicable to the same service offered
by SBC-13STATE to its End Users.
11.2 CLEC shall only sell Plexar-Registered Trademark-, Centrex
and Centrex-like services to a single End User or multiple
End Users in accordance with the terms and conditions set
forth in the corresponding SBC-13STATE retail tariff(s)
applicable within that state.
11.3 Except where otherwise explicitly permitted in SBC-13STATE's
corresponding retail tariff(s), CLEC shall not permit the
sharing of a service by multiple End User(s) or the
aggregation of traffic from multiple End User(s) onto a
single service.
11.3.1 This section applies only to SWBT-TX:
11.3.1.1 Within the State of Texas, based upon
the Texas Commission's arbitration
order, SWBT-TX will permit aggregation
for purposes of the resale of volume
discount offers. Volume discount offers
include such items as intraLATA toll,
but do not include such items as
packages of vertical features.
11.4 Grandfathered services are available per appropriate state
specific tariff to CLEC for resale at the applicable
discount only to the same End User, at the existing End
User's location, to which SBC-13STATE provides the service,
either at retail or through resale.
11.5 CLEC shall only resell services furnished under this
Agreement to the same category of End Users to whom
SBC-13STATE offers such services (for example, residence
service shall not be resold to business End Users).
11.6 SPECIAL NEEDS SERVICES
11.6.1 CLEC may only resell special needs services" as
identified in associated state specific tariffs to
persons who are eligible for each such service. As
used herein, the term "special needs services"
means services for the physically disabled where
the disability is related to vision, speech,
hearing or motion. Further, to the extent CLEC
resells services that require certification on the
part of the End User, CLEC shall ensure that the
End User has obtained proper certification and
complies with all rules and regulations as
established by the appropriate Commission.
11.6.1.1 If the existing retail Customer Service
Record ("CSR") for an End User's account
currently provisioned at retail by
SBC-13STATE contains an indicator that
the same telephone number for the same
named Person at the same address is
<PAGE>
currently being billed by SBC-13STATE
retail for the same "special needs
service," the End User has previously
been certified as eligible for that
"special needs service."
11.6.1.2 If the indicator described in Section
11.6.1.1 is present on the End User's
current retail account with an
SBC-13STATE company, CLEC must make the
determination whether the End User
continues to be eligible for the
program(s) specified in Section 11.6.1
hereof CLEC is responsible for obtaining
any End User certification or
re-certification required by the terms
of the state specific SBC-13STATE tariff
for any "special needs service" it
resells to any End User beginning on the
date that CLEC submits any order
relating to that "special needs
service." This responsibility includes
obtaining and retaining any documentary
evidence of each such End User's
eligibility, in accordance with the
applicable SBC-13STATE retail tariff
requirements.
11.6.1.3 If the indicator described in Section
11.6.1 is not present on the End User's
current retail account with an
SBC-13STATE company, or if the applicant
does not currently have local telephone
service, CLEC is responsible for
ensuring that the End User is eligible
for any "special needs service" in
accordance with applicable SBC-13STATE
retail tariff requirements, for
obtaining and retaining any documentary
evidence of such eligibility and for
designating such End User or applicant
as eligible to participate in such
program(s).
11.6.2 THIS SECTION APPLIES ONLY TO SBC-SWBT:
11.6.2.1 CLEC may only resell SBC-SWBT LifeLine
and Link-Up services, according to
associated retail state specific tariffs
to persons who are eligible for each
such service. Further, to the extent
CLEC resells services that require
certification on the part of the End
User, CLEC shall ensure that the End
User meets all associated tariff
eligibility requirements, has obtained
proper certification and complies with
all rules and regulations as established
by the appropriate Commission.
11.6.2.2 When the End User is currently receiving
SBC-SWBT LifeLine and/or Link-Up
benefit, the existing SBC-SWBT CSR will
carry the appropriate service indicator.
CLEC may view this indicator on the
SBC-SWBT CSR.
<PAGE>
11.6.2.3 If the indicator described in Section
11.6.2.2 is present on the End User's
current retail SBC-SWBT CSR, CLEC must
make the determination whether the End
User continues to be eligible for the
program(s) specified in Section 11.6.2.1
hereof. CLEC is responsible for
obtaining any End User certification or
re-certification required by the terms
of the state specific SBC-SWBT tariff
for LifeLine or Link-Up service it
resells to any End User beginning on the
date that CLEC submits any order
relating to service. This responsibility
includes obtaining and retaining any
documentary evidence of each such End
User's eligibility, in accordance with
the applicable SBC-SWBT retail tariff
requirements.
11.6.2.4 If the indicator described in Section
11.6.2.2 is not present on the CSR for
the End User's current retail account
with SBC-SWBT, or if the applicant
does not currently have local telephone
service, CLEC is responsible for
ensuring that the End User is eligible
for any LifeLine or Link-Up service in
accordance with applicable SBC-SWBT
retail tariff requirements, for
obtaining and retaining any documentary
evidence of such eligibility and for
designating such End User or applicant
as eligible to participate in such
program(s).
11.7 THIS SECTION APPLIES ONLY TO NEVADA, PACIFIC, SNET AND
SBC-AMERITECH:
11.7.1 NEVADA, PACIFIC, SNET AND SBC-AMERITECH LifeLine
and Link-Up services are not available for resale.
11.7.2 When an End User is currently receiving NEVADA,
PACIFIC, SNET or SBC-AMERITECH LifeLine or Link-Up
service, the existing NEVADA, PACIFIC, SNET or
SBC-AMERITECH Customer Service Record (CSR) will
carry the appropriate service indicator. CLEC may
view this indicator on the CSR.
11.7.2.1 CLEC may obtain LifeLine or Link-Up
indicator data from NEVADA, PACIFIC,
SNET or SBC-AMERITECH's existing retail
CSR for the End User for the sole
purpose of enabling CLEC to determine
whether the End User may be eligible for
any similar program(s) CLEC may offer.
11.7.2.2 CLEC is exclusively responsible for all
aspects of any similar CLEC-offered
program, including ensuring that any
similar CLEC-offered program(s) complies
with all applicable federal
<PAGE>
and state requirements, obtaining all
necessary End User certifications and
re-certifications, submitting written
designation that any of CLEC's End User
or applicants are eligible to
participate in such programs, submitting
CLEC's claims for reimbursement to any
applicable governmental authority and
any other activities required by any
applicable governmental authority.
11.7.3 If no NEVADA, PACIFIC, SNET or SBC-AMERITECH
LifeLine and/or Link-Up indicator is present on
the CSR for the End User's current retail account,
such End User is not currently certified as
eligible to participate in any LifeLine or Link-Up
program offered by NEVADA, PACIFIC, SNET or
SBC-AMERITECH.
11.8 CUSTOMER SPECIFIC PRICING
11.8.1 This section applies only to SWBT-TX:
11.8.1.1 Subject to any modifications ultimately
approved in Docket Number 17759 and any
appeals thereof:
11.8.1.1.1 CLEC may convert current
SWBT-TX End User(s) that have
existing term, volume,
termination liability or any
customer specific pricing
contracts (collectively
referred to hereinafter as
"CSP Contracts") for services
offered within the State of
Texas, and
11.8.1.1.2 SWBT-TX and any other
reseller of SWBT-TX local
service may convert current
CLEC End User(s) that have
existing CSP Contracts for
services offered within the
State of Texas.
11.8.1.2 In the event of a conversion under
either Section 11.8.1.1.1 or 11.8.1.1.2,
CLEC and SWBT-TX shall comply with all
of the terms and conditions set forth in
Sections 11.8.2 and 11.8.3 hereof.
11.8.1.3 Responsibilities of CLEC in connection
with CSP Contract Conversions.
11.8.1.3.1 CLEC shall assume in writing
the balance of the terms,
including volume, term and
termination liability
remaining on any current
retail SWBT-TX
<PAGE>
or resold End User CSP
Contract at the time of
conversion. CLEC may assume
the CSP Contract at the
wholesale discount of 5.62%
for customer specific pricing
plan contracts and at the
wholesale discount of 8.04%
for tariffed volume and term
contracts.
11.8.1.3.2 Correspondingly, CLEC shall
not charge CLEC's End User
termination liability when an
existing CSP contract between
CLEC and its End User is
converted to SWBT-TX or any
other local service provider
reselling SWBT-TX local
service.
11.8.1.3.3 If another reseller of
SWBT-TX local service
converts a current CLEC End
User(s) that has an existing
CSP Contract, it is CLEC's
responsibility to address
assumption of the CSP
contact and termination
liability with the other
reseller. CLEC agrees that
SBC-13STATE has no
responsibilities in such a
situation, and CLEC further
agrees that it will not make
any Claim against SWBT-TX in
connection with any
conversion by another
reseller of SWBT-TX local
service of any CLEC End
User(s) that has an existing
CSP contract.
11.8.1.4 Responsibilities of SWBT-TX in
connection with CSP Contract Conversions
11.8.1.4.1 SWBT-TX will not charge its
retail End User termination
liability when an existing
CSP contract is converted to
CLEC for resale.
11.8.1.4.2 Correspondingly, SWBT-TX will
assume in writing the balance
of the terms, including
volume, term and termination
liability remaining on a
current CSP contract between
CLEC and its End User at the
time that CLEC's End User is
converted to SWBT-TX.
11.8.2 This section applies only to SBC-AMERITECH:
11.8.2.1 SBC-AMERITECH retail contracts may be
assumed unless expressly prohibited by
the contract. Contracts for
grandfathered and/or sunsetted services
may not be assumed.
<PAGE>
11.8.2.2 Subject to the provisions of Section
11.8.2.1, the following shall apply:
11.8.2.2.1 AM-IL tariffed and Individual
Case Basis (ICB) contracts
that are assumed receive a
wholesale discount of 3.16%.
11.8.2.2.2 AM-MI tariffed and Individual
Case Basis (ICB) contracts
that are assumed receive a
wholesale discount of 3.39%.
11.8.2.2.3 AM-IN, AM-OH, AND AM-WI
tariffed and Individual Case
Basis (ICB) contracts may be
assumed, but receive no
wholesale discount.
11.8.2.2.4 SBC-AMERITECH Non-Standard
Service contracts may be
assumed, but receive no
wholesale discount.
11.8.2.3 If CLEC elects to terminate a
SBC-AMERITECH retail contract which CLEC
had previously assumed, CLEC will be
assessed the applicable termination
charges remaining unless CLEC elects to
simultaneously replace the existing
contract with a contract of greater term
and/or volume at the same discount CLEC
receives for the previously assumed but
now terminated contract.
11.9 PAYPHONE SERVICES
11.9.1 CLEC may provide certain local Telecommunications
Services to payphone service providers ("PSPs")
for PSPs' use in providing payphone service. Local
Telecommunications Services which PSPs use in
providing payphone service that are provided to
PSPs by CLEC by means of reselling SBC-13STATE's
services offered pursuant to the appropriate
payphone section(s) of SBC-13STATE's state
specific tariff(s) applicable in each state
covered by this Agreement are referred to in this
Agreement as "Payphone Lines." In its Common
Carrier Docket No. 96-128, the FCC ordered
SBC-13STATE to compensate PSP customers of CLECs
that resell SBC-13STATE's services for certain
calls originated from pay telephones and received
by the resale-based carriers. (IMPLEMENTATION OF
THE PAY TELEPHONE RECLASSIFICATION AND
COMPENSATION PROVISIONS OF THE TELECOMMUNICATIONS
ACT OF 1996, FCC Docket No. 96-128, Report and
Order, para. 86 (1996)). This compensation is
referred to in this Agreement as "Payphone
Compensation."
<PAGE>
11.9.2 The Parties desire that SBC-13STATE satisfy the
obligation to pay Payphone Compensation to PSPs
that are customers of CLEC by paying the Payphone
Compensation to CLEC, who will then forward the
Payphone Compensation directly to the PSPs.
11.9.2.1 SBC-13STATE will pay Payphone
Compensation due with respect to
Payphone Lines in compliance with the
current or any future order of the FCC.
SBC-13STATE will pay Payphone
Compensation to CLEC only for:
11.9.2.1.1 IntraLATA subscriber 800
calls for which SBC-13STATE
provides the 800 service to
the subscriber and carries
the call; and
11.9.2.1.2 IntraLATA calls placed using
SBC-13STATE's prepaid calling
card platform and carried by
SBC-13STATE.
11.9.2.2 SBC-13STATE will not pay any Payphone
Compensation for non-sent paid calls.
11.9.2.3 SBC-13STATE will pay CLEC the Payphone
Compensation due to CLEC's PSP
customer(s) within sixty (60) calendar
days after the close of the calendar
quarter during which the call(s) for
which Payphone Compensation is due were
made. However, payment may be made later
than sixty (60) calendar days if
SBC-13STATE deems it necessary to
investigate a call or calls for possible
fraud.
11.9.2.3.1 SBC-13STATE will make payment
of any Payphone Compensation
due to CLEC under this
Agreement by crediting CLEC's
bill for the Payphone Line
over which the call that
gives rise to the Payphone
Compensation was placed.
SBC-13STATE will not issue a
check to CLEC if the credit
for Payphone Compensation
exceeds the balance due TO
SBC-13STATE on the bill.
11.9.2.4 Nothing in this Agreement entitles CLEC
to receive or obligates SBC-13STATE to
provide any call detail or other call
record for any call that gives rise to
Payphone Compensation.
<PAGE>
11.9.2.5 CLEC represents and warrants that the
only SBC-13STATE services that CLEC will
make available to PSPs as Payphone Lines
are the payphone services that
SBC-13STATE offers pursuant to the
appropriate payphone section(s) of
SBC-13STATE's state specific tariff(s)
applicable in each state covered by this
Agreement.
11.9.2.6 Except as provided otherwise in Section
11.9 of this Agreement, CLEC shall pay
the entire amount of the Payphone
Compensation due with respect to each
Payphone Line to the PSP that is CLEC's
customer for that Payphone Line. CLEC
shall make such payment on or before the
last business day of the calendar
quarter following the calendar quarter
during which the call(s) for which
Payphone Compensation is due to the PSP
were made. IF SBC-13STATE pays any
Payphone Compensation to CLEC later than
sixty (60) calendar days after the close
of the calendar quarter during which the
call(s) for which Payphone Compensation
is due were made, then CLEC shall pay
the entire amount of such Payphone
Compensation to the PSP that is CLEC's
customer for that Payphone Line within
ten (10) calendar days after receiving
such Payphone Compensation from
SBC-13STATE.
11.10 Suspension of Service
11.10.1 CLEC may offer to resell Customer Initiated
Suspension and Restoral Service to its End Users
at the associated state specific retail tariff
rates, terms and conditions for suspension of
service at the request of the End User.
11.10.2 SBC-13STATE will offer CLEC local service provider
initiated suspension service for CLEC's purposes
at the associated SBC-13STATE state specific
retail tariff rate for company initiated
suspension of service. Service specifics may be
obtained in state specific CLEC Handbooks.
11.10.2.1 CLEC shall be exclusively responsible
for placing valid orders for the
suspension and the subsequent
disconnection or restoral of service to
each of its End Users.
11.10.2.2 Should CLEC suspend service for one of
its End Users and fail to submit a
subsequent disconnection order within
the maximum number of calendar days
permitted for a company initiated
suspension pursuant to the state
specific retail tariff,
<PAGE>
CLEC shall be charged and shall be
responsible for all appropriate monthly
service charges for the End User's
service from the suspension date through
the disconnection date.
11.10.2.3 Should CLEC suspend service for one of
its End Users and subsequently issue a
restoral order, CLEC shall be charged
the state specific tariff rate for the
restoral plus all appropriate monthly
service charges for the End User's
service from the suspension date through
the restoral date.
11.11 PROMOTIONS
11.11.1 Promotions are available for the
Telecommunications Services outlined in Appendix
Pricing in the "Resale" category and in accordance
with state specific Commission requirements.
11.11.2 This section applies only to NEVADA and SWBT-MO:
11.11.2.1 NEVADA and SWBT-MO promotions of
eighty-nine (89) days or less are not
available to CLEC for resale.
11.11.3 This section applies only to PACIFIC,
SBC-AMERITECH, SNET, SWBT-AR AND SWBT-OK:
11.11.3.1 PACIFIC, SBC-AMERITECH, SNET, SWBT-AR
and SWBT-OK promotions of ninety
(90) days or less are not available to
CLEC for resale.
11.11.4 This section applies only to SWBT-KS:
11.11.4.1 Promotions on Telecommunications
Services are available to CLEC for
resale. A wholesale discount (14.9% or
21.6%, as applicable) will be applied to
those promotions of ninety-one (91) days
or more.
11.11.5 This section applies ONLY TO SWBT-TX:
11.11.5.1 Promotions on Telecommunications
Services are available to CLEC for
resale. A wholesale discount will be
applied to those promotions of
ninety-one (91) days or more.
<PAGE>
12. ADDITIONAL TERMS APPLICABLE TO RESALE OF SERVICES
12.1 CLEC shall not use a resold service to avoid the rates,
terms and conditions of SBC-13STATE's corresponding retail
tariff(s).
12.2 CLEC shall not use resold local Telecommunications Services
to provide access or interconnection services to itself,
interexchange carriers (IXCs), wireless carriers,
competitive access providers (CAPs), or other
telecommunications providers; provided however, that CLEC
may permit its End Users to use resold local
Telecommunications Services to access IXCs, wireless
carriers, CAPs, or other retail telecommunications
providers.
12.3 A federal End User Common Line charge and any other
appropriate Commission-approved charges, as set forth in the
appropriate SBC-13STATE federal and applicable state
tariff(s) will apply to each local exchange line furnished
to CLEC under this Agreement.
12.4 To the extent allowable by law, CLEC shall be responsible
for Primary Interexchange Carrier (both PIC and LPIC) change
charges associated with each local exchange line furnished
to CLEC for resale. CLEC shall pay all charges for PIC and
LPIC changes at the tariffed rate(s).
12.5 SBC-13STATE's services are not available at wholesale rates
to CLEC for its own use or for the use of any CLEC's
Affiliates, successors, or assigns.
12.6 If CLEC is in violation of any provision of this Appendix,
SBC-13STATE will notify CLEC of the violation in writing.
Such notice shall refer to the specific provision being
violated. CLEC will have thirty (30) calendar days to
correct the violation and notify SBC-13STATE in writing that
the violation has been corrected. If the violation affects
billing, SBC-13STATE will bill CLEC a sum equal (i) the
charges that would have been billed by SBC-13STATE to CLEC
or any Third Party but for the stated violation and (ii) the
actual revenues CLEC billed its End User(s) in connection
with the stated violation, whichever is greater. Should CLEC
dispute the stated violation, CLEC must notify SBC-13STATE
in writing of the specific details and reasons for its
dispute within fourteen (14) calendar days of receipt of the
notice from SBC-13STATE and comply with Sections 12.3 and
12.3. Resolution of any dispute by CLEC of the stated
violation shall be conducted in compliance with the Dispute
Resolution provisions of this Agreement.
13. ANCILLARY SERVICES
13.1 Where available, SBC-13STATE will afford CLEC's End Users
the ability to make 911 calls. CLEC shall be responsible for
collecting and remitting all
<PAGE>
applicable 911 fees and surcharges on a per line basis to
the appropriate Public Safety Answering Point (PSAP) or
other Governmental Authority responsible for collection of
such fees and surcharges. When requested by SBC-13STATE,
CLEC shall provide SBC-13STATE with accurate and complete
information regarding CLEC's End User(s) in a format and
time frame prescribed by SBC-13STATE for purposes of E911
administration.
13.2 Subject to SBC-13STATE's practices, as well as the rules and
regulations applicable to the provision of White Pages
directories, SBC-13STATE will include in appropriate White
Pages directories the primary alphabetical listings of all
CLEC End Users located within the local directory scope. The
rules, regulations and SBC-13STATE practices are subject to
change from time to time.
13.3 Additional Listing services, as set forth in Appendix
Pricing, may be purchased by CLEC for its End Users on a per
listing basis.
13.4 Each CLEC subscriber will receive one copy per primary End
User listing of SBC-13STATE's White Pages directory in the
same manner and at the same time that they are delivered to
SBC-13STATE's subscribers during the annual delivery of
newly published directories. For White Page directories
and/or White Page directories that are co-bound with Yellow
Pages, CLEC may provide to SBC-13STATE written
specifications of the total number of directories that it
will require, at least sixty (60) days prior to the
directory close. In that event, SBC-13STATE will deliver the
remaining directories included in the CLEC's order in bulk
to an address specified by the CLEC.
13.4.1 If CLEC's End User already has a current
SBC-13STATE local White Pages directory,
SBC-13STATE shall not be required to deliver a
directory to that End User until new White Pages
directories are published for that End User's
location.
13.5 SBC-8STATE will provide CLEC with 1/8th page in each
directory (where the CLEC has or plans to have local
telephone exchange customers) for the CLEC to include CLEC
specific-information (i.e., business office, residence
office, repair bureau, etc.) in the White Pages directory on
an "index-type" informational page. No advertising will be
permitted on such informational page. This page will also
include specific information pertaining to other CLECs. At
its option, CLEC shall provide SBC-8STATE with its logo and
information in the form of a camera-ready copy, sized at
1/8th of a page. The content of CLEC's camera-ready copy
shall be subject to SBC-8STATE APPROVAL. In those
directories in which SBC-13STATE includes Spanish Customer
Guide Pages, this informational page will also be provided
in Spanish at CLEC's request, subject to the guidelines set
forth above.
<PAGE>
13.6 At its request, CLEC may purchase "Informational Page(s)" in
the informational section of the White Pages directory
covering a geographic area where CLEC provides local
telecommunications exchange service. Such page(s) shall be
no different in style, size, color and format than
SBC-8STATE "Informational Pages". Sixty (60) calendar days
prior to the directory close date, the CLEC shall provide to
SBC-8STATE the "Informational Page" in the form of
camera-ready copy.
13.7 Except where expressly stated the terms and conditions for
including CLEC End User listings in SBC-AMERITECH White Page
directories as well as distribution of such directories to
CLEC and/or CLEC End User's is a product offering available
through a non-regulated subsidiary OF. SBC-AMERITECH.
14. NETWORK AND SERVICE ORDER CONDITIONS
14.1 SBC-13STATE SHALL provide the services covered by this
Agreement subject to availability of existing facilities and
on a nondiscriminatory basis with its other customers. CLEC
shall resell the services provided herein only in those
service areas in which such services or any feature or
capability thereof are offered to End Users at retail by
SBC-13STATE as the incumbent local exchange carrier.
14.2 When an End User converts existing service to CLEC resold
service of the same type without any additions or changes,
charges for such conversion will apply as set forth in
Appendix Pricing in the "Other (Resale)" category, listed as
"conversion charges," and are applied per billable telephone
number.
14.2.1 When an End User(s) subscribes to CLEC resold
service, recurring charges for the service shall
apply at the wholesale discount set forth in
Appendix Pricing. The tariff rates for such resold
service shall continue to be subject to orders of
the appropriate Commission.
14.3 When CLEC converts an End Users existing service and
additions or changes are made to the service at the time of
conversion, the normal service order charges and/or
non-recurring charges associated with said additions and/or
changes will be applied in addition to the conversion
charge. CLEC will receive a wholesale discount on all
non-recurring service order charges for the services listed
in Appendix Pricing under the heading "Resale;" no wholesale
discount is available for the non-recurring service order
charges for those services listed in Appendix Pricing under
the heading "Other (Resale)."
14.4 For the purposes of ordering service furnished under this
Agreement, each request for new service (that is, service
not currently being provided to the End User on
SBC-13STATE's network, without regard to the identity of
that End User's non-
<PAGE>
facilities based local service provider of record) shall be
handled as a separate initial request for service and shall
be charged per billable telephone number.
14.5 Where available, the tariff retail additional line rate for
Service Order Charges, shall apply only to those requests
for additional residential service at the End User premises
to which a residential line is currently provided on
SBC-13STATE's network, without regard to the identity of
that End User's non-facilities based local service provider
of record.
15. DISPUTE RESOLUTION
15.1 FINALITY OF DISPUTES
15.1.1 Except as otherwise specifically provided for in
this Agreement, no claim may be brought for any
dispute arising from this Agreement more than
twenty-four (24) months from the date the
occurrence which gives rise to the dispute is
discovered or reasonably should have been
discovered with the exercise of due care and
attention.
15.1.2 Notwithstanding anything contained in this
Agreement to the contrary, a Party shall be
entitled to dispute only those charges for which
the Bill Due Date occurred within the twelve (12)
months immediately preceding the date on which the
other Party received notice of such Disputed
Amounts.
15.2 ALTERNATIVE TO LITIGATION
15.2.1 The Parties desire to resolve disputes arising out
of this Agreement without litigation. Accordingly,
the Parties agree to use the following Dispute
Resolution procedures with respect to any
controversy or claim arising out of or relating to
this Agreement or its breach.
15.3 COMMENCING DISPUTE RESOLUTION
15.3.1 Dispute Resolution shall commence upon one Party's
receipt of written notice of a controversy or
claim arising out of or relating to this Agreement
or its breach. No Party may pursue any claim
unless such written notice has first been given to
the other Party. There are three (3) separate
Dispute Resolution methods:
15.3.1.1 SERVICE CENTER / LSC Dispute Resolution,
15.3.1.2 Informal Dispute Resolution; and
<PAGE>
15.3.1.3 Formal Dispute Resolution, each of which
is described below.
15.4 LSC/SERVICE CENTER DISPUTE RESOLUTION - The following
Dispute Resolution procedures will apply with respect to
any billing dispute arising out of or relating to the
Agreement.
15.4.1 If the written notice given pursuant to Section
15.3 discloses that a CLEC dispute relates to
billing, then the procedures set forth in this
Section 15.4 shall be used and the dispute shall
first be referred to the appropriate SBC-7STATE
Center [SBC-AMERITECH SERVICE CENTER; SBC-7STATE
LOCAL SERVICE CENTER (LSC)] for resolution. In
order to resolve a billing dispute, CLEC shall
furnish SBC-7STATE AND SBC-AMERITECH written
notice of (i) the date of the bill in question,
(ii) CBA/ESBA/ASBS or BAN number of the bill in
question, (iii) telephone number, circuit ID
number or trunk number in question, (iv) any USOC
information questioned, (v) amount billed (vi)
amount in question and (vii) the reason that CLEC
disputes the billed amount. To be deemed a
"dispute" under this Section 15.4, CLEC must
provide evidence that it has established an
interest bearing escrow account that complies with
the requirements set forth in Section 9.3 of this
Agreement and deposited all Unpaid Charges into
that escrow account. Failure to provide the
information and evidence required by this Section
15.4.1 not later than twenty-nine (29) days
following the Bill Due Date shall constitute
CLEC's irrevocable and full waiver of its right to
dispute the subject charges.
15.4.2 The Parties shall attempt to resolve Disputed
Amounts appearing on SBC-7STATE's and
SBC-AMERITECH's current billing statements thirty
(30) to sixty (60) calendar days from the Bill Due
Date (provided the CLEC furnishes all requisite
information and evidence under Section 15.4.1 by
the Bill Due Date). If not resolved within thirty
(30) calendar days, upon request, SBC-7STATE AND
SBC-AMERITECH WILL notify CLEC of the status of
the dispute and the expected resolution date.
15.4.3 The Parties shall attempt to resolve Disputed
Amounts appearing on statements prior to the
current billing statement within thirty (30) to
ninety (90) calendar days, but resolution may take
longer depending on the complexity of the dispute.
If not resolved within thirty (30) calendar days
from the date notice of the Disputed Amounts was
received (provided that CLEC furnishes all
requisite information and evidence under Section
15.4. 1), SBC-7STATE AND SBC-AMERITECH will notify
CLEC of the status of the dispute and the expected
resolution date.
<PAGE>
15.4.5 If CLEC is not satisfied by the resolution of the
billing dispute under this Section 18.4, CLEC may
notify SBC-7STATE AND SBC-AMERITECH writing that
it wishes to invoke the Informal Resolution of
Disputes afforded pursuant to Section 18.5.
15.5 INFORMAL RESOLUTION OF DISPUTES
15.5.1 Upon receipt by one Party of notice of a dispute
by the other Party pursuant to Section 14.3 or
Section 14.4.5, each Party will appoint a
knowledgeable, responsible representative to meet
and negotiate in good faith to resolve any dispute
arising under this Agreement. The location, form,
frequency, duration, and conclusion of these
discussions will be left to the discretion of the
representatives. Upon agreement, the
representatives may utilize other alternative
Dispute Resolution procedures such as mediation to
assist in the negotiations. Discussions and the
correspondence among the representatives for
purposes of settlement are exempt from discovery
and production and will not be admissible in the
arbitration described below or in any lawsuit
without the concurrence of both Parties. Documents
identified in or provided with such communications
that were not prepared for purposes of the
negotiations are not so exempted, and, if
otherwise admissible, may be admitted in evidence
in the arbitration or lawsuit.
15.6 FORMAL DISPUTE RESOLUTION
15.6.1 If the Parties are unable to resolve the dispute
through the informal procedure described in
Section 15.5, then either Party may invoke the
formal Dispute Resolution procedures described in
this Section 15.6. Unless agreed among all
Parties, formal Dispute Resolution procedures,
including arbitration or other procedures as
appropriate, may be invoked not earlier than sixty
(60) calendar days after receipt of the letter
initiating Dispute Resolution under Section 15.3.
15.6.2 CLAIMS SUBJECT TO MANDATORY ARBITRATION. The
following claims, if not settled through informal
Dispute Resolution, will be subject to mandatory
arbitration pursuant to Section 15.7 below:
15.6.2.1 Each unresolved billing dispute
involving one percent (1%) or less of
the amounts charged to CLEC under this
Agreement in the state in which the
dispute arises during the twelve (12)
months immediately preceding receipt of
the letter initiating
<PAGE>
Dispute Resolution under Section 15.3.
If CLEC has not been billed for a
minimum of twelve (12) months
immediately preceding receipt of the
letter initiating Dispute Resolution
under Section 15.3, the Parties will
annualize the actual number of months
billed.
15.6.3 CLAIMS SUBJECT TO ELECTIVE ARBITRATION. Claims
will be subject to elective arbitration pursuant
to Section 15.7 if, and only if, the claim is not
settled through informal Dispute Resolution and
both Parties agree to arbitration. If both Parties
do not agree to arbitration, then either Party may
proceed with any remedy available to it pursuant
to law, equity or agency mechanism.
15.6.4 CLAIMS NOT SUBJECT TO ARBITRATION. If the
following claims are not resolved through informal
Dispute Resolution, they will not be subject to
arbitration and must be resolved through any
remedy available to a Party pursuant to law,
equity or agency mechanism.
15.6.4.1 Actions seeking a temporary restraining
order or an injunction related to the
purposes of this Agreement.
15.6.4.2 Actions to compel compliance with the
Dispute Resolution process.
15.6.4.3 All claims arising under federal or
state statute(s), including antitrust
claims.
15.7 ARBITRATION
15.7.1 Disputes subject to mandatory or elective
arbitration under the provisions of this Agreement
will be submitted to a single arbitrator pursuant
to the Commercial Arbitration Rules of the
American Arbitration Association or pursuant to
such other provider of arbitration services or
rules as the Parties may agree. The arbitrator
shall be knowledgeable of telecommunications
issues. Each arbitration will be held in DALLAS,
TEXAS (SBC-SWBT); CHICAGO, ILLINOIS
(SBC-AMERITECH), SAN FRANCISCO, CALIFORNIA
(PACIFIC); RENO, NEVADA (NEVADA) as appropriate,
unless the Parties agree otherwise. The
arbitration hearing will be requested to commence
within sixty (60) calendar days of the demand for
arbitration. The arbitrator will control the
scheduling so as to process the matter
expeditiously. The Parties may submit written
briefs upon a schedule determined by the
arbitrator. The Parties will request that the
arbitrator rule on the dispute by issuing a
written opinion within thirty (30)
<PAGE>
calendar days after the close of hearings. The
Federal Arbitration Act, 9 U.S.C. Secs. 1-16, not
state law, shall govern the arbitrability of all
disputes. The arbitrator will have no authority to
award punitive damages, exemplary damages,
Consequential Damages, multiple damages, or any
other damages not measured by the prevailing
Party's actual damages, and may not, in any event,
make any ruling, finding or award that does not
conform to the terms and conditions of this
Agreement. The times specified in this Section may
be extended or shortened upon mutual agreement of
the Parties or by the arbitrator upon a showing of
good cause. Each Party will bear its own costs of
these procedures, including attorneys' fees. The
Parties will equally split the fees of the
arbitration and the arbitrator. The arbitrator's
award shall be final and binding and may be
entered in any court having jurisdiction thereof.
Judgment upon the award rendered by the arbitrator
may be entered in any court having jurisdiction.
16. AUDITS - APPLICABLE IN SBC-12STATE ONLY
16.1 Subject to the restrictions set forth in Section 27 and
except as may be otherwise expressly provided in this
Agreement, a Party (the "AUDITING PARTY") may audit the
other Party's (the "AUDITED PARTY") books, records, data and
other documents, as provided herein, once annually, with the
audit period commencing not earlier than the date on which
services were first supplied under this Agreement ("SERVICE
START DATE") for the purpose of evaluating (i) the accuracy
of Audited Party's billing and invoicing of the services
provided hereunder and (ii) verification of compliance with
any provision of this Agreement that affects the accuracy of
Auditing Party's billing and invoicing of the services
provided to Audited Party hereunder. Notwithstanding the
foregoing, an Auditing Party may audit the Audited Party's
books, records and documents more than once annually if the
previous audit found (i) previously uncorrected net
variances or errors in invoices in Audited Party's favor
with an aggregate value of at least five percent (5%) of
the amounts payable by Auditing Party for audited services
provided during the period covered by the audit or (ii)
non-compliance by Audited Party with any provision of this
Agreement affecting Auditing Party's billing and invoicing
of the services provided to Audited Party with an aggregate
value of at least five percent (5%) of the amounts payable
by Audited Party for audited services provided during the
period covered by the audit.
16.1.1 The scope of the audit shall be limited to the
period which is the shorter of (i) the period
subsequent to the last day of the period covered
by the audit which was last performed (or if no
audit has been performed, the service start date
and (ii) the twelve (12) month period immediately
preceding the date the Audited Party received
notice of such requested audit, but in any event
not prior to the service start date. Such audit
shall begin no fewer than thirty (30) days after
Audited Party receives a written notice
<PAGE>
requesting an audit and shall be completed no
later than thirty (30) days after the start of
such audit.
16.1.2 Such audit shall be conducted either by the
Auditing Party's employee(s) or an independent
auditor acceptable to both Parties; provided,
however, if the Audited Party requests that an
independent auditor be engaged and the Auditing
Party agrees, the Audited Party shall pay
one-quarter (1/4) of the independent auditor's
fees and expenses. If an independent auditor is to
be engaged, the Parties shall select an auditor by
the thirtieth day following Audited Party's
receipt of a written audit notice. Auditing Party
shall cause the independent auditor to execute a
nondisclosure agreement in a form agreed upon by
the Parties.
16.1.3 Each audit shall be conducted on the premises of
the Audited Party during normal business hours.
Audited Party shall cooperate fully in any such
audit and shall provide the auditor reasonable
access to any and all appropriate Audited Party
employees and any books, records and other
documents reasonably necessary to assess (i) the
accuracy of Audited Party's bills and (ii) Audited
Party's compliance with the provisions of this
Agreement that affect the accuracy of Auditing
Party's billing and invoicing of the services
provided to Audited Party hereunder. Audited Party
may redact from the books, records and other
documents provided to the auditor any Audited
Party Proprietary Information that reveals the
identity of End Users of Audited Party.
16.1.4 Each Party shall maintain reports, records and
data relevant to the billing of any services that
are the subject matter of this Agreement for a
period of not less than twenty-four (24) months
after creation thereof, unless a longer period is
required by Applicable Law.
16.1.5 If any audit confirms any undercharge or
overcharge, then Audited Party shall (i) promptly
correct any billing error, including making refund
of any overpayment by Auditing Party in the form
of a credit on the invoice for the first full
billing cycle after the Parties have agreed upon
the accuracy of the audit results and (ii) for any
undercharge caused by the actions of the Audited
Party, immediately compensate Auditing Party for
such undercharge, and (iii) in each case,
calculate and pay interest as provided in Section
9.1.4 (depending on the SBC Parties and billing
systems involved), for the number of days from the
date on which such undercharge or overcharge
originated until the date on which such credit is
issued or payment is made and available.
16.1.6 Except as may be otherwise provided in this
Agreement, audits shall be performed at Auditing
Party's expense, subject to reimbursement by
<PAGE>
Audited Party of one-quarter (1/4) of any
independent auditor's fees and expenses in the
event that an audit finds, and the Parties
subsequently verify, a net adjustment in the
charges paid or payable by Auditing Party
hereunder by an amount that is, on an annualized
basis, greater than five percent (5%) of the
aggregate charges for the audited services during
the period covered by the audit.
16.1.7 Any disputes concerning audit results shall be
referred to the Parties' respective personnel
responsible for informal resolution. If these
individuals cannot resolve the dispute within
thirty (30) days of the referral, either Party may
request in writing that an additional audit shall
be conducted by an independent auditor acceptable
to both Parties, subject to the requirements set
out in Section 16.1. Notwithstanding anything
contained in this Agreement to the contrary, any
additional audit shall be at the requesting
Party's expense.
16.2 Audits - SNET only
16.2.1 SNET shall arrange for one (1) annual independent
audit to be conducted by a "Big Six" independent
public accounting firm or an accounting firm
mutually agreed to by SNET, CLEC and all other
local service providers doing business with SNET
under the terms of an agreement adopted pursuant
to Sections 251 and 252 of the Act for the purpose
of evaluating the accuracy of SNET's billing and
invoicing.
16.2.2 SNET will cooperate fully with the independent
auditor in such audit and provide reasonable
access to any and all appropriate SNET employees,
books, records and other documents reasonably
necessary to perform the audit.
16.2.3 SNET shall promptly correct any billing error that
is revealed in the audit, including making refund
of any overpayment to CLEC in the form of a credit
on the invoice for the first full billing cycle
after the audit report is issued; such refund
shall include interest on the overpayment at the
rate of eight percent (8%) per year. In the event
that the audit reveals any underbilling and
resulting underpayment to SNET by CLEC, the
underpayment shall be reflected in CLEC's invoice
for the first full billing cycle after the audit
report is issued. SNET will not be entitled to
recover interest on any underbilling to CLEC
revealed by the audit for the time preceding the
amount appearing on CLECs bill from SNET, however,
SNET shall be entitled to recover interest at
the interest rate referenced in Section 9.1.4.1 on
such underbilling and CLEC shall pay interest for
the number of days from the Bill Due Date of the
bill on which such
<PAGE>
underbilling was rectified until the date on which
payment is made and available to SNET.
17. RESPONSIBILITIES OF SWBT
17.1 SBC-13STATE shall allow CLEC to place service orders and
receive phone number assignments (for new lines). These
activities shall be accomplished by facsimile or electronic
interface. SBC-13STATE shall provide interface
specifications for electronic access for these functions to
CLEC. However, CLEC shall be responsible for modifying and
connecting any of its systems with SBC-13STATE-provided
interfaces, as outlined in Appendix OSS.
17.2 SBC-13STATE shall implement CLEC service orders within the
same time intervals SBC-13STATE uses to implement service
orders for similar services for its own End Users.
17.2.1 Methods and procedures for ordering are outlined
in the Customer Handbook, available on-line, as
amended by SBC-13STATE in its sole discretion from
time to time. All Parties agree to abide by the
procedures contained therein.
17.3 CLEC will have the ability to report trouble for its End
Users to appropriate SBC-13STATE trouble reporting center(s)
twenty-four (24) hours a day, 7 days a week. CLEC will be
assigned customer contact center(s) when initial service
agreements are made. CLEC End Users calling SBC-13STATE for
service will be referred to CLEC at the number provided by
CLEC. Nothing herein shall be interpreted to authorize CLEC
to repair, maintain, or in any way touch SBC-13STATEs
network facilities, including those on End User premises.
17.3.1 Methods and procedures for trouble reporting are
outlined in the CLEC Handbook, available on-line,
as amended by SBC-13STATE in its sole discretion
from time to time. All Parties agree to abide by
the procedures contained therein.
17.4 SBC-13STATE will provide CLEC with detailed billing
information necessary for CLEC to issue bill(s) to its End
User(s). CLEC has the option of receiving a daily usage file
("DUF") in accordance with the terms and conditions set
forth in Section 9.8. Should CLEC elect to subscribe to the
DUF, CLEC agrees to pay SBC-13STATE the charges specified in
Appendix Pricing under the "Other (Resale)" category listed
as "Electronic Billing Information Data (daily usage) (per
message)."
17.5 SBC-13STATE shall make Telecommunications Services that
SBC-13STATE provides at retail to subscribers who are not
Telecommunications Carriers
<PAGE>
available for resale consistent with the obligation under
Section 251(c)(4)(A) of the Act and other applicable
limitations. SBC-13STATE will notify CLEC of any changes in
the terms and conditions under which SBC-13STATE offers
Telecommunications Services at retail to subscribers who are
not Telecommunications Carriers, including but not limited
to, the introduction of any new features, functions,
services, promotions, grandfathering or the discontinuance
of current features or services at the time a tariff filing
is transmitted to the appropriate State Commission, or, in
situations where a tariff filing is not so transmitted,
within sixty (60) calendar days of the expected effective
date of such change.
17.5.1 SBC-13STATE currently makes such notification as
described in Section 24. Notification of any new
service available to CLEC for resale shall advise
CLEC of the category in which such new service
shall be placed, and the same discount already
applicable to CLEC in that category shall apply to
the new service.
17.6 CLEC's End User's activation of Call Trace shall be handled
by the SBC-13STATE operations center(s) responsible for
handling such requests. SBC-13STATE shall notify CLEC of
requests by its End Users to provide call records to the
proper authorities. Subsequent communication and resolution
of each case involving one of CLEC's End Users (whether that
End User is the victim or the suspect) will be coordinated
through CLEC.
17.6.1 CLEC acknowledges that for services where reports
are provided to law enforcement agencies (for
example, Call Trace) only billing number and
address information shall be provided. It shall be
CLEC's responsibility to provide additional
information necessary for any police
investigation.
17.6.1.1 In addition to any other indemnity
obligations in this Agreement or any
Appendix attached hereto, CLEC shall
indemnify SBC-13STATE against any Claim
that insufficient information led to
inadequate prosecution.
17.6.2 SBC-13STATE shall handle law enforcement requests
consistent with the Law Enforcement Section of
this Agreement.
17.7 This section applies only to PACIFIC:
17.7.1 PACIFIC WILL make available to CLEC an optional
service, Repair Transfer Service ("RTS"). In the
event a CLEC's End User dials 611 (811-8081 for
Priority Business customers) for repair, PACIFIC
will provide a recorded announcement of the CLEC
name and number and PACIFIC will automatically
transfer the caller to the CLEC designated
<PAGE>
800/888 number for repair service. CLEC must
provide written notification to PACIFIC at least
thirty (30) calendar days prior to the
implementation of RTS. Written notification must
include the CLEC name and 800/888 numbers for RTS
to the CLEC repair bureau and business office.
There will be no charges associated with the
initial set-up for RTS, however, charges will
apply to any subsequent changes to the recorded
name announcement and telephone number. Rates for
subsequent changes are set forth in the Appendix
PRICING in the "Other (ResaleE)" category listed
as "Repair Transfer Service." Subsequent charges
include: Recorded Name Announcement, 800/888
Telephone Number and Name Announcement & Telephone
Number.
18. DISCLAIMER OF REPRESENTATIONS AND WARRANTIES
18.1 EXCEPT AS EXPRESSLY PROVIDED UNDER THIS AGREEMENT, NO PARTY
MAKES OR RECEIVES ANY WARRANTY, EXPRESS OR IMPLIED, WITH
RESPECT TO THE SERVICES, FUNCTIONS, FACILITIES AND PRODUCTS
IT PROVIDES UNDER OR IS CONTEMPLATED TO PROVIDE UNDER THIS
AGREEMENT AND EACH PARTY DISCLAIMS THE IMPLIED WARRANTIES OF
MERCHANTABILITY AND/OR OF FITNESS FOR A PARTICULAR PURPOSE.
ADDITIONALLY, NEITHER SBC NOR CLEC ASSUMES RESPONSIBILITY
WITH REGARD TO THE CORRECTNESS OF DATA OR INFORMATION
SUPPLIED BY THE OTHER WHEN THIS DATA OR INFORMATION IS
ACCESSED AND USED BY A THIRD PARTY.
19. LIMITATION OF LIABILITY
19.1 Except for indemnity obligations expressly set forth herein
or as otherwise expressly provided in specific appendices,
each Party's liability to the other Party for any Loss
relating to or arising out of such Party's performance under
this Agreement, including any negligent act or omission
(whether willful or inadvertent), whether in contract, tort
or otherwise, including alleged breaches of this Agreement
and causes of action alleged to arise from allegations that
breach of this Agreement also constitute a violation of a
statute, including the Act, shall not exceed in total the
amount SBC-13STATE or CLEC has charged or would have charged
to the other Party for the services, functions, facilities
and products that were not performed or were improperly
performed.
19.2 Except as otherwise expressly provided in specific
appendices, in the case of any Loss alleged or claimed by a
Third Party to have arisen out of the negligence or willful
misconduct of any Party, each Party shall bear, and its
obligation shall be limited to, that portion (as mutually
agreed to by the Parties or as otherwise established) of the
resulting expense caused by its own negligence or willful
<PAGE>
misconduct or that of its agents, servants, contractors, or
others acting in aid or concert with it.
19.3 A Party may, in its sole discretion, provide in its tariffs
and contracts with its End Users or Third Parties that
relate to any services, functions, facilities and products
provided or contemplated under this Agreement that, to the
maximum extent permitted by Applicable Law, such Party shall
not be liable to such End User or Third Party for (i) any
Loss relating to or arising out of this Agreement, whether
in contract, tort or otherwise, that exceeds the amount such
Party would have charged the End User or Third Party for the
services, functions, facilities and products that gave rise
to such Loss and (ii) any Consequential Damages. If a Party
elects not to place in its tariffs or contracts such
limitation(s) of liability, and the other Party incurs a
Loss as a result thereof, the first Party shall indemnify
and reimburse the other Party for that portion of the Loss
that would have been limited had the first Party included in
its tariffs and contracts the limitation(s) of liability
described in this Section 19.3.
19.4 Neither CLEC nor SBC-13STATE shall be liable to the other
Party for any Consequential Damages suffered by the other
Party, regardless of the form of action, whether in
contract, warranty, strict liability, tort or otherwise,
including negligence of any kind, whether active or passive
(and including alleged breaches of this Agreement and causes
of action alleged to arise from allegations that breach of
this Agreement constitutes a violation of the Act or other
statute), and regardless of whether the Parties knew or had
been advised of the possibility that such damages could
result in connection with or arising from anything said,
omitted, or done hereunder or related hereto, including
willful acts or omissions; provided that the foregoing shall
not limit a Party's obligation under Section 21 to
indemnify, defend, and hold the other Party harmless against
any amounts payable to a Third Party, including any Losses,
and Consequential Damages of such Third Party; provided,
however, that nothing in this Section 19.4 shall impose
indemnity obligations on a Party for any Loss or
Consequential Damages suffered by a Party's End User in
connection with any affected services, functions, facilities
and products. Except as provided in the prior sentence, each
Party hereby releases and holds harmless the other Party
(and such other Party's Affiliates, and their respective
officers, directors, employees and agents) from any such
Claim.
19.5 SBC-13STATE shall not be liable for damages to an End User's
premises resulting from the furnishing of any services,
functions, facilities and products, including, if
applicable, the installation and removal of equipment and
associated wiring, unless the damage is caused by
SBC-13STATE's gross negligence or willful misconduct.
SBC-13STATE does not guarantee or make any warranty with
respect to services, functions, facilities and products when
used in an explosive atmosphere.
<PAGE>
19.6 CLEC hereby releases SBC-13STATE from any and all liability
for damages due to errors or omissions in CLEC's End User
listing information as provided by CLEC to SBC-13STATE under
this Agreement, including any errors or omissions occurring
in CLEC's End User listing information as it appears in the
White Pages directory, including, but not limited to,
special, indirect, Consequential, punitive or incidental
damages.
19.7 SBC-13 STATE shall not be liable to CLEC, its End User or
any other Person for any Loss alleged to arise out of the
provision of access to 911 service or any errors,
interruptions, defects, failures or malfunctions of 911
service.
19.8 This Section 19 is not intended to exempt any Party from all
liability under this Agreement, but only to set forth the
scope of liability agreed to and the type of damages that
are recoverable. Both Parties acknowledge that they
negotiated regarding alternate limitation of liability
provisions but that such provisions would have altered the
cost, and thus the price, of providing the services,
functions, facilities and products available hereunder, and
no different pricing reflecting different costs and
different limits of liability was agreed to.
20. RESPONSIBILITIES OF CLEC
20.1 CLEC is solely responsible for the payment of all charges
for all services furnished under this Agreement, including
but not limited to, calls originated or accepted at CLEC's
location and its End Users' service locations; provided,
however, CLEC shall not be responsible for payment of
charges for any retail services furnished by SBC-13STATE
directly to End Users and billed by SBC-13STATE directly to
End Users.
20.1.1 Interexchange carried traffic (for example,
sent-paid, information services and alternate
operator services messages) received by
SBC-13STATE for billing to resold End User
accounts will be returned as unbillable and will
not be passed to CLEC for billing. An unbillable
code will be returned with those messages to the
carrier indicating that the messages originated
from a resold account and will not be billed by
SBC-13STATE.
20.2 SBC-13STATE shall not be responsible for the manner in which
utilization of resold services or the associated charges
are allocated to End Users or others by CLEC. All applicable
rates and charges for services provided to CLEC under this
Agreement will be billed directly to CLEC and shall be the
responsibility of CLEC; provided, however, that CLEC shall
not be responsible for payment of charges for any retail
services furnished by SBC-13STATE directly to End Users and
billed by SBC-13STATE directly to End Users.
<PAGE>
20.2.1 Charges billed to CLEC for all services provided
under this Agreement shall be paid by CLEC
regardless of CLEC's ability or inability to
collect from its End User(s) for such services.
20.3 If CLEC does not wish to be responsible for payment of
charges for collect, third number billed, toll and
information services (for example, 900) calls, it must order
the appropriate blocking for lines provided under this
Agreement and pay any applicable charges. It is the
responsibility of CLEC to order the appropriate toll
restriction or blocking on lines resold to End Users. CLEC
acknowledges that blocking is not available for certain
types of calls, including 800, 888, 411 and Directory
Assistance Express Call Completion. Depending on the
origination point, for example, calls originating from
correctional facilities, some calls may bypass blocking
systems. CLEC acknowledges all such limitations and accepts
all responsibility for any charges associated with calls for
which blocking is not available and any charges associated
with calls that bypass blocking systems.
20.4 CLEC shall be responsible for modifying and connecting any
of its systems with SBC-13STATE-provided interfaces as
described in this Agreement and Appendix OSS to this
Agreement.
20.5 CLEC shall be responsible for providing to its End Users and
to SBC-13STATE a telephone number or numbers that CLEC's End
Users may use to contact CLEC in the event that the End User
desires a repair/service call.
20.5.1 In the event that CLEC's End Users contact
SBC-13STATE with regard to repair requests,
SBC-13STATE shall inform such End Users to call
CLEC and will provide CLEC's contact number
furnished by CLEC.
20.6 CLEC acknowledges and agrees that, in the event CLEC makes
any "CLEC Change" as that term is defined in Section 5.3,
CLEC shall comply with the provisions set forth in Section
5.3.
20.7 For the purposes of establishing, provisioning and billing
services to be furnished CLEC under this Agreement, prior to
the Effective Date, CLEC shall provide SBC-13STATE with
CLEC's authorized and nationally recognized distinct Company
Code/Operating Company Number ("OCN")/Alternate Exchange
Carrier Number ("AECN") for resale of services.
20.8 CLEC will provide forecasts to SBC-13STATE every January and
July using the SBC-13STATE network information form, or a
format mutually agreed to by the Parties. These written
forecasts will be based on CLEC's best estimates and will
include all resale products CLEC will be ordering within the
forecast period.
<PAGE>
20.9 On no less than sixty (60) calendar days advance written
notice, CLEC may, at its option, subscribe to the Local
Disconnect Report ("LDR"). SBC-13STATE will furnish the
following information via the LDR: the Billing Telephone
Number ("BTN"), Working Telephone Number "WTN"), and
terminal number of all End Users who have disconnected
CLEC's service. Information furnished electronically will be
provided daily on a per WTN basis and priced on a per WTN
basis. CLEC shall pay SBC-13STATE for the LDR per WTN plus
any applicable transmission charges for the LDR; current WTN
prices are as set forth in Appendix Pricing in the "Other
(Resale)" category, listed as "Local Disconnect Report."
20.9.1 CLEC agrees that SBC-13STATE may change the per
WTN charge, at SBC-13STATE's sole discretion, so
long as SBC-13STATE provides CLEC no less than
thirty (30) calendar days notice prior to any
change in the per WTN charge.
20.9.2 SBC-13STATE grants to CLEC a non-exclusive right
to use the LDR information provided by
SBC-13STATE. CLEC will not permit anyone but its
duly authorized employees or agents to inspect or
use this information.
21. INDEMNITY
21.1 Except as otherwise expressly provided herein or in specific
appendices, each Party shall be responsible only for the
services, functions, facilities and products that are
provided by that Party, its authorized agents,
subcontractors, or others retained by such Parties, and
neither Party shall bear any responsibility for the
services, functions, facilities and products provided by the
other Party, its agents, subcontractors, or others retained
by such Parties.
21.2 Except as otherwise expressly provided herein or in specific
appendices, and to the extent not prohibited by Applicable
Law and not otherwise controlled by tariff, each Party (the
"INDEMNIFYING PARTY") shall release, indemnify, hold
harmless and defend the other Party (the "INDEMNIFIED
PARTY") against any Loss to a Third Party arising out of the
negligence or willful misconduct ("FAULT") of such
Indemnifying Party, its agents, its End Users, contractors,
or others retained by such Parties, in connection with the
Indemnifying Party's provision of services, functions,
facilities and products under this Agreement; provided,
however, that (i) with respect to employees or agents of the
Indemnifying Party, such Fault occurs while performing
within the scope of their employment, (ii) with respect to
subcontractors of the Indemnifying Party, such Fault occurs
in the course of performing duties of the subcontractor
under its subcontract with the Indemnifying Party, and (iii)
with respect to the Fault of employees or agents of such
subcontractor, such Fault occurs while performing within the
scope of their
<PAGE>
employment by the subcontractor with respect to such duties
of the subcontractor under the subcontract.
21.3 In the case of any Loss alleged or claimed by an End User of
either Party, the Party whose End User alleged or claimed
such Loss (the "INDEMNIFYING PARTY") shall release,
indemnify, hold harmless and defend the other Party (the
"INDEMNIFIED PARTY") against any and all such Claims or
Losses by its End User regardless of whether the underlying
service, function, facility or product giving rise to such
Claim or Loss was provided or provisioned by the Indemnified
Party, unless the Claim or Loss was caused by the gross
negligence or willful misconduct of the Indemnified Party.
21.4 A Party (the "INDEMNIFYING PARTY") shall release, indemnify,
hold harmless and defend the other Party ("INDEMNIFIED
PARTY") against any Claim or Loss arising from the
Indemnifying Party's use or resale of services, functions,
facilities and products provided under this Agreement
involving:
21.4.1 any Claim or Loss arising from such Indemnifying
Party's use or resale of services, functions,
facilities and products provided under this
Agreement, involving any Claim for libel, slander,
invasion of privacy, or infringement of
Intellectual Property rights arising from the
Indemnifying Party's own communications or the
communications of such Indemnifying Party's End
Users.
21.4.1.1 The foregoing includes any Claims or
Losses arising from disclosure of any
End User-specific information associated
with either the originating or
terminating numbers used to provision
services, functions, facilities and
products provided hereunder and all
other Claims arising out of any act or
omission of the End User in the course
of using any services, functions,
facilities or products provided pursuant
to this Agreement.
21.4.1.2 The foregoing includes any Losses
arising from Claims for actual or
alleged infringement of any Intellectual
Property right of a Third Party to the
extent that such Loss arises from an
Indemnified Party's or an Indemnified
Party's End User's use of services,
functions, facilities or products
provided under this Agreement; provided,
however, that an Indemnifying Party's
obligation to defend and indemnify the
Indemnified Party shall not apply in the
case of:
21.4.1.2.1 any use by an Indemnified
Party or its End User of a
service, function, facility
or product in combination
<PAGE>
with a service, function,
facility or product supplied
by the Indemnified Party or
Persons other than the
Indemnifying Party; or
21.4.1.2.2 where an Indemnified Party or
its End User modifies or
directs the Indemnifying
Party to modify such
services, functions,
facilities or products; and
21.4.1.2.3 no infringement would have
occurred without such
combined use or modification.
21.4.2 any and all penalties imposed on either Party
because of the Indemnifying Party's failure to
comply with the Communications Assistance to Law
Enforcement Act of 1994 (CALEA); provided that
the Indemnifying Party shall also, at its sole
cost and expense, pay any amounts necessary to
modify or replace any service, product or
equipment provided to the Indemnified Party under
this Agreement to ensure that such services,
products and equipment fully comply with CALEA.
21.5 In addition to any other indemnity obligations contained in
this Agreement, CLEC shall release, indemnify, protect, save
harmless and defend SBC-13STATE from and against any and all
Losses, costs, liability, damages and expense (including
reasonable attorney's fees) arising out of any demand,
Claim, suit or judgment by any Third Party, including a PSP,
in any way relating to or arising from any of the following:
21.5.1 CLEC's failure to comply with all the terms and
conditions of this Agreement; or
21.5.2 Use by a PSP customer of CLEC of any service other
than a Payphone Line to provide pay telephone
service; or
21.5.3 False representation by CLEC.
21.6 In addition to any other indemnity obligations contained in
this Agreement, CLEC shall release, indemnify, protect, hold
harmless and defend SBC-13STATE from and against any and all
Losses, liability, damages and expense arising out of any
demand, Claim, suit or judgment by a Third Party in any way
related to any error or omission in CLEC's End User listing
information, including any error or omission related to
non-published or non-listed End User listing information.
Notwithstanding anything contained in this Agreement to the
contrary, if such demand, claim or suit specifically alleges
that an error or omission appears in CLEC's End User listing
information in the White Pages directory, SBC-
<PAGE>
13STATE may, at its option, assume and undertake its own
defense, or assist in the defense of CLEC, in which event
CLEC shall reimburse SBC-13STATE for reasonable attorney's
fees and other expenses incurred by SBC-13STATE in handling
and defending such demand, claim and/or suit.
21.7 In addition to any other indemnity obligations contained in
this Agreement, CLEC shall release, indemnify, protect, hold
harmless and defend SBC-13STATE from any Loss arising out of
SBC-13STATE's provision of access to 911 service or CLEC's
End Users' use of 911 service, whether suffered, made,
instituted or asserted by CLEC, its End User, or by any
other Person, for any personal injury or death of any
Person(s) or for any loss, damage or destruction of any
property, whether owned by CLEC, its End User or any other
Person, unless the act or omission proximately causing the
Loss constitutes gross negligence, recklessness or
intentional misconduct of SBC-13STATE.
21.8 In addition to any other indemnity obligations contained in
this Agreement, CLEC shall release, indemnify, protect, hold
harmless and defend SBC-13STATE from any Loss involving an
allegation of the infringement or invasion of the right of
privacy or confidentiality of any Person caused or claimed
to have been caused, directly or indirectly, by the
installation, operation, failure to operate, maintenance,
removal, presence, condition, occasion or use of the 911
service features and the equipment associated therewith,
including the identification of the telephone number,
address or name associated with the telephone used by the
Person accessing 911 service, unless the act or omission
proximately causing the Loss constitutes gross negligence,
recklessness or intentional misconduct of SBC13-STATE.
(Intellectual)
21.9 CLEC acknowledges that its rights under this Agreement to
may be subject to or limited by Intellectual Property rights
and contract rights of Third Parties.
21.9.1 Subject to SBC-13STATE's obligations under any
Commission decisions, it is the sole obligation of
CLEC to obtain any consents, authorizations, or
licenses to or for any Third Party Intellectual
Property rights that may be necessary for CLEC's
use of functions, facilities, products and
services furnished under this Agreement.
21.9.2 SBC-13STATE hereby conveys no licenses to use such
Intellectual Property rights and makes no
warranties, express or implied, concerning CLEC's
(or any Third Parties') rights with respect to
such Intellectual Property rights and contract
rights, including whether such rights will be
violated by CLEC's use of functions, facilities,
products or services furnished under this
Agreement.
<PAGE>
21.9.3 Subject to SBC-13STATE's obligations under any
Commission decisions and except as expressly
stated in this Agreement, SBC-13STATE does not and
shall not indemnify, defend or hold CLEC harmless,
nor be responsible for indemnifying or defending,
or holding CLEC harmless, for any Claims or Losses
for actual or alleged infringement of any
Intellectual Property right or interference with
or violation of any contract right that arises out
of, is caused by, or relates to CLEC's use of
functions, facilities, products or services
furnished under this Agreement.
21.10 Subject to SBC-13STATE's obligations under any Commission
decision and except as expressly stated in this Agreement,
CLEC shall release, indemnify, hold harmless and defend
SBC-13STATE from and against all Losses arising out of,
caused by, or relating to any real or potential claim that
CLEC's use of services, functions, facilities or products
furnished under this Agreement violates or infringes upon
any Third Party Intellectual Property rights or constitutes
a breach of contract. In no event shall SBC-13STATE be
liable for any actual or Consequential Damages that CLEC may
suffer arising out of same.
21.11 CLEC shall reimburse SBC-13STATE for damages to
SBC-13STATE's services, functions, facilities or products
furnished hereunder caused by the negligence or willful act
of CLEC, its agents or subcontractors or CLEC's End User or
resulting from CLEC's improper use of services, functions,
facilities or products furnished under this Agreement or due
to malfunction of any services, functions, facilities,
products or equipment provided by any Person other than
SBC-13STATE. Upon reimbursement for damages, SBC-13STATE
will cooperate with CLEC in prosecuting a claim against the
Person causing such damage. CLEC shall be subrogated to the
right of recovery by SBC-13STATE for the damages to the
extent of such payment.
21.12 INDEMNIFICATION PROCEDURES
21.12.1 Whenever a claim shall arise for indemnification
under this Section 21, the relevant Indemnified
Party, as appropriate, shall promptly notify the
Indemnifying Party and request in writing the
Indemnifying Party to defend the same. Failure to
so notify the Indemnifying Party shall not
relieve the Indemnifying Party of any liability
that the Indemnifying Party might have, except to
the extent that such failure prejudices the
Indemnifying Party's ability to defend such claim.
21.12.2 The Indemnifying Party shall have the right to
defend against such liability or assertion, in
which event the Indemnifying Party shall give
written notice to the Indemnified Party of
acceptance of the defense of such claim and the
identity of counsel selected by the Indemnifying
Party.
<PAGE>
21.12.3 Until such time as Indemnifying Party provides
written notice of acceptance of the defense of
such claim, the Indemnified Party shall defend
such claim, at the expense of the Indemnifying
Party, subject to any right of the Indemnifying
Party to seek reimbursement for the costs of such
defense in the event that it is determined that
Indemnifying Party had no obligation to indemnify
the Indemnified Party for such claim.
21.12.4 Upon accepting the defense, the Indemnifying Party
shall have exclusive right to control and conduct
the defense and settlement of any such claim,
subject to consultation with the Indemnified
Party. So long as the Indemnifying Party is
controlling and conducting the defense, the
Indemnifying Party shall not be liable for any
settlement by the Indemnified Party unless such
Indemnifying Party has approved such settlement in
advance and agrees to be bound by the agreement
incorporating such settlement.
21.12.5 At any time, an Indemnified Party shall have the
right to refuse a compromise or settlement, and,
at such refusing Party's cost, to take over such
defense; provided that, in such event the
Indemnifying Party shall not be responsible for,
nor shall it be obligated to indemnify the
refusing Party against, any cost or liability in
excess of such refused compromise or settlement.
21.12.6 With respect to any defense accepted by the
Indemnifying Party, the Indemnified Party will be
entitled to participate with the Indemnifying
Party in such defense if the claim requests
equitable relief or other relief that could affect
the rights of the Indemnified Party, and shall
also be entitled to employ separate counsel for
such defense at such Indemnified Party's expense.
21.12.7 If the Indemnifying Party does not accept the
defense of any indemnified claim as provided
above, the Indemnified Party shall have the right
to employ counsel for such defense at the expense
of the Indemnifying Party.
21.12.8 In the event of a failure to assume the defense,
the Indemnified Party may negotiate a settlement,
which shall be presented to the Indemnifying
Party. If the Indemnifying Party refuses to agree
to the presented settlement, the Indemnifying
Party may take over the defense. If the
Indemnifying Party refuses to agree to the
presented settlement and refuses to take over the
defense, the Indemnifying Party shall be liable
for any reasonable cash settlement not involving
any admission of liability by the Indemnifying
Party, though such settlement may have been made
by the Indemnified Party without approval of the
<PAGE>
Indemnifying Party, it being the Parties' intent
that no settlement involving a non-monetary
concession by the Indemnifying Party, including an
admission of liability by such Party, shall take
effect without the written approval of the
Indemnifying Party.
21.12.9 Each Party agrees to cooperate and to cause its
employees and agents to cooperate with the other
Party in the defense of any such claim and the
relevant records of each Party shall be available
to the other Party with respect to any such
defense, subject to the restrictions and
limitations set forth in Section 27.
22. REMEDIES
22.1 Except as otherwise provided in this Agreement, no remedy
set forth herein is intended to be exclusive and each and
every remedy shall be cumulative and in addition to any
other rights or remedies now or hereafter existing under
Applicable Law or otherwise.
23. INTELLECTUAL PROPERTY
23.1 INTELLECTUAL PROPERTY - SBC-8STATE
23.1.1 SBC-8STATE will provide to CLEC a list of all
vendors/licensors applicable to unbundled Network
Element(s) (which vendors have provided SBC-8STATE
a software license) within seven (7) days of
CLEC's request for such a list. Except as may be
required by Commission decisions, SBC-8STATE makes
no warranties, express or implied, concerning
CLEC's (or any Third Parties) rights with respect
to the use of Intellectual Property rights.
SBC-8STATE reserves the right to amend the
Intellectual Property provision of this Agreement
to reflect the FCC ruling (and any appeal
therefrom) in CC Docket No. 96-98 (File No. CCBPol
97-4), IN THE MATTER OF PETITION OF MCI FOR
DECLARATORY RULING.
23.1.2 Any Intellectual Property that originates from or
is developed by a Party shall remain in the
exclusive ownership of that Party.
23.1.3 SBC-8STATE will indemnify CLEC for any claims of
infringement arising from CLEC's use of
Intellectual Property within the scope of any
"right to use" agreement negotiated by SBC-8STATE
for CLEC pursuant to Section 23.1.1. CLEC will
indemnify SBC-8STATE for any claims of
infringement arising from CLEC's use of
Intellectual Property beyond the scope of any
"right to use" agreement negotiated by SBC-8STATE
for CLEC pursuant to Section 23.1.1.
<PAGE>
23.2 Intellectual property-PACIFIC only:
23.2.1 To the extent required by the decision of the
CPUC, PACIFIC WILL provided CLEC with Intellectual
Property rights related to PACIFIC's unbundled
Network Elements. CLEC, as the provider of service
using the unbundled Network Elements, will provide
all features, functions, and capabilities of the
individual element to the Customers.
24. NOTICES
24.1 Subject to Section 24.2, notices given by one Party to the
other Party under this Agreement shall be in writing (unless
specifically provided otherwise herein), and unless
otherwise expressly required by this Agreement to be
delivered to another representative or point of contact,
shall be
24.1.1 delivered personally;
24.1.2 delivered by express overnight delivery service;
24.1.3 mailed, via certified mail or first class U.S.
Postal Service, with postage prepaid, and a return
receipt requested; or
24.1.4 delivered by facsimile; provided that a paper copy
is also sent by a method described in (a), (b) or
(c) of this Section 24.
24.1.5 Notices will be deemed given as of the earliest
of:
24.1.5.1 the date of actual receipt,
24.1.5.2 the next Business Day when sent via
express overnight delivery service,
24.1.5.3 five (5) days after mailing in the case
of first class or certified U.S. Postal
Service, or
24.1.5.4 on the date set forth on the
confirmation produced by the sending
facsimile machine when delivered by
facsimile prior to 5:00 p.m. in the
recipient's time zone, but the next
Business Day when delivered by facsimile
at 5:00 p.m. or later in the recipient's
time zone.
<PAGE>
24.1.6 Notices will be addressed to the Parties as
follows:
<TABLE>
<CAPTION>
- --------------------------------------------------------------------------------
NOTICE CONTACT CLEC CONTACT SBC-13STATE
CONTACT
- --------------------------------------------------------------------------------
<S> <C> <C>
NAME/TITLE John Duffy Contract Administration
Vice President of ATTN: Notices Manager
Business
Development,
Telecom
- --------------------------------------------------------------------------------
STREET ADDRESS 3 Burlington Woods 311 S. Akard, 9th Floor
Drive, 4th Floor Four Bell Plaza
- --------------------------------------------------------------------------------
CITY, STATE, ZIP CODE Burlington, MA Dallas, TX 75202-5398
01803
- --------------------------------------------------------------------------------
TELEPHONE NUMBER 781-229-9599, 214-464-1933
ext. 136
- --------------------------------------------------------------------------------
FACSIMILE NUMBER 781-229-9499 214-464-2006
- --------------------------------------------------------------------------------
</TABLE>
24.1.7 Either Party may unilaterally change its
designated contact, address, telephone number
and/or facsimile number for the receipt of notices
by giving written notice to the other Party in
compliance with this Section. Any notice to change
the designated contact, address, telephone and/or
facsimile number for the receipt of notices shall
be deemed effective ten (10) days following
receipt by the other Party.
24.2 SBC-8STATE communicates official information to CLECs via
its Accessible Letter notification process. This process
covers a variety of subjects, including updates on
products/services promotions; deployment of new
products/services; modifications and price changes to
existing products/services; cancellation or retirement of
existing products/services; and operational issues.
24.2.1 In SBC-8STATES, CLEC may elect in writing to
receive Accessible Letter notification via
electronic mail ("E-MAIL") distribution, either in
lieu of or in addition to United States Postal
Service (postage prepaid) distribution. CLEC
acknowledges that United States Postal Service
(postage prepaid) delivery will delay receipt of
the information for a minimum of three (3) to five
(5) days from the date the information is made
available via e-mail. Accessible Letter
notification via e-mail will be deemed given as of
the earlier of the date of actual receipt and the
date set forth on the e-mail receipt.
24.2.2 In SBC-8STATE, CLEC may designate an unlimited
number of recipients for Accessible Letter
notification via e-mail, but CLEC is limited to
designating a maximum of four (4) recipients (in
addition to the CLEC
<PAGE>
contact designated in Section 24.1) for Accessible
Letter notification via United States Postal
Service (postage prepaid).
24.2.3 In SBC-8STATE, CLEC shall submit a completed
Notices / Accessible Letter Recipient Change
Request Form (available on the applicable
SBC-8STATE's CLEC Handbook website) to the
individual specified on that form to designate in
writing each individual (other than the CLEC
contact designated in Section 24.1) to whom CLEC
requests Accessible Letter notification be sent,
whether via e-mail or United States Postal
Service. CLEC shall submit a completed Notices /
Accessible Letter Recipient Change Request Form to
add, remove or change recipient information for
any CLEC recipient of Accessible Letters (other
than the CLEC contact designated in Section 24.1).
Any completed Notices / Accessible Letter
Recipient Change Request Form shall be deemed
effective ten (10) days following receipt by
SBC-8STATE.
24.3 SBC-SWBT ONLY:
24.3.1 SBC-SWBT shall provide a toll free facsimile
number to CLEC for the submission of requests for
services under this Agreement; CLEC shall provide
SBC-SWBT with a toll free facsimile number for
notices from SBC-SWBT relating to requests for
services under this Agreement.
24.4 SBC-AMERITECH ONLY:
24.4.1 SBC-AMERITECH communicates official information to
CLECs via its TCNet notification process. This
process covers a variety of subjects, including
updates on products/services promotions;
deployment of new products/services; modifications
and price changes to existing products/services;
cancellation or retirement of existing
products/services; and operational issues.
25. PUBLICITY AND USE OF TRADEMARKS OR SERVICE MARKS
25.1 Neither Party nor its subcontractors or agents shall use in
any advertising or sales promotion, press releases, or other
publicity matters any endorsements, direct or indirect
quotes, or pictures that imply endorsement by the other
Party or any of its employees without such first Party's
prior written approval. The Parties will submit to each
other for written approval, prior to publication, all
publicity matters that mention or display one another's name
and/or marks or contain language from which a connection to
said name and/or marks may be inferred or implied; the Party
to whom a request is directed shall respond promptly.
Nothing herein, however, shall be construed as preventing
either Party from publicly stating the fact that it has
executed this Agreement with the other
<PAGE>
Party.
25.2 Nothing in this Agreement shall grant, suggest, or imply any
authority for one Party to use the name, trademarks, service
marks, logos, proprietary trade dress or trade names of the
other Party in any advertising, press releases, publicity
matters, marketing and/or promotional materials or for any
other commercial purpose without prior written approval from
such other Party.
26. NO LICENSE
26.1 Except at otherwise expressly provided in this Agreement, no
license under patents, copyrights or any other Intellectual
Property right (other than the limited license to use
consistent with the terms, conditions and restrictions of
this Agreement) is granted by either Party or shall be
implied or arise by estoppel with respect to any
transactions contemplated under this Agreement.
27. CONFIDENTLALITY
27.1 All information, including specifications, microfilm,
photocopies, magnetic disks, magnetic tapes, audit
information, models, system interfaces, forecasts, computer
programs, software, documentation, drawings, sketches,
models, samples, tools, technical information, data,
employee records, maps, financial reports, and market data
shall be deemed "Confidential" or "proprietary"
(COLLECTIVELY "PROPRIETARY INFORMATION") if:
27.1.1 Furnished or made available or otherwise disclosed
by one Party (the "DISCLOSING PARTY") or its
agent, employee, representative or Affiliate to
the other Party (the "RECEIVING PARTY") or its
agent, employee, representative or Affiliate
dealing with End User-specific, facility-specific,
or usage-specific information, other than End User
information communicated for the purpose of
publication or directory database inclusion, 911,
call processing, billing or for such other
purposes as mutually agreed upon;
27.1.2 In written, graphic, electromagnetic, or other
tangible form and marked at the time of delivery
as "Confidential" or "Proprietary;" or
27.1.3 Communicated orally and declared to the Receiving
Party at the time of delivery to be "Confidential"
or "Proprietary", and which shall be summarized in
writing and marked "Confidential" or "Proprietary"
and delivered to the Receiving Party within ten
(10) days following such disclosure; and
27.1.4 Any portion of any notes, analyses, data,
compilations, studies, interpretations or other
documents prepared by any Receiving Party to the
extent the same contain, reflect, are derived
from, or are based upon, any
<PAGE>
of the information described in this Section 27,
unless such information contained or reflected in
such notes, analyses, etc. is so commingled with
the Receiving Party's information that disclosure
could not possibly disclose the underlying
proprietary or confidential information (such
portions of such notes, analyses, etc. referred to
herein as "DERIVATIVE INFORMATION").
27.2 Proprietary Information Shall be Held in Confidence
27.2.1 Each Receiving Party agrees that:
27.2.1.1 all Proprietary Information communicated
to it or any of its agents, employees,
representatives and Affiliates in
connection with this Agreement shall be
held in confidence to the same extent as
such Receiving Party holds its own
confidential information of like
importance; provided that such Receiving
Party and its agents, employees,
representatives and Affiliates shall not
use less than a reasonable standard of
care in maintaining the confidentiality
of such information;
27.2.1.2 it will not, and it will not permit any
of its agents, employees,
representatives and Affiliates to
disclose such Proprietary Information to
any Third Party;
27.2.1.3 it will disclose Proprietary Information
only to those of its agents, employees,
representatives and Affiliates who have
a need for it in connection with the use
or provision of any services furnished
under this Agreement; and
27.2.1.4 it will, and will cause each of its
agents, employees, representatives and
Affiliates, to use such Proprietary
Information only to perform its
obligations under this Agreement or to
use services provided by the Disclosing
Party hereunder and for no other
purpose, including its own marketing
purposes.
27.2.2 A Receiving Party may disclose Proprietary
Information of a Disclosing Party to the Receiving
Party's agents, employees, representatives and
Affiliates who need to know such information to
perform their obligations under this Agreement;
provided that before disclosing any Proprietary
Information to any agent, employee, representative
or Affiliate, the Receiving Party shall notify
such agent, employee, representative or Affiliate
of such Party's obligation to comply with this
Agreement. Any Receiving Party so disclosing
Proprietary Information shall be jointly and
<PAGE>
severally liable for any breach of this Agreement
by any of its agents, employees, representatives
and Affiliates and such Receiving Party agrees, at
its sole expense, to use its reasonable efforts
(including court proceedings) to restrain its
agents, employees, representatives and Affiliates
from any prohibited or unauthorized disclosure or
use of the Proprietary Information. Each Receiving
Party making such disclosure shall notify the
Disclosing Party as soon as possible if it has
knowledge of a breach of this Agreement in any
material respect. A Disclosing Party shall not
disclose Proprietary Information directly to an
agent, employee, representative or Affiliate of
the Receiving Party without the prior written
authorization of the Receiving Party.
27.2.3 Proprietary Information shall not be reproduced by
any Receiving Party in any form except to the
extent (i) necessary to comply with the provisions
of Section 27.4.2 and Section 27.5 and (ii)
reasonably necessary to perform its obligations
under this Agreement. All such reproductions shall
bear the same copyright and proprietary rights
notices as are contained in or on the original.
27.3 Unless otherwise agreed, the obligations of confidentiality
and non-use set forth in this Agreement do not apply to such
Proprietary Information that:
27.3.1 Was at the time of receipt, already known to the
Receiving Party, free of any obligation to keep
confidential and evidenced by written records
prepared prior to delivery by the Disclosing
Party; or
27.3.2 Is, or becomes publicly known through no wrongful
act of the Receiving Party; or
27.3.3 Is rightfully received from a Third Party having
no direct or indirect secrecy or confidentiality
obligation to the Disclosing Party with respect to
such information; provided that such Receiving
Party has exercised commercially reasonable
efforts to determine whether such Third Party has
any such obligation; or
27.3.4 Is independently developed by an agent, employee
representative or Affiliate of the Receiving Party
and such Party is not involved in any manner with
the provision of services pursuant to this
Agreement and does not have any direct or indirect
access to the Proprietary Information; or
27.3.5 Is disclosed to a Third Party by the Disclosing
Party without similar restrictions on such Third
Party's rights; or
<PAGE>
27.3.6 Is approved for release by written authorization
of the Disclosing Party, but only to the extent of
the authorization granted; or
27.3.7 Is required to be made public by the Receiving
Party pursuant to Applicable Law or regulation,
provided that such production or disclosure shall
have been made in accordance with Section 27.4.2
or Section 27.5.
27.4 Proposed Disclosure of Proprietary Information to a
Governmental Authority
27.4.1 If a Receiving Party desires to disclose or
provide to a Commission, the FCC or any other
Governmental Authority any Proprietary Information
of the Disclosing Party, such Receiving Party
shall, prior to and as a condition of such
disclosure, (i) provide the Disclosing Party with
written notice and the form of such proposed
disclosure as soon as possible but in any event
early enough to allow the Disclosing Party to
protect its interests in the Proprietary
Information to be disclosed and (ii) attempt to
obtain in accordance with the applicable
procedures of the intended recipient of such
Proprietary Information an appropriate order for
protective relief or other reliable assurance that
confidential treatment shall be accorded to such
Proprietary Information.
27.4.2 If a Receiving Party is required by any
Governmental Authority or by Applicable Law to
disclose any Proprietary Information, then such
Receiving Party shall provide the Disclosing Party
with written notice of such requirement as soon as
possible, and in no event later than five (5)
calendar days after receipt of such requirement,
and prior to such disclosure. Upon receipt of
written notice of the requirement to disclose
Proprietary Information, the Disclosing Party at
its expense, may then either seek appropriate
protective relief in advance of such requirement
to prevent all or part of such disclosure or waive
the Receiving Party's compliance with this Section
27.4.2 with respect to all or part of such
requirement.
27.4.3 The Receiving Party shall use all commercially
reasonable efforts to cooperate with the
Disclosing Party in attempting to obtain any
protective relief which such Disclosing Party
chooses to seek pursuant to this Section 27.4. In
the absence of such relief, if the Receiving Party
is legally compelled to disclose any Proprietary
Information, then the Receiving Party shall
exercise all commercially reasonable efforts to
preserve the confidentiality of the Proprietary
information, including cooperating with the
Disclosing Party to obtain an appropriate order
for protective relief or other reliable assurance
that confidential treatment will be accorded the
Proprietary Information.
<PAGE>
27.5 Notwithstanding any of the foregoing, SBC-13STATE shall be
entitled to disclose Proprietary Information on a
confidential basis to regulatory agencies upon request for
information as to SBC-13STATE's activities under the Act and
SBC-13STATE need not provide prior written notice of such
disclosure to CLEC if SBC-13STATE has obtained an
appropriate order for protective relief or other reliable
assurance that confidential treatment shall be accorded to
such Proprietary Information.
27.6 Return of Proprietary Information
27.6.1 All Proprietary Information, other than Derivative
Information, shall remain the property of the
Disclosing Party, and all documents or other
tangible media delivered to the Receiving Party
that embody such Proprietary Information shall be,
at the option of the Disclosing Party, either
promptly returned to Disclosing Party or
destroyed, except as otherwise may be required
from time to time by Applicable Law (in which case
the use and disclosure of such Proprietary
Information will continue to be subject to this
Agreement), upon the earlier of (i) the date on
which the Receiving Party's need for it has
expired and (ii) the expiration or termination of
this Agreement.
27.6.2 At the request of the Disclosing Party, any
Derivative Information shall be, at the option of
the Receiving Party, either promptly returned to
the Disclosing Party or destroyed, except as
otherwise may be required from time to time by
Applicable Law (in which case the use and
disclosure of such Derivative Information will
continue to be subject to this Agreement), upon
the earlier of (i) the date on which the Receiving
Party's need for it has expired and (ii) the
expiration or termination of this Agreement.
27.6.3 The Receiving Party may at any time either return
the Proprietary Information to the Disclosing
Party or destroy such Proprietary Information. If
the Receiving Party elects to destroy Proprietary
Information, all copies of such information shall
be destroyed and upon the written request of the
Disclosing Party, the Receiving Party shall
provide to the Disclosing Party written
certification of such destruction. The destruction
or return of Proprietary information shall not
relieve any Receiving Party of its obligation to
continue to treat such Proprietary Information in
the manner required by this Agreement.
27.7 Notwithstanding any other provision of this Agreement, the
Proprietary Information provisions of this Agreement shall
apply to all information furnished by either Party to the
other in furtherance of the purpose of this Agreement, even
if furnished before the date of this Agreement and each
Party's obligation to
<PAGE>
safeguard Proprietary Information disclosed prior to
expiration or termination of this Agreement will survive
such expiration or termination.
27.8 Pursuant to Section 222(b) of the Act, both Parties agree to
limit their use of Proprietary Information received from the
other to the permitted purposes identified in the Act.
27.9 Each Party has the right to refuse to accept any Proprietary
Information under this Agreement, and nothing herein shall
obligate either Party to disclose to the other Party any
particular information.
27.10 The Parties agree that an impending or existing violation of
any provision of this Section 27 would cause the Disclosing
Party irreparable injury for which it would have no adequate
remedy at law, and agree that Disclosing Party shall be
entitled to obtain immediate injunctive relief prohibiting
such violation, in addition to any other rights and remedies
available to it at law or in equity, including both specific
performance and monetary damages. In the event of any breach
of this Section 27 for which legal or equitable relief is
sought, all reasonable attorney's fees and other reasonable
costs associated therewith shall be recoverable by the
prevailing Party.
28. INTERVENING LAW
28.1 This Agreement is entered into as a result of both private
negotiation between the Parties and the incorporation of
some of the results of arbitration by the STATE COMMISSION.
If the actions of the State(s) of Illinois, Indiana,
Michigan, Ohio or Wisconsin or federal legislative bodies,
courts, or regulatory agencies of competent jurisdiction
invalidate, modify, or stay the enforcement of laws or
regulations that were the basis or rationale for a provision
of the contract, the affected provision shall be
invalidated, modified, or stayed, consistent with the action
of the legislative body, court, or regulatory agency upon
the written request of either party. In such event, the
Parties shall expend diligent efforts to arrive at an
agreement respecting the appropriate modifications to the
Agreement. If negotiations fail, disputes between the
Parties concerning the interpretation of the actions
required or provisions affected by such governmental actions
shall be resolved pursuant to the dispute resolution process
provided for in this Agreement. Without limiting the general
applicability of the foregoing, the Parties acknowledge that
on January 25, 1999, the United States Supreme Court issued
its opinion in AT&T CORP. V. IOWA UTILITIES BD., 119 S. Ct.
721 (1999) and on June 1, 1999, the United States Supreme
Court issued its opinion in AMERITECH V. FCC, No. 98-1381,
1999 WL 116994, 1999 Lexis 3671 (1999). The Parties further
acknowledge and agree that by executing this Agreement,
neither Party waives any of its
<PAGE>
rights, remedies, or arguments with respect to such
decisions and any remand thereof, including its rights under
this paragraph.
29. GOVERNING LAW
29.1 Unless otherwise provided by Applicable Law, this Agreement
shall be governed by and construed in accordance with the
Act, the FCC Rules and Regulations interpreting the Act and
other applicable federal law. To the extent that federal law
would apply state law in interpreting this Agreement, the
domestic laws of the state in which the services, functions,
facilities and products at issue are furnished or sought
shall apply, without regard to that state's conflict of law
principles. The Parties submit to personal jurisdiction in
Little Rock, Arkansas; San Francisco, California; New Haven,
Connecticut; Chicago, Illinois; Indianapolis, Indiana;
Topeka, Kansas; Detroit, Michigan; St. Louis, Missouri;
Reno, Nevada; Columbus, Ohio; Oklahoma City, Oklahoma;
Dallas, Texas and Milwaukee, Wisconsin, and waive any and
all objection to any such venue.
30. REGULATORY APPROVAL
30.1 The Parties understand and agree that this Agreement and any
amendment or modification hereto will be filed with the
Commission for approval in accordance with Section 252 of
the Act and may thereafter be filed with the FCC. The
Parties believe in good faith and agree that the services to
be provided under this Agreement are in the public interest.
Each Party covenants and agrees to fully support approval of
this Agreement by the Commission or the FCC under Section
252 of the Act without modification.
30.2 Unless otherwise agreed, if the Party responsible for filing
this Agreement with the Commission fails to file the jointly
signed Agreement with the Commission within forty-five (45)
days following execution by both Parties, then the executed
Agreement is rendered null and void. If the Agreement is
rendered null and void, either Party may initiate
negotiations for a new agreement.
31. CHANGES IN END USER LOCAL EXCHANGE SERVICE PROVIDER SELECTION
31.1 Prior to submitting an order under this Agreement, CLEC
shall obtain End User authorization as required by
applicable federal and state laws and regulations, and
assumes responsibility for applicable charges as specified
in Section 258(b) of the Act. SBC-13STATE shall abide by the
same applicable laws and regulations.
31.2 Only an End User can initiate a challenge to a change in its
local service provider. If an End User notifies SBC-13STATE
or CLEC that the End User requests local exchange service,
the Party receiving such request shall be free to provide
service
<PAGE>
to such End User, except in those instances where the End
User's account is local PIC protected. It is the
responsibility of the End User to provide authorization in
an FCC approved format to the current provider of record to
remove local service provider protection before any changes
in local service provider are processed.
31.2.1 SBC-13STATE shall be free to connect an End User
to any competitive local exchange carrier based
upon that competitive local exchange carrier's
request and that competitive local exchange
carrier's assurance that proper End User
authorization has been obtained. CLEC shall make
any such authorization it has obtained available
to SBC-13STATE upon request and at no charge.
31.3 When an End User changes or withdraws authorization, each
Party shall release customer-specific facilities in
accordance with the End User's direction or the direction of
the End User's authorized agent. Further, when an End User
abandons its premise, SBC-13STATE is free to reclaim the
facilities for use by another customer and is free to issue
service orders required to reclaim such facilities.
31.4 Neither Party shall be obligated by this Agreement to
investigate any allegations of unauthorized changes in local
exchange service (slamming) on behalf of the other Party or
a Third Party. IF SBC-13STATE, on behalf of CLEC, agrees to
investigate an alleged incidence of slamming, SBC-13STATE
shall charge CLEC an investigation fee as set forth in
Appendix Pricing in the "Other (Resale)" category, listed as
"Slamming Investigation Fee."
31.5 Should SBC-13STATE receive an order from CLEC for services
under this Agreement, and SBC-13STATE is currently providing
the same services to another local service provider for the
same End User, CLEC agrees that SBC-13STATE may notify the
local service provider from whom the End User is being
converted of CLEC's order coincident with or following
processing CLEC's order. It shall then be the responsibility
of the former local service provider of record and CLEC to
resolve any issues related to the End User. This Section
31.5 shall not apply to new or additional lines and services
purchased by the End User from multiple CLECs or from
SBC-13STATE.
31.5.1 IF SBC-13STATE receives an order from another
local service provider to convert services for an
End User for whom CLEC is the current local
service provider of record, and if CLEC already
subscribes to the Local Disconnect Report ("LDR),
described in Section 20.9, then SBC-13STATE SHALL
notify CLEC of such order coincident with or
following processing such order. It shall be the
responsibility of CLEC and the other local service
provider to resolve any issues related to the End
User. This Section 31.5.1 shall not apply to new
or additional lines and services purchased by an
End User from multiple CLECs or from SBC-13STATE.
<PAGE>
31.6 In addition to any other indemnity obligations in this
Agreement or any Appendix attached to this Agreement, CLEC
shall release, indemnify, hold harmless and defend
SBC-13STATE against any and all liability and Claims,
including reasonable attorney's fees, which may result from
SBC-13STATE acting under this Section 3 1.
31.7 Notwithstanding anything contained in this Section 31,
nothing herein shall be interpreted or construed to apply to
the transfer of provisioning of CLEC End Users' accounts
pursuant to Section 10.6.
31.8 When a End User changes its service provider from
SBC-13STATE to CLEC or from CLEC to SBC-13STATE and does not
retain its original telephone number, the Party formerly
providing service to such End User shall furnish a referral
announcement ("REFERRAL ANNOUNCEMENT") on the original
telephone number that specifies the End User's new telephone
number.
31.8.1 The following pertains to AM-IL, AM-WI and PACIFIC
only:
31.8.1.1 Referral Announcements shall be provided
by a Party to the other Party for the
period of time and at the rates set
forth in the referring Party's
tariff(s); provided, however, if either
Party provides Referral Announcements
for a period different (either shorter
or longer) than the period(s) stated in
its tariff(s) when its End Users change
their telephone numbers, such Party
shall provide the same level of service
to End Users of the other Party.
31.8.2 The following applies to AM-IN only:
31.8.2.1 Referral Announcements shall be provided
by a Party to the other Party for the
period specified in 170 IAC 7-1.1-11
(I)(3)(a) and (b) and at the rates set
forth in the referring Party's
tariff(s). However, if either Party
provides Referral Announcements for a
period different than the above
period(s) when its End Users change
their telephone numbers, such Party
shall provide the same level of service
to End Users of the other Party.
31.8.3 The following applies to AM-MI only:
31.8.3.1 Referral Announcements shall be provided
by a Party to the other Party for the
period specified in Michigan
Administrative Rule 484.134 and at the
rates set forth in the referring Party's
tariff(s). However, if either Party
provides Referral
<PAGE>
Announcements for a period longer than
the above period(s) when its End Users
change their telephone numbers, such
Party shall provide the same level of
service to End Users of the other Party.
31.8.4 The following applies to AM-OH only:
31.8.4.1 Referral Announcements shall be provided
by a Party to the other Party for the
period of time specified in Rule
4901:1-5-12, Ohio Administrative Code
and at the rates set forth in the
referring Party's tariff(s). However,
if either Party provides Referral
Announcements for a period longer
than the above period(s) when its End
Users change their telephone numbers,
such Party shall provide the same
level of service to End Users of the
other Party.
32. COMPLIANCE AND CERTIFICATION
32.1 Each Party shall comply at its own expense with all
Applicable Laws that relate to that Party's obligations to
the other Party under this Agreement. Nothing in this
Agreement shall be construed as requiring or permitting
either Party to contravene any mandatory requirement of
Applicable Law.
32.2 CLEC warrants that it has obtained all necessary state
certification required in each state covered by this
Agreement prior to ordering any services, functions,
facilities or products from SBC-13STATE pursuant to this
Agreement. Upon request, CLEC shall provide proof of
certification.
32.3 Each Party shall be responsible for obtaining and keeping in
effect all approvals from, and rights granted by,
Governmental Authorities, building and property owners,
other carriers, and any other Third Parties that may be
required in connection with the performance of its
obligations under this Agreement.
32.4 Each Party represents and warrants that any equipment,
facilities or services provided to the other Party under
this Agreement comply with the CALEA.
33. LAW ENFORCEMENT
33.1 SBC-12 STATE and CLEC shall reasonably cooperate with the
other Party in handling law enforcement requests as follows:
<PAGE>
33.1.1 INTERCEPT DEVICES:
33.1.1.1 Local and federal law enforcement
agencies periodically request
information or assistance from local
telephone service providers. When either
Party receives a request associated with
an End User of the other Party, it shall
refer such request to the Party that
serves such End User, unless the
request directs the receiving Party to
attach a pen register, trap-and-trace or
form of intercept on the Party's
facilities, in which case that Party
shall comply with any valid request.
33.1.2 SUBPOENAS:
33.1.2.1 If a Party receives a subpoena for
information concerning an End User the
Party knows to be an End User of the
other Party, it shall refer the subpoena
to the Requesting Party with an
indication that the other Party is the
responsible company, unless the subpoena
requests records for a period of time
during which the receiving Party was the
End User's service provider, in which
case that Party will respond to any
valid request.
33.1.3 EMERGENCIES:
33.1.3.1 If a Party receives a request from a law
enforcement agency for a temporary
number change, temporary disconnect, or
one-way denial of outbound calls by the
receiving Party's switch for an End User
of the other Party, that Receiving Party
will comply with a valid emergency
request. However, neither Party shall be
held liable for any claims or Losses
arising from compliance with such
requests on behalf of the other Party's
End User and the Party serving such End
User agrees to indemnify and hold the
other Party harmless against any and all
such claims or Losses.
33.2 SNET and CLEC shall reasonably cooperate with the other
Party in handling law enforcement requests as follows:
33.2.1 Each of the Parties agree to comply with the
applicable state and federal law enforcement
authorities, laws, and requirements, including the
CALEA, and to report to applicable State and
Federal law enforcement authorities as required by
law, the Telecommunications Services and related
information provided by each of the Parties in
Connecticut.
<PAGE>
34. RELATIONSHIP OF THE PARTIES/INDEPENDENT CONTRACTOR
34.1 Each Party is an independent contractor, and has and hereby
retains the right to exercise full control of and
supervision over its own performance of its obligations
under this Agreement and retains full control over the
employment, direction, compensation and discharge of its
employees assisting in the performance of such obligations.
Each Party and each Party's contractor(s) shall be solely
responsible for all matters relating to payment of such
employees, including the withholding or payment of all
applicable federal, state and local income taxes, social
security taxes and other payroll taxes with respect to its
employees, as well as any taxes, contributions or other
obligations imposed by applicable state unemployment or
workers' compensation acts and all other regulations
governing such matters. Each Party has sole authority and
responsibility to hire, fire and otherwise control its
employees.
34.2 Nothing contained herein shall constitute the Parties as
joint venturers, partners, employees or agents of one
another, and neither Party shall have the right or power to
bind or obligate the other. Nothing herein will be construed
as making either Party responsible or liable for the
obligations and undertakings of the other Party. Except for
provisions herein expressly authorizing a Party to act for
another, nothing in this Agreement shall constitute a Party
as a legal representative or agent of the other Party, nor
shall a Party have the right or authority to assume, create
or incur any liability or any obligation of any kind,
express or implied, against or in the name or on behalf of
the other Party unless otherwise expressly permitted by such
other Party. Except as otherwise expressly provided in this
Agreement, no Party undertakes to perform any obligation of
the other Party, whether regulatory or contractual, or to
assume any responsibility for the management of the other
Party's business.
35. NO THIRD PARTY BENEFICIARIES; DISCLAIMER OF AGENCY
35.1 This Agreement is for the sole benefit of the Parties and
their permitted assigns, and nothing herein expressed or
implied shall create or be construed to create any Third
Party beneficiary rights hereunder. This Agreement shall not
provide any Person not a party hereto with any remedy,
claim, liability, reimbursement, cause of action, or other
right in excess of those existing without reference hereto.
36. ASSIGNMENT
36.1 CLEC may not assign or transfer (whether by operation of law
or otherwise) this Agreement (or any rights or obligations
hereunder) to a third person without the prior written
consent of SBC-13STATE; provided that CLEC may assign or
transfer this Agreement to its Affiliate by providing ninety
(90) days' prior written notice to SBC-13STATE of such
assignment or transfer; provided, further, that
<PAGE>
such assignment is not inconsistent with Applicable Law
(including the Affiliate's obligation to obtain proper
Commission certification and approvals) or the terms and
conditions of this Agreement. Notwithstanding the foregoing,
CLEC may not assign or transfer this Agreement (or any
rights or obligations hereunder) to its Affiliate if that
Affiliate is a party to a separate agreement with
SBC-13STATE under Sections 251 and 252 of the Act. Any
attempted assignment or transfer that is not permitted is
void ab initio.
36.2 As a condition of any assignment or transfer of this
Agreement (or any rights hereunder) that is permitted under
or consented to by SBC-13STATE pursuant to this Section 36,
CLEC agrees that any change, modification or other activity
required for SBC-13STATE to accommodate or recognize the
successor to or assignee of CLEC shall be a CLEC Change and
shall be subject to Section 5.3. SBC-13STATE shall have no
obligation to proceed with such activities nor shall any
otherwise acceptable assignment or transfer be effective
against SBC-13STATE until the Parties agree upon the charges
that apply to such CLEC Change.
36.3 If during the Term, SBC-13STATE sells, assigns or otherwise
transfers any ILEC Territory or ILEC Assets to a person
other than an Affiliate or subsidiary, SBC-13STATE shall
provide CLEC not less than ninety (90) days prior written
notice of such sale, assignment or transfer. Upon the
consummation of such sale, assignment or transfer, CLEC
acknowledges that SBC-13STATE shall have no further
obligations under this Agreement with respect to the ILEC
Territories and/or ILEC Assets subject to such sale,
assignment or transfer, and that CLEC must establish its own
Section 251 and 252 arrangement with the successor to such
ILEC Territory and/or ILEC Assets.
37. DELEGATION TO AFFILIATE
37.1 Each Party may without the consent of the other Party
fulfill its obligations under this Agreement by itself or
may cause its Affiliate(s) to take some or all of such
actions to fulfill such obligations. Upon such delegation,
the Affiliate shall become a primary obligor hereunder with
respect to the delegated matter, but such delegation shall
not relieve the delegating Party of its obligations as
co-obligor hereunder. Any Party that elects to perform its
obligations through an Affiliate shall cause its Affiliate
to take all action necessary for the performance of such
Party's obligations hereunder. Each Party represents and
warrants that if an obligation under this Agreement is to be
performed by an Affiliate, such Party has the authority to
cause such Affiliate to perform such obligation and such
Affiliate will have the resources required to accomplish the
delegated performance.
<PAGE>
38. SUBCONTRACTING
38.1 If a Party retains or engages any subcontractor to perform
any of that Party's obligations under this Agreement, that
Party will remain fully responsible for the performance of
this Agreement in accordance with its terms, including any
obligations that Party performs through subcontractors.
38.2 Each Party will be solely responsible for payments due that
Party's subcontractors.
38.3 No subcontractor will be deemed a Third Party beneficiary
for any purposes under this Agreement.
38.4 No contract, subcontract or other agreement entered into by
either Party with any Third Party in connection with the
provision of services, functions, facilities and products
hereunder will provide for any indemnity, guarantee or
assumption of liability by the other Party to this Agreement
with respect to such arrangement, except as consented to in
writing by the other Party.
38.5 Any subcontractor that gains access to Customer Proprietary
Network Information ("CPNI") or Proprietary Information
covered by this Agreement shall be required by the
subcontracting Party to protect such CPNI or Proprietary
Information to the same extent the subcontracting Party is
required to protect such CPNI or Proprietary Information
under the terms of this Agreement.
39. FORCE MAJEURE
39.1 No Party shall be responsible for delays or failures in
performance of any part of this Agreement (other than an
obligation to make money payments) resulting from acts or
occurrences beyond the reasonable control of such Party,
including acts of nature, acts of civil or military
authority, any law, order, regulation, ordinance of any
Governmental Authority, embargoes, epidemics, terrorist
acts, riots, insurrections, fires, explosions, earthquakes,
nuclear accidents, hurricanes, floods, work stoppages,
equipment failures, cable cuts, power blackouts, volcanic
action, other major environmental disturbances, unusually
severe weather conditions, inability to secure products or
services of other persons or transportation facilities or
acts or omissions of transportation carriers (individually
or collectively, a "FORCE MAJEURE EVENT") or any Delaying
Event caused by the other Party or any other circumstances
beyond the Party's reasonable control. If a Force Majeure
Event shall occur, the Party affected shall give prompt
notice to the other Party of such Force Majeure Event
specifying the nature, date of inception and expected
duration of such Force Majeure Event, whereupon such
obligation or performance shall be suspended to the extent
such Party is affected by such Force Majeure Event during
the continuance thereof or be excused from such performance
depending on the nature, severity and duration of such Force
Majeure Event (and
<PAGE>
the other Party shall likewise be excused from performance
of its obligations to the extent such Party's obligations
relate to the performance so interfered with). The affected
Party shall use its reasonable efforts to avoid or remove
the cause of nonperformance and the Parties shall give like
notice and proceed to perform with dispatch once the causes
are removed or cease.
40. TAXES
40.1 The tax provisions set forth below apply as indicated:
40.1.1 TAXES - SWBT-TX
40.1.1.1 Each Party purchasing services hereunder
shall pay or otherwise be responsible
for all federal, state, or local sales,
use, excise, gross receipts, municipal
fees, transaction or similar taxes,
fees, or surcharges (hereinafter "TAX")
levied against or upon such purchasing
Party (or the providing Party when such
providing Party is permitted by
applicable law to pass along to the
purchasing Party such taxes, fees, or
surcharges), except for any Tax on
either Party's corporate existence,
status, or income.
40.1.2 TAXES - SWBT-MOKA
40.1.2.1 Each Party purchasing services hereunder
shall pay or otherwise be responsible
for all federal, state, or local sales,
use, excise, gross receipts, municipal
fees, transaction or similar taxes, fees
or surcharges (hereinafter "TAX")
imposed on or with respect to the
services provided by or to such Party,
except for any Tax on either Party's
corporate existence, status, or income.
40.1.3 TAXES - PACIFIC
40.1.3.1 Each Party purchasing services hereunder
shall pay or otherwise be responsible
for all federal, state, or local sales,
use, excise, gross receipts, utility
user, municipal fees, transaction or
similar taxes, fees, or surcharges
(hereinafter "TAX") imposed on or with
respect to the services provided by or
to such Party, except for any Tax on
either Party's corporate existence,
status, or income.
<PAGE>
40.1.4 TAXES - NEVADA
40.1.4.1 Each Party purchasing services hereunder
shall pay or otherwise be responsible
for all federal, state, or local sales,
use, excise, gross receipts, municipal
fees, transaction or similar taxes,
fees, or surcharges (hereinafter "TAX")
imposed on or with respect to the
services provided by or to such Party,
except for any Tax on either Party's
corporate existence, status, or income.
40.1.5 TAXES - SNET
40.1.5.1 Each Party purchasing services hereunder
shall pay or otherwise be responsible
for all federal, state, or local sales,
use, excise, gross receipts, transaction
or similar taxes, fees, or surcharges
(hereinafter "TAX") levied against or
upon such purchasing party (or the
providing Party when such providing
Party is permitted by applicable law to
pass along to the purchasing party such
taxes, fees, or surcharges), except for
any Tax on either party's corporate
existence, status, or income.
40.1.6 TAXES - SBC-AMERITECH
40.1.6.1 Each Party purchasing services hereunder
shall pay or otherwise be responsible
for all federal, state, or local sales,
use, excise, gross receipts, transaction
or similar taxes, fees or surcharges
levied against or upon such purchasing
Party (or the providing Party when such
providing Party is permitted to pass
along to the purchasing Party such
taxes, fees or surcharges), except for
any tax on either Party's corporate
existence, status or income. To the
extent that a Party includes gross
receipts taxes in any of the charges or
rates of services provided hereunder, no
additional gross receipts taxes shall be
levied against or upon the purchasing
Party.
40.2 TAXES - SBC-13STATE
40.2.1 Whenever possible, Tax amounts shall be billed as
a separate item on the invoice. To the extent a
sale is claimed to be for resale tax exemption,
the purchasing Party shall furnish the providing
Party a proper resale tax exemption certificate as
authorized or required by statute or regulation by
the jurisdiction providing said resale tax
exemption. Failure to timely furnish said resale
tax exemption certificate will result in no
exemption being available to the purchasing Party
for any charges invoiced by the
<PAGE>
providing Party prior to the date the purchasing
Party furnishes the providing Party a valid resale
tax exemption certificate.
40.2.2 With respect to any purchase of services,
functions, facilities and products under this
Agreement, if any Tax is required or permitted by
Applicable Law to be collected from the purchasing
Party by the providing Party, then:
40.2.2.1 The providing Party shall bill the
purchasing Party for such Tax;
40.2.2.2 The purchasing Party shall remit such
Tax to the providing Party; and
40.2.2.3 The providing Party shall remit such
collected Tax to the applicable taxing
authority.
40.2.3 With respect to any purchase hereunder of
services, functions, facilities and products that
are resold to a Third Party, if any Tax is imposed
by applicable law on the End User in connection
with any such purchase, then:
40.2.3.1 The purchasing Party shall be required
to impose and/or collect such Tax from
the End User; and
40.2.3.2 The purchasing Party shall remit such
Tax to the applicable taxing authority.
40.2.3.3 The purchasing Party agrees to
indemnify, hold harmless and defend the
providing Party on an after tax basis
for any costs incurred by the providing
Party as a result of actions taken by
the applicable taxing authority to
collect the Tax from the providing Party
due to the failure of the purchasing
Party to pay or collect and remit such
Tax to such authority.
40.2.4 If the providing Party fails to collect any Tax as
required herein, then, as between the providing
Party and the purchasing Party:
40.2.4.1 The purchasing Party shall remain liable
for such uncollected Tax; and
40.2.4.2 The providing Party shall be liable for
any penalty and interest assessed with
respect to such uncollected Tax by such
authority.
<PAGE>
40.2.4.3 However, if the purchasing Party fails
to pay any Taxes properly billed, then,
as between the providing Party and the
purchasing Party, the purchasing Party
will be solely responsible for payment
of the Taxes, penalty and interest.
40.2.5 If the purchasing Party fails to impose and/or
collect any Tax from End Users as required herein,
then, as between the providing Party and the
purchasing Party, the purchasing Party shall
remain liable for such uncollected Tax and any
interest and penalty assessed thereon with respect
to the uncollected Tax by the applicable taxing
authority. With respect to any Tax that the
purchasing Party has agreed to pay or impose on
and/or collect from End Users, the purchasing
Party agrees to indemnify, hold harmless and
defend the providing Party on an after tax basis
for any costs incurred by the providing Party as a
result of actions taken by the applicable taxing
authority to collect the Tax from the providing
Party due to the failure of the purchasing Party
to pay or collect and remit such Tax to such
authority.
40.2.6 The Party obligated to pay any Tax may contest the
same in good faith, at its own expense, and shall
be entitled to the benefit of any refund or
recovery; provided that such contesting Party
shall not permit any lien to exist on any asset of
the other Party by reason of such contest. The
Party obligated to collect and remit shall
cooperate in any such contest by the other Party.
As a condition of contesting any Tax due
hereunder, the contesting Party agrees to be
liable and indemnify and reimburse the other Party
for:
40.2.6.1 any additional amounts that may be due
by reason of such contest, including any
interest and penalties; and
40.2.6.2 all costs of cooperating with the
contesting Party in any such contest.
41. NON-WAIVER
41.1 Except as otherwise specified in this Agreement, no waiver
of any provision of this Agreement and no consent to any
default under this Agreement shall be effective unless the
same is in writing and properly executed by or on behalf of
the Party against whom such waiver or consent is claimed.
Waiver by either Party of any default by the other Party
shall not be deemed a waiver of any other default. Failure
of either Party to insist on performance of any term or
condition of this Agreement or to exercise any right or
privilege hereunder shall not be construed as a continuing
or future waiver of such term, condition, right or
privilege. No course of dealing or failure of any Party to
strictly enforce any term, right, or
<PAGE>
condition of this Agreement in any instance shall be
construed as a general waiver or relinquishment of such
term, right or condition.
42. CUSTOMER INQUIRIES
42.1 Each Party will refer all questions regarding the other
Party's services or products directly to the other Party at
a telephone number specified by that Party.
42.2 Each Party will ensure that all of its representatives who
receive inquiries regarding the other Party's services:
42.2.1 Provide the number described in Section 44.1 to
callers who inquire about the other Party's
services or products; and
42.2.2 Do not in any way disparage or discriminate
against the other Party or its products or
services.
42.3 Except as otherwise provided in this Agreement, CLEC shall
be the primary point of contact for CLEC's End Users with
respect to the services CLEC provides such End Users.
42.4 CLEC acknowledges that SBC-13STATE may, upon End User
request, provide services directly to such End User similar
to those offered to CLEC under this Agreement.
43. EXPENSES
43.1 Except as expressly set forth in this Agreement, each Party
will be solely responsible for its own expenses involved in
all activities related to the matters covered by this
Agreement.
43.2 SBC-12STATE and CLEC shall each be responsible for one-half
(1/2) of expenses payable to a Third Party for Commission
fees or other charges (including regulatory fees and any
costs of notice or publication, but not including attorney's
fees) associated with the filing of this agreement.
44. CONFLICT OF INTEREST
44.1 The Parties represent that no employee or agent of either
Party has been or will be employed, retained, paid a fee, or
otherwise received or will receive any personal compensation
or consideration from the other Party, or any of the other
Party's employees or agents in connection with the
negotiation of this Agreement or any associated documents.
<PAGE>
45. AMENDMENTS AND MODIFICATIONS
45.1 No provision of this Agreement shall be deemed amended or
modified by either Party unless such an amendment or
modification is in writing, dated, and signed by an
authorized representative of both Parties. The rates, terms
and conditions contained in the amendment shall become
effective upon approval of such amendment by the appropriate
Commissions.
45.2 Neither Party shall be bound by any preprinted terms
additional to or different from those in this Agreement that
may appear subsequently in the other Party's form documents,
purchase orders, quotations, acknowledgments, invoices or
other communications.
46. SURVIVAL
46.1 The Parties' obligations under this Agreement which by their
nature are intended to continue beyond the termination or
expiration of this Agreement shall survive the termination
or expiration of this Agreement. Without limiting the
general applicability of the foregoing, the following terms
and conditions of this Agreement are specifically agreed by
the Parties to continue beyond the termination or expiration
of this Agreement: Section 11.8; Section 11.9, Section 31.6;
Section 15.3; Section 9.1; Section 9.2; Section 9.3; Section
9.4; Section 9.5, Section 9.6; Section 10.2; Section 10.3;
Section 10.4; Section 10.5; Section 10.6; Section 15;
Section 16; Section 18; Section 19; Section 21 Section 22;
Section 23; Section 26; Section 25; Section 27; Section 33;
Section 42.4, Section 28; Section 29; Section 40; Section
6.5; Section 6.6; Section 6.7; Section 6.8; Section 6.9;
Section 6.10 and Section 46.
47. APPENDICES INCORPORATED BY REFERENCE
47.1 DIRECTORY ASSISTANCE (DA)
47.1.1 SBC-13STATE will provide nondiscriminatory access
to Directory Assistance services under the terms
and conditions identified in the applicable
Appendix DA, which IS/ARE attached hereto and
incorporated herein by reference.
47.2 OPERATOR SERVICES (OS)
47.2.1 SBC-13STATE shall provide nondiscriminatory access
to Operator Services under the terms and
conditions identified in the applicable Appendix
OS, which IS/ARE attached hereto and incorporated
herein by reference.
<PAGE>
47.3 OPERATIONS SUPPORT SYSTEMS (OSS)
47.3.1 SBC-13STATE shall provide nondiscriminatory access
to Operations Support Systems (OSS) "functions" to
CLEC for pre-ordering, ordering, provisioning,
maintenance/repair, and billing under the terms
and conditions identified in the applicable
Appendix OSS, which IS/ARE attached hereto and
incorporated herein by reference.
48. AUTHORITY
48.1 Each of the SBC Parties represents and warrants that it is a
corporation duly organized, validly existing and in good
standing under the laws of their respective states of
incorporation. SBC COMMUNICATIONS INC. represents and
warrants that it has full power and authority to execute and
deliver this Agreement as agent for the SBC Parties. Each of
the SBC Parties that is an ILEC represents and warrants that
it has full power and authority to perform its obligations
hereunder.
48.2 CLEC represents and warrants that it is a corporation duly
organized, validly existing and in good standing under the
laws of the State of Delaware and has full power and
authority to execute and deliver this Agreement and to
perform its obligations hereunder. CLEC represents and
warrants that it has been or will be certified as a LEC by
the Commission(s) prior to submitting any orders hereunder
and is or will be authorized to provide the
Telecommunications Services contemplated hereunder in the
territory contemplated hereunder prior to submission of
orders for such services.
48.3 Each Person whose signature appears below represents and
warrants that he or she has authority to bind the Party on
whose behalf he or she has executed this Agreement.
49. COUNTERPARTS
49.1 This Agreement may be executed in counterparts. Each
counterpart shall be considered an original and such
counterparts shall together constitute one and the same
instrument.
50. ENTIRE AGREEMENT
50.1 SBC-12STATE
50.1.1 The terms contained in this Agreement and any
Appendices, Attachments, Exhibits, Schedules, and
Addenda constitute the entire agreement between
the Parties with respect to the subject matter
hereof, superseding all prior understandings,
proposals and other communications, oral or
written.
<PAGE>
50.2 SNET
50.2.1 The terms contained in this Agreement and any
Appendices, Attachments, Exhibits, Schedules,
Addenda, Commission approved tariffs and other
documents or instruments referred to herein and
incorporated into this Agreement by reference
constitute the entire agreement between the
Parties with respect to the subject matter hereof,
superseding all prior understandings, proposals
and other communications, oral or written.
<PAGE>
SBC-13 STATE RESALE AGREEMENT SIGNATURES
ESSENTIAL.COM. INC. ILLINOIS BELL TELEPHONE COMPANY, INDIANA
BELL TELEPHONE COMPANY INCORPORATED,
MICHIGAN BELL TELEPHONE COMPANY, THE
OHIO BELL TELEPHONE COMPANY, AND
WISCONSIN BELL INC. d/b/a AMERITECH
WISCONSIN
By: SBC Telecommunications, Inc., their
authorized agent.
Signature: /s/ Akhil Garland Signature: /s/ Larry B. Cooper
------------------------- -----------------------------
Name: Akhil Garland Name: Larry B. Cooper
------------------------------ ----------------------------------
(Print or Type)
Title: CEO Title: President - Industry Markets
-----------------------------
(Print or Type)
Date: 2/24/00 Date: FEB 25 2000
----------------------------- ---------------------------------
AECN/OCN#
---------------------------
<PAGE>
APPENDIX DA
<PAGE>
<TABLE>
TABLE OF CONTENTS
<S> <C>
1. INTRODUCTION..........................................................3
2. SERVICES..............................................................4
3. DEFINITIONS...........................................................4
4. BRANDING..............................................................5
5. DA RATE/REFERENCE INFORMATION.........................................6
6. RESPONSIBILITIES OF THE PARTIES.......................................7
7. METHODS AND PRACTICES.................................................8
8. PRICING ..............................................................8
9. MONTHLY BILLING ......................................................8
10. LIABILITY.............................................................8
11. TERM OF APPENDIX......................................................8
12. APPLICABILITY OF OTHER RATES, TERMS AND CONDITIONS ...................9
</TABLE>
<PAGE>
APPENDIX DA
(DIRECTORY ASSISTANCE SERVICE)
1. INTRODUCTION
1.1 This Appendix sets forth the terms and conditions for Directory
Assistance (DA) Services for CLEC provided by the applicable SBC
Communications Inc. (SBC) owned Incumbent Local Exchange Carrier
(ILEC).
1.2 SBC Communications, Inc. (SBC) means the holding company which
owns the following ILECs: Illinois Bell Telephone Company, Indiana
Bell Telephone Company Incorporated, Michigan Bell Telephone
Company, Nevada Bell Telephone Company, The Ohio Bell Telephone
Company, Pacific Bell Telephone Company, The Southern New England
Telephone Company, Southwestern Bell Telephone Company and/or
Wisconsin Bell, Inc. d/b/a Ameritech Wisconsin.
1.3 As used herein, SBC-13STATE means the applicable above listed
ILECs doing business in Arkansas, California, Connecticut,
Illinois, Indiana, Kansas, Michigan, Missouri, Nevada, Ohio,
Oklahoma, Texas, and Wisconsin.
1.4 As used herein, SBC-12STATE means the applicable above listed
ILECs doing business in Arkansas, California, Illinois, Indiana,
Kansas, Michigan, Missouri, Nevada, Ohio, Oklahoma, Texas, and
Wisconsin.
1.5 As used herein, SBC-SWBT means the applicable above listed ILEC
doing business in Arkansas, Kansas, Missouri, Oklahoma, and Texas.
1.6 As used herein, SBC-AMERITECH means the applicable above listed
ILECs doing business in Illinois, Indiana, Michigan, Ohio, and
Wisconsin.
1.7 As used herein, PACIFIC means the applicable above listed ILEC
doing business in California.
1.8 As used herein, NEVADA means the applicable above listed ILEC
doing business in Nevada.
1.9 As used herein, SNET means the applicable above listed ILEC doing
business in Connecticut.
1.10 The prices at which SBC-13STATE agrees to provide CLEC with
Directory Services are contained in the applicable Appendix
Pricing and/or the applicable Commissioned ordered tariff.
<PAGE>
2. SERVICES
2.1 Where technically feasible and/or available, SBC-13STATE will
provide the following DA Services:
2.1.1 DIRECTORY ASSISTANCE (DA)
Consists of providing subscriber listing information (name,
address, and published telephone number or an indication of
"non-published status") where available to CLEC's End Users
who dial 411, 1/0+411, 555-1212, 1/0+555-1212, or
1/O+NPA-555-1212.
2.1.2 DIRECTORY ASSISTANCE CALL COMPLETION (DACC) OR EXPRESS CALL
COMPLETION (ECC)
A service in which a local or an intraLATA call to the
requested number is completed on behalf of CLEC's End User,
utilizing an automated voice system or with operator
assistance.
2.1.3 DIRECTORY ASSISTANCE NATIONWIDE LISTING SERVICE (NLS)
A service in which listed telephone information (name,
address, and telephone numbers) is provided for
residential, business and government accounts throughout
the 50 states to CLEC End Users. CLEC acknowledges that the
Federal Communications Commission has issued an order that
could affect SBC-12STATE's ability to offer NLS and that
SBC-12STATE may have to stop providing NLS at any time.
CLEC releases SBC-12STATE from any and all claims, costs,
damages, liabilities, losses, and expenses (including
reasonable attorney fees), if SBC-12STATE stops providing
NLS. CLEC also agrees to indemnify, defend, and hold
harmless SBC-12STATE from any and all third party claims,
costs, damages, liabilities, losses, and expenses
(including reasonable attorney fees), arising from any
SBC-12STATE decision to stop providing NLS.
3. DEFINITIONS
3.1 The following terms are defined as set forth below:
3.1.1 "CALL BRANDING" -The procedure of identifying a provider's
name audibly and distinctly to the End User at the
beginning of each DA Services call.
3.1.2 "NON-LIST TELEPHONE NUMBER OR DA ONLY TELEPHONE NUMBER" -A
telephone number that, at the request of the telephone
subscriber, is not published in a telephone directory, but
is available from a DA operator.
<PAGE>
3.1.3 "NON-PUBLISHED NUMBER" - A telephone number that, at the
request of the telephone subscriber, is neither published
in a telephone directory nor available from a DA operator.
3.1.4 "PUBLISHED NUMBER" - A telephone number that is published
in a telephone directory and is available upon request by
calling a DA operator.
4. BRANDING
4.1 Except where otherwise required by law, CLEC shall not, without
SBC-13STATE's prior written authorization, offer the services
covered by this Agreement using the trademarks, service marks,
trade names, brand names, logos, insignia, symbols or decorative
designs of SBC-13STATE or its Affiliates, nor shall CLEC state or
imply that there is any joint business association or similar
arrangement with SBC-13STATE in the provision of
Telecommunications Services to CLEC's End Users.
4.2 BRANDING REQUIREMENTS
4.2.1 Where technically feasible and/or available, SBC-13STATE
will brand Operator Services (OS) and/or Directory
Assistance (DA) in CLEC's name as outlined below:
4.2.1.1 Provide its brand at the beginning of each
telephone call and before the consumer incurs any
charge for the call; and
4.2.1.2 Disclose immediately to the consumer, upon
request, a quote of its rates or charges for the
call.
4.2.2 Where SBC-13STATE provides CLEC OS and DA services via the
same trunk, both OS and DA calls will be branded with the
same brand. Since SBC-13STATE's DA and OS utilize the same
trunk group, CLEC will receive the same brand for both DA
and OS.
4.2.3 CLEC agrees and warrants that it will provide to
SBC-13STATE a name to be used for branding covered by this
Agreement that matches the name in which CLEC is certified
to provide local Telecommunications Services by the
applicable state Commission.
4.3 CALL BRANDING
4.3.1 SBC-13STATE will brand OS/DA in CLEC's name based upon the
information provided by CLEC and as outlined below:
<PAGE>
4.3.1.1 SBC-SWBT and SNET - CLEC will provide written
specifications of its company name to be used by
SBC-SWBT or SNET to create CLEC specific branding
announcements for its OS/DA calls in accordance
with the process outlined in the Operator Services
OS/DA Questionnaire (OSQ). CLEC attests that it has
been provided a copy of the OSQ.
4.3.1.2 PACIFIC/NEVADA - CLEC will provide recorded
announcement(s) of its company name to be used to
brand CLEC's OS/DA calls in accordance with the
process outlined in the OSQ. CLEC attests that it
has been provided a copy of the OSQ.
4.3.1.3 SBC-AMERITECH - CLEC will provide written
specifications of its company name to be used by
SBC-AMERITECH to brand CLEC OS/DA calls, when
technically feasible and available, in accordance
with the process outlined in the OSQ. CLEC attests
that it has been provided a copy of the OSQ.
4.4 Branding Load Charges:
4.4.1 SBC-SWBT - An initial non-recurring charge applies per
state, per brand, per Operator assistance switch for the
establishment of CLEC specific branding. An additional
non-recurring charge applies per state, per brand, per
Operator assistance switch for each subsequent change to
the branding announcement. In addition, a per call charge
applies for every OS/DA call handled by SBC-SWBT on behalf
of CLEC when multiple brands are required on a single
Operator Services trunk. These charges are set forth in
Appendix Pricing under the "Other (Resale)" category.
4.4.2 PACIFIC/NEVADA/SNET - An initial non-recurring charge
applies per state, per brand, per Operator assistance
switch for the establishment of CLEC specific branding. An
additional non-recurring charge applies per state, per
brand, per Operator assistance switch for each subsequent
change to branding announcement. These charges are set
forth in Appendix Pricing under the "Other (Resale)"
category.
5. DA RATE/REFERENCE INFORMATION
5.1 CLEC will furnish DA Rate and Reference Information in a mutually
agreed to format or media thirty (30) calendar days in advance of
the date when the DA Services are to be undertaken.
5.2 CLEC will inform SBC-13STATE, in writing, of any changes to be
made to such Rate/Reference Information fourteen calendar days
prior to the effective
<PAGE>
Rate/Reference change date. CLEC acknowledges that it is
responsible to provide SBC-13STATE updated Rate/Reference
Information in advance of when the Rate/Reference Information is
to become effective.
5.3 An initial non-recurring charge will apply per state, per Operator
assistance switch for loading of CLEC's DA Rate/Reference
Information. An additional non-recurring charge will apply per
state, per Operator assistance switch for each subsequent change
to either CLEC's DA Services Rate or Reference Information. These
charges are set forth in Appendix Pricing under the "Other
(Resale)" category.
5.4 When an SBC-13STATE Operator receives a rate request from a CLEC
End User, where technically feasible and available, SBC-13STATE
will quote the applicable DA rates as provided by the CLEC.
5.4.1 PACIFIC/NEVADA/SBC-AMERITECH - In the interim, when an
Operator receives a rate request from a CLEC End User,
PACIFIC/NEVADA/SBC-AMERITECH will transfer the CLEC End
User to a customer care number specified by the CLEC on
the OSQ. When PACIFIC/NEVADA/SBC-AMERITECH has the
capability to quote specific CLEC rates and reference
information, the Parties agree that the transfer option
will be eliminated.
6. RESPONSIBILITIES OF THE PARTIES
6.1 CLEC agrees that due to customer quality and work force schedule
issues, SBC-13STATE will be the sole provider of DA Services for
CLEC's local serving area(s).
6.2 CLEC will furnish to SBC-13STATE a completed OSQ thirty (30)
calendar days in advance of the date when the DA Services are to
be undertaken.
6.3 CLEC will provide SBC-13STATE updates to the OSQ fourteen (14)
calendar days in advance of the date when changes are to become
effective.
6.4 CLEC agrees that SBC-13STATE may utilize CLEC's End User's
listings contained in SBC-13STATE directory assistance database in
providing existing and future SBC-13STATE directory assistance or
DA related services.
6.5 CLEC further agrees that SBC-13STATE can release CLEC's directory
assistance listings stored in SBC-13STATE directory assistance
database to competing providers.
<PAGE>
7. METHODS AND PRACTICES
7.1 SBC-13STATE will provide DA Services to CLEC's End Users in
accordance with SBC-13STATE DA methods and practices that are in
effect at the time the DA call is made, unless otherwise agreed in
writing by both parties.
8. PRICING
8.1 Subject to any blocking that may be ordered by CLEC for its End
Users, to the extent Directory Assistance (DA) services are
provided to SBC-13STATE End Users, SBC-13STATE shall provide
CLEC's End Users access to SBC-13STATE Directory Assistance
services. CLEC shall pay SBC-13STATE the charges attributable to
Directory Assistance services utilized by CLEC's End Users.
Discounts associated with utilization of Directory Assistance
Services are set forth in Appendix Pricing and/or the applicable
Commission ordered tariff.
9. MONTHLY BILLING
9.1 For information regarding billing, non-payment, disconnection, and
dispute resolution, see the General Terms and Conditions of this
Agreement.
9.2 SBC-13STATE will accumulate and provide CLEC DA usage data on
CLEC's monthly bill for CLEC to bill its End Users.
10. LIABILITY
10.1 The provisions set forth in the General Terms and Conditions of
this Agreement, including but not limited to those relating to
limitation of liability and indemnification, shall govern
performance under this Appendix.
10.2 CLEC also agrees to release, defend, indemnify, and hold harmless
SBC-13STATE from any claim, demand or suit that asserts any
infringement or invasion of privacy or confidentiality of any
person or persons caused or claimed to be caused, directly, or
indirectly, by SBC-13STATE employees and equipment associated with
provision of DA Services, including but not limited to suits
arising from disclosure of the telephone number, address, or name
associated with the telephone called or the telephone used to call
DA Services.
11. TERM OF APPENDIX
11.1 This Appendix will continue in force for the length of the Resale
Agreement, but no less than twelve (12) months. At the expiration
of the term of the Resale Agreement to which this Appendix is
attached, or twelve months, which ever
<PAGE>
occurs later, either Party may terminate this Appendix upon one
hundred-twenty (120) calendar days written notice to the other
Party.
11.2 If CLEC terminates this Appendix prior to the expiration of the
term of this Appendix, CLEC shall pay SWBT, within thirty (30)
days of the issuance of any bills by SBC-13STATE, all amounts due
for actual services provided under this Appendix, plus estimated
monthly charges for the unexpired portion of the term. Estimated
charges will be based on an average of the actual monthly service
provided by SBC-13STATE pursuant to this Appendix prior to its
termination.
12. APPLICABILITY OF OTHER RATES, TERMS AND CONDITIONS
12.1 Every resale service provided hereunder, shall be subject to all
rates, terms and conditions contained in this Agreement which are
legitimately related to such resale service. Without limiting the
general applicability of the foregoing, the following terms and
conditions of the General Terms and Conditions are specifically
agreed by the Parties to be legitimately related to, and to be
applicable to, each resale service provided hereunder:
introduction, definitions, interpretation, construction and
severability; description and charges of service; notice of
changes; general responsibilities of the Parties; effective date,
term and termination; fraud by end users; deposits; billing and
payment of charges; nonpayment and procedures for disconnection;
services; additional terms applicable to resale of services;
ancillary services; network and service order conditions; dispute
resolution; audits; responsibilities of SWBT; disclaimer of
representations and warranties; limitation of liability;
responsibilities of CLEC; indemnification; remedies; intellectual
property; notices; publicity and use of trademarks or service
marks; no license; confidentiality; intervening law; governing
law; regulatory approval; changes in End User local exchange
service provider selection; compliance and certification; law
enforcement; no third party beneficiaries; disclaimer of agency;
relationship of the Parties/independent contractor;
subcontracting; delegation to affiliate; assignment; force
majeure; taxes; non-waiver; customer inquiries; expenses;
conflicts of interest; survival; appendices incorporated by
reference; authority; counterparts; amendments and modifications;
and entire agreement.
<PAGE>
APPENDIX FCC MERGER CONDITIONS
<PAGE>
<TABLE>
TABLE OF CONTENTS
<S> <C>
1. MERGER CONDITIONS.....................................................3
2. DEFINED TERMS; DATES OF REFERENCE ....................................4
3. INTENTIONALLY LEFT BLANK .............................................4
4. OSS: CHANGE MANAGEMENT PROCESS .......................................4
5. OSS: ELIMINATION OF CERTAIN FLAT-RATE MONTHLY CHARGES ................4
6. INTENTIONALLY LEFT BLANK .............................................5
7. INTENTIONALLY LEFT BLANK .............................................5
8. PROMOTIONAL DISCOUNTS ON RESALE ......................................5
9. INTENTIONALLY LEFT BLANK .............................................5
10. INTENTIONALLY LEFT BLANK .............................................5
11. ALTERNATE DISPUTE RESOLUTION .........................................6
12. CONFLICTING CONDITIONS ...............................................6
13. SUSPENSION OF CONDITIONS .............................................6
14. INTENTIONALLY LEFT BLANK .............................................6
15. PROMOTIONAL PAYMENT PLAN FOR UNE AND RESALE-OHIO AND
ILLINOIS ONLY ........................................................6
</TABLE>
<PAGE>
APPENDIX MERGER CONDITIONS
1. MERGER CONDITIONS
1.1 For purposes of this Appendix only SBC-13STATE is defined as one
of the following ILECs as appropriate to the underlying Agreement
(without reference to this Appendix) in those geographic areas
where the referenced SBC owned Company is the ILEC: Illinois Bell
Telephone Company, Indiana Bell Telephone Company Incorporated,
Michigan Bell Telephone Company, Nevada Bell Telephone Company,
The Ohio Bell Telephone Company, Pacific Bell Telephone Company,
The Southern New England Telephone Company, Southwestern Bell
Telephone Company, and/or Wisconsin Bell, Inc. d/b/a Ameritech
Wisconsin.
1.1.1 As used herein, SBC-AMERITECH means the applicable listed
ILEC(s) doing business in Illinois, Indiana, Michigan, Ohio
and Wisconsin
1.1.2 As used herein, SBC-13STATE means an ILEC doing business in
Arkansas, California, Connecticut, Illinois, Indiana,
Kansas, Michigan, Missouri, Nevada, Ohio, Oklahoma, Texas
and Wisconsin.
1.1.3 As used herein, SBC-8STATE means an ILEC doing business in
Arkansas, California, Connecticut, Kansas, Missouri,
Nevada, Oklahoma, Texas.
1.2 SBC-13STATE will provide to CLEC certain items as set out in the
Conditions for FCC Order Approving SBC/AMERITECH Merger, CC Docket
No. 98-141 (FCC Merger Conditions), including certain
carrier-to-carrier promotions for use by CLEC to provision local
service to residential end user customers on terms and conditions
described in the FCC Merger Conditions, an alternative dispute
resolution ("ADR") process designed to resolve carrier-to-carrier
disputes before such disputes become formal complaints before the
Commission and other items as specified herein.
1.3 The Parties agree to abide by and incorporate by reference into
this Appendix the FCC Merger Conditions.
1.4 This Appendix terminates the earlier of (1) the date this
Agreement itself terminates without reference to this Appendix or
(2) the date SBC-13STATE obligations cease under the FCC Merger
Conditions
<PAGE>
2. DEFINED TERMS; DATES OF REFERENCE
2.1 Unless otherwise defined in this Appendix, capitalized terms shall
have the meanings assigned to such terms in the Agreement without
reference to this Appendix and in the FCC Merger Conditions.
2.2 For purposes of calculating the intervals set forth in the FCC
Merger Conditions concerning carrier to carrier promotions:
2.2.1 the Merger Closing Date is October 8, 1999; and
2.2.2 the Offering Window begins November 7, 1999.
2.3 "FCC Merger Conditions" means the Conditions for FCC Order
Approving SBC/Ameritech Merger, CC Docket No. 98-141.
3. INTENTIONALLY LEFT BLANK
4. OSS: CHANGE MANAGEMENT PROCESS
4.1 Upon request by CLEC, within one month of the Merger Closing Date,
SBC-13STATE and CLEC shall begin to negotiate along with other
interested CLECs a uniform change management process for
implementation in the SBC-13STATE Service-Area to the extent
required by paragraph 32 of the FCC Merger Conditions. For
purposes of this Paragraph, "change management process" means the
documented process that SBC-13STATE and the CLECs follow to
facilitate communication about OSS changes, new interfaces and
retirement of old interfaces, as well as the implementation
timeframes; which includes such provisions as a 12-month
developmental view, release announcements, comments and reply
cycles, joint testing processes and regularly scheduled change
management meetings. SBC-13STATE will follow the uniform change
management process agreed upon with interested CLECs.
5. OSS: ELIMINATION OF CERTAIN FLAT-RATE MONTHLY CHARGES
5.1 Effective with the first billing cycle that begins after the
Merger Closing date, SBC-13STATE hereby eliminates in the
SBC-13STATE Service Area, on a going-forward basis, all flat-rate
monthly charges for access to the Remote Access Facility and the
Information Services Call Center. The intent of this Paragraph is
to eliminate the flat-rate monthly charges (amounting to
approximately $3600 per month per CLEC per State) that SBC-13STATE
charged CLECs prior to the Merger Closing Date. Effective with the
first billing cycle that begins after the Merger Closing date,
SBC-13STATE also hereby eliminates in the SBC-13STATE Service
Area, on a going-forward basis, any flat-rate monthly charges
<PAGE>
for access to standard, non-electronic order processing facilities
that are used for orders of 30 lines or less. This Paragraph does
not limit SBC-13STATE's right to charge CLEC for the cost of
processing service orders received by electronic or non-electronic
means, whether on an electronic or non-electronic basis; to charge
CLEC for the cost of providing loop make-up information, or to
recover the costs of developing and providing OSS through the
pricing of UNEs or resold services, in accordance with applicable
federal and state pricing requirements
6. INTENTIONALLY LEFT BLANK
7. INTENTIONALLY LEFT BLANK
8. PROMOTIONAL DISCOUNTS ON RESALE
8.1 SBC-13STATE will provide CLEC promotional resale discounts on
telecommunications services that SBC-13STATE provides at retail to
subscribers who are not telecommunications carriers, where such
services are resold to residential end user customers at the rates
and on the terms and conditions set forth in the FCC Merger
Conditions for the period specified therein. Such provision of
promotional resale discounts is subject to CLEC's qualification
and compliance with the provisions of the FCC Merger Conditions.
8.2 If CLEC does not qualify for the promotional resale discounts set
forth in the FCC Merger Conditions, SBC-13STATE's provision, if
any, and CLEC's payment for promotional resale discounts shall
continue to be governed by Appendix Resale as currently contained
in the Agreement without reference to this Appendix. Unless SBC
receives thirty (30) days advance written notice with instructions
to terminate service provided via a Promotional discount on resale
or to convert such service to an available alternative service
provided by SBC-13STATE, then upon expiration of any Promotional
discount, the service shall automatically convert to an
appropriate SBC-13STATE product/service offering pursuant to the
terms and conditions of the Agreement or, in the absence of terms
and conditions in the Agreement, the applicable tariff. Where
there are no terms for such offering in the Agreement without
reference to this Appendix and there is no applicable tariff, the
Parties shall meet within 30 days of a written request to do so to
negotiate mutually acceptable rates, terms and conditions that
shall apply retroactively. If the Parties are unable to reach
agreement within 60 days of the written request to negotiate, any
outstanding disputes shall be handled in accordance with the
Dispute Resolution procedures in the Agreement.
9. INTENTIONALLY LEFT BLANK
10. INTENTIONALLY LEFT BLANK
<PAGE>
11. ALTERNATE DISPUTE RESOLUTION
11.1 In addition to the foregoing, upon CLEC's request, the Parties
shall adhere to and implement, as applicable, the Alternative
Dispute Resolution guidelines and procedures described in the FCC
Merger Conditions including Attachment D.
12. CONFLICTING CONDITIONS
12.1 If any of the FCC Merger Conditions in this Appendix and
conditions imposed in connection with the merger under state law
grant similar rights against SBC-13STATE, CLEC shall not have a
right to invoke the relevant terms of these FCC Merger Conditions
in this Appendix if CLEC has invoked substantially related
conditions imposed on the merger under state law in accordance the
FCC Merger Conditions.
13. SUSPENSION OF CONDITIONS
13.1 If the FCC Merger Conditions are overturned or any of the
provisions of the FCC Merger Conditions that are incorporated
herein by reference are amended or modified as a result of any
order or finding by the FCC, a court of competent jurisdiction or
other governmental and/or regulatory authority, any impacted
promotional discounts and other provision described in this
Appendix shall be automatically and without notice suspended as of
the date of such termination or order or finding and shall not
apply to any product or service purchased by CLEC or provisioned
by SBC-13STATE after the date of such termination or order or
finding. Thereafter, SBC-13STATE's continued provision and CLEC's
payment for any service or item originally ordered or provided
under this Appendix shall be governed by the rates, terms, and
conditions as currently contained in the Agreement without
reference to this Appendix. In the event that the FCC changes,
modifies, adds or deletes any of the FCC Merger Conditions set
forth herein, the Parties agree that the FCC's final order
controls and takes precedence over the FCC Merger Conditions set
forth herein.
14. INTENTIONALLY LEFT BLANK
15. PROMOTIONAL PAYMENT PLAN FOR UNE AND RESALE--OHIO AND ILLINOIS ONLY
15.1 SBC-AMERITECH will provide, in the states of Ohio and Illinois, a
promotional eighteen (18) month installment payment option to
CLECs for the payment of non-recurring charges associated with the
purchase of unbundled Network Elements used in the provision of
residential services and the resale of services used in the
provision of residential services.
<PAGE>
15.2 SBC-AMERITECH will provide, in the states of Ohio and Illinois, a
promotional payment plan option to CLECs for the payment of
non-recurring charges associated with the purchase of unbundled
Network Elements used in the provision of residential services and
the resale of services used in the provision of residential
services. The promotion is available on the terms and conditions
set forth in the Ameritech - Ohio and Illinois Merger Conditions
for the period specified therein. Such provision of the
promotional payment plan is subject to CLEC's qualification and
compliance with the provisions of the Ameritech - Ohio and
Illinois Merger Conditions.
<PAGE>
APPENDIX OS
<PAGE>
TABLE OF CONTENTS
1. INTRODUCTION ........................................................3
2. SERVICES ............................................................4
3. DEFINITIONS .........................................................4
4. BRANDING ............................................................6
5. OS RATE/REFERENCE INFORMATION .......................................8
6. INTRALATA MESSAGE RATING ............................................8
7. HANDLING OF EMERGENCY CALLS TO OPERATOR .............................9
8. RESPONSIBILITIES OF THE PARTIES .....................................9
9. METHODS AND PRACTICES ...............................................9
10. PRICING..............................................................9
11. MONTHLY BILLING ....................................................10
12. LIABILITY ..........................................................10
13. TERM OF APPENDIX ...................................................10
14. APPLICABILITY OF OTHER RATES, TERMS AND CONDITIONS .................10
<PAGE>
APPENDIX OS
(OPERATOR SERVICES)
1. INTRODUCTION
1.1 This Appendix sets forth the terms and conditions for Operator
Services (OS) provided by the applicable SBC Communications Inc.
(SBC) owned Incumbent Local Exchange Carrier (ILEC).
1.2 SBC Communications Inc. (SBC) means the holding company which owns
the following ILECs: Illinois Bell Telephone Company, Indiana Bell
Telephone Company Incorporated, Michigan Bell Telephone Company,
Nevada Bell Telephone Company, The Ohio Bell Telephone Company,
Pacific Bell Telephone Company, The Southern New England Telephone
Company, Southwestern Bell Telephone Company and/or Wisconsin
Bell, Inc. d/b/a Ameritech Wisconsin.
1.3 As used herein, SBC-13STATE means the applicable above listed
ILECs doing business in Arkansas, California, Connecticut,
Illinois, Indiana, Kansas, Michigan, Missouri, Nevada, Ohio,
Oklahoma, Texas, and Wisconsin.
1.4 As used herein, SBC-12STATE means the applicable above listed
ILECs doing business in Arkansas, California, Illinois, Indiana,
Kansas, Michigan, Missouri, Nevada, Ohio, Oklahoma, Texas, and
Wisconsin.
1.5 As used herein, SBC-10STATE means the applicable above listed
ILECs doing business in Arkansas, Illinois, Indiana, Kansas,
Michigan, Missouri, Ohio, Oklahoma, Texas, and Wisconsin.
1.6 As used herein, SBC-8STATE means the applicable above listed ILECs
doing business in Arkansas, California, Connecticut, Kansas,
Missouri, Nevada, Oklahoma, and Texas.
1.7 As used herein, SBC-7STATE means the applicable above listed ILECs
doing business in Arkansas, California, Kansas, Missouri, Nevada,
Oklahoma, and Texas.
1.8 As used herein, SBC-SWBT means the applicable above listed ILEC
doing business in Arkansas, Kansas, Missouri, Oklahoma, and Texas.
1.9 As used herein, SBC-AMERITECH means the applicable above listed
ILECs doing business in Illinois, Indiana, Michigan, Ohio, and
Wisconsin.
1.10 As used herein, SBC-2STATE means the applicable above listed ILECs
doing business in California and Nevada.
<PAGE>
1.11 As used herein, SNET means the applicable above listed ILEC doing
business in Connecticut.
1.12 As used herein, PACIFIC means the applicable above listed ILEC
doing business in California.
1.13 As used herein, NEVADA means the applicable above listed ILEC
doing business in Nevada.
2. SERVICES
2.1 Where technically feasible and/or available, SBC-13STATE will
provide the following OS:
2.1.1 FULLY AUTOMATED CALL PROCESSING
Allows the caller to complete a call utilizing equipment
without the assistance of an SBC-13STATE operator,
hereafter called "Operator."
2.1.1.1 SBC-10STATE and PACIFIC - This allows the caller
the option of completing calls through an Automated
Alternate Billing System (AABS). Automated
functions can only be activated from a touch-tone
telephone. Use of a rotary telephone or failure or
slow response by the caller to the audio prompts
will bridge the caller to an Operator for
assistance.
2.1.1.2 NEVADA - This allows the caller the option of
billing calling card calls through a Mechanized
Calling Card Service (MCCS). Automated functions
can only be activated from a touch-tone telephone.
2.1.2 OPERATOR-ASSISTED CALL PROCESSING
2.1.2.1 Allows the caller to complete a call by receiving
assistance from an Operator.
3. DEFINITIONS
3.1 FULLY AUTOMATED CALL PROCESSING - Where technically feasible
and/or available, SBC-13STATE can support the following fully
automated call types as outlined below:
<PAGE>
3.1.1 FULLY AUTOMATED CALLING CARD SERVICE.
3.1.1.1 SBC-13STATE -This service is provided when the
caller dials zero ("0"), plus the desired telephone
number and the calling card number to which the
call is to be charged. The call is completed
without the assistance of an Operator. An
authorized calling card for the purpose of this
Appendix, is one for which billing validation can
be performed.
3.1.2 Fully Automated Collect and Bill to Third Number Services
or Mechanized Calling Card System
3.1.2.1 SBC-12STATE - The caller dials zero (0) plus the
telephone number desired, and selects the Collect
or Bill To Third Number billing option as
instructed by the automated equipment. The call is
completed without the assistance of an Operator.
3.1.3 SBC-8STATE will treat the following situations as Fully
Automated service:
3.1.3.1 When the caller identifies himself or herself as
disabled.
3.1.3.2 When the caller reports trouble on the network.
3.1.3.3 When the Operator reestablishes an interrupted
call.
3.2 OPERATOR-ASSISTED CALL PROCESSING - Where technically feasible
and/or available, SBC-13STATE will support the following
Operator-assisted call types for CLEC:
3.2.1 SEMI-AUTOMATED CALLING CARD SERVICE. A service provided
when the caller dials zero (0) plus the telephone number
desired and the calling card number to which the call is to
be charged. The call is completed with the assistance of an
Operator. An authorized calling card for the purpose of
this Appendix, is one for which SBC-13STATE can perform
billing validation.
3.2.2 SEMI-AUTOMATED COLLECT AND BILL TO THIRD NUMBER SERVICES.
The caller dials zero (0) plus the telephone number
desired, and selects the Collect or Bill To Third Number
billing option as instructed by the automated equipment.
The call is completed with the assistance of an Operator.
3.2.3 Semi-Automated Person-To-Person Service. A service in which
the caller dials zero (0) plus the telephone number desired
and asks the Operator for assistance in reaching a
particular person, or a particular PBX station,
<PAGE>
department or office to be reached through a PBX attendant. This service applies
even if the caller agrees, after the connection is established, to speak to any
party other than the party previously specified.
3.2.4 OPERATOR HANDLED SERVICES. Services provided when the caller
dials zero (0) for Operator assistance in placing a sent
paid, calling card, collect, third number or person to
person call.
3.2.5 LINE STATUS VERIFICATION. A service in which the Operator,
upon request, will check the requested line for conversation
in progress and advise the caller.
3.2.6 BUSY LINE INTERRUPT. A service in which the caller asks the
Operator to interrupt a conversation in progress, to
determine if one of the parties is willing to speak to the
caller requesting the interrupt. Busy Line Interrupt service
applies even if no conversation is in progress at the time
of the interrupt attempt, or when the parties interrupted
refuse to terminate the conversation in progress.
3.2.7 OPERATOR TRANSFER SERVICE. A service in which the local
caller requires Operator Assistance for completion of a call
terminating outside the originating LATA.
4. BRANDING
4.1 Except where otherwise required by law, CLEC shall not,
without SBC-13STATE's prior written authorization, offer
the services covered by this Agreement using the trademarks,
service marks, trade names, brand names, logos, insignia,
symbols or decorative designs of SBC-13STATE or its
Affiliates, nor shall CLEC state or imply that there is any
joint business association or similar arrangement with
SBC-13STATE in the provision of Telecommunications Services
to CLEC's End Users.
4.2 Branding Requirements
4.2.1 Where technically feasible and/or available,
SBC-13STATE will brand Operator Services (OS)
and/or Directory Assistance (DA) in CLEC's name as
outlined below:
4.2.1.1 Provide its brand at the beginning of
each telephone call and before the
consumer incurs any charge for the call;
and
4.2.1.2 Disclose immediately to the consumer,
upon request, a quote of its rates or
charges for the call.
<PAGE>
APPENDIX OS - SBC-13STATE
PAGE 7 OF 11
SBC-13STATE/essential.com, INC.
010700
4.2.2 Where SBC-13STATE provides CLEC OS and DA services via the
same trunk, both OS and DA calls will be branded with the
same brand. Since SBC-13STATE's DA and OS utilize the same
trunk group, CLEC will receive the same brand for both DA
and OS.
4.2.3 CLEC agrees and warrants that it will provide to SBC-13STATE
a name to be used for branding covered by this Agreement
that matches the name in which CLEC is certified to provide
local Telecommunications Services by the applicable state
Commission.
4.3 CALL BRANDING
4.3.1 SBC-13STATE will brand OS/DA in CLEC's name based upon the
information provided by CLEC and as outlined below:
4.3.1.1 SBC-SWBT and SNET - CLEC will provide written
specifications of its company name to be used by
SBC-SWBT or SNET to create CLEC specific branding
announcements for its OS/DA calls in accordance
with the process outlined in the Operator Services
OS/DA Questionnaire (OSQ). CLEC attests that it
has been provided a copy of the OSQ.
4.3.1.2 PACIFIC/NEVADA - CLEC will provide recorded
announcement(s) of its company name to be used to
brand CLEC's OS/DA calls in accordance with the
process outlined in the OSQ. CLEC attests that it
has been provided a copy of the OSQ.
4.3.1.3 SBC-AMERITECH - CLEC will provide written
specifications of its company name to be used by
SBC-AMERITECH to brand CLEC OS/DA calls, when
technically feasible and available, in accordance
with the process outlined in the OSQ. CLEC attests
that it has been provided a copy of the OSQ.
4.4 Branding Load Charges:
4.4.1 SBC-SWBT- An initial non-recurring charge applies per state,
per brand, per Operator assistance switch for the
establishment of CLEC specific branding. An additional
non-recurring charge applies per state, per brand, per
Operator assistance switch for each subsequent change to the
branding announcement. In addition, a per call charge
applies for every OS/DA call handled by SBC-SWBT on behalf
of CLEC when multiple brands are required on a single
Operator Services trunk. These charges are set forth in
Appendix Pricing under the "Other (Resale)" category.
<PAGE>
4.4.2 PACIFIC/NEVADA/SNET - An initial non-recurring charge
applies per state, per brand, per Operator assistance switch
for the establishment of CLEC specific branding. An
additional non-recurring charge applies per state, per
brand, per Operator assistance switch for each subsequent
change to branding announcement. These charges are set forth
in Appendix Pricing under the "Other (Resale)" category.
5. OS RATE/REFERENCE INFORMATION
5.1 CLEC will furnish OS Rate and Reference Information in a
mutually agreed to format or media thirty (30) calendar days
in advance of the date when the OS Services are to be
undertaken.
5.2 CLEC will inform SBC-13STATE, in writing, of any changes to
be made to such Rate/Reference Information fourteen calendar
days prior to the effective Rate/Reference change date. CLEC
acknowledges that it is responsible to provide SBC-13STATE
updated Rate/Reference Information in advance of when the
Rate/Reference Information is to become effective.
5.3 An initial non-recurring charge will apply per state, per
Operator assistance switch for loading of CLEC's OS
Rate/Reference Information. An additional non-recurring
charge will apply per state, per Operator assistance switch
for each subsequent change to either CLEC's OS Services Rate
or Reference Information. These charges are set forth in
Appendix Pricing under the "Other (Resale)" category.
5.4 When an SBC-13STATE Operator receives a rate request from a
CLEC End User, where technically feasible and available,
SBC-13STATE will quote the applicable OS rates as provided
by the CLEC.
5.4.1 PACIFIC/NEVADA/SBC-AMERITECH- In the interim, when
an Operator receives a rate request from a CLEC
End User, PACIFIC/NEVADA/SBC-AMERITECH will
transfer the CLEC End User to a customer care
number specified by the CLEC on the OSQ. When
PACIFIC/NEVADA/SBC-AMERITECH has the capability to
quote specific CLEC rates and reference
information, the Parties agree that the transfer
option will be eliminated.
6. INTRALATA MESSAGE RATING
6.1 SBC-SWBT - Upon request, CLEC may opt to purchase intraLATA
Message Rating Service. This service provides the message
rating function on all SBC-SWBT Operator assisted intraLATA
calls. With this service, SBC-SWBT will
<PAGE>
compute the applicable charges for each message based on
CLEC's schedule of rates provided to SBC-SWBT.
7. HANDLING OF EMERGENCY CALLS TO OPERATOR
7.1 SBC-13STATE asks a caller placing an emergency call to
Operator for the name of his/her community and attempts to
transfer the caller to the appropriate emergency agency for
the caller's area. When the caller is unable to provide the
name of his/her community, SBC-13 STATE transfers the caller
to a default emergency agency number. When the assistance of
another Carrier's operator is required, SBC-13STATE will
attempt to reach the appropriate operator if the network
facilities for inward assistance exist. CLEC agrees to
indemnify, defend, and hold harmless SBC-13STATE from any
and all actions, claims, costs, damages, lawsuits,
liabilities, losses and expenses, including reasonable
attorney fees, arising from any misdirected calls.
8. RESPONSIBILITIES OF THE PARTIES
8.1 CLEC agrees that due to quality of service and work force
schedule issues, SBC-13STATE will be the sole provider of
OS for CLEC's local serving area(s).
8.2 CLEC will furnish to SBC-13STATE a completed OSQ, thirty
(30) calendar days in advance of the date when the OS are to
be undertaken.
8.3 CLEC will provide SBC-13STATE updates to the OSQ fourteen
(14) calendar days in advance of the date when changes are
to become effective.
9. METHODS AND PRACTICES
9.1 SBC-13STATE will provide OS to CLEC's End Users in
accordance with SBC-13STATE OS methods and practices that
are in effect at the time the OS call is made, unless
otherwise agreed in writing by both Parties.
10. PRICING
10.1 Subject to any blocking that may be ordered by CLEC for its
End Users, SBC-13STATE will provide access to Operator
Services (OS) to CLEC's End Users to the same extent it
provides OS to its own End Users. CLEC shall pay the charges
associated with the utilization of OS by CLEC's End Users.
Discounts associated with the utilization of OS are set
forth in Appendix Pricing and/or the applicable Commission
ordered tariff.
<PAGE>
11. MONTHLY BILLING
11.1 For information regarding billing, non-payment,
disconnection, and dispute resolution, see the General Terms
and Conditions of this Agreement.
11.2 SBC-13STATE will accumulate and provide CLEC OS usage data
on CLEC's monthly bill for CLEC to bill its End Users.
12. LIABILITY
12.1 The provisions set forth in the General Terms and Conditions
of this Agreement, including but not limited to those
relating to limitation of liability and indemnification,
shall govern performance under this Appendix.
12.2 CLEC also agrees to release, defend, indemnify, and hold
harmless SBC-13STATE from any claim, demand or suit that
asserts any infringement or invasion of privacy or
confidentiality of any person or persons caused or claimed
to be caused, directly, or indirectly, by SBC-13STATE
employees and equipment associated with provision of the OS
Services, including but not limited to suits arising from
disclosure of the telephone number, address, or name
associated with the telephone called or the telephone used
to call Operator Services.
13. TERM OF APPENDIX
13.1 This Appendix will continue in force for the length of the
Resale Agreement, but no less than twelve (12) months. At
the expiration of the term of the Resale Agreement to which
this Appendix is attached, or twelve months, which ever
occurs later, either Party may terminate this Appendix upon
one hundred-twenty (120) calendar days written notice to the
other Party.
13.2 If CLEC terminates this Appendix prior to the expiration of
the term of this Appendix, CLEC shall pay SBC-13STATE,
within thirty (30) days of the issuance of any bills by
SBC-13STATE, all amounts due for actual services provided
under this Appendix, plus estimated monthly charges for the
unexpired portion of the term. Estimated charges will be
based on an average of the actual monthly service provided
by SBC-13STATE pursuant to this Appendix prior to its
termination.
14. APPLICABILITY OF OTHER RATES, TERMS AND CONDITIONS
14.1 Every resale service provided hereunder, shall be subject to
all rates, terms and conditions contained in this Agreement
which are legitimately related to such resale service.
Without limiting the general applicability of the foregoing,
the following terms and conditions of the General Terms and
Conditions are specifically agreed by the Parties to be
legitimately related to, and to be applicable
<PAGE>
to, each resale service provided hereunder: introduction, definitions,
interpretation, construction and severability; description and charges of
service; notice of changes; general responsibilities of the Parties; effective
date, term and termination; fraud by end users; deposits; billing and payment of
charges; nonpayment and procedures for disconnection; services; additional terms
applicable to resale of services; ancillary services; network and service order
conditions; dispute resolution; audits; responsibilities of SWBT; disclaimer of
representations and warranties; limitation of liability; responsibilities of
CLEC; indemnification; remedies; intellectual property; notices; publicity and
use of trademarks or service marks; no license; confidentiality; intervening
law; governing law; regulatory approval; changes in End User local exchange
service provider selection; compliance and certification; law enforcement; no
third party beneficiaries; disclaimer of agency; relationship of the
Parties/independent contractor; subcontracting; delegation to affiliate;
assignment; force majeure; taxes; nonwaiver; customer inquiries; expenses;
conflicts of interest; survival; appendices incorporated by reference;
authority; counterparts; amendments and modifications; and entire agreement.
<PAGE>
APPENDIX OSS-RESALE
<PAGE>
<TABLE>
<CAPTION>
TABLE OF CONTENTS
<S> <C>
1. INTRODUCTION................................................................................3
2. DEFINITIONS.................................................................................4
3. GENERAL CONDITIONS .........................................................................4
4. PRE-ODERING.................................................................................8
5. ORDERING/PROVISIONING .....................................................................12
6. MAINTENANCE/REPAIR.........................................................................18
7. BILLING....................................................................................19
8. REMOTE ACCESS FACILITY.....................................................................20
9. OPERATIONAL READINESS TEST (ORT) FOR ORDERING/PROVISIONING
AND REPAIR/MAINTENANCE INTERFACES..........................................................21
10. MISCELLANEOUS CHARGES......................................................................22
11. EFFECTIVE DATE, TERM.......................................................................23
12. APPLICABILITY OF OTHER RATES, TERMS AND CONDITIONS...................................... 23
</TABLE>
<PAGE>
APPENDIX OSS
(ACCESS TO OPERATIONS SUPPORT SYSTEMS FUNCTIONS)
1. INTRODUCTION
1.1 This Appendix sets forth terms and conditions for
nondiscriminatory access to Operations Support Systems (OSS)
"functions" to CLEC for pre-ordering, ordering,
provisioning, maintenance/repair, and billing provided by
the applicable SBC Communications Inc. (SBC) owned Incumbent
Local Exchange Carrier (ILEC) and CLEC.
1.2 SBC Communications Inc. (SBC) means the holding company
which owns the following ILECs: Illinois Bell Telephone
Company, Indiana Bell Telephone Company Incorporated,
Michigan Bell Telephone Company, Nevada Bell Telephone
Company, The Ohio Bell Telephone Company, Pacific Bell
Telephone Company, The Southern New England Telephone
Company, Southwestern Bell Telephone Company and/or
Wisconsin Bell, Inc. d/b/a Ameritech Wisconsin.
1.3 SBC-13STATE - As used herein, SBC-13STATE means the
applicable above listed ILEC(s) doing business in Arkansas,
California, Connecticut, Illinois, Indiana, Kansas,
Michigan, Missouri, Nevada, Ohio, Oklahoma, Texas, and
Wisconsin.
1.4 SBC-12STATE - As used herein, SBC-12STATE means the
applicable above listed ILEC(s) doing business in Arkansas,
California, Illinois, Indiana, Kansas, Michigan, Missouri,
Nevada, Ohio, Oklahoma, Texas, and Wisconsin.
1.5 SBC-8STATE - As used herein, SBC-8STATE means an applicable
above listed ILEC(s) doing business in Arkansas, California,
Connecticut, Kansas, Missouri, Nevada, Oklahoma, and Texas.
1.6 SBC-7STATE - As used herein, SBC-7STATE means the applicable
above listed ILEC(s) doing business in Arkansas, California,
Kansas, Missouri, Nevada, Oklahoma, and Texas.
1.7 SBC-SWBT As used herein, SBC-SWBT means the applicable above
listed ILEC(s) doing business in Arkansas, Kansas, Missouri,
Oklahoma, and Texas.
1.8 SBC-AMERITECH - As used herein, SBC-AMERITECH means the
applicable above listed ILEC(s) doing business in Illinois,
Indiana, Michigan, Ohio, and Wisconsin.
1.9 PACIFIC -As used herein, PACIFIC means the applicable above
listed ILEC doing business in California.
<PAGE>
1.10 NEVADA - As used herein, NEVADA means the applicable above
listed ILEC doing business in Nevada.
1.11 SNET - As used herein, SNET means the applicable above
listed ILEC doing business in Connecticut.
1.12 SBC-13STATE has established performance measurements to
illustrate nondiscriminatory access. These measurements are
represented in Appendix Performance Measurements.
2. DEFINITIONS
2.1 "LSC" means (i) the Local Service Center (LSC) for SWBT,
PACIFIC, and NEVADA; (ii) Local Exchange Carrier Center
(LECC) for SNET; and (iii) Information Industry Service
Center (IISC) for SBC-AMERITECH.
2.2 "LOC" means (i) the Local Operations Center (LOC) for SWBT,
PACIFIC, NEVADA, and SNET; and (ii) the Customer Response
Unit (CRU) for SBC-AMERITECH.
3. GENERAL CONDITIONS
3.1 Resale functions will be accessible via electronic
interface(s), as described herein, where such functions are
available. The Parties agree that electronic order
processing is more efficient than manual order processing.
During implementation the Parties will negotiate a threshold
volume of orders after which electronic ordering is
required. Once CLEC is submitting more than the agreed to
threshold amount, but not later than twelve (12) months from
the Effective Date of this Agreement, CLEC will no longer
submit orders manually (and SBC-13 STATE shall not be
required to accept and process orders manually) except when
the electronic order processing is unavailable for a
substantial period of time, or where a given order cannot be
processed electronically.
3.2 PROPER USE OF OSS INTERFACES:
3.2.1 For SBC-7STATE, CLEC agrees to utilize SBC-7STATE
electronic interfaces, as described herein, only
for the purposes of establishing and maintaining
Resale Services through SBC-7STATE. In addition,
CLEC agrees that such use will comply with the
summary of SBC-7STATE's Operating Practice No.
113, Protection of Electronic Information, titled
"Competitive Local Exchange Carrier Security
Policies and Guidelines". Failure to comply with
such security guidelines may result in forfeiture
of electronic access to OSS functionality. In
addition, CLEC shall be responsible for and
indemnifies SBC-7STATE against any cost, expense
<PAGE>
or liability relating to any unauthorized entry or
access into, or use or manipulation of
SBC-7STATE's OSS from CLEC systems, workstations
or terminals or by CLEC employees or agents or any
third party gaining access through information
and/or facilities obtained from or utilized by
CLEC and shall pay SBC-7STATE for any and all
damages caused by such unauthorized entry.
3.2.2 For SNET region, CLEC agrees to access and utilize
SNET's Enhanced Services Access Platform, (ESAP),
only for the purposes described herein. CLEC
agrees that its access and use of ESAP shall, at
all times, comport with SNET's "Wholesale CIWin
User Guide", "EF User Guide", "ESAP Installation
Guide", "ESAP Help Desk Guide", "CLEC Mechanized
Interface Specification", and any other guide
describing the interface or interface requirements
that SNET may, from time to time, provide CLEC
(collectively, the "Guides"). Failure materially
to adhere to any material provision of such Guides
may result, among other things, in forfeiture of
electronic access to SNET's OSS functionality via
ESAP upon notice. In addition, CLEC shall be
responsible for and indemnifies SNET against any
cost, expense or liability relating to any
unauthorized entry or access into, or use or
manipulation of SNET's OSS or ESAP from CLEC
complimentary systems, workstations or terminals
or by CLEC employees or agents any third party
gaining access through information and/or
facilities obtained from or utilized by CLEC and
shall pay SNET for any and all damages caused by
such unauthorized entry.
3.3 Within SBC-7STATE regions, CLEC's access to pre-order
functions described in 4.2.2 and 4.3.2 will only be utilized
to view Customer Proprietary Network Information (CPNI) of
another carrier's End User where CLEC has obtained an
authorization for release of CPNI from the End User and has
obtained an authorization to become the End User's Local
Service Provider. Within SNET, and SBC-AMERITECH regions,
CLEC's access to pre-order functions described in 4.2.2 and
4.3.2 will only be utilized to view Customer Proprietary
Network Information (CPNI) of the applicable ILEC's or
requesting CLEC's End User account where CLEC has obtained
an authorization for release of CPNI from the End User and
has obtained an authorization to become the End User's Local
Service Provider. The authorization for release of CPNI must
substantially reflect the following:
3.3.1 Within SBC-7STATE regions, "This written consent
serves as instruction to all holders of my local
exchange telecommunications Customer Proprietary
Network Information (CPNI) and account
identification information to provide such
information to the undersigned CLEC. Specifically,
I authorize disclosure of my account billing name,
billing address, and directory listing
information, and CPNI, including, service
<PAGE>
address, service and feature subscription, long
distance carrier identity, and pending service
order activity. I have authorized, CLEC to become
my local service provider. This Authorization
remains in effect until such time that I revoke it
directly or appoint another individual/company
with such capacity or undersigned receives notice
to disconnect my local exchange service or notice
that a service disconnect has been performed. At
and from such time, this Authorization is null and
void."
3.3.2 Within SNET region, "This written consent serves as
instruction to all holders of any local exchange
telecommunications Customer Proprietary Network Information
("CPNI") and account identification information to provide
such information to [Name of CLEC]. Specifically, I
authorize disclosure of any account billing name, billing
address, and directory listing information, and CPNI,
including, service address, service and feature subscription
and long distance carrier identity. This Authorization
remains in effect until such time as I [Name of Customer]
revoke(s) it directly or appoint(s) another
individual/company with such capacity or [Name of CLEC]
receives notice to disconnect my local exchange service or
notice that a service disconnect has been performed. At and
from such time, this Authorization is null and void."
3.3.3 In SBC-13STATE regions, the CLEC may choose to use THIS CPNI
language (in Section 3.3.3) in lieu of using the CPNI
language in sections 3.3.1 or 3.3.2 above (depending on
region). CLEC must have documented authorization for change
in local exchange service and release of CPNI that adheres
to all requirements of state and federal law, as applicable.
3.3.3.1 This section applies to PACIFIC ONLY for those
CLECs who opted to use CPNI language in Section
3.3.3. For residence End Users, prior to accessing
such information, CLEC shall, on its own behalf
and on behalf of PACIFIC, comply with all
applicable requirements of Section 2891 of the
California Public Utilities Code and 47 USC 222
(and implementing FCC decisions thereunder), and,
where accessing such information via an electronic
interface, CLEC shall have obtained an
authorization to become the End User's local
service provider. Accessing such information by
CLEC shall constitute certification that CLEC is
in compliance with applicable requirements of
Section 2891 and Section 222 (and implementing FCC
decisions thereunder) and has complied with the
prior sentence. CLEC shall receive and retain such
information in conformance with the requirements
of 47 USC 222 (and implementing FCC decisions
thereunder). CLEC agrees to indemnify, defend and
hold harmless PACIFIC against
<PAGE>
any claim made by a residence End User or
governmental entity against PACIFIC or CLEC under
Section 2891 or Section 222 (and implementing FCC
decisions thereunder) or for any breach by CLEC of
this section.
3.3.4 Throughout SBC-13STATE region, CLEC is solely responsible
for determining whether proper authorization has been
obtained and holds SBC-13STATE harmless from any loss on
account of CLEC's failure to obtain proper CPNI consent from
an End User.
3.4 By utilizing electronic interfaces to access OSS functions, CLEC
agrees to perform accurate and correct ordering as it relates to the
application of Resale rates and charges, subject to the terms of this
Agreement and applicable tariffs dependent on region of operation.
CLEC is also responsible for all actions of its employees using any of
SBC-13STATE's OSS systems. As such, CLEC agrees to accept and pay all
reasonable costs or expenses, including labor costs, incurred by
SBC-13STATE caused by any and all inaccurate ordering or usage of the
OSS, if such costs are not already recovered through other charges
assessed by SBC-13STATE to CLEC. In addition, CLEC agrees to indemnify
and hold SBC-13STATE harmless against any claim made by an End User of
CLEC or other third parties against SBC-13STATE caused by or related
to CLEC's use of any SBC-13STATE OSS. In addition, SBC-13STATE retains
the right to audit all activities by CLEC using any SBC-13STATE OSS.
All such information obtained through an audit shall be deemed
proprietary and shall be covered by the Parties Non-Disclosure
Agreement signed prior to or in conjunction with the execution of this
Agreement.
3.5 In areas where Resale Service order functions are not
available via an electronic interface for the pre-order,
ordering and provisioning processes, SBC-13STATE and CLEC
will use manual processes. Should SBC develop electronic
interfaces for these functions for itself, SBC will make
electronic access available to CLEC within the specific
operating region.
3.6 The Information Services (I.S.) Call Center for the
SBC-8STATE region, and the Resource Center for the
SBC-AMERITECH region provides for technical support function
of electronic OSS interfaces. CLEC will also provide a
single point of contact for technical issues related to the
CLEC's electronic interfaces.
3.7 SBC-13STATE and CLEC will establish interface contingency
plans and disaster recovery plans for the pre-order,
ordering and provisioning of Resale services.
3.8 The Parties will follow the final adopted guidelines of
Change Management, as may be modified from time to time in
accordance with the Change Management principles.
<PAGE>
3.9 SBC-13STATE will and CLEC may participate in the Order and
Billing Forum (OBF) and the Telecommunications Industry
Forum (TCIF) to establish and conform to uniform industry
guidelines for electronic interfaces for pre-order,
ordering, and provisioning. Neither Party waives its rights
as participants in such forums or in the implementation of
the guidelines. To achieve system functionality as quickly
as possible, the Parties acknowledge that SBC-13STATE may
deploy interfaces with requirements developed in advance of
industry guidelines. Thus, subsequent modifications may be
necessary to comply with emerging guidelines. CLEC and
SBC-13STATE are individually responsible for evaluating the
risk of developing their respective systems in advance of
guidelines and agree to support their own system
modifications to comply with new requirements. In addition,
SBC-13STATE has the right to define Local Service Request
(LSR) Usage requirements according to the General Section
1.0, paragraph 1.4 of the practices in the OBF Local Service
Ordering Guidelines (LSOG), which states: "Options described
in this practice may not be applicable to individual
providers tariffs; therefore, use of either the field or
valid entries within the field is based on the providers
tariffs/practices."
3.10 Due to enhancements and on-going development of access to
SBC-13STATE's OSS functions, certain interfaces described in
this Appendix may be modified, temporarily unavailable or
may be phased out after execution of this Appendix.
SBC-13STATE shall provide proper notice of interface
phase-out as required by the Change Management process.
3.11 CLEC is responsible for obtaining operating system software
and hardware to access SBC-13STATE OSS functions as
specified in: "Requirements for Access to Southwestern Bell
OSS Functions" and "Requirements for Access to Pacific Bell
OSS Functions" and "SNET W-CIWin Installation Guide" and
"Ameritech Electronic Service Order Guide", or any other
documents or interface requirements subsequently generated
by SBC-13STATE for any of its regions.
4. PRE-ORDERING
4.1 SBC-13STATE will provide real time access to pre-order
functions to support CLEC ordering of Resale services. The
Parties acknowledge that ordering requirements necessitate
the use of current, real time pre-order information to
accurately build service orders. The following lists
represent pre-order functions that are available to CLEC so
that CLEC order requests may be created to comply with
SBC-13STATE region-specific ordering requirements.
<PAGE>
4.2 PRE-ORDERING FUNCTIONS FOR RESALE SERVICES INCLUDE:
4.2.1 For SBC-7STATE, features and services available at a valid
service address (as applicable) or, for SNET, features will
be available based on NPA-NXX;
4.2.2 Access to SBC-13STATE retail or resold CPNI and account
information for pre-ordering will include: billing name,
service address, billing address, service and feature
subscription, directory listing information, long distance
carrier identity, and for SBC-12STATE only, pending service
order activity. CLEC agrees that CLEC's representatives will
not access the information specified in this subsection
until after the End User requests that his or her Local
Service Provider be changed to CLEC, and an End User
authorization for release of CPNI complies with conditions
as described in section 3.2 of this Appendix.
4.2.3 A telephone number (if the End User does not have one
assigned) with the End User on-line;
4.2.4 Service availability dates to the End User (where
available);
4.2.5 Information regarding whether dispatch is required;
4.2.6 For SBC-12STATE, Primary Interexchange Carrier (PIC) options
for intraLATA toll and interLATA toll; and
4.2.7 Service address verification.
4.3 ELECTRONIC ACCESS TO PRE-ORDER FUNCTIONS:
4.3.1 SBC-SWBT RESALE SERVICES PRE-ORDER SYSTEM AVAILABILITY:
SBC-SWBT will provide CLEC access to one or more of the
following systems:
4.3.1.1 Residential Easy Access Sales Environment
(R-EASE): R-EASE is an ordering entry system
through which SBC-SWBT provides CLEC access to the
functions of pre-ordering to order SBC-SWBT
residential Resale services.
4.3.1.2 Business Easy Access Sales Environment (B-EASE):
B-EASE is an ordering entry system through which
SBC-SWBT provides CLEC access to the functions of
pre-ordering to order SBC-SWBT business Resale
services.
<PAGE>
4.3.2 PACIFIC AND NEVADA RESALE SERVICES PRE-ORDER SYSTEM
AVAILABILITY: PACIFIC will provide CLEC access to the
following system:
4.3.2.1 Service Order Retrieval and Distribution (SORD) is
available for the pre-order function of viewing
the CPNI, when SORD is used to order PACIFIC
Resale service.
4.3.2.2 StarWriter is available for the pre-ordering
functions listed in section 4.2 when StarWriter is
used to order PACIFIC single line, basic exchange,
residential Resale services.
4.3.3 SNET RESALE SERVICE PRE-ORDER SYSTEM AVAILABILITY:
SNET will provide CLEC access to the following
applications through its proprietary W-CIWin interface.
4.3.3.1 W-SNAP is an order entry application through which
SNET provides CLEC access to pre-ordering
functionality embedded in the ordering tool.
4.3.3.2 CCTOOLS is a toolbar that provides icons for
accessing pre-order GUI applications.
4.3.3.3 Electronic Forms (EF) is an automated workflow
process for obtaining pre-order information for
specific complex resale products.
4.3.4 SNET RESALE SERVICES PRE-ORDER SYSTEM AVAILABILITY:
SNET will provide CLEC access to its MSAP:
4.3.4.1 MSAP is an Electronic Data Interchange (EDI) based
interface which provides access to pre-order
functions.
4.3.5 SBC-AMERITECH RESALE SERVICES PRE-ORDER SYSTEM AVAILABILITY:
SBC-AMERITECH will provide CLEC access to the following
system:
4.3.5.1 TCNet and EDI are available for the pre-ordering
functions listed in section 4.2.
4.3.6 RESALE PRE-ORDER SYSTEM AVAILABILITY: SBC-7STATE will
provide CLEC access to the following systems (except as
noted in section 4.3.6.3):
4.3.6.1 DataGate is a transaction-based data query system
through which SBC-7STATE provides CLEC access to
pre-ordering functions.
<PAGE>
This gateway shall be a Transmission Control
Protocol/Internet Protocol (TCP/IP) gateway and
will, once CLEC has developed its own interface,
allow CLEC to access the pre-order functions for
Resale services. An industry standard EDI/CORBA
Pre-ordering Gateway is also provided by
SBC-7STATE. This pre-ordering gateway supports
two structural protocols, EDI and CORBA, as
recommended by the technical industry committees.
EDI/CORBA, like DataGate, is an
application-to-application interface that can be
integrated with the CLEC's own negotiation system
and that supports both Resale services. Where
DataGate follows industry guidelines, but is based
on SBC-7STATE's proprietary pre-ordering
functionality, EDI/CORBA is an industry-wide
standard pre-ordering interface.
4.3.6.2 Verigate is a CLEC interface developed by
SBC-7STATE that provides access to the
pre-ordering functions for Resale Services.
Verigate is accessible via Toolbar.
4.3.6.3 CESAR is a PACIFIC and NEVADA system which is
available on an interim basis provides pre-order
functions for Resale service, with the exception
of viewing CPNI. The pre-order functionality of
CESAR will be replaced by Verigate.
4.4 OTHER PRE-ORDER FUNCTION AVAILABILITY:
4.4.1 Where pre-ordering functions are not available
electronically, CLEC will manually request this information
from the LSC, dependent on operating region, for inclusion
on the service order request.
4.4.2 Upon request, but not more frequently than once a month,
SBC-SWBT will provide CLEC certain pre-order information in
batch transmission for the purposes of back-up data for
periods of system unavailability. Specifically for SBC-SWBT
and SBC-AMERITECH, the following database information may be
electronically provided: Street Address Guide (SAG) Guide,
Service and Feature Availability by NXX, and a PIC list, to
support address verification, service and feature
availability and PIC availability, respectively.
Specifically for PACIFIC, the following database information
may be electronically provided: Street Address Guide (SAG)
Guide (with planned availability no later than June 1st,
2000), and a PIC list, to support address verification,
service and feature availability and PIC availability,
respectively. The Parties recognize such information must be
used to construct order requests only in exception handling
situations.
<PAGE>
5. ORDERING/PROVISIONING
5.1 SBC-13STATE provides access to ordering functions (as
measured from the time SBC-13STATE receives accurate service
requests from the interface) to support CLEC provisioning of
Resale services via one or more electronic interfaces. To
order Resale services, CLEC will format the service request
to identify what features, services, or elements it wishes
SBC-13STATE to provision in accordance with applicable
SBC-13STATE ordering requirements. SBC-13STATE will provide
CLEC access to one or more of the following systems or
interfaces:
5.2 RESALE SERVICE ORDER REQUEST SYSTEM AVAILABILITY:
5.2.1 In SBC-SWBT:
5.2.1.1 R-EASE is available for the ordering of
residential Resale services.
5.2.1.2 B-EASE is available for the ordering of
business Resale services.
5.2.1.3 SORD interface provides CLECs with the
ability to create certain complex Resale
orders that cannot be ordered through
Easy Access Sales Environment (EASE),
Electronic Data Interchange (EDI) or
Local Exchange (LEX). In addition, the
SORD interface supports the modification
of service orders submitted
electronically by CLEC. The Parties
agree that the following conditions are
applicable to electronically generated
service orders with errors corrected via
SORD: If CLEC elects to correct service
order errors via SORD, CLEC will be
responsible for correcting all errors
occurring prior to completion on any
orders submitted electronically by CLEC.
If CLEC chooses to use SORD to issue
orders, then CLEC becomes responsible
for correction of all service order
errors between order application and
order completion that occur on
mechanically generated service orders
created or modified by CLEC. CLEC may
need to call the LSC to obtain
additional information. CLEC may also
choose to clear service order errors,
even though CLEC is not initiating
service orders via SORD. CLEC would then
become responsible for correction of all
errors, as detailed above.
5.2.2 In NEVADA only:
5.2.2.1 Pacific Bell Service Manager (PBSM) is
available for ordering Centrex and ISDN
Resale services.
<PAGE>
5.2.2.2 When available, SORD system will support
the ordering of all Resale Services. If
CLEC chooses to use SORD to issue
orders, then CLEC becomes responsible
for correction of all service order
errors between order application and
order completion that occur on
mechanically generated service orders
created or modified by CLEC. CLEC may
need to call the LSC to obtain
additional information. CLEC may also
choose to clear service order errors,
even though CLEC is not initiating
service orders via SORD. CLEC would then
become responsible for correction of all
errors, as detailed above.
5.2.3 In PACIFIC only:
5.2.3.1 StarWriter supports the ordering of
single line, basic exchange, and
residential Resale services.
5.2.3.2 Pacific Bell Service Manager (PBSM) is
available for ordering Centrex and ISDN
Resale services.
5.2.3.3 SORD system supports the ordering of all
Resale Services. If CLEC chooses to use
SORD to issue orders, then CLEC becomes
responsible for correction of all
service order errors between order
application and order completion that
occur on mechanically generated service
orders created or modified by CLEC. CLEC
may need to call the LSC to obtain
additional information. CLEC may also
choose to clear service order errors,
even though CLEC is not initiating
service orders via SORD. CLEC would then
become responsible for correction of all
errors, as detailed above.
5.2.3 In SNET, Resale ordering is supported by W-CIWin
(SNET'S proprietary GUI interface).
5.2.3.1 W-SNAP is made available for the
ordering of non-complex Resale products
and services.
5.2.3.2 Order Negotiation (as part of CCTOOLS)
is made available for the ordering of
complex Resale products and services.
5.2.3.3 Electronic Forms (EF) is an automated
workflow process for ordering of
specific complex Resale products and
services.
<PAGE>
5.3 RESALE SERVICE ORDER REQUEST ORDERING SYSTEM AVAILABILITY:
5.3.1 SBC-13STATE makes available to CLEC an Electronic
Data Interchange (EDI) interface for transmission
OF SBC-13STATE ordering requirements via formats
provided on the Local Service Request (LSR) as
defined by the OBF and via EDI mapping as defined
by TCIF. In ordering and provisioning Resale,
CLEC and SBC-13STATE will utilize industry
guidelines developed by OBF and TCIF EDI to
transmit data based upon SBC-13STATE's Resale
ordering requirements, dependent on operating
region. In addition, Local Number Portability
(LNP) and, where applicable, Interim Number
Portability (INP), will be ordered consistent with
the OBF LSR and EDI process.
5.3.2 For SBC-SWBT and PACIFIC regions, and NEVADA (when
available), the SORD interface supports the
modification of service orders submitted
electronically by CLEC. The Parties agree that the
following conditions are applicable to
electronically generated service orders with
errors corrected via SORD: If CLEC chooses to use
SORD to issue orders, then CLEC becomes
responsible for correction of all service order
errors between order application and order
completion that occur on mechanically generated
service orders created or modified by CLEC. CLEC
may need to call the LSC to obtain additional
information. CLEC may also choose to clear service
order errors, even though CLEC is not initiating
service orders via SORD. CLEC would then become
responsible for correction of all errors, as
detailed above. CLEC assumes all responsibility
for End User out of service conditions which
result from disconnect and new connect orders
submitted and worked out of sequence.
5.3.4 For SBC-SWBT and PACIFIC, LEX is an End User
interface that provides access to the ordering
functions for Resale Services.
5.3.5 In SNET, MSAP (SNET's, EDI-based industry standard
app-to-app interface) is available for the
ordering of both complex and non-complex Resale
Services.
5.4 PROVISIONING FOR RESALE SERVICES IN SBC-SWBT: SBC-SWBT will
provision Resale services as detailed in CLEC order
requests. Access to status on such orders will be provided
via the following electronic interfaces:
5.4.1 Order Status will allow CLEC to check service
order status. Order Status and Provisioning Order
Status are both accessible via SBC-SWBT Toolbar.
In addition, pending orders can be viewed in SORD.
<PAGE>
5.4.2 For EDI ordering, SBC-SWBT will provide, and CLEC shall use,
an EDI interface for transferring and receiving orders, Firm
Order Confirmation (FOC), service completion, and, as
available, other provisioning data and information.
SBC-SWBT will provide CLEC with a FOC for each Resale
service request. The FOC will include: purchase order
number, telephone number, LSR number, due date, service
order number, and completion date. Upon work completion,
SBC-SWBT will provide CLEC with an 855 EDI
transaction-based order completion that states when that
order was completed. CLEC may submit supplement requests
via the 860 EDI transaction, and, where available,
SBC-SWBT will provide CLEC an 865 EDI transaction-based
completion notice.
5.4.3 The Parties agree that the following timelines are
applicable to electronically generated service orders with
errors corrected via SORD:
5.4.3.1 Errors occurring between application and
distribution must be corrected within five (5)
hours for a simple order and within twenty four
(24) hours for a complex order;
5.4.3.2 Error Service Order Image (ESOI) errors must be
corrected within three (3) business hours.
5.4.3.3 Service orders will be excluded from calculation
of the results for all related performance
measurements, described in Appendix Performance
Measurements, if CLEC fails to correct service
order errors within the timeframes specified in
this Section 5.4.3.
5.4.3.4 Additionally, service orders with errors that
occur after order generation, but prior to
distribution will not qualify for a SBC-SWBT
issued FOC.
5.4.3.5 The Parties agree that the following conditions
are applicable to electronically generated service
orders with errors corrected via SORD: If CLEC
chooses to use SORD to issue orders, then CLEC
becomes responsible for correction of all service
order errors between order application and order
completion, that occur on mechanically generated
service orders created or modified by CLEC. CLEC
may need to call LSC to obtain additional
information. CLEC may also choose to clear service
order errors, even though CLEC is not initiating
service orders via SORD. CLEC would then become
responsible for correction of all errors, as
detailed above.
<PAGE>
5.4.4 A file transmission may be provided to confirm order
completions for R-EASE or B-EASE order processing. This file
will provide service order information of all distributed
and completed orders for CLEC.
5.4.5 The Parties agree that the following timelines are
applicable to electronically generated service orders with
errors corrected via SORD:
5.4.5.1 Errors occurring between application and
distribution must be corrected prior to releasing
the order from EASE;
5.4.5.2 Error Service Order Image (ESOI) errors must be
corrected within three (3) business hours
5.4.5.3 Service orders will be excluded from calculation
of the results for the related performance
measurements, described in Appendix Performance
Measurements, if CLEC fails to correct service
order errors within the timeframes specified in
this Section 5.4.5.
5.4.5.4 Service orders with errors that occur after order
generation, but prior to distribution, will not
qualify for a SBC-SWBT issued FOC.
5.4.5.5 The Parties agree that the following conditions
are applicable to electronically generated service
orders with errors corrected via SORD: If CLEC
chooses to use SORD to issue certain service
orders, then CLEC is responsible for correction of
all service order errors between order application
and order completion that occur on mechanically
generated service orders created or modified by
CLEC. CLEC may need to call LSC to obtain
additional information. CLEC may also choose to
clear service order errors, even though CLEC is
not initiating service orders via SORD. CLEC would
then become responsible for correction of all
errors, as detailed above.
5.4 Provisioning for Resale services in PACIFIC and NEVADA: PACIFIC and
NEVADA will provision Resale services as detailed in CLEC order
requests. Access to status on such orders is provided via the
following electronic interfaces:
5.5.1 Pacific Bell Order Dispatch (PBOD) functions via DataGate
allows CLEC to check status of basic exchange service orders
that require field work. PACIFIC also offers Provisioning
order status to check the status of service orders.
<PAGE>
5.5.2 For EDI ordering, PACIFIC shall provide CLEC, and CLEC shall
use, an EDI interface for transferring and receiving orders,
Firm Order Confirmation (FOC), service completion, and, as
available, other provisioning data and information. PACIFIC
will provide CLEC with a FOC for each Resale service. The
FOC will include: purchase order number, telephone number,
LSR number, due date, service order number, and completion
date. Upon work completion, PACIFIC will provide CLEC with
an 855 EDI transaction-based order completion that states
when that order was completed. CLEC may submit supplement
requests via the 860 EDI transaction, and, where available,
PACIFIC will provide CLEC an 865 EDI transaction-based
completion notice.
5.5.3 The Parties agree that the following timelines are
applicable to electronically generated service orders with
errors corrected via SORD:
5.5.3.1 Errors occurring between application and
distribution must be corrected within five (5)
hours for a simple order and within twenty four
(24) hours for a complex order;
5.5.3.2 Error Service Order Image (ESOI) errors must be
corrected within three (3) business hours.
5.5.3.3 Service orders will be excluded from calculation
of the results for all related performance
measurements, described in Appendix Performance
Measurements, if CLEC fails to correct service
order errors within the timeframes specified in
this Section 5.5.3.
5.5.3.4 Service orders with errors that occur after order
generation, but prior to distribution will not
qualify for a PACIFIC issued FOC.
5.5.3.5 The Parties agree that the following conditions
are applicable to electronically generated service
orders with errors corrected via SORD: If CLEC
chooses to use SORD to issue orders, then CLEC
becomes responsible for correction of all service
order errors between order application and order
completion that occur on mechanically generated
service orders created or modified by CLEC. CLEC
may need to call LSC to obtain additional
information. CLEC may also choose to clear service
order errors, even though CLEC is not initiating
service orders via SORD. CLEC would then become
responsible for correction of all errors, as
detailed above.
5.6 PROVISIONING FOR RESALE SERVICES IN SBC-AMERITECH AND SNET:
SBC-AMERITECH and SNET will provision Resale services as
detailed in CLEC
<PAGE>
order requests. Access to status on such orders will be
provided via the following electronic interfaces:
5.6.1 For EDI ordering, SBC-AMERITECH and SNET provide
CLEC, and CLEC shall use, an EDI interface for
transferring and receiving orders, FOC, Service
Order Completion (SOC), and, as available, other
provisioning data and information. SBC-AMERITECH
and SNET will provide CLEC with a FOC for each
Resale service. The FOC will include purchase
order number, telephone number, LSR number, due
date, and service order number. Upon work
completion, SBC-AMERITECH and SNET will provide
CLEC with an 855 EDI transaction-based Service
Order Completion (SOC) that states when that order
was completed. CLEC may submit supplement requests
via the 860 EDI transaction, and, where available,
SBC-AMERITECH and SNET will provide CLEC an 865
EDI transaction-based completion notice.
6. MAINTENANCE/REPAIR
6.1 Two real time electronic interfaces are accessible in each
region to place, and check the status of, trouble reports
for both Resale services. Upon request, CLEC may access
these functions via the following methods:
6.1.1 In SBC-SWBT, Trouble Administration (TA) system
access provides CLEC with SBC-SWBT software that
allows CLEC to submit trouble reports and
subsequently check status on trouble reports for
CLEC End-Users. TA will provide the ability to
review the maintenance history of a converted
Resale CLEC account. TA is accessible via SBC-SWBT
Toolbar.
6.1.2 In PACIFIC and NEVADA, Pacific Bell Service
Manager (PBSM) allows CLECs to perform MLT, issue
trouble tickets, view status, and view trouble
history on-line.
6.1.3 In SBC-AMERITECH, Electronic Bonding for Trouble
Administration (EBTA-GUI) and Intelligent Customer
Advocate System (ICAS) allows CLEC to issue
trouble tickets, view status, and view trouble
history online.
6.1.4 In SNET the maintenance and repair functionality
for Resale services is available via the MSAP EDI
interface. In addition, for Resale products and
services, trouble history and trouble status
functions are available via CCTOOLS.
<PAGE>
6.1.5 In SBC-12STATE, Electronic Bonding Interface (EBI)
is an interface that is available for trouble
report submission and status updates. EBI conforms
to ANSI guidelines T1:227:1995 and T1.228:1995,
Electronic Communications Implementation Committee
(ECIC) Trouble Report Format Definition (TFRD)
Number 1 as defined in ECIC document
ECIC/TRA/95-003, and all guidelines referenced
within those documents, as mutually agreed upon
by CLEC and SBC-12STATE. Functions currently
implemented include Enter Trouble, Request Trouble
Report Status, Add Trouble Information, Modify
Trouble Report Attributes, Trouble Report
Attribute Value Change Notification, and Cancel
Trouble Report, as explained in 6 and 9 of ANSI
T1.228:1995. CLEC and SBC-12STATE will exchange
requests over a mutually agreeable X.25-based
network.
7. BILLING
7.1 SBC-7STATE will bill CLEC for Resold services. SBC-7STATE
will send associated billing information to CLEC as
necessary to allow CLEC to perform billing functions. At
minimum SBC-7STATE will provide CLEC billing information in
a paper format or via magnetic tape, as agreed to between
CLEC and SBC-7STATE.
7.1.1 For Resale Services in PACIFIC, CLEC may elect to
receive Custom Billing Disk/ CD Bill. Custom
Billing Disk/ CD Bill provides an electronic bill
with the same information as a paper bill along
with various reporting options.
7.1.2 For Resale Services in SBC-AMERITECH, CLEC may
elect to receive its bill on CD.
7.2 Electronic access to billing information for Resale services
will also be available via the following interfaces:
7.2.1 In SBC-SWBT, CLEC may receive Bill Plus-TM-, an
electronic version of its bill, as described in,
and in accordance with, SBC-SWBT's Local Exchange
Tariff.
7.2.2 In SBC-SWBT, CLEC may also view billing
information through the Bill Information
interface. Bill Information will be accessible via
SBC-SWBT Toolbar.
7.2.3 In SBC-7STATE, CLEC may receive a mechanized bill
format via the EDI 811 transaction set.
<PAGE>
7.2.4 In SBC-12STATE, CLEC may receive electronically a
Usage Extract Feed, or in SNET, a Daily Usage Feed
(DUF). On a daily basis, this feed provides
information on the usage billed to its accounts
for Resale services in the industry standardized
EMR format.
7.2.5 In SBC-7STATE, CLEC may receive Local Disconnect
Report records (via CARE records) or, in SNET Loss
Notification File (via CARE-like records),
electronically, that indicate when CLEC's End
Users change their Competitive Local Exchange
Carrier. In SBC-AMERITECH this information is
provided via the EDI 836 transaction set.
7.2.6 In SNET, CLEC may receive a Billing Detail File on
cartridge or magnetic tape.
7.2.7 In SBC-AMERITECH, CLEC may receive a mechanized
bill via the SBC-AMERITECH Electronic Billing
System (AEBS) transaction set.
8. REMOTE ACCESS FACILITY
8.1 For the SBC-SWBT region, CLEC must access the following
OSS interfaces via a CLEC Remote Access Facility (LRAF)
located in Dallas, Texas: R-EASE; B-EASE; DataGate;
EDI-Ordering; SORD; Electronic Bonding via EDI/SSL or CORBA;
and via Toolbar, Trouble Administration, Order Status,
Provisioning Order Status, Verigate, LEX, and Bill
Information. Connection to the LRAF will be established via
a "port" either through dial-up or direct connection as
described in Section 8.3. CLEC may utilize a port to access
these interfaces to perform the supported functions in any
SBC-SWBT state where CLEC has executed an Appendix OSS.
8.2 In PACIFIC and NEVADA regions, CLEC must access the
following OSS interfaces via a CLEC Remote Access Facility
(PRAF) located in Fairfield, California: StarWriter;
DataGate; EDI-Ordering; SORD; Electronic Bonding via EDI/SSL
or CORBA; and via Toolbar Verigate, LEX, Order Status, and
Provisioning Order Status. Connection to the PRAF will be
established via a "port" either through dial-up or direct
connection as described in Section 8.3. CLEC may utilize a
port to access these interfaces to perform the supported
functions in PACIFIC or NEVADA where CLEC has executed an
Appendix OSS and purchases System Access in that state.
8.3 For SBC-7STATE, CLEC may use three types of access:
Switched, Private Line, and Frame Relay. For Private Line
and Frame Relay "Direct Connections," CLEC shall provide its
own router, circuit, and two Channel Service Units/Data
Service Units (CSU/DSU). The demarcation point shall be the
router interface at the LRAF and/or PRAF. Switched Access
"Dial-up Connections" require CLEC to
<PAGE>
provide its own modems and connection to the SBC-SWBT LRAF
and the PACIFIC PRAF. CLEC shall pay the cost of the call if
Switched Access is used.
8.4 For SBC-7STATE, CLEC shall use TCP/IP to access SBC-7STATE
OSS via the LRAF and the PRAF. In addition, each CLEC shall
have one valid Internet Protocol (IP) network address per
region. CLEC shall maintain a user-id /password unique to
each individual for accessing a SBC-SWBT OSS and PACIFIC OSS
on CLEC's behalf. CLEC shall provide estimates regarding its
volume of transactions, number of concurrent users, desired
number of private line or dial-up (switched) connections,
and length of a typical session.
8.5 For SBC-7STATE, CLEC shall attend and participate in
implementation meetings to discuss CLEC LRAF/PRAF access
plans in detail and schedule testing of such connections.
8.6 For SBC-AMERITECH, CLEC may use four types of access: DSO
(56KB), DS1 (1.5MB), dedicated and Frame Relay (DSO and
DS 1). CLEC shall provide its own router, circuit, and two
Channel Service Units/Data Service Units (CSU/DSU). CLEC
must use a legal IP address for its end of the connection.
8.7 For SNET region, CLEC may use a private line connection.
The CLEC shall provide and maintain own router and CSU/DSU.
9. OPERATIONAL READINESS TEST (ORT) FOR ORDERING/PROVISIONING AND REPAIR/
MAINTENANCE INTERFACES
9.1 Prior to live access to interface functionality, the Parties
must conduct Operational Readiness Testing (ORT), which will
allow for the testing of the systems, interfaces, and
processes for the OSS functions. ORT will be completed in
conformance with agreed upon processes and implementation
dates.
9.2 Prior to live system usage, CLEC must complete user
education classes for SBC-13STATE-provided interfaces that
affect the SBC-13STATE network. Course descriptions for all
available classes by region are posted on the CLEC website
in the Customer Education section. CLEC Training schedules
by region are also available on the CLEC website and are
subject to change, with class lengths varying. Classes are
train-the-trainer format to enable CLEC to devise its own
course work for its own employees. Charges as specified
below will apply for each class:
<PAGE>
<TABLE>
<CAPTION>
==============================================================================================================================
Training Rates 5 day 4.5 day 4 day 3.5 day 3 day 2.5 day 2 day 1.5 day 1 day 1/2 day
class class class class class class class class class class
- ------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C>
1 to 5 students $4,050 $3,650 $3,240 $2,835 $2,430 $2,025 $1,620 $1,215 $ 810 $405
6 students .... $4,860 $4,380 $3,890 $3,402 $2,915 $2,430 $1,945 $1,455 $ 970 $490
7 students .... $5,670 $5,100 $4,535 $3,969 $3,400 $2,835 $2,270 $1,705 $1,135 $570
8 students .... $6,480 $5,830 $5,185 $4,536 $3,890 $3,240 $2,590 $1,950 $1,300 $650
9 students .... $7,290 $6,570 $5,830 $5,103 $4,375 $3,645 $2,915 $2,190 $1,460 $730
10 students ... $8,100 $7,300 $6,480 $5,670 $4,860 $4,050 $3,240 $2,430 $1,620 $810
11 students ... $8,910 $8,030 $7,130 $6,237 $5,345 $4,455 $3,565 $2,670 $1,780 $890
12 students ... $9,720 $8,760 $7,780 $6,804 $5,830 $4,860 $3,890 $2,920 $1,945 $970
==============================================================================================================================
</TABLE>
9.3 A separate agreement will be required as a commitment to pay
for a specific number of CLEC students in each class. CLEC
agrees that charges will be billed by SBC-13STATE and CLEC
payment is due thirty (30) days following the bill date.
CLEC agrees that personnel from other competitive Local
Service Providers may be scheduled into any class to fill
any seats for which the CLEC has not contracted. Class
availability is first-come, first served with priority given
to CLECs who have not yet attended the specific class.
9.4 Class dates will be based upon SBC-13STATE availability and
will be coordinated among CLEC, the CLEC's SBC-13STATE
Account Manager, and SBC-13STATE Industry Markets CLEC
Training Product Management.
9.5 CLEC agrees to pay the cancellation fee of the full price
noted in the separate agreement if CLEC cancels scheduled
classes less than two (2) weeks prior to the scheduled start
date. CLEC agrees to provide to SBC-13STATE completed
registration forms for each student no later than one week
prior to the scheduled training class.
9.6 CLEC agrees that CLEC personnel attending classes are to
utilize only training databases and training presented to
them in class. Attempts to access any other SBC-13STATE
system are strictly prohibited.
9.7 CLEC further agrees that training material, manuals and
instructor guides can be duplicated only for internal use
for the purpose of training employees to utilize the
capabilities of SBC-13STATE's OSS in accordance with this
Appendix and shall be deemed "Proprietary Information" and
subject to the terms, conditions and limitations of Section
O of the General Terms and Conditions.
10. MISCELLANEOUS CHARGES
10.1 For SBC-SWBT region only, CLEC requesting the Bill
Plus-TM-, as described in 7.2.1, agrees to pay applicable
tariffed rate, less Resale discount.
<PAGE>
10.2 For SBC-7STATE, CLEC requesting the billing function for
Usage Billable Records, as described in 7.2.4 and 75.3.3,
agrees to pay established rates pursuant to Appendix
Pricing.
10.3 For SBC-7STATE, CLEC requesting the Local Disconnect Report,
as described in 7.2.5 and 7.3.4, agrees to pay established
rates pursuant to Appendix Pricing.
10.4 For SBC-13STATE, should CLEC request custom development of
an exclusive interface to support OSS functions, such
development will be considered by SBC-13STATE on an
Individual Case Basis (ICB) and priced as such.
10.5 SNET will charge for the Billing Detail File, Daily Usage
Feed, and Loss Notification File at rates filed and approved
by DPUC.
11. EFFECTIVE DATE, TERM
11.1 Whereas CLEC is currently operational under an existing,
approved Interconnection Agreement, this Appendix OSS will
be effective, pending Commission approval, ten (10) days
after it is filed with the state Commission; or,
alternatively, this Appendix will be effective upon approval
by the state Commission when it is approved as a part of the
Interconnection Agreement, whichever is earlier.
12. APPLICABILITY OF OTHER RATES, TERMS AND CONDITIONS
12.1 Every resale service provided hereunder, shall be subject to
all rates, terms and conditions contained in this Agreement
which are legitimately related to such resale service.
Without limiting the general applicability of the foregoing,
the following terms and conditions of the General Terms and
Conditions are specifically agreed by the Parties to be
legitimately related to, and to be applicable to, each
resale service provided hereunder: introduction,
definitions, interpretation, construction and severability;
description and charges of service; notice of changes;
general responsibilities of the Parties; effective date,
term and termination; fraud by end users; deposits; billing
and payment of charges; non-payment and procedures for
disconnection; services; additional terms applicable to
resale of services; ancillary services; network and service
order conditions; dispute resolution; audits;
responsibilities of SWBT; disclaimer of representations and
warranties; limitation of liability; responsibilities of
CLEC; indemnification; remedies; intellectual property;
notices; publicity and use of trademarks or service marks;
no license; confidentiality; intervening law; governing
law; regulatory approval; changes in End User local exchange
service provider selection; compliance and certification;
law enforcement; no third party beneficiaries; disclaimer of
agency; relationship of the Parties/independent contractor;
subcontracting; delegation to affiliate; assignment; force
majeure; taxes; non-
<PAGE>
waiver; customer inquiries; expenses; conflicts of interest;
survival; appendices incorporated by reference; authority;
counterparts; amendments and modifications; and entire
agreement.
<PAGE>
APPENDIX
PERFORMANCE MEASUREMENTS
(RESALE)
<PAGE>
<TABLE>
<CAPTION>
TABLE OF CONTENTS
<S> <C>
1. INTRODUCTION...................................................................................3
2. DEFINITIONS....................................................................................4
3. SPECIFIED PERFORMANCE STANDARDS................................................................4
4. RECORDS AND REPORTS............................................................................5
5. PERFORMANCE MEASUREMENTS.......................................................................5
6. APPLICABILITY OF OTHER RATES, TERMS, AND CONDITION............................................10
</TABLE>
<PAGE>
APPENDIX PERFORMANCE MEASUREMENTS
1. INTRODUCTION
1.1 This Appendix sets forth the measurements, if met by the
applicable SBC Communications Inc. (SBC) owned Incumbent
Local Exchange Carrier (ILEC) demonstrate non-discriminatory
access to SBC-13STATE's Operations Support Systems (OSS) and
cover the five recognized OSS functions (Pre-Ordering,
Ordering, Provisioning, Maintenance and Repair, and
Billing).
1.2 SBC Communications Inc. (SBC) means the holding company
which owns the following ILECs: Illinois Bell Telephone
Company, Indiana Bell Telephone Company, Michigan Bell
Telephone Company, Nevada Bell Telephone Company, The Ohio
Bell Telephone Company, Pacific Bell Telephone Company, The
Southern New England Telephone Company, Southwestern Bell
Telephone Company and/or Wisconsin Bell, Inc. d/b/a
Ameritech Wisconsin.
1.3 As used herein, SBC-13STATE means the applicable above
listed ILEC doing business in Arkansas, California,
Connecticut, Illinois, Indiana, Kansas, Michigan, Missouri,
Nevada, Ohio, Oklahoma, Texas, and Wisconsin.
1.4 As used herein, SBC-SWBT means the applicable above listed
ILEC doing business in Arkansas, Kansas, Missouri, Oklahoma,
and Texas.
1.5 As used herein, SBC-AMERITECH means the applicable above
listed ILEC doing business in Illinois, Indiana, Michigan,
Ohio, and Wisconsin.
1.6 As used herein, SNET means the applicable above listed ILEC
doing business in Connecticut.
1.7 As used herein, PACIFIC means the applicable above listed
ILEC doing business in California.
1.8 As used herein, NEVADA means the applicable above listed
ILEC doing business in Nevada.
1.9 The performance measurements contained herein,
notwithstanding any provisions in any other appendix in this
Agreement, are not intended to create, modify or otherwise
affect parties' rights and obligations with respect to OSS
access. The existence of any particular performance measure,
or the language
<PAGE>
describing that measure, is not evidence that CLEC is
entitled to any particular manner of access, nor is it
evidence that SBC-13STATE is limited to providing any
particular manner of access. The parties' rights and
obligations to such access are defined elsewhere, including
the relevant laws, FCC and PUC decisions/regulations,
tariffs, and within this interconnection agreement.
2. DEFINITIONS
2.1 When used in this Appendix, the following terms will have
the meanings indicated:
2.1.1 PERFORMANCE CRITERIA
2.1.1.1 The target level of SBC-13STATE
performance specified for each
Performance Measurement. Generally, the
Performance Measurements contained in
this Appendix specify performance equal
to that which SBC-13STATE achieves for
itself in providing equivalent end user
service as the Performance Criterion.
2.1.1.2 Performance Measurements for which
parity calculations are not possible
have a specified STANDARD as the
Performance Criterion. Compliance is
assessed by comparing the result
obtained by the CLEC with the applicable
standard using an appropriate
statistical test. For certain
Performance Measurements, a specific
quantitative target has been adopted as
the Performance Criterion. The
determination of compliance is through
the comparison of the measured
performance delivered to CLEC and the
applicable benchmark.
2.1.2 PERFORMANCE MEASURES
2.1.2.1 The set of measures listed in all of
Section 5 of this Appendix.
2.1.3 NON-COMPLIANCE
2.1.3.1 The failure by SBC-13STATE to meet the
Performance Criteria for any performance
measure identified as an available
measurement type in Section 5.
3. SPECIFIED PERFORMANCE STANDARDS
3.1 SBC-13STATE will meet the Performance Criteria contained in
this Appendix, except for noncompliance with a performance
measurement to the
<PAGE>
extent that such noncompliance was the result of actions or
events beyond SBC-13STATE's control, including but not
limited to the following: (i) a Force Majeure event; (ii) an
act or omission by a CLEC that is contrary to any of its
obligations under its interconnection agreement with
SBC-13STATE or law; (iii) environmental events beyond
SBC-13STATE's control even though not considered "Force
Majeure"; and (iv) problems associated with third-party
systems or equipment which could not be avoided by
SBC-13STATE through the exercise of reasonable diligence,
regardless of whether or not such third party systems or
equipment were sold to or otherwise being provided to
SBC-13STATE.
4. RECORDS AND REPORTS
4.1 SBC-13STATE will not levy a separate charge for provision of
the data to CLEC called for under this Appendix.
Notwithstanding other provisions of this Agreement, the
Parties agree that such data and associated records will be
deemed Proprietary Information.
4.2 Reports are to be made available to the CLEC by the 20th
day following the close of the calendar month. If the
20th day falls on a weekend or holiday, the reports will
be made available the next business day.
4.3 CLEC will have access to monthly reports through an
interactive Website.
4.4 UNE measurement categories included on the reports will
be zero filled as that data is not applicable to resale
services.
5. PERFORMANCE MEASUREMENTS
SBC-13STATE will provide the following Performance Measurements, in
accordance with the Business Rules, under this Agreement:
5.1 PRE-ORDERING/ORDERING
5.1.1 MEASUREMENT: FOC Timeliness
BENCHMARKS:
*SBC-SWBT/SBC-AMERITECH
All Res and Bus - 95%(1)
Complex Bus - 94%
*PACIFIC/NEVADA
Fully electronic flow through - average 20 minutes
- -----------------------------------
(1) *Refer to INTERCONNECTION AGREEMENT: General Terms and Conditions
paragraph 2.10.1.
<PAGE>
Electronically received/Manually handled - average
6 hours Manually received/Manually handled -
average 12 hours
SNET
90% LESS THAN OR EQUAL TO 24 business hours (MSAP
only)
5.1.2 MEASUREMENT:
Pre-Order Response Time
BENCHMARKS:
*SBC-SWBT/SBC-AMERITECH
Address Verification 4.7 sec
Request for Telephone 4.5 sec
Number
Request for Customer 6.6 sec.
Service Record (CSR)
Service Availability 6.6 sec.
Service Appointment 1.0 sec.
Scheduling (Due Date)
Dispatch Required 12.6 sec.
PIC Diagnostic only
*PACIFIC/NEVADA
Mechanized:
Address Verification 4.5 sec
Request for Telephone 4.5 sec
Number
Request for Customer 10.0 sec.
Service Record (CSR)
Service Availability 8.0 sec.
Service Appointment 2.0 sec.
Scheduling (Due Date)
Dispatch Required 11.0 sec.
Manual:
CSRs Standard - 95% in 4 hours (2)
SNET
98% LESS THAN OR EQUAL TO 5 sec. (MSAP only)
5.1.3 MEASUREMENT: Percentage of Flow-Through Order
BENCHMARKS:
*SBC-SWBT/SBC-AMERITECH
Diagnostic only
*PACIFIC/NEVADA
Diagnostic only
- ----------------------
(2) *Refer to INTERCONNECTION AGREEMENT: General Terms and Conditions paragraph
2.10.1.
<PAGE>
SNET
Measure not available
5.1.4 MEASUREMENT: OSS Interface Availability
BENCHMARKS:
*SBC-SWBT/SBC-AMERITECH
99.5%
*PACIFIC/NEVADA
Parity for systems used by both PACIFIC/NEVADA and
CLEC. 99.25% for OSS interfaces used exclusively
by CLECs.
SNET
98.9% (MSAP only)
5.1.5 MEASUREMENT: Completion Notice Timeliness
BENCHMARKS:
*SBC-SWBT/SBC-AMERITECH
97%
*PACIFIC/NEVADA
Fully electronic (orders that flow through) (LEX,
EDI) - average 20 minutes
All other interfaces - 90% within 24 hours
SNET
98% within LESS THAN OR EQUAL TO 2 hours
(Dispatched Service Orders only)
5.2 PROVISIONING
5.2.6 MEASUREMENT: Installation Appointment Commitment
BENCHMARKS:
*SBC-SWBT/SBC-AMERITECH
POTS: (3)
Resale POTS parity between Field Work compared to
SBC-SWBT Field Work (N, T, C order types) and No
Field Work compared to SBC-SWBT Retail No Field
Work (N, T, and C order types).
Design:
Parity with SBC-SWBT retail
*PACIFIC/NEVADA
POTS: Parity
Design: Parity
SNET
POTS: PARITY
Digital Specials: PARITY
Analog Specials: PARITY
- ------------------------
(3) *Refer to INTERCONNECTION AGREEMENT: General Terms and Conditions paragraph
2.10.1.
<PAGE>
5.2.7 MEASUREMENT: Installation Trouble Reports
BENCHMARKS:
*SBC-SWBT/SBC-AMERITECH
POTS:
Resale POTS parity between Field Work compared to
SBC-SWBT Field Work (N, T, C order types) and No
Field Work compared to SBC-SWBT Retail No Field
Work (N, T, and C order types).
Design:
Parity with SBC-SWBT retail
*PACIFIC/NEVADA
POTS: Parity
Design: Parity
SNET
POTS: PARITY
Digital Specials: PARITY
Analog Specials: PARITY
5.2.8 MEASUREMENT: Installation Interval
BENCHMARK:
*SBC-SWBT/SBC-AMERITECH
POTS:
Resale POTS parity between Field Work compared to
SBC-SWBT Field Work (N, T, C order types) and No
Field Work compared to SBC-SWBT Retail No Field
Work (N, T, and C order types).
Design:
Parity with SBC-SWBT retail
*PACIFIC/NEVADA
POTS: Parity(4)
Design: Parity
DSL: Parity
SNET
POTS:
Vertical Feature/Simple: PARITY
Non Dispatched PARITY
Dispatched PARITY
Digital Specials: PARITY
Analog Specials: PARITY
DSL: No measure available.
- ---------------------------
(4) *Refer to INTERCONNECTION AGREEMENT: General Terms and Conditions paragraph
2.10.1.
<PAGE>
5.2.9 MEASUREMENT: Delayed Order Interval
BENCHMARK:
*SBC-SWBT/SBC-AMERITECH
POTS:
Resale POTS parity between Field Work compared to
SBC-SWBT Field Work (N, T, C order types) and No
Field Work compared to SBC-SWBT Retail No Field
Work (N, T, and C order types).
Design:
Parity with SBC-SWBT retail
*PACIFIC/NEVADA
POTS: Parity
Design: Parity
SNET
No measure available.
5.3 MAINTENANCE
5.3.10 MEASUREMENT: Repair Appointment Commitment
BENCHMARK:
*SBC-SWBT/SBC-AMERITECH
POTS:
Parity with Retail
*PACIFIC/NEVADA
POTS: Parity
SNET
POTS: Parity
Digital Specials: Parity
Analog Specials: Parity
5.3.11 MEASUREMENT: Repeated Trouble Reports
BENCHMARK:
*SBC-SWBT/SBC-AMERITECH
POTS:
Parity with Retail
Design:
Parity with Retail
*PACIFIC/NEVADA
POTS: Parity
Design: Parity
SNET
POTS: Parity
<PAGE>
5.3.12 MEASUREMENT: Mean Time to Repair
BENCHMARK:
*SBC-SWBT/SBC-AMERITECH
POTS:
Parity with Retail
Design:
Parity with Retail
*PACIFIC/NEVADA
POTS: Parity
Design: Parity
SNET
POTS: Parity
Digital Specials: Parity
Analog Specials: Parity
5.3.13 MEASUREMENT: Customer Trouble Report Rate
BENCHMARK:
*SBC-SWBT/SBC-AMERITECH
POTS:
Parity with Retail
Design:
Parity with Retail
*PACIFIC/NEVADA
POTS: Parity
Design: Parity
SNET
POTS: Parity
5.4 BILLING
5.4.14 MEASUREMENT: Wholesale Bill Timeliness
BENCHMARK:
*SBC-SWBT/SBC-AMERITECH
95% within 6th work day
*PACIFIC/NEVADA
99% within 10 days
SNET
No measure available.
6. APPLICABILITY OF OTHER RATES, TERMS, AND CONDITIONS
6.1 Every resale service provided hereunder, shall be subject to
all rates, terms and conditions contained in this Agreement
which are legitimately related to such resale service.
Without limiting the general applicability of the foregoing,
the
<PAGE>
following terms and conditions of the General Terms and
Conditions are specifically agreed by the Parties to be
legitimately related to, and to be applicable to, each
resale service provided hereunder: introduction,
definitions, interpretation, construction and severability;
description and charges of service; notice of changes;
general responsibilities of the Parties; effective date,
term and termination; fraud by end users; deposits; billing
and payment of charges; non-payment and procedures for
disconnection; services; additional terms applicable to
resale of services; ancillary services; network and service
order conditions; dispute resolution; audits;
responsibilities of SWBT; disclaimer of representations and
warranties; limitation of liability; responsibilities of
CLEC; indemnification; remedies; intellectual property;
notices; publicity and use of trademarks or service marks;
no license; confidentiality; intervening law; governing law;
regulatory approval; changes in End User local exchange
service provider selection; compliance and certification;
law enforcement; no third party beneficiaries; disclaimer of
agency; relationship of the Parties/independent contractor;
subcontracting; delegation to affiliate; assignment; force
majeure; taxes; non-waiver; customer inquiries; expenses;
conflicts of interest; survival; appendices incorporated by
reference; authority; counterparts; amendments and
modifications; and entire agreement.
<PAGE>
APPENDIX PRICING
<PAGE>
TABLE OF CONTENTS
<TABLE>
<S> <C>
1. INTRODUCTION................................................................................................3
2. RECURRING CHARGES...........................................................................................5
3. NONRECURRING CHARGES........................................................................................5
4. BILLING TIMELINES- THIS SECTION APPLIES TO PACIFIC ONLY.....................................................6
5. BILLING.....................................................................................................6
6. APPLICABILITY OF OTHER RATES, TERMS, AND CONDITIONS.........................................................7
</TABLE>
<PAGE>
APPENDIX PRICING
1. INTRODUCTION
1.1 This Appendix sets forth the terms and conditions under
which the applicable SBC Communications Inc. (SBC) owned
Incumbent Local Exchange Carrier (ILEC) offers services and
products to CLEC at the rates, prices and/or charges set
forth in the applicable state pricing sheet(s) attached
hereto. The services and products offered to CLEC have been
divided into two categories: Resale and Other (Resale).
These categories are for convenience only and shall not be
construed to define or limit any of the terms herein or
affect the meaning or interpretation of this Agreement.
1.2 SBC Communications Inc. (SBC) means the holding company
which owns the following ILECs: Illinois Bell Telephone
Company, Indiana Bell Telephone Company Incorporated,
Michigan Bell Telephone Company, Nevada Bell Telephone
Company, The Ohio Bell Telephone Company, Pacific Bell
Telephone Company, The Southern New England Telephone
Company, Southwestern Bell Telephone Company and/or
Wisconsin Bell, Inc. d/b/a Ameritech Wisconsin.
1.3 SBC-13STATE - As used herein, SBC-13STATE means the
applicable above listed ILEC(s) doing business in Arkansas,
California, Connecticut, Illinois, Indiana, Kansas,
Michigan, Missouri, Nevada, Ohio, Oklahoma, Texas, and
Wisconsin.
1.4 SBC-SWBT - As used herein, SBC-SWBT means the applicable
above listed ILEC doing business in Arkansas, Kansas,
Missouri, Oklahoma, and Texas.
1.5 SBC-AMERITECH - As used herein, SBC-AMERITECH means the
applicable above listed ILEC(s) doing business in Illinois,
Indiana, Michigan, Ohio, and Wisconsin.
1.6 PACIFIC -As used herein, PACIFIC means the applicable above
listed ILEC doing business in California.
1.7 NEVADA -AS used herein, NEVADA means the applicable above
listed ILEC doing business in Nevada.
1.8 AM-IL -As used herein, AM-IL means the applicable SBC owned
ILEC doing business in Illinois.
1.9 SNET -As used herein, SNET means the applicable above listed
ILEC doing business in Connecticut.
<PAGE>
1.10 This section applies to SNET only
1.10.1 Other than as specifically set out elsewhere in
this Agreement, SNET resale prices are available
as described in DPUC ordered CT Access Service
Tariff Section 18.
1.10.2 Operator Services (OS) and Director Assistance
(DA) Monthly Recurring Charges (MRCs) and
Nonrecurring Charges (NRCs) are set forth in the
Connecticut rate sheet attached.
1.11 This section applies to AM-IL only
1.11.1 Other than as specifically set out elsewhere in
this Agreement, AM-IL resale prices are available
as described in ILL.C.C. No. 20 Tariff Part 22.
1.12 This section applies to SBC-AMERITECH only
1.12.1 If a rate element, price and/or charge for a
product or service contained in, referenced to or
otherwise provided by SBC-AMERITECH under this
Agreement (including any attached or referenced
Appendices) is not listed in this Appendix
Pricing, including any rates, prices and/or
charges developed in response to a CLEC Bona Fide
Request(s) (BFR), such rates, prices and charges
shall be determined in accordance with Section
252(d) of the Act; provided however, if
SBC-AMERITECH provides a product or service that
is not subject to the pricing principles of the
Act, such rate(s), prices(s) and/or charges shall
be as negotiated by SBC-AMERITECH and CLEC.
1.12.2 Except as otherwise agreed upon by the Parties in
writing, SBC-AMERITECH shall not be required to
provide CLEC a product or service under this
Agreement unless and until the Parties have agreed
upon a rate element, price or charge (whether a
final rate/price/charge or, as agreed upon by the
Parties, an interim rate/price/charge subject to
a true-up, true-down) applicable to the requested
product and/or service.
1.12.3 Certain of the rates, prices and charges set forth
in this Appendix Pricing were established by the
Commission. If during the Term the Commission or
the FCC changes a rate, price or charge in an
order or docket that generally applies to the
products and services available hereunder, the
Parties agree to amend this Appendix Pricing to
incorporate such new rates, prices and charges
with such rates, prices and charges to be
effective as of the date specified in such order
or docket.
<PAGE>
2. RECURRING CHARGES
2.1 Unless otherwise identified in the Pricing Tables, where
rates are shown as monthly, a month will be defined as a
calendar month. The minimum term for each monthly rated
Resale or Other (Resale), and Other element service or
product will be one (1) month. After the initial month,
billing will be on the basis of whole or fractional months
used.
2.2 Where rates, prices or charges consist of usage sensitive
charges or per occurrence charges, such rates, prices or
charges are classified as "recurring charges".
2.3 CLEC shall pay for all usage on usage sensitive or per
occurrence calls including those that are not completed due
to "busy" or "don't answer" status.
3. NONRECURRING CHARGES
3.1 Nonrecurring Charges are applicable for both categories of
services and products.
3.2 For Resale, when a CLEC migrates an End User's existing
service and the migration service request also includes the
addition of new service or features and/or changes or
disconnects some portion of the existing service or
features, the normal service order charges and/or
non-recurring charges associated with said additions and/or
changes will apply.
3.3 The appropriate nonrecurring charges shall apply for each
service request processed by SBC-8STATE, including but not
limited to the following:
3.3.1 Installation (Service Order and Connect);
3.3.2 Disconnection (Disconnect);
3.3.3 Rearrangement/modification (Change);
3.3.4 Record Order (Record)
3.4 Some items, which must be individually charged, are billed
as nonrecurring charges.
3.5 CLEC shall pay a service order processing administration
charge for each service order submitted by CLEC to
SBC-AMERITECH to process a request for installation,
disconnection, rearrangement, changes to or record orders
for Resale.
<PAGE>
3.6 Time and Material charges (a.k.a. additional labor charges)
are defined in the document specified below for the ILEC
indicated.
3.6.1 Tariff Schedule Cal P.U.C. No.175-T for PACIFIC.
3.6.2 FCC Tariff 73 for SBC-SWBT AND NEVADA.
3.6.3 The applicable pricing appendix for SBC-AMERITECH.
4. BILLING TIMELINES- THIS SECTION APPLIES TO PACIFIC ONLY
4.1 To the extent that any billing for services or products
offered under this Agreement is made through PACIFIC's
Carrier Access Billing System (CABS), the prices for monthly
recurring charges (MRCs) and nonrecurring charges (NRCs)
provided for in this Agreement may take a substantial period
of time from the Effective Date of this Agreement to
implement in PACIFIC's CABS.
4.2 To the extent that any billing for services or products
offered under this Agreement is made through PACIFIC's CABS,
any prices for MRCs and NRCs subsequently adopted by the
CPUC may take a substantial period of time from the date of
the final order to implement in CABS and shall comply with
any Commission timeline.
4.3 Until such time as any prices discussed in Section 5.1 or
Section 5.2 above are implemented in CABS, PACIFIC may
continue to bill at the established prices contained within
the most recent prior interconnection agreement between the
Parties, if any. If there is no prior interconnection
agreement between the Parties, PACIFIC shall bill at the
prices PACIFIC is currently billing one or more of its other
CLEC customers that, in PACIFIC's good faith judgment, most
closely match the prices applicable hereunder.
4.4 Due to this CABS billing implementation time period, a
true-up or true-down of all such prices, without interest,
retroactive to the effective date specified in the order or
docket, will be due upon billing implementation of the new
prices.
5. BILLING
5.1 For information regarding billing, non-payment,
disconnection, and dispute resolution, see the General Terms
and Conditions of this Agreement.
<PAGE>
6. APPLICABILITY OF OTHER RATES, TERMS, AND CONDITIONS
6.1 Every resale service provided hereunder, shall be subject to
all rates, terms and conditions contained in this Agreement
which are legitimately related to such resale service.
Without limiting the general applicability of the foregoing,
the following terms and conditions of the General Terms and
Conditions are specifically agreed by the Parties to be
legitimately related to, and to be applicable to, each
resale service provided hereunder: introduction,
definitions, interpretation, construction and severability;
description and charges of service; notice of changes;
general responsibilities of the Parties; effective date,
term and termination; fraud by end users; deposits; billing
and payment of charges; non payment and procedures for
disconnection; services; additional terms applicable to
resale of services; ancillary services; network and service
order conditions; dispute resolution; audits;
responsibilities of SWBT; disclaimer of representations and
warranties; limitation of liability; responsibilities of
CLEC; indemnification; remedies; intellectual property;
notices; publicity and use of trademarks or service marks;
no license; confidentiality; intervening law; governing law;
regulatory approval; changes in End User local exchange
service provider selection; compliance and certification;
law enforcement; no third party beneficiaries; disclaimer of
agency; relationship of the Parties/independent contractor;
subcontracting; delegation to affiliate; assignment; force
majeure; taxes; non waiver; customer inquiries; expenses;
conflicts of interest; survival; appendices incorporated by
reference; authority; counterparts; amendments and
modifications; and entire agreement.
<PAGE>
TBD- To be determined
NRO- Nonrecurring only
ICB- Individual Case Basis
NA- Not applicable
AMERITECH
TELEPHONE COMPANY
ILLINOIS
Rates
January 7, 2000
<TABLE>
<CAPTION>
RESALE
See ILL.C.C. No. 20 Tariff Part 22
<S> <C>
LINE CONNECTION CHARGE
Residence NA
Business NA
SERVICE ORDER/SERVICE REQUEST CHARGE
Residence $18.85
Business $14.12
NON-ELECTRONIC (MANUAL) SERVICE ORDER CHARGE
Residence $24.19
Business $17.17
</TABLE>
<PAGE>
TBD- To be determined
NRO- Nonrecurring only
ICB- Individual Case Basis
NA- Not applicable
AMERITECH
TELEPHONE COMPANY
INDIANA
Rates
January 7, 2000
<TABLE>
<CAPTION>
AIT GENERIC RATES
AIT RECURRING AIT NON-REC.
RESALE
RESALE DISCOUNTS
BUSINESS RECURRING NON-RECURRING
<S> <C> <C>
LOCAL EXCHANGE SERVICE
Business 1 Party 21.46% 21.46%
Business - Measured 21.46% 21.46%
Customer Operated Pay Telephone (COPT) 21.46% 21.46%
EXPANDED LOCAL CALLING
Extended Area Service 21.46% 21.46%
VERTICAL SERVICES
Anonymous Call Rejection 21.46% 21.46%
Repeat Dialing (Auto Redial) 21.46% 21.46%
Repeat Dialing-Per Use (Auto Redial - Usage Sensitive) 21.46% 21.46%
Call Blocker 21.46% 21.46%
Call Forwarding 21.46% 21.46%
Call Forwarding - Busy Line 21.46% 21.46%
Call Forwarding - Busy Line/Don't Answer 21.46% 21.46%
Call Forwarding - Don't Answer 21.46% 21.46%
Automatic Call Back (Call Return) 21.46% 21.46%
Automatic Call Back-Per Use (Call Return - Usage Sensitive) 21.46% 21.46%
Call Trace 21.46% 21.46%
Call Waiting 21.46% 21.46%
Caller ID With Name (Calling Name) 21.46% 21.46%
Caller ID (Calling Number) 21.46% 21.46%
MultiRing Service -1 (Personalized Ring -1 Dependent Number) 21.46% 21.46%
MulfiRing Service -2 (Personalized Ring - 2 Dependent Numbers) 21.46% 21.46%
Remote Access to Call Forwarding (Grandfathered) 0.00% 0.00%
Selective Call Forwarding 0.00% 0.00%
Multi-Path Call Forwarding (Simultaneous Call Forwarding) 21.46% 21.46%
Remote Call Forwarding-Per Feature 21.46% 21.46%
RCF, Interstate, Interexchange 21.46% 21.46%
RCF, Intrastate 21.46% 21.46%
RCF, Interstate, International 21.46% 21.46%
RCF, Intrastate, Interexchange 21.46% 21.46%
RCF to 800 21.46% 21.46%
RCF Additional 21.46% 21.46%
Speed Calling 8 21.46% 21.46%
Speed Calling 30 21.46% 21.46%
Three Way Calling 21.46% 21.46%
Call Screening 21.46% 21.46%
Busy Line Transfer 21.46% 21.46%
Alternate Answer 21.46% 21.46%
Message Waiting - Tone 21.46% 21.46%
Easy Call 21.46% 21.46%
Prime Number Service 21.46% 21.46%
AMERITECH Privacy Manager 21.46% 21.46%
Name and Number Delivery Service 21.46% 21.46%
DID
DID 21.46% 21.46%
TRUNKS
Trunk 21.46% 21.46%
</TABLE>
<PAGE>
TBD- To be determined
NRO- Nonrecurring only
ICB- Individual Case Basis
NA- Not applicable
AMERITECH
TELEPHONE COMPANY
INDIANA
Rates
January 7, 2000
<TABLE>
<CAPTION>
AIT GENERIC RATES
AIT RECURRING AIT NON-REC.
AIN
<S> <C> <C>
Area Wide Networking 21.46% 21.46%
Ameritech Switch Alternate Routing (ANSAR) 21.46% 21.46%
Ameritech Customer Location Alternate Routing (ACLAR) 21.46% 21.46%
OTHER
Grandfathered Services 0.00% 0.00%
Promotions (Greater than 90 days) 21.46% 21.46%
Touch Tone (Business) 21.46% 21.46%
Touch Tone (Trunk) 21.46% 21.46%
900/976 Call Blocking (90O/976 Call Restriction) 0%
976 (976 Information Delivery Service) 0%
Access Services (See Access Tariff) 0% 0%
Additional Directory Listings 21.46% 21.46%
Carrier Disconnect Service (Company Initiated Suspension 0% 0%
Service)
Connection Services 21.46% 21.46%
Premise Services/Line Backer (Maintenance of Service Charges) 0% 0%
Shared Tenant Service 0% 0%
ISDN
ISDN 21.46% 21.46%
DIRECTORY ASSISTANCE SERVICES 21.46% 20.29%
Local Operator Assistance Service 21.46% 21.46%
TOLL
TOLL 21.46% 21.46%
OPTIONAL TOLL CALLING PLANS
Optional Toll Calling Plans 21.46% 21.46%
CENTREX (PLEXAR)
Ameritech Centrex Service ACS 21.46% 21.46%
Ameritech Centrex Network Manager 0.00% 0.00%
PRIVATE LINE
Analog Private Lines 21.46% 21.46%
Private Line Channel Services 21.46% 21.46%
<CAPTION>
RESIDENCE RESALE DISCOUNTS
LOCAL EXCHANGE SERVICE RECURRING NON-RECURRING
<S> <C> <C>
Life Line 0.00% 0.00%
Residence 1 Party 21.46% 21.46%
Residence Measured 21.46% 21.46%
EXPANDED LOCAL CALLING
Extended Area Service 21.46% 21.46%
VERTICAL SERVICES
Anonymous Call Rejection 21.46% 21.46%
Repeat Dialing (Auto Redial) 21.46% 21.46%
Repeat Dialing -Per Use (Auto Redial - Usage Sensitive) 21.46% 21.46%
Call Blocker 21.46% 21.46%
Call Forwarding 21.46% 21.46%
Call Forwarding - Busy Line 21.46% 21.46%
Call Forwarding - Busy Line/Don't Answer 21.46% 21.46%
Call Forwarding - Don't Answer 21.46% 21.46%
Automatic Call-Back (Call Return) 21.46% 21.46%
Automatic Call-Back Per Use (Call Return - Usage Sensitive) 21.46% 21.46%
Call Trace 21.46% 21.46%
Call Waiting 21.46% 21.46%
Caller ID with Name (Calling Name) 21.46% 21.46%
Caller ID (Calling Number) 21.46% 21.46%
Multi-Ring Service - 1 (Personalized Ring- 1 dependent number) 21.46% 21.46%
Multi-Ring Service - 2 (Personalized Ring - 2 dependent 21.46% 21.46%
numbers - 1st dependent number)
Remote Access to Call Forwarding (GF) 21.46% 21.46%
</TABLE>
<PAGE>
TBD- To be determined
NRO- Nonrecurring only
ICB- Individual Case Basis
NA- Not applicable
AMERITECH
TELEPHONE COMPANY
INDIANA
Rates
January 7, 2000
<TABLE>
<CAPTION>
AIT GENERIC RATES
AIT RECURRING AIT NON-REC.
<S> <C> <C>
RCF, Interstate, Interexchange 21.46% 21.46%
RCF, Intrastate 21.46% 21.46%
RCF, Interstate, International 21.46% 21.46%
RCF, Intrastate, Interexchange 21.46% 21.46%
RCF to 800 21.46% 21.46%
RCF Additional 21.46% 21.46%
Selective Call Forwarding 21.46% 21.46%
Speed Calling 8 21.46% 21.46%
Three Way Calling 21.46% 21.46%
Call Screening 21.46% 21.46%
Busy Line Transfer 21.46% 21.46%
Alternate Answer 21.46% 21.46%
Message Waiting - Tone 21.46% 21.46%
Easy Call 21.46% 21.46%
AMERITECH Privacy Manager 21.46% 21.46%
Name and Number Delivery Service 21.46% 21.46%
ISDN
ISDN 21.46% 21.46%
DIRECTORY ASSISTANCE SERVICES 21.46% 21.46%
Local Operator Assistance Service 21.46% 21.46%
OTHER
Grandfathered Services 0.00% 0.00%
Promotions (Greater than 90 Days) 21.46% 21.46%
Touch Tone 21.46% 21.46%
Home Services Packages 21.46% 21.46%
900/976 Call Blocking (900/976 Call Restriction) 21.46% 21.46%
976 (976 Information Delivery Service) 21.46% 21.46%
Access Services (See Access Tariff) 0% 0%
Additional Directory Listings 21.46% 21.46%
Carrier Disconnect Service (Company initiated Suspension 21.46% 21.46%
Service)
Connection Services 21.46% 21.46%
Premise Services/Line Backer (Maintenance of Service Charges) 0% 0%
Shared Tenant Service 0% 0%
TOLL
Custom and Dedicated 800 Service (Home 800) 21.46% 21.46%
IntraLATA MTS 21.46% 21.46%
Toll Restriction 21.46% 21.46%
ELECTRONIC BILLING INFORMATION DATA (DAILY USAGE) $0.00
per message
LOCAL DISCONNECT REPORT (LDR)
Per WTN $0.00
LINE CONNECTION CHARGE
Residence N/A
Business N/A
SERVICE ORDER/SERVICE REQUEST CHARGE
Residence $21.21
Business $30.63
NON-ELECTRONIC MANUAL) SERVICE ORDER CHANGE
Residence $9.02
Business $9.02
</TABLE>
<PAGE>
TBD- To be determined
NRO- Nonrecurring only
ICB- Individual Case Basis
NA- Not applicable
AMERITECH
TELEPHONE COMPANY
MICHIGAN
Rates
January 7, 2000
<TABLE>
<CAPTION>
AIT GENERIC RATES
AIT RECURRING AIT NON-REC.
RESALE
RESALE DISCOUNTS
BUSINESS RECURRING NON-RECURRING
LOCAL EXCHANGE SERVICE
<S> <C> <C>
Business 1 Party 18.15% 18.15%
Business - Measured 18.15% 18.15%
Customer Operated Pay Telephone (COPT) 18.15% 18.15%
EXPANDED LOCAL CALLING
Interzone 18.15% 18.15%
VERTICAL SERVICES
Anonymous Call Rejection 18.15% 18.15%
Repeat Dialing (Auto Redial) 18.15% 18.15%
Repeat Dialing-Per Use (Auto Redial - Usage Sensitive) 18.15% 18.15%
Call Blocker 18.16% 18.15%
Call Forwarding 18.15% 18.15%
Call Forwarding - Busy Line 18.15% 18.15%
Can Forwarding - Busy Line/Don't Answer 18.15% 18.15%
Call Forwarding - Don't Answer 18.15% 18.15%
Automatic CallBack (Call Return) 18.15% 18.15%
Automatic CallBack-Per Use (Call Return - Usage Sensitive) 18.15% 18.15%
Call Trace 18.15% 18.15%
Call Waiting 18.15% 18.15%
Caller ID WithName (Calling Name) 18.15% 18.15%
Caller ID (Calling Number) 18.15% 18.15%
MulfiRing Service -1 (Personalized Ring -1 Dependent 18.15% 18.15%
Number)
Multi-Ring Service -2 (Personalized Ring - 2 Dependent 18.15% 18.15%
Numbers)
Remote Access to Call Forwarding (Grandfathered) 0% 0%
Selective Call Forwarding 0% 0%
Multi-Path Call Forwarding (Simultaneous Call Forwarding) 18.15% 18.15%
Remote Call Forwarding-Per Feature 18.15% 18.15%
RCF, Interstate, Interexchange 18.15% 18.15%
RCF, Intrastate 18.15% 18.15%
RCF, Interstate, International 18.15% 18.15%
RCF, Intrastate, Interexchange 18.15% 18.15%
RCF to 800 18.15% 18.15%
RCF Additional 18.15% 18.15%
Speed Calling 8 18.15% 18.15%
Speed Calling 30 18.15% 18.15%
Three Way Calling 18.15% 18.15%
Call Screening 18.15% 18.15%
Busy Line Transfer 18.15% 18.15%
Alfernate Answer 18.15% 18.15%
Message Waiting - Tone 18.15% 18.15%
Easy Call 18.15% 18.15%
Prime Number Service 18.15% 18.15%
AMERITECH Privacy Manager 18.15% 18.15%
Name and Number Delivery Service 18.15% 18.15%
DID
DID 18.15% 18.15%
TRUNKS
Trunk 18.15% 18.15%
AIN
Area Wide Networking 18.15% 18.15%
Ameritech Switch Alternate Routing (ANSAR) 18.15% 18.15%
Ameritech Customer Location Alternate Routing (ACLAR) 18.15% 18.15%
OTHER
Grandfathered Services 0.00% 0.00%
Promotions (Greater than 90 days) 18.15% 18.15%
TouchTone (Business) 18.15% 18.15%
TouchTone (Trunk) 18.15% 18.15%
900/976 Call Blocking (900/976 Call Restriction) 0% 0%
976 (976 Information Delivery Service) 0% 0%
Access Services (See Access Tariff) 0%
Additional Directory Listings 18.15% 18.15%
</TABLE>
<PAGE>
TBD- To be determined
NRO- Nonrecurring only
ICB- Individual Case Basis
NA- Not applicable
AMERITECH
TELEPHONE COMPANY
MICHIGAN
Rates
January 7, 2000
<TABLE>
<CAPTION>
AIT GENERIC RATES
AIT RECURRING AIT NON-REC.
<S> <C> <C>
Carrier Disconnect Service (Company Initiated Suspension 0% 0%
Service)
Connection Services 18.15% 18.15%
Premise Services/Line Backer (Maintenance of Service Chaw) 0% 0%
Shared Tenant Service 0% 0%
ISDN
ISDN 18.15% 18.15%
DIRECTORY ASSISTANCE SERVICES
Directory Assistance Services 18.15% 20.29%
Local Operator Assiustance Service 18.15% 18.15%
TOLL
TOLL 18.15% 18.15%
OPTIONAL TOLL CALLING PLANS
Optional Toll Calling Plans 18.15% 18.15%
CENTREX(PLEXAR)
Americtech Centrex Service ACS 18.15% 18.15%
Ameritech Centrex Network Manager 0% 0%
PRIVATE LINE
Analog Private Lines 18.15% 18.15%
Private Line Channel Services 18.15% 18.15%
<CAPTION>
RESIDENCE RESALE DISCOUNTS
LOCAL EXCHANGE SERVICE RECURRING NON-RECURRING
<S> <C> <C>
Life Line 0% 0%
Residence 1 Party 18.15% 18.15%
Residence Measured 18.15% 18.15%
EXPANDED LOCAL CALLING
Interzone 18.15% 18.15%
VERTICAL SERVICES
Anonymous Call Rejection 18.15% 18.15%
Repeat Dialing (Auto Redial) 18.15% 18.15%
Repeat Dialing -Per Use (Auto Redial - Usage Sensitive) 16.15% 18.15%
Call Blocker 18.15% 18.15%
Call Forwarding 18.15% 18.15%
Call Forwarding - Busy Line 18.15% 18.15%
Call Forwarding - Busy Line/Don't Answer 18.15% 18.15%
Call Forwarding - Don't Answer 18.15% 18.15%
Automatic Call-Back (Call Return) 18.15% 18.15%
Automatic Call-Back Per Use (Call Return - Usage 18.15% 18.15%
Sensitive)
Call Trace 18.15% 18.15%
Call Waiting 18.15% 18.15%
Caller ID with Name (Calling Name) 18.15% 18.15%
Caller ID (Calling Number) 18.15% 18.15%
Multi-Ring Service - 1 (Personalized Ring- I dependent 18.15% 18.15%
number)
Multi-Ring Service - 2 (Personalized Ring - 2 dependent 18.15% 18.15%
numbers - 1st dependent number
Priority Call 18.15% 18.15%
Remote Access to Call Forwarding (GF) 0% 0%
RCF, Interstate, Interexchange 18.15% 18.15%
RCF, Intrastate 18.15% 18.15%
RCF, Interstate, International 18.15% 18.15%
RCF, Intrastate, Interexchange 18.15% 18.15%
RCF to 800 18.15% 18.15%
RCF Additional 18.15% 18.15%
Selective Call Forwarding 16.15% 18.15%
Speed Calling 8 18.15% 18.15%
Three Way Calling 18.15% 18.15%
Call Screening 18.15% 18.15%
Busy Line Transfer 18.15% 18.15%
Alternate Answer 18.15% 18.15%
Waiting - Tone 18.15% 18.15%
Easy Call 18.15% 18.15%
AMERITECH Privacy Manager 18.15% 18.15%
Name and Number Delivery Service 18.15% 18.15%
</TABLE>
<PAGE>
TBD- To be determined
NRO- Nonrecurring only
ICB- Individual Case Basis
NA- Not Applicable
AMERITECH
TELEPHONE COMPANY
MICHIGAN
Rates
January 7, 2000
<TABLE>
<CAPTION>
AIT GENERIC RATES
AIT RECURRING AIT NON-REC.
<S> <C> <C>
ISDN
ISDN 18.15% 18.15%
DIRECTORY ASSISTANCE SERVICES
Directory Assistance Services 18.15% 18.15%
Local Operator Assistance Service 18.15% 18.15%
OTHER
Grandfathered Services 0% 0%
Promotions (Greater than 90 Days) 18.15% 18.15%
TouchTone 18.15% 18.15%
Home Services Packages 18.15% 18.15%
900/976 Call Blocking (900/976 Call Restriction) 0% 0%
976 (976 Information Delivery Service) 0% 0%
Access Services (See Access Tariff) 0% 0%
Additional Directory Listings 18.15% 18.15%
Carrier Disconnect Service (Company Initiated Suspension 0% 0%
Service)
Connection Services 18.15% 18.15%
Premise Service/Line Backer (Maintenance of Service 0% 0%
Charges)
Shared Tenant Service 0% 0%
TOLL
Toll 18.15% 18.15%
ELECTRONIC BILLING INFORMATION DATA (DAILY USAGE) $0.00
per message
LOCAL DISCONNECT REPORT (LDR)
Per WTN $0.00
LINE CONNECTION CHARGE
Residence $34.38
Business $34.38
SERVICE ORDER/SERVICE REQUEST CHARGE
Residence N/A
Business N/A
NON-ELECTRONIC (MANUAL) SERVICE ORDER CHARGE
Residence $8.91
Business $8.91
</TABLE>
<PAGE>
TBD- To be determined
NRO- Nonrecurring only
ICB- Individual Case Basis
NA- Not Applicable
AMERITECH
TELEPHONE COMPANY
OHIO
Rates
January 7, 2000
<TABLE>
<CAPTION>
AIT GENERIC RATES
AIT RECURRING AIT NON-REC.
RESALE
RESALE DISCOUNTS
BUSINESS RECURRING NON-RECURRING
LOCAL EXCHANGE SERVICE
<S> <C> <C>
Business 1 Party 20.29% 20.29%
Business - Measured 20.29% 20.29%
Customer Operated Pay Telephone (COPT) 20.29% 20.29%
EXPANDED LOCAL CALLING
Extended Area Service 20.29% 20.29%
VERTICAL SERVICES
Anonymous Call Rejection 20.29% 20.29%
Repeat Dialing (Auto Redial) 20.29% 20.29%
Repeat Dialing-Per Use (Auto Redial - Usage Sensitive) 20.29% 20.29%
Call Blocker 20.29% 20.29%
Call Forwarding 20.29% 20.29%
Call Forwarding - Busy Line 20.29% 20.29%
Call Forwarding - Busy Line/Don't Answer 20.29% 20.29%
Call Forwarding - Don't Answer 20.29% 20.29%
Automatic CallBack (Call Return) 20.29% 20.29%
Automatic CallBack-Per Use (Call Return - Usage Sensitive) 20.29% 20.29%
Call Trace 20.29% 20.29%
Call Waiting 20.29% 20.29%
Caller ID WithName (Calling Name) 20.29% 20.29%
Caller ID (Calling Number) 20.29% 20.29%
MultiRing Service -1 (Personalized Ring -1 Dependent Number) 20.29% 20.29%
MultiRing Service -2 (Personalized Ring - 2 Dependent Numbers) 20.29% 20.29%
Remote Access to Call Forwarding (Grandfathered) 0.00% 0.00%
Selective Call Forwarding 0.00% 0.00%
Multi-Path Call Forwarding (Simultaneous Call Forwarding) 20.29% 20.29%
Remote Call Forwarding-Per Feature 20.29% 20.29%
RCF, Interstate, Interexchange 20.29% 20.29%
RCF, Intrastate 20.29% 20.29%
RCF, Interstate, International 20.29% 20.29%
RCF, Intrastate, Interexchange 20.29% 20.29%
RCF to 800 20.29% 20.29%
RCF Additional 20.29% 20.29%
Speed Calling 8 20.29% 20.29%
Speed Calling 30 20.29% 20.29%
Three Way Calling 20.29% 20.29%
Call Screening 20.29% 20.29%
Busy Line Transfer 20.29% 20.29%
Alternate Answer 20.29% 20.29%
Message Waiting - Tone 20.29% 20.29%
Easy Call 20.29% 20.29%
Prime Number Service 20.29% 20.29%
AMERITECH Privacy Manager 20.29% 20.29%
Name and Number Delivery Service 20.29% 20.29%
DID
DID 20.29% 20.29%
TRUNKS
Trunk 20.29% 20.29%
</TABLE>
<PAGE>
TBD- To be determined
NRO- Nonrecurring only
ICB- Individual Case Basis
NA- Not Applicable
AMERITECH
TELEPHONE COMPANY
OHIO
Rates
January 7, 2000
<TABLE>
<CAPTION>
AIT GENERIC RATES
AIT RECURRING AIT NON-REC.
AIN
<S> <C> <C>
Area Wide Networking 20.29% 20.29%
Emergency Referral Message Service (Disaster Routing Service) 20.29% 20.29%
Ameritech Switch Alternate Routing (ANSAR) 20.29% 20.29%
Ameritech Customer Locaiton Alternate Routing (ACLAR) 20.29% 20.29%
OTHER
Grandfathered Services 0.00% 0.00%
Promotions (Greater than 90 days) 20.29% 20.29%
TouchTone (Business) 20.29% 20.29%
TouchTone (Trunk) 20.29% 20.29%
ISDN
ISDN 20.29% 20.29%
DIRECTORY ASSISTANCE SERVICES 20.29% 20.29%
Local Operator Assiustance Service 20.29% 20.29%
TOLL
TOLL 20.29% 20.29%
OPTIONAL TOLL CALLING PLANS
Optional Toll Calling Plans 20.29% 20.29%
CENTREX (PLEXAR)
CENTREX ACS 20.29% 20.29%
CENTREX ACS Ameritech CENTREX Network Manager 0.00% 0.00%
PRIVATE LINE
Analog Private Lines 20.29% 20.29%
Private Line Channel Services 20.29% 20.29%
RESIDENCE RESALE DISCOUNTS
LOCAL EXCHANGE SERVICE RECURRING NON-RECURRING
Life Line 0.00% 0.00%
Residence 1 Party 20.29% 20.29%
Residence Measured 20.29% 20.29%
EXPANDED LOCAL CALLING
Extended Area Service 20.29% 20.29%
VERTICAL SERVICES
Anonymous Call Rejection 20.29% 20.29%
Repeat Dialing (Auto Redial) 20.29% 20.29%
Repeat Dialing -Per Use (Auto Redial - Usage Sensitive) 20.29% 20.29%
Call Blocker 20.29% 20.29%
Call Forwarding 20.29% 20.29%
Call Forwarding - Busy Line 20.29% 20.29%
Call Forwarding - Busy Line/Don't Answer 20.29% 20.29%
Call Forwarding - Don't Answer 20.29% 20.29%
Automatic Call-Back (Call Return) 20.29% 20.29%
Automatic Call-Back Per Use (Call Return - Usage Sensitive) 20.29% 20.29%
Call Trace 20.29% 20.29%
Call Waiting 20.29% 20.29%
Caller ID with Name (Calling Name) 20.29% 20.29%
Caller ID (Calling Number) 20.29% 20.29%
Multi-Ring Service - 1 (Personalized Ring - 1 dependent number) 20.29% 20.29%
Multi-Ring Service - 2 (Personalized Ring - 2 dependent 20.29% 20.29%
numbers - 1st dependent number)
Remote Access to Call Forwarding (GF) 0.00% 0.00%
RCF, Interstate, Interexchange 20.29% 20.29%
RCF, Intrastate 20.29% 20.29%
RCF, Interstate, International 20.29% 20.29%
RCF, Intrastate, Interexchange 20.29% 20.29%
RCF to 800 20.29% 20.29%
RCF Additional 20.29% 20.29%
</TABLE>
<PAGE>
TBD- To be determined
NRO- Nonrecurring only
ICB- Individual Case Basis
NA- Not Applicable
AMERITECH
TELEPHONE COMPANY
OHIO
Rates
January 7, 2000
APPENDIX PRICING
AM-OH/essential.com, INC.
<TABLE>
<CAPTION>
AIT GENERIC RATES
AIT RECURRING AIT NON-REC.
<S> <C> <C>
Selective Call Forwarding 20.29% 20.29%
Speed Calling 8 20.29% 20.29%
Three Way Calling 20.29% 20.29%
Call Screening 20.29% 20.29%
Busy Line Transfer 20.29% 20.29%
Alternate Answer 20.29% 20.29%
Message Waiting - Tone 20.29% 20.29%
Easy Call 20.29% 20.29%
AMERITECH Privacy Manager 20.29% 20.29%
Name and Number Delivery Service 20.29% 20.29%
ISDN
ISDN 20.29% 20.29%
DIRECTORY ASSISTANCE SERVICES 20.29% 20.29%
Local Operator Assistance Service 20.29% 20.29%
OTHER
Grandfathered Services 0.00% 0.00%
Promotions (Greater than 90 Days) 20.29% 20.29%
TouchTone 20.29% 20.29%
Home Services Packages 20.29% 20.29%
TOLL
Custom and Dedicated 800 Service (Home 800) 20.29% 20.29%
IntraLATA MTS 20.29% 20.29%
900/976 Call Blocking (900/976 Call Restriction) 20.29% 20.29%
976 (976 Information Delivery Service) 20.29% 20.29%
Access Services (See Access Tariff) 0% 0%
Additional Directory Listings 20.29% 20.29%
Carrier Disconnect Service (Company Initiated Suspension 20.29% 20.29%
Service)
Connection Services 20.29% 20.29%
Premise Service/Line Backer (Maintenance of Service Charges) 0% 0%
Shared Tenant Service 0% 0%
Toll Restriction 20.29% 20.29%
ELECTRONIC BILLING INFORMATION DATA (DAILY USAGE) $0.00
per message
LOCAL DISCONNECT REPORT (LDR)
Per WTN $0.00
LINE CONNECTION CHARGE
Complex (Residence) N/A
Complex (Business) N/A
Simple (Residence) N/A
Simple (Business) N/A
SERVICE ORDER/SERVICE REQUEST CHARGE
Complex (Residence) $14.07
Complex (Business) $12.63
Simple (Residence) $14.07
Simple (Business) $20.33
NON-ELECTRONIC (MANUAL) SERVICE ORDER CHARGE
Complex (Residence) $9.02
Complex (Business) $9.02
Simple (Residence) $9.02
Simple (Business) $9.02
</TABLE>
<PAGE>
TBD- To be determined
NRO- Nonrecurring only
ICB- Individual Case Basis
NA- Not Applicable
AMERITECH
TELEPHONE COMPANY
WISCONSIN
Rates
January 7, 2000
APPENDIX PRICING
AM-WI/essential.com, INC.
<TABLE>
<CAPTION>
RESALE
RESALE DISCOUNTS
BUSINESS RECURRING NON-RECURRING
<S> <C> <C>
LOCAL EXCHANGE SERVICE
Business 1 Party 17.50% 27.50%
Business - Measured 17.50% 27.50%
Customer Operated Pay Telephone (COPT) 17.50% 27.50%
EXPANDED LOCAL CALLING
Extended Area Service 20.00% 20.00%
VERTICAL SERVICES
Anonymous Call Rejection 25.00% 25.00%
Repeat Dialing (Auto Radial) 25.00% 25.00%
Repeat Dialing-Per Use (Auto Redial - Usage Sensitive) 25.00% 25.00%
Call Blocker 25.00% 25.00%
Call Forwarding 25.00% 25.00%
Call Forwarding - Busy Line 25.00% 25.00%
Call Forwarding - Busy Line/Don't Answer 25.00% 25.00%
Call Forwarding - Don't Answer 25.00% 25.00%
Automatic CallBack (Call Return) 25.00% 25.00%
Automatic CallBack-Per Use (Call Return - Usage Sensitive) 25.00% 25.00%
Call Trace 25.00% 25.00%
Call Waiting 25.00% 25.00%
Caller ID WithName (Calling Name) 25.00% 25.00%
Caller ID (Calling Number) 25.00% 25.00%
MultiRing Service -1 (Personalized Ring - 1 Dependent Number) 25.00% 25.00%
MutliRing Service -2 (Personalized Ring - 2 Dependent Numbers) 25.00% 25.00%
Remote Access to Call Forwarding (Grandfathered) 0.00% 0.00%
Selective Call Forwarding 0.00% 0.00%
Multi-Path Call Forwarding (Simultaneous Call Forwarding) 25.00% 25.00%
Remote Call Forwarding-Per Feature 25.00% 25.00%
RCF, Interstate, Interexchange 25.00% 25.00%
RCF, Intrastate 25.00% 25.00%
RCF, Interstate, International 25.00% 25.00%
RCF, Intrastate, Interexchange 25.00% 25.00%
RCF to 800 25.00% 25.00%
RCF Additional 25.00% 25.00%
Speed Calling 8 25.00% 25.00%
Speed Calling 30 25.00% 25.00%
Three Way Calling 25.00% 25.00%
Call Screening 25.00% 25.00%
Busy Line Transfer 25.00% 25.00%
Alternate Answer 25.00% 25.00%
Message Waiting - Tone 25.00% 25.00%
Easy Call 25.00% 25.00%
Prime Number Service 25.00% 25.00%
AMERITECH Privacy Manager 25.00% 25.00%
Name and Number Delivery Service 25.00% 25.00%
DID
DID 15.00% 15.00%
TRUNKS
Trunk 17.50% 17.50%
</TABLE>
<PAGE>
TBD- To be determined
NRO- Nonrecurring only
ICB- Individual Case Basis
NA- Not Applicable
AMERITECH
TELEPHONE COMPANY
WISCONSIN
Rates
January 7, 2000
APPENDIX PRICING
AM-WI/essential.com, INC.
<TABLE>
<CAPTION>
AIN
<S> <C> <C>
Area Wide Networking 25.00% 25.00%
Ameritech Switch Alternate Routing (ANSAR) 25.00% 25.00%
Ameritech Customer Location Alternate Routing (ACLAR) 25.00% 25.00%
OTHER
Grandfathered Services 0.00% 0.00%
Promotions (Greater than 90 days) 25.00% 25.00%
TouchTone (Business) 25.00% 25.00%
TouchTone (Trunk) 25.00% 25.00%
900/976 Call Blocking (900/976 Call Restriction) 0%
976 (976 Information Delivery Service) 0% 0%
Access Services (See Access Tariff) 0% 0%
Additional Directory Listings 15.00% 15.00%
Carrier Disconnect Service (Company initiated Suspension 0% 0%
Service)
Connection Services 25.00% 25.00%
Premise Services/Line Backer (Maintenance of Service Charges) 0% 0%
Shared Tenant Service 0% 0%
ISDN
ISDN 9.75% 9.75%
DIRECTORY ASSISTANCE SERVICES
Directory Assistance Services 15.00% 15.00%
Local Operator Assiustance Service 15.00% 15.00%
TOLL
TOLL 25.00% 25.00%
OPTIONAL TOLL CALLING PLANS
Optional Toll Calling Plans 25.00% 25.00%
CENTREX(PLEXAR)
Ameritech Centrex Service ACS 25.00% 25.00%
Ameritech Centrex Network Manager 0.00% 0.00%
PRIVATE LINE
Analog Private Lines 8.00% 8.00%
Private Line Channel Services 8.00% 8.00%
RESIDENCE RESALE DISCOUNTS
LOCAL EXCHANGE SERVICE RECURRING NON-RECURRING
Life Line 0.00% 0.00%
Residence 1 Party 14.50% 25.00%
Residence Measured 14.50% 25.00%
EXPANDED LOCAL CALLING
Extended Area Service 17.50% 17.50%
VERTICAL SERVICES
Anonymous Call Rejection 23.00% 23.00%
Repeat Dialing (Auto Redial) 23.00% 23.00%
Repeat Dialing - Per Use (Auto Redial - Usage Sensitive) 23.00% 23.00%
Call Blocker 23.00% 23.00%
Call Forwarding 23.00% 23.00%
Call Forwarding - Busy Line 23.00% 23.00%
Call Forwarding - Busy Line/Don't Answer 23.00% 23.00%
Call Forwarding - Don't Answer 23.00% 23.00%
Automatic Call-Back (Call Return) 23.00% 23.00%
Automatic Call-Back Per Use (Call Return - Usage Sensitive) 23.00% 23.00%
</TABLE>
<PAGE>
TBD- To be determined
NRO- Nonrecurring only
ICB- Individual Case Basis
NA- Not Applicable
AMERITECH
TELEPHONE COMPANY
WISCONSIN
Rates
January 7, 2000
APPENDIX PRICING
AM-WI/essential.com, INC.
<TABLE>
<CAPTION>
<S> <C> <C>
Call Trace 23.00% 23.00%
Call Waiting 23.00% 23.00%
Caller ID with Name (Calling Name) 23.00% 23.00%
Caller ID (Calling Number) 23.00% 23.00%
Multi-Ring Service - 1 (Personalized Ring- 1 dependent number) 23.00% 23.00%
Multi-Ring Service - 2 (Personalized Ring - 2 dependent 23.00% 23.00%
numbers - 1st dependent number)
Remote Access to Call Forwarding (GF) 0.00% 0.00%
RCF, Interstate, Interexchange 23.00% 23.00%
RCF, Intrastate 23.00% 23.00%
RCF, Interstate, International 23.00% 23.00%
RCF, Intrastate, Interexchange 23.00% 23.00%
RCF to 800 23.00% 23.00%
RCF Additional 23.00% 23.00%
Selective Call Forwarding 23.00% 23.00%
Speed Calling 8 23.00% 23.00%
Three Way Calling 23.00% 23.00%
Call Screening 23.00% 23.00%
Busy Line Transfer 23.00% 23.00%
Alternate Answer 23.00% 23.00%
Message Waiting - Tone 23.00% 23.00%
Easy Call 23.00% 23.00%
AMERITECH Privacy Manager 23.00% 23.00%
Name and Number Delivery Service 23.00% 23.00%
ISDN
ISDN 9.75% 9.75%
DIRECTORY ASSISTANCE SERVICES
Directory Assistance SERVICES 15.00% 15.00%
Local Operator Assistance Service 15.00% 15.00%
OTHER
Grandfathered Services 0.00% 0.00%
Promotions (Greater than 90 Days) 23.00% 23.00%
TouchTone 23.00% 23.00%
Home Services Packages 23.00% 23.00%
900/976 Call Backing (900/976 Call Restriction) 0% 0%
976 (976 Information Delivery Service) 0% 0%
Access Services (See Access Tariff) 0% 0%
Additional Directory Listings 15.00% 15.00%
Carrier Disconnect Service (Company initiated Suspension 0% 0%
Service)
Connection Services 25.00% 25.00%
Premise Services/Line Backer (Maintenance of Service Charges) 0% 0%
Shared Tenant Service 0% 0%
TOLL
Toll 21.50% 21.50
ELECTRONIC BILLING INFORMATION DATA (DAILY USAGE) $0.00
per message
LOCAL DISCONNECT REPORT (LDR)
Per WTN $0.00
LINE CONNECTION CHARGE
Residence N/A
Business N/A
SERVICE ORDER/SERVICE REQUEST CHARGE
Residence $26.25
Business $31.90
NON-ELECTRIC (MANUAL) SERVICE ORDER CHARGE
Residence $9.02
Business $9.02
</TABLE>
<PAGE>
[LETTERHEAD]
September 9, 1999
ESSENTIAL.COM
John Duffy
3 Burlington Woods Dr.
4th Flr.
Burlington, MA 01803
John,
Enclosed you will find a copy of the ESSENTIAL.COM resale signature
ready agreement for the state of Texas. Please review the agreement and
let me know if you have any questions. If you are ready to sign the
agreement, sign in the designated places and return the entire
agreement to my office.
Once we receive the signed copy, the President-Industry Markets of
Southwestern Bell will sign it and a copy will be forwarded to you.
Southwestern Bell will file the agreement with the Texas Public
Utilities Commission. If you have any questions in the meantime, please
call me at 214 464-8557 or you can E-mail me at [email protected].
Sincerely,
/s/ Alex Cedillo
- -----------------------------
Alexander (Alex) Cedillo
Account Manager-LPAT
Southwestern Bell
enclosure
<PAGE>
PAGE 1 OF 3
RESALE AGREEMENT BETWEEN
SOUTHWESTERN BELL TELEPHONE COMPANY
AND essential.com
<TABLE>
<CAPTION>
TABLE OF CONTENTS
<S> <C> <C>
I. DESCRIPTION AND CHARGES FOR SERVICES ..................................1
II. TERMS AND CONDITIONS FOR RESALE OF SERVICES ...........................3
A. PERMITTED USE OF RESOLD SERVICES BY CLEC AND ITS END USERS .........3
B. USE OF SWBT TRADEMARKS .............................................5
C. NETWORK AND SERVICE ORDER CONDITIONS ...............................5
D. CUSTOMER SPECIFIC PRICING ..........................................6
III. ADDITIONAL SERVICES ...................................................7
A. 911/E911 ...........................................................7
B. DIALING PARITY .....................................................7
C. WHITE PAGE DIRECTORIES: LISTINGS,
DISTRIBUTION AND INFORMATION PAGE ..................................8
D. DIRECTORY ASSISTANCE (DA) ..........................................9
E. OPERATOR SERVICES (OS) ............................................10
F. PAYPHONE SERVICES .................................................10
IV. RESPONSIBILITIES OF SWBT .............................................10
V. ADDITIONAL RESPONSIBILITIES OF THE PARTIES ...........................12
A. COOPERATION ON FRAUD ..............................................12
B. FILING THE AGREEMENT...............................................12
VI. CHANGES IN SUBSCRIBER CARRIER SELECTIONS .............................13
VII. ADDITIONAL RESPONSIBILITIES OF CLEC...................................14
A. PAYMENT OF RATES AND CHARGES ......................................14
B. INTERFACES WITH SWBT ..............................................18
C. REPAIR CONTACT ARRANGEMENTS .......................................19
D. CLEC OPERATING COMPANY NUMBER (OCN) ...............................19
E. SPECIAL SERVICE ARRANGEMENTS ......................................19
F. DEVELOPMENT OF BRANDING AND CUSTOMIZED ROUTING ....................19
VIII. NONEXCLUSIVITY .......................................................21
IX. SUPPORT SYSTEMS SERVICES .............................................21
A. SUPPORT SYSTEMS SERVICES ..........................................21
B. NETWORK MANAGEMENT CONTROLS .......................................23
C. LAW ENFORCEMENT AND CIVIL PROCESS..................................23
</TABLE>
<PAGE>
PAGE 2 OF 3
<TABLE>
<S> <C> <C>
X. CALL TRACE............................................................24
XI. TAXES ................................................................24
XII. TERMINATION OF SERVICE TO CLEC. ......................................25
XIII. FORCE MAJEURE ........................................................27
XIV. LIMITATION OF LIABILITY ..............................................27
XV. NONDISCLOSURE ........................................................28
XVI. PUBLICITY ............................................................29
XVII. ASSIGNMENT ...........................................................29
XVIII. DISPUTE RESOLUTION ...................................................30
A. FINALITY OF DISPUTES ..............................................30
B. ALTERNATIVE TO LITIGATION .........................................30
C. COMMENCING DISPUTE RESOLUTION .....................................30
D. INFORMAL RESOLUTION OF DISPUTES ...................................30
E. FORMAL DISPUTE RESOLUTION .........................................31
F. ARBITRATION .......................................................32
G. BILLING DISPUTES...................................................33
H. NO CONFLICT .......................................................34
XIX. VERIFICATION REVIEWS .................................................34
XX. COMPLIANCE WITH LAWS .................................................35
XXI. CERTIFICATION REQUIREMENTS............................................36
XXII. INTENTIONALLY LEFT BLANK .............................................36
XXIII. NOTIFICATION .......................... ..............................36
XXIV. NOTICES ................................ .............................36
XXV. BENEFICIARIES ........................................................37
XXVI. TERM .................................................................37
XXVII. EFFECTIVE DATE .......................................................38
</TABLE>
<PAGE>
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<TABLE>
<S> <C> <C>
XXVIII. WAIVER ...............................................................38
XXIX. DISCLAIMER OF WARRANTIES .............................................38
XXX. RELATIONSHIP OF THE PARTIES ..........................................38
XXXI. INTERVENING LAW AND PRESERVATION OF RIGHTS ...........................38
XXXII. COMPLETE TERMS .......................................................39
</TABLE>
<PAGE>
PAGE 1 OF 40
RESALE AGREEMENT BETWEEN
SOUTHWESTERN BELL TELEPHONE COMPANY
AND ESSENTIAL.COM
This Agreement is between Southwestern Bell Telephone Company ("SWBT"), a
Missouri corporation, and essential.com. ("CLEC"), a Delaware corporation,
(collectively, "the Parties") entered into this__________ day of__________ 1999.
WHEREAS, pursuant to the Telecommunications Act of 1996 (the "Act"), the
Parties wish to establish terms for the purchase by CLEC of certain SWBT retail
telecommunications services and certain other services for resale by CLEC to its
local exchange end users in the State of Texas. Therefore, the Parties hereby
agree as follows:
The geographic SCOPE of this Agreement shall include all exchanges served
by SWBT in the state of Texas. This Agreement shall exclusively govern CLEC's
purchases of the services which are the subject of this Agreement, including any
Appendices, Exhibits, Attachments and/or Amendments hereto, in such state. By
entering this Agreement CLEC agrees that it is purchasing services pursuant to
this Agreement and not General Exchange Tariff (HB2128) and shall continue to
abide by all terms of this Agreement unless terminated as provided herein.
I. DESCRIPTION AND CHARGES FOR SERVICES
A. Attached hereto as Exhibit A is a list of Telecommunications Services
currently available for resale at the wholesale discount rate set by
the Commission through arbitration, i.e., 21.6% off the retail rate
for each service. Except as otherwise expressed herein and consistent
with SWBT's obligation under Sections 251(c)(4)(A) of the Act, CLEC
may resell other Telecommunications Services offered by SWBT and not
listed in Exhibit A. Exhibit B contains a list of other services
available for resale at the discount included in the exhibit.
B. SWBT shall make available for resale by CLEC SWBT's Bill Plus or
Consolidated Billing service at a discount of five percent (5%) off
SWBT's tariffed rate for each service (or in the event these services
are not tariffed, at the rate SWBT charges its subscribers).
C. SWBT shall make available for resale by CLEC the following SWBT
services at SWBT's tariffed rate for each service (or in the event a
service is not tariffed, at the rate SWBT charges its subscribers,
except as otherwise provided herein):
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PAGE 2 OF 40
- Construction Charges
- Connections with Terminal Equipment and Communication System
- Distance Learning
- Maintenance of Service Charges
- Suspension Services
- Telecommunications Service Priority Systems
- Access Services
- Cellular Mobile Telephone Interconnection Services
- Exchange Connection Services
- Shared Tenant Service
- 976 Information Delivery Service
D. The Distance Learning discount is in addition to the discounts for the
underlying services provided. Suspension of Service discounts apply to
the discounted rate for the underlying service. When CLEC resells
Shared Tenant Service, CLEC will receive the discount associated with
the underlying service used in the shared tenant arrangement.
E. SWBT shall be under no obligation to offer the following for resale:
- BDS/LAN
- Customer Provided Equipment
- Customized Billing Reports
- InLine -Registered Trademark- Products
- Inside Wiring
- Semi-Public Telephone Booths and Enclosures
- 911 Universal Emergency Number Equipment
F. Grandfathered services are also available for resale at the applicable
wholesale discount to the same customers to which SWBT offers the
service.
G. Telecommunications Services will be resold to CLEC on terms and
conditions that are reasonable and nondiscriminatory.
H. CLEC may offer to resell Customer Initiated Suspension and Restoral
Service to their end users. SWBT will offer to CLEC Company Initiated
Suspension service for their own purposes at the SWBT retail tariffed
rate. Should CLEC choose to suspend their end user through Company
Initiated Suspension Service, this suspension period shall not exceed
fifteen (15) calendar days. If CLEC issues a disconnect on their end
user account within the fifteen (15) day period, appropriate services
will not be billed for the suspension period. However, should CLEC
issue a disconnect after the fifteen (15) day suspension period, CLEC
will be
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responsible for all appropriate charges on the account back to the
suspension date, Should CLEC restore their end user, restoral charges
at the SWBT retail tariffed rate will apply and CLEC will be billed
for the appropriate service from the time of suspension.
II. TERMS AND CONDITIONS FOR RESALE OF SERVICES
The following terms and conditions are applicable to all services purchased
under this Agreement.
A. PERMITTED USE OF RESOLD SERVICES BY CLEC AND ITS END USERS
1. For services included in this Agreement which are offered through
tariffs by SWBT to its end users, the rules and regulations
associated with the applicable State General Exchange Tariff,
Local Exchange Service Tariff, and the other tariffs for the
resold service (such tariffs collectively referred to herein as
"corresponding tariffs"), apply except for applicable resale
restrictions and except as otherwise provided herein.
2. CLEC shall only sell Plexar -R- services to a single end user or
multiple users on continuous properties.
3. Except where otherwise explicitly provided in the corresponding
tariffs, or except where SWBT permits such sharing by its own end
users, CLEC shall not permit the sharing of a service by multiple
end users or the aggregation of traffic from multiple end users
onto a single service; however, based upon the Commission's
Arbitration Order, SWBT will not retain its limitation on
aggregation for purposes of the resale of volume discount offers.
4. CLEC shall only resell services purchased under this Agreement to
the same class of end users to whom SWBT sells such services
(e.g. residence service shall not be resold to business end
users). CLEC may only resell Lifeline Assistance, Link-Up, and
other like services to similarly situated customers who are
eligible for such services. Further, to the extent CLEC resells
services that require certification on the part of the buyer,
CLEC will ensure that the buyer has received proper certification
and complies with all rules and regulations as established by the
Commission.
5. For purposes of this section, "short term promotions" of
Telecommunications services are limited in length to no more than
ninety (90) days for the length of the period during which the
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promotion may be offered to the public, and to no more than
ninety (90) days for the period during which any and all benefits
from the promotion must be realized or captured by the
subscriber, and that the subscriber must begin receiving the
benefit during the offering period.
a. Based upon the Arbitration Order of the Commission, CLEC may
obtain the short term promotional service from SWBT for
resale but CLEC is not entitled to receive a discount from
SWBT off of the promotional rate.
b. Retail rates that do not qualify as a short term promotion,
i.e., those in excess of 90 days, are the rates to which the
respective wholesale discounts in Section 1 apply while they
are in effect.
c. Nothing in this Agreement shall require SWBT to provide to
CLEC promotional service elements that are not
Telecommunications Services such as CPE and Inside Wire
Maintenance Plans.
6. CLEC shall not use a resold service to avoid the rates, terms and
conditions of SWBT's corresponding tariffs.
7. CLEC shall not use resold local exchange telephone service to
provide access or interconnection services to itself,
interexchange carriers (IXCs), wireless carriers, competitive
access providers (CAPs), or other telecommunications providers.
Provided however, that CLEC may permit its end users to use
resold local exchange telephone service to access IXCs, wireless
carriers, CAPs, or other retail telecommunications providers.
8. If CLEC is found to be in violation of a provision of this
Agreement, SWBT shall notify CLEC of the violation in writing of
the specific provision being violated. At such time, CLEC shall
have thirty (30) days to correct the violation and notify SWBT in
writing that the violation has been corrected. SWBT shall then
bill CLEC for the charges which should have been collected by
SWBT or the actual revenues collected by CLEC from its end users
for the stated violation, whichever is greater. If CLEC disputes
the violation, it shall notify SWBT in writing within fourteen
(14) days of receipt of notice from SWBT. Disputes shall be
resolved as outlined in the Dispute Resolution section of the
Agreement.
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PAGE 5 OF 40
9. An End User Common Line (EUCL) charge will continue to apply for
each local exchange line resold under this agreement. All federal
rules and regulations associated with EUCL charges, as found in
Tariff FCC 73, also apply. To the extent ordered by the Texas
Public Utility Commission, the wholesale discount will apply to
the EUCL.
10. To the extent allowable by law, CLEC shall be responsible for
Primary Interexchange Carrier (PIC) change charges associated
with such local exchange line. CLEC shall pay for PIC changes at
the tariffed rate.
11. SWBT is not required to make services available for resale at
wholesale rates to CLEC for its own use or to CLEC's affiliates,
subsidiaries, predecessors, successors, assignees or anyone or
any entity claiming by or through CLEC.
B. USE OF SWBT TRADEMARKS
Except where otherwise required by law, CLEC shall not, without SWBT's
written authorization, offer the services covered by this Agreement
using the trademarks, service marks, trade names, brand names, logos,
insignia, symbols or decorative designs of SWBT or its affiliates. Nor
shall CLEC state or imply that there is any joint business association
or similar arrangement with SWBT in the provision of
telecommunications services to CLECs own end users. CLEC may brand
services included in this Agreement with its own brand name, but SWBT
shall not be responsible for providing such branding.
C. NETWORK AND SERVICE ORDER CONDITIONS
1. SWBT shall provide the services covered by this Agreement subject
to availability of existing facilities and on a nondiscriminatory
basis with its other customers. CLEC shall resell the services
provided herein only in those service areas in which such resale
services or any feature or capability thereof are offered at
retail by SWBT as the incumbent local exchange carrier to its end
users.
2. When CLEC converts an end user currently receiving noncomplex
service from the SWBT network, without any changes to SWBT's
network, and such order requires manual processing by SWBT
personnel, CLEC will be charged an interim per order (i.e., per
billable telephone number) conversion charge of $16.65 in Texas.
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PAGE 6 OF 40
Conversion orders processed and completed electronically will be
charged $5 per order on an interim basis. Complex orders will be
charged at an interim rate of $52.55 per order. Custom Services
conversions (e.g. Plexar Custom) will be handled on a Customer
Specific Proposal basis.
When CLEC converts an end user's service and adds or changes are
made to the network, the respective conversion charge will apply,
as well as any normal service order charges associated with said
changes. All non-recurring service connection charges, excluding
the conversion charge mentioned above, will be charged at a
discount for those services listed in Exhibits A and B.
3. For the purposes of ordering new service under this Agreement,
each request for new service shall be handled as a separate and
initial request for service per billable telephone number. The
additional line rate for Service Order Charges shall apply only
to those requests for additional residential service at the end
user's same location where a residential line is currently
provided on SWBT's network, regardless of the non-facilities
based Competitive Local Exchange Carrier of record.
4. For purposes of this section, CLEC service orders shall be
handled in the same fashion as SWBT employs for its own end
users.
D. CUSTOMER SPECIFIC PRICING
CLEC may convert current SWBT end users and SWBT or any reseller of
SWBT local service may convert current CLEC end users with existing
term, volume, termination liability or any customer specific pricing
(all of the aforementioned referred to hereinafter as CSP) contracts
existing with the current Local Service Provider (LSP) in the State of
Texas reciprocally with the following responsibilities subject to any
modifications ultimately approved in Docket 17759 and any appeals
thereof:
1. RESPONSIBILITIES OF CLEC
CLEC will assume in writing the balance of the terms, including
volume, term and termination liability existing on a current
retail or resold SWBT end user at the time of conversion. CLEC
may resell the CSP initially at the wholesale discount of 5.62%
for Customer Specific contracts and 8.04% for existing Tariffed
Volume and term contracts. Correspondingly, CLEC will not charge
their end user termination liability when an existing CSP
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PAGE 7 OF 40
contract between CLEC end user is converted to SWBT or any other
LSP reselling SWBT local service.
2. RESPONSIBILITIES OF SWBT
SWBT will not charge the end user termination liability when an
existing CSP contract is converted to CLEC for resale.
Correspondingly, SWBT or other LSP will assume in writing the
balance of the terms, termination liability, volume or customer
specific pricing contracts that exist when a current CLEC end
user is converted to SWBT or other reseller of SWBT local
service.
III. ADDITIONAL SERVICES
A. 911/E911
1. Access to the 911 or E911 service, available to SWBT end users
in the area(s) served by CLEC, shall be made available to CLEC's
end users.
2. CLEC shall be responsible for collecting and remitting all
applicable 911 surcharges on a per line basis to the Public
Safety Answering Point (PSAP).
3. When requested by SWBT, CLEC shall provide timely, accurate and
complete information on each of CLEC's end users as needed for
the provisioning of 911 service to CLECs end users. Such
information shall be in a format and a time frame pre-subscribed
by SWBT for purposes of 911 administration.
B. DIALING PARITY
1. LOCAL DIALING PARITY
SWBT agrees that local dialing parity shall be available to CLEC.
That is, end users of SWBT and end users of CLEC shall have the
same exchange boundaries, such end users shall be able to dial
the same number of digits when making a "local" call.
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PAGE 8 OF 40
2. IntraLATA TOLL DIALING PARITY
SWBT agrees to make IntraLATA toll dialing parity available in
accordance with Section 25(1)(b)(3) of the Telecommunications Act
of 1996.
C. WHITE PAGE DIRECTORIES: LISTINGS, DISTRIBUTION AND INFORMATION PAGE
1. CLEC's subscribers to basic residential and business service will
receive a basic listing in SWBT's White Pages directories in the
same form and under the same conditions as SWBT provides to its
subscribers.
a. Subscriber listing information on resold lines shall remain
the property of SWBT. Upon receipt of a request from a third
party directory publisher, including Southwestern Bell
Yellow Pages, for subscriber listing information, SWBT will
provide to that third party directory publisher CLEC
subscriber's listing information on an interfiled basis and
indistinguishable from SWBT's subscriber listing
information.
b. Each CLEC subscriber will receive one copy of SWBT's White
Pages directory, and a Yellow Pages directory when cobound
with the White Pages, in the same manner and at the same
time that they are provided to SWBT's subscribers. It is
the Parties' expectation that separately bound Southwestern
Bell Yellow Pages directories will be delivered in the same
manner and at the same time to CLEC's subscribers as to
SWBT's subscribers.
c. If an CLEC end user already has a current SWBT directory,
SWBT shall not be required to deliver a directory to that
end user until new directories are published for that end
user's location.
d. The listings and directories described above are included in
the wholesale price CLEC owes SWBT for resold lines and will
be provided by SWBT at no additional charges.
e. Additional Listing Services (e.g., foreign listings and
signature listing) can be purchased by CLEC for its end
users on a per listing basis. CLEC shall pay SWBT for all
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PAGE 9 OF 40
such listings provided to CLECs end users. The discounts
applicable to listing services are contained in Exhibit B.
f. CLEC hereby releases SWBT from any and all liability for
damages due to errors or omissions in CLEC's subscriber
listing information as it appears in the White Pages
directory, including, but not limited to, special, indirect,
consequential, punitive or incidental damages. To the extent
CLEC reimburses its end user subscriber any listing charge
due to errors or omissions caused directly by SWBT, SWBT
shall reimburse CLEC any associated wholesale rate.
2. INFORMATION PAGE
a. At CLEC's request, SWBT shall include in the "Informational
Page section of SWBT's White Pages directory, for those
geographical areas in which CLEC provides local exchange
services, CLEC's customer contact information regarding
emergency services, billing and service information, repair
services and other pertinent information similar to that
provided by SWBT in its "Informational Pages." Such
information shall be included on the same page with other
CLEC information.
b. At CLEC's option, CLEC shall be provided a single
"Informational Page" (one side of one page) in the
informational section of the White Pages directory covering
a geographic area where an CLEC provides local exchange
service. This page shall be no different in style, size,
color and format than SWBT "Informational Pages." Sixty (60)
days prior to the directory close date, CLEC shall provide
to SWBT the "Informational Page" in the form of camera-
ready copy. The charges associated with this service vary
from geographic market to market, and are charged outside
this Agreement
D. DIRECTORY ASSISTANCE (DA)
SWBT shall provide access to DA to CLEC's end users. CLEC shall pay
the charges associated with the use of such services by CLEC's end
users. The discounts applicable TO such services are contained in
Exhibits A and B, which is attached hereto and made a part hereof.
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PAGE 10 OF 42
days prior to the directory close date, CLEC shall provide to
SWBT the "Informational Page" in the form of camera-ready copy.
The charges associated with this service vary from geographic
market to market, and are charged outside this Agreement.
D. DIRECTORY ASSISTANCE (DA)
SWBT shall provide access to the same DA services it makes available
to its own end users to CLEC's end users. CLEC shall pay the charges
associated with the use of such services by CLEC's end users. The
discounts applicable to such services are contained in Exhibits A and
B, which is attached hereto and made a part hereof.
E. OPERATOR SERVICES (OS)
1. SWBT shall provide access to Operator Services to CLEC's end
users. CLEC shall pay the charges associated with the use of such
services by CLEC's end users. The discounts applicable to such
services are contained in Exhibits A and B, which are attached
hereto and incorporated by reference.
2. SWBT shall provide Line Status Verification and Busy Line
Interrupt on calls made on SWBT's network to CLEC end users. CLEC
shall pay SWBT associated charges when its end users request such
services, with discounts to apply as listed in Exhibits A and B.
F. PAYPHONE SERVICES
1. CLEC may enter the business of providing local telecommunications
services to payphone service providers (PSPs) for PSPs' use in
providing payphone service. Local telecommunications services
which PSPs use in providing and which are provided to PSPs by
CLEC by means of reselling those of SWBT's services offered
pursuant to the General Exchange Tariff, See. 36 are referred to
in this Agreement as "Payphone Lines". In its Common Carrier
Docket No. 96-128, the Federal Communications Commission ("FCC")
has ordered SWBT to compensate PSP customers of CLECs that resell
SWBT's services for certain calls originated from pay telephones
and received by the resale-based carriers. (IMPLEMENTATION OF THE
PAY TELEPHONE RECLASSIFICATION AND COMPENSATION PROVISIONS OF THE
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PAGE 10 OF 40
E. OPERATOR SERVICES (OS)
1. SWBT shall provide access to Operator Services to CLEC's end
users. CLEC shall pay the charges associated with the use of such
services by CLEC's end users. The discounts applicable to such
services are contained in Exhibits A and B, which are attached
hereto and incorporated by reference.
2. SWBT shall provide Line Status Verification and Busy Line
Interrupt on calls made on SWBT's network to CLEC end users. CLEC
shall pay SWBT associated charges when its end users request such
services, with discounts to apply as listed in Exhibits A and B.
F. PAYPHONE SERVICES
1. CLEC may enter the business of providing local telecommunications
services to payphone service providers (PSPs) for PSPs' use in
providing payphone service Local telecommunications services
which PSPs use in providing and which are provided to PSPs by
CLEC by means of reselling those of SWBT's services offered
pursuant to the General Exchange Tariff, Sec. 36 are referred to
in this Agreement as "Payphone Lines". In its Common Carrier
Docket No. 96-128, the Federal Communications Commission ("FCC")
has ordered SWBT to compensate PSP customers of CLECs that resell
SWBT's services for certain calls originated from pay telephones
and received by the resale-based carriers. (IMPLEMENTATION OF THE
PAY TELEPHONE RECLASSIFICATION AND COMPENSATION PROVISIONS OF THE
TELECOMMUNICATIONS ACT OF 1996, FCC Docket No. 96-128, Report and
Order, para. 86 (1996)). This compensation is referred to in
this Agreement as "Payphone Compensation".
2. The Parties desire that SWBT satisfy its obligation to pay
Payphone Compensation to Payphone Service Providers (PSPs) who
are customers of CLEC by paying the Payphone Compensation to the
CLEC who will then forward the Payphone Compensation directly to
the PSPs.
IV. RESPONSIBILITIES OF SWBT
A. SWBT shall allow CLEC to place service orders and receive phone number
assignments (for new lines). These service order activities shall be
accomplished by facsimile or electronic interface when established.
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SWBT, with input from CLEC, shall provide interface specifications for
electronic access for these functions to CLEC once such electronic
interfaces become technically feasible and are in place. However, CLEC
shall be responsible for modifying and connecting any of its systems
with SWBT provided interfaces when such interfaces become available,
as outlined in Appendix OSS.
B. SWBT shall implement CLEC service orders within the same time
intervals SWBT uses to implement service orders for similar services
for its own end users.
C. CLEC will have the ability to report trouble for its end users to
appropriate SWBT trouble reporting centers 24 hours a day, 7 days a
week. CLEC will be assigned a customer contact center when initial
service agreements are made. CLEC end users calling SWBT may be
referred to CLEC at the number provided by CLEC. SWBT shall at all
times be responsible for the repair and maintenance of its network.
Nothing herein shall be interpreted to authorize CLEC to repair,
maintain, or in any way touch SWBT's network facilities, including
those on end user premises.
Operational procedures for ordering and trouble reporting are outlined
in SWBT's CLEC Handbook as amended by SWBT from time to time. Both
parties agree to abide by the procedures contained therein.
D. On no less than sixty (60) days advance written notice, CLEC may
request SWBT to make certain usage information available to CLEC on a
daily basis in a standard electronic format. The information will
consist of usage sensitive charges SWBT will bill to CLEC arising out
of the use of resold lines. CLEC agrees to pay SWBT three tenths of a
cent ($.003) per message for this service, plus other charges outlined
in Appendix OSS.
E. Subject to any future order of the FCC which obligates SWBT to pay an
amount different from the following, SWBT will pay Payphone
Compensation due with respect to the Payphone lines in the amount of
$0.284 per call. SWBT will pay to CLEC such Payphone Compensation only
for (i) intraLATA subscriber 800 calls for which SWBT provides the 800
service to the subscriber and carries the call and (ii) intraLATA
calls placed using SWBT's prepaid calling card platform and carried by
SWBT. SWBT will not pay to CLEC any Payphone Compensation for non sent
paid calls.
1. SWBT will pay to CLEC the Payphone Compensation due to CLEC
Customer (PSP) within sixty (60) days after the close of the
calendar quarter in which the call for which Payphone
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Compensation is due is made. However, payment may be made later
than sixty (60) days if SWBT deems it necessary to investigate a
call or calls for possible fraud. To the extent to which SWBT's
first payment includes Payphone Compensation for calls made prior
to any calendar quarter which ended thirty (30) days after this
Agreement takes effect and will include as Payphone Compensation
under this Agreement an amount equal to the Payphone Compensation
which would have been due to CLEC under this Agreement this
Agreement taken effect on October 7,1997.
2. SWBT will make any payment due to CLEC under this Agreement by
crediting CLEC's bill for the Payphone Line over which the call
which give rise to the Payphone Compensation is placed. SWBT will
not issue a check to CLEC if the credit for Payphone Compensation
exceeds the balance due to SWBT on the bill.
3. Nothing in this Agreement entitles CLEC to receive or obligates
SWBT to provide any call detail or other call record.
V. ADDITIONAL RESPONSIBILITIES OF THE PARTIES
A. COOPERATION ON FRAUD
SWBT shall not be liable to CLEC for any fraudulent usage on CLEC's
end users' accounts.
The Parties agree to cooperate with one another to investigate, and
take corrective action in cases of fraud. The Parties' fraud on
procedures are to be cost effective and implemented so as not to
unduly burden or harm one Party as compared to the other.
At a minimum, such cooperation shall include providing to the other
Party, upon request, information concerning end users who terminate
services to that Party without paying all outstanding charges, when
such end user seeks service from the other Party. The Party seeking
such information is responsible for securing the. end user's
permission to obtain such information.
B. FILING THE AGREEMENT
Unless otherwise agreed, if the designated Party fails to file the
jointly signed agreement with the Commission within forty-five (45)
days of
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both Parties signatures, then the signed agreement is null and no
longer valid. If the contract becomes null, either Party can initiate
negotiations to a new agreement.
VI. CHANGES IN SUBSCRIBER CARRIER SELECTIONS
A. Prior to submitting an order under this Agreement, CLEC shall obtain
end user authorization as required by applicable state or federal laws
and regulations, and assumes responsibility for applicable charges as
specified in Section 258 (b) of the Telecommunications Act of 1996.
SWBT shall abide by the same applicable laws and regulations.
B. Only an end user can initiate a challenge to a change in its local
exchange service provider. If an end user notifies SWBT or CLEC that
the end user requests local exchange service, the Party receiving such
request shall be free to immediately provide service to such end
user, except in those instances where the end user's account is local
PIC protected. It is the responsibility of the end user to provide
express authorization to the current provider of record to remove
local service provider protection before any changes in local exchange
service provider are processed.
SWBT shall be free to connect the end user to any Competitive Local
Exchange Carrier based upon the Competitive Local Exchange Carrier's
request and Competitive Local Exchange Carrier's assurance that proper
end user authorization has been obtained. Both parties shall make
authorization available to the other party upon request and at no
charge.
C. When an end user changes or withdraws authorization, each Party shall
release customer-specific facilities in accordance with the end user
customer's direction or the direction of the end user's authorized
agent. Further, when an end user abandons the premise, SWBT is free
to reclaim the facilities for use by another customer and is free to
issue service orders required to reclaim such facilities.
D. Neither Party shall be obligated by this Agreement to investigate any
allegations of unauthorized changes in local exchange service
(slamming) on behalf of the other Party or a third party. If SWBT, on
behalf of CLEC, agrees to investigate an alleged incidence of
slamming, SWBT shall charge CLEC a fifty dollar ($50) investigation
fee.
E. When SWBT receives an order from CLEC for services under this
Agreement and SWBT is currently providing the same services to another
Competitive Local Exchange Carrier for the same end user, SWBT shall
notify THE END USER'S Competitive Local Exchange Carrier of record of
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such order coincident with processing the order should CLEC subscribe
to the Local Disconnect Report (LDR) as outlined below. It shall then
be the responsibility of the Competitive Local Exchange Carrier of
record and CLEC to resolve any issues related to the end user. This
paragraph shall not apply to new additional lines and services
purchased by an end user from multiple CLECs or from SWBT.
F. On no less than sixty (60) days notice, CLEC may request the Local
Disconnect Report. SWBT agrees to furnish to CLEC the Billing
Telephone Number (BTN), Working Telephone Number (WTN), and terminal
number of all end users who have disconnected CLEC's service. CLEC
understands and agrees that the CARE interface will be used to provide
such information and such information will only be available via the
CARE electronic data transmission. Information will be provided on a
per-WTN basis to be priced on a per-WTN basis. SWBT will provide CLEC
no less than thirty (30) days notice prior to any change of the per-
WTN charge. SWBT grants to CLEC a non-exclusive right to use the
information provided by SWBT. CLEC will not permit anyone but its
duly authorized employees or agents to inspect or use this
information. CLEC agrees to pay SWBT ten cents ($0.10) per WTN and
any applicable charges for the LDR as outlined in Appendix OSS.
G. The CLEC agrees to hold harmless and indemnify SWBT against any and
all liability and claims, including reasonable attorney's fees, that
may result from SWBT acting under this Article.
H. Nothing herein shall be interpreted to apply to conversion of CLEC end
users pursuant to Article XII. (TERMINATION OF SERVICE TO CLEC).
VII. ADDITIONAL RESPONSIBILITIES OF CLEC
A. PAYMENT OF RATES AND CHARGES
1. CLEC is solely responsible for the payment of charges for all
services furnished under this Agreement including, but not
limited to, calls originated or accepted at CLEC's location and
its end users' service locations, with the exception of any
retail services provided directly by SWBT to the end user which
SWBT shall be responsible for billing.
Interexchange carried traffic (e.g., sent-paid, information
services and alternate operator services messages) received by
SWBT for billing to resold end-user accounts will be returned as
unbillable and will not be passed on to CLEC for billing. An
unbillable code
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returned with those messages to the carrier will indicate that
the messages originated from a resold account and will not be
billed by SWBT.
In accordance with industry standards, IXC PIC selections for
lines resold to CLEC will not be processed from IXCs or end
users, but will only be processed if received from CLEC.
2. SWBT shall not be responsible for the manner in which the use of
resold service, or the associated charges are allocated to others
by CLEC. All applicable rates and charges for such services will
be billed to and shall be the responsibility of CLEC, with the
exception of other retail services provided directly to the end
user by SWBT as described in paragraph 1 above.
3. Compensation for all services shall be paid by CLEC regardless of
CLEC's ability or inability to collect charges from its end user
for such service.
4. If CLEC does not wish to be responsible for collect, third number
billed, toll and information services (e.g., 900) calls, it must
order the appropriate blocking for resold lines under this
Agreement and pay any applicable charges. CLEC acknowledges that
blocking is not available for certain types of calls, including
800 numbers. Where CLEC purchases and maintains the appropriate
toll restriction or blocking for all of its resold end user
lines, then DA/OS, Branding and Rate/Reference Information would
not be required, nor available. It is the responsibility of the
CLEC to order the appropriate toll restriction or blocking on all
of their resold end user lines.
5. CLEC agrees to pay all costs associated with a CLEC name change.
6. DEPOSIT REQUIREMENTS
a. If CLEC has not established a minimum of twelve (12)
consecutive months good credit history with all telephone
company affiliates of SBC Communications, Inc., (i.e., SWBT,
Pacific Bell and Nevada Bell) with which CLEC is doing or
has done business as a local service provider, CLEC shall
remit a cash deposit to SWBT prior to the furnishing of
service under this Agreement. The deposit required by the
previous sentence shall be determined as
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follows: (a) if immediately prior to the effective date of
this Agreement, CLEC was not operating as a local service
provider in the state covered by this Agreement, the deposit
shall be in the amount of $17,000; or (b) if immediately
prior to the effective date of this Agreement, CLEC was
operating as a local service provider in the state covered
by this Agreement, the deposit shall be in the amount
calculated using the method set forth in Paragraph 6.f.,
hereof. This cash deposit will be held by SWBT as a
guarantee of payment of charges billed to CLEC. If CLEC has
established a minimum of twelve (12) consecutive months good
credit history with all telephone company affiliates of SBC
Communications, Inc., (i.e., SWBT, Pacific Bell and Nevada
Bell) with which CLEC is doing or has done business as a
local service provider, SWBT shall waive the initial deposit
requirement; provided, however, that the terms and
conditions set forth in Paragraphs 6.b through 6.i shall
continue to apply for the term of this Agreement and any
extension(s) hereof. In determining whether CLEC has
established a minimum of twelve (12) consecutive months good
credit history with each telephone company affiliate of SBC
Communications, Inc. with which CLEC is doing or has done
business, CLEC's payment record for the most recent twelve
(12) months occurring within the two year period immediately
prior to the effective date of this Agreement shall be
considered.
b. Any cash deposit held by SWBT shall be credited to CLEC's
account during the month following the expiration of twelve
(12) months after the cash deposit was remitted so long as
CLEC has not been sent more than one delinquency
notification letter during the most recent twelve (12)
months. For the purposes of this paragraph 6., interest will
be calculated as defined by the applicable state tariff
regulating retail deposits and shall be credited to CLEC's
account on an annual basis.
c. So long as CLEC maintains timely compliance with its payment
obligations, SWBT will not increase the deposit amount
required. If CLEC fails to maintain timely compliance with
its payment obligations, SWBT reserves the right to require
additional deposit(s) in accordance with Paragraphs 6.d.
through 6.i. of this Agreement.
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d. If during the first six (6) months of operations under this
Agreement, CLEC has been sent one delinquency notification
letter by SWBT, the deposit amount shall be re-evaluated
based upon CLEC's actual billing totals and shall be
increased if the CLEC's actual billing average for a two
month period exceeds the deposit amount held.
e. Throughout the term of this Agreement and any extension(s)
thereof, any time CLEC has been sent two delinquency
notification letters by SWBT, the deposit amount shall be
re-evaluated based upon CLEC's actual billing totals and
shall be increased if the CLEC's actual billing average for
a two month period exceeds the deposit amount held.
f. Whenever a deposit is re-evaluated as specified in
Paragraphs 6.d. and 6.e., above, such deposit shall be
calculated in an amount equal to the average billing to CLEC
for a two month period plus the amount of any charges which
would be applicable to transfer all then existing resold
service to SWBT in the event of CLEC's disconnection for
non-payment of charges. The most recent three (3) months
billing on all. of CLEC's CBAs shall be used to calculate
CLEC's monthly average.
g. Whenever a deposit is re-evaluated as specified in
Paragraphs 6.d. and 6.e., above, CLEC shall remit the
additional deposit amount to SWBT within thirty (30)
calendar days of receipt of written notification from SWBT
requiring such deposit. If CLEC fails to furnish the required
deposit within thirty (30) calendar days of receipt of
written notice requesting such deposit, SWBT shall begin
the process set forth in Section XII of this Agreement. If
CLEC continues to fail to furnish the required deposit at
the expiration of the fourteen (14) calendar days specified
in Section XII A. of this Agreement, then SWBT shall begin
the procedure(s) set forth in Section XII D., et seq. of
this Agreement.
h. This cash deposit requirement may be satisfied in whole or
in part with an irrevocable bank letter of credit acceptable
to SWBT. No interest shall be paid by SWBT for any portion
of the deposit requirement satisfied by an irrevocable bank
letter of credit.
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i. The fact that SWBT holds a cash deposit or irrevocable bank
letter of credit does not relieve CLEC from timely
compliance with its payment obligations under this Agreement
7. CLEC represents and warrants that the only SWBT services which
CLEC will make available to PSPs as Payphone Lines are the
services which SWBT offers pursuant to the Local Exchange
Services Tariff, Section 36.
Except as provided otherwise in this paragraph, CLEC shall pay
the entire amount of the Payphone Compensation due with respect
to a Payphone Line to the PSP who is the CLEC Customer for the
payphone line. CLEC shall make such payment on or before the last
business day of the calendar quarter in which the call for which
the Payphone Compensation is due to the PSP is made. If SWBT pays
any Payphone Compensation to the CLEC later than sixty (60) days
after the close of the calendar quarter in which the call for
which Payphone Compensation is due is made, then CLEC shall pay
the entire amount of such Payphone Compensation to the PSP who is
the CLEC's customer for the Payphone Line within ten (10)
business days after receiving such Payphone Compensation from
SWBT.
CLEC shall indemnify, defend and hold harmless SWBT from and
against any loss, cost, claim, liability, damage or expense
(including reasonable attorney's fees) to any third party,
including PSP, relating to or arising from any of the following:
a. CLEC's failure to comply with all the terms and conditions
of Sec. VII A.7. or
b. Use by a PSP customer of CLEC of any service other than a
Payphone Line to provide pay telephone service or
c. False representation by CLEC.
B. INTERFACES WITH SWBT
CLEC shall be responsible for modifying and connecting any of its
systems with SWBT-provided interfaces as described in this Agreement.
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C. REPAIR CONTACT ARRANGEMENTS
CLEC shall be responsible for providing to its end users and to SWBT a
telephone number or numbers that CLEC's end users can use to contact
CLEC in the event of service or repair requests. In the event that
CLEC's end users contact SWBT with regard to such requests, SWBT shall
inform the end user that they should call CLEC and may provide CLEC
contact number.
D. CLEC COMPANY CODE/OPERATING NUMBER (OCN) ALSO KNOWN AS ALTERNATE
EXCHANGE CARRIER NUMBER (AECN)
For the purposes of establishing, provisioning and billing service to
the CLEC, the CLEC is required to provide to SWBT its OCN/AECN for
resale services in any SWBT state, which must be separate and distinct
from the CLEC's state-specific OCN/AECNs for facilities-based business
(interconnection and/or unbundled network elements). CLEC name
associated with specific resale OCN/AECN must be consistent among SWBT
states.
E. SPECIAL SERVICE ARRANGEMENT
For special service arrangements for CLEC not covered under this
Agreement, special charges shall apply as provided in the applicable
corresponding tariffs.
F. DEVELOPMENT OF BRANDING AND CUSTOMIZED ROUTING FOR DIRECTORY
ASSISTANCE AND OPERATOR SERVICES
1. REQUIREMENTS - Pursuant to Section 226 (b) of The
Telecommunications Act of 1996, each provider of Operator
Services is required to:
a. Provide its brand at the beginning of each telephone call
and before the consumer incurs any charge for the call; and
b. Disclose immediately to the consumer, upon request a quote
of its rates or charges for the call.
c. Where SWBT provides CLECs OS and DA services via the same
trunk, both the OS and DA calls will be branded with the
same brand. Since SWBT's DA and 0S utilize the same trunk
group, CLEC will receive the same brand for both DA/OS. Such
branding will be provided pursuant Section 2. below.
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2. CALL BRANDING - Except where CLEC purchases and maintains toll
restriction or blocking for all of its resold end user lines, in
compliance with F.1. above, CLEC shall purchase and SWBT shall
provide DA/OS branding in CLEC's name based upon the criteria
outlined below. If CLEC does not purchase and maintain toll
restriction or blocking for all of its resold end user lines,
CLEC acknowledges and agrees to meet its obligations for
branding pursuant to Section 226 (b) of the Telecommunications
Act as described above, and in accordance with the terms,
conditions and prices as set forth in this agreement.
a. CLEC will provide SWBT with written specification of its
company name to be used in creating CLEC specific branding
messages for its DA/OS calls.
b. An initial non-recurring charge applies per load for the
establishment of Call Branding as well as a charge per
subsequent load to change the brand. In addition, a per call
charge applies for every DA/OS call handled by SWBT on
behalf of CLEC when such services are provided in
conjunction with resale services. Prices for Call Branding
are as outlined in Exhibit C, attached hereto and
incorporated herein.
3. RATE/REFERENCE INFORMATION - Except where CLEC purchases and
maintains appropriate toll restriction or blocking for all of its
resold end user lines, CLEC shall purchase and SWBT shall provide
CLEC DA/OS Rate/Reference Information based upon the criteria
outlined below. If CLEC does not purchase and maintain toll
restriction or blocking for all of its resold end user lines,
CLEC acknowledges and agrees to meet its obligations for
branding pursuant to Section 226 (b) of the Telecommunications
Act as described above, and in accordance with the terms,
conditions and prices as set forth in this agreement.
a. CLEC will furnish DA/OS Rate and Reference Information in a
mutually agreed to format or media thirty (30) days in
advance of the date when the DA/OS Services are to be
undertaken.
b. CLEC will inform SWBT, in writing, of any changes to be made
to such Rate/Reference Information ten (10) working days
prior to the effective Rate/Reference change date.
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CLEC acknowledges that it is responsible to provide SWBT
updated Rate/Reference Information in advance of when the
Rates/Reference Information are to become effective.
c. In all cases when a SWBT Operator receives a rate request
from a CLEC end user, SWBT will quote the applicable DA/OS
rates as provided by CLEC.
d. An initial non-recurring charge will apply for loading of
CLEC's DA/OS Rate/Reference Information as well as a charge
for each subsequent change to either the CLEC's DA/OS
Services Rate or Reference Information as outlined in
Exhibit C, attached hereto and incorporated herein.
4. CUSTOMIZED ROUTING - Except where CLEC purchases and maintains
appropriate toll restriction or blocking for all of its resold
end user lines, SWBT shall also offer CLEC the opportunity to
customize route DA/OS where technically feasible. CLEC agrees to
pay SWBT appropriate charges associated with customized routing
on an ICB basis.
VIII. NONEXCLUSIVITY
This Agreement is nonexclusive. CLEC acknowledges that SWBT will be
providing the same or similar services to other local services providers
in accordance with negotiated agreements which will be filed with the
appropriate state commission(s). CLEC also acknowledges that SWBT may,
upon end user request, provide any and all of the services provided to
CLEC under this Agreement directly to the end users. SWBT acknowledges
that CLEC may obtain the same or similar services from other local
exchange companies.
IX. SUPPORT SYSTEMS SERVICES
A. SUPPORT SYSTEMS SERVICES
1. TRANSFER OF SERVICE ANNOUNCEMENTS (INTERCEPT)
The Party formerly providing service to an end user shall
provide a Basic Referral announcement, reciprocally and free
of charge on the abandoned telephone number. The announcement
states that the called number has been disconnected or changed
and provides the end user's new telephone number to the extent
that it is listed.
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SWBT shall provide an intercept referral on behalf of CLEC to
their end user as indicated on the appropriate service order.
Basic Intercept Referral Announcements are to be provided on
residential numbers for a minimum of thirty (30) days where
facilities exist and the threat of telephone number exhaustion is
not imminent.
Basic Intercept Referral Announcements for a single line business
end user and the primary listed telephone number for Direct
Inward Dial (DID) and "Centrex-type" end users, shall be
available for a minimum of thirty (30) days or for the life of
the white pages directory, whichever is greater. If the threat of
telephone number exhaustion becomes imminent for a particular
central office, the service provider may reissue a disconnected
number prior to the expiration of the directory, but no earlier
than thirty (30) days after the disconnection of the business
telephone number.
2. COORDINATED REPAIR CALLS
SWBT shall be responsible for repairing its own network. However,
CLEC shall maintain telephone numbers where its end user may call
to report instances of trouble.
The Parties shall employ the following procedures for handling
misdirected repair calls:
a. The Parties shall inform their respective end users of the
correct telephone numbers to call to access their respective
repair bureaus.
b. To the extent the correct provider can be determined, each
Party shall refer misdirected repair calls to the proper
provider of local exchange service, at no charge, and shall
provide the end user the contact telephone number provided
by the other party.
In responding to repair calls, neither Party shall make
disparaging remarks about each other, nor shall they use
these repair calls as the basis for internal referrals or to
solicit customers or to market services. Either Party may
respond with accurate information in answering customer
questions.
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c. The Parties shall provide each other their respective repair
contact numbers.
d. Notwithstanding anything contained herein to the contrary,
SWBT and CLEC agree that SWBT shall have no obligation to
unbrand or rebrand the uniforms or training of its
customer-contact employees, trucks, vehicles, any customer
premises equipment or other customer-owned facilities or
SWBT's outside plant or network components.
e. Where CLEC requires SWBT personnel to interface directly
with CLEC end user customers in any form of communication
(including, but not limited to, written, face-to-face, by
telephone or electronic transmission of any kind), such SWBT
personnel shall be identified as SWBT employees representing
the customer's provider.
B. NETWORK MANAGEMENT CONTROLS
Each Party shall provide a 24-hour contact number for Network Traffic
Management issues to the other. A FAX number must also be provided to
facilitate event notifications for planned mass calling events.
Additionally, both Parties agree that they shall work cooperatively
that all such events shall attempt to be conducted in such a manner as
to avoid degradation or loss of service to other end users.
C. LAW ENFORCEMENT AND CIVIL PROCESS
SWBT and CLEC shall handle law enforcement requests as follows:
1. INTERCEPT DEVICES
Local and federal law enforcement agencies periodically request
information or assistance from local telephone service providers.
When either Party receives a request associated with an end user
of the other Party, it shall refer such request to the
appropriate Party, unless the request directs the receiving
Party to attach a pen register, trap and trace or form of
intercept on that Party's own facilities, in which case that
Party shall comply with any valid request.
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2. SUBPOENAS
If a Party receives a subpoena for information concerning an end user
the Party knows to be an end user of the other Party, it shall refer
the subpoena to the requesting entity with an indication that the
other Party is the responsible company. Provided, however, if the
subpoena requests records for a period of time during which the
receiving Party was -the end user's service provider, the receiving
Party will respond to any valid request.
3. EMERGENCIES
If a Party receives a request from a law enforcement agency to
implement a temporary number change, temporary disconnect or one way
denial of outbound calls for an end user of the other party, the
receiving Party will comply so long as it is a valid emergency
request. In the case of the CLEC, the CLEC shall refer such request to
SWBT and SWBT shall honor such request in accordance with this
paragraph. Neither Party shall be held liable for any claims or
damages arising from compliance with such requests, and the Party
serving the end user agrees to indemnify and hold the other Party
harmless against any and all such claims.
X. CALL TRACE
CLEC end user's activation of Call Trace for a line purchased under this
Agreement, shall be handled by the SWBT Call Trace Center (CTC). SWBT shall
notify CLEC of requests by CLEC's end users to provide the call records to
the proper authorities. Subsequent communication and resolution of the case
with CLEC's end user (whether that end user is the victim or the suspect)
shall be the responsibility of CLEC.
CLEC understands that for services where reports are provided to law
enforcement agencies (e.g., Call Trace) SWBT shall only provide billing
number and address information. CLEC shall provide additional information
necessary for any police investigation.
XI. TAXES
CLEC shall be responsible for all federal, state or local, sales, use,
excise or gross receipts taxes or fees imposed on or with respect to the
services PROVIDED UNDER THIS AGREEMENT INCLUDING THOSE TAXES AND FEES,
IMPOSED ON SWBT. CLEC shall reimburse SWBT for the amount of any such taxes
or fees which SWBT is
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required to pay or collect for services provided to CLEC hereunder. To the
extent a sale is claimed to be for resale tax exemption, the CLEC shall
furnish SWBT a proper resale tax exemption certificate as authorized or
required by statute or regulation by the jurisdiction providing said resale
tax exemption. Failure to timely provide said resale tax exemption
certificate will result in no exemption being available to the CLEC until
such time as CLEC presents a valid certificate.
XII. TERMINATION OF SERVICE TO CLEC
A. If CLEC fails to pay when due (within 30 days of the bill date), any
and all charges billed to them under this Agreement, including any
late payment charges (Unpaid Charges) or miscellaneous charges, and
any portion of such charges remain unpaid more than fifteen (15) days
after the due date of such Unpaid Charges, SWBT shall notify CLEC in
writing that in order to avoid having service disconnected, CLEC must
remit all Unpaid Charges to SWBT within fourteen (14) calendar days.
B. If CLEC disputes the billed charges, it shall, within the fourteen
(14) day period provided for above, inform SWBT in writing which
portion of the charges it disputes, including the specific details and
reasons for its dispute; immediately pay to SWBT all undisputed
charges; and pay all disputed charges into an interest bearing escrow
account established by CLEC with a third party escrow agent mutually
agreed upon by the Parties.
C. Disputes hereunder shall be resolved in accordance with the procedures
identified in Article XVII (Dispute Resolution). Failure of CLEC to
pay charges deemed owed to SWBT after conclusion of the Arbitration
shall be grounds for termination under this Article.
D. If any CLEC charges remain unpaid or undisputed twenty-nine (29) days
past the due date, SWBT shall notify CLEC, the Commission and the end
user's IXC(s) of Record in writing, that unless all charges are paid
within sixteen (16) days, CLEC's service shall be disconnected and
its end users shall be switched to SWBT local service. SWBT will also
suspend order acceptance with the exception of disconnects on the same
day that it sends the letter required by the preceding sentence.
E. If any CLEC charges remain unpaid or undisputed forty (40) days past
the due date, CLEC shall, at its sole expense, notify its end users,
the Commission and the end user's of Record that their service may be
disconnected for CLEC's failure to pay Unpaid Charges, and that its
end users must select a new Competitive Local Exchange Carrier within
five (5) days. The notice shall also advise the end user that SWBT
will assume
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the end user's account at the end of the five (5) day period should
the end user fail to select a new Competitive Local Exchange Carrier.
F. If any CLEC charges remain unpaid or undisputed forty-five (45) days
past the due date, SWBT shall disconnect CLEC and transfer all CLEC's
end users who have not selected another Competitive Local Exchange
Carrier directly to SWBT's service. These end users shall receive the
same services provided through CLEC at the time of transfer. SWBT
shall inform the Commission and the end user's IXC(s) of Record of the
names of all end users transferred through this process. Applicable
service establishment charges for switching end users from CLEC to
SWBT shall be assessed to CLEC.
G. Within five (5) days of the transfer (50 days past CLEC's due date),
SWBT shall notify all affected end users that because of a CLEC's
failure to pay, their service is now being provided by SWBT. SWBT
shall also notify the end user that they have thirty (30) days to
select a Competitive Local Exchange Carrier, after which time should
the end user not select a CLEC, the end user's service shall be
terminated.
H. SWBT may discontinue service to CLEC upon failure to pay undisputed
charges as provided in this section, and shall have no liability to
CLEC or CLEC end users in the event of such disconnection.
I. If any end user fails to select a Competitive Local Exchange Carrier
within thirty (30) days of the change of providers (80 days past
CLEC's due date), SWBT shall terminate the end user's service. SWBT
shall notify the Commission and the end user's IXC of Record of the
names of all end users whose service has been terminated. The end user
shall be responsible for any and all charges incurred during the
selection period.
J. Nothing herein shall be interpreted to obligate SWBT to continue to
provide service to any such end users. Nothing herein shall. be
interpreted to limit any and all disconnection rights SWBT may have
with regard to such end users.
K. After the letter required by Article XII, Section D has been sent to
CLEC, SWBT shall not accept service orders from CLEC until all unpaid
and undisputed charges have been paid. SWBT shall have the right to
require payment of a deposit calculated in accordance with the
provisions of article VII, Section A, Paragraph 6 of this Agreement
prior to resuming acceptance of service orders from CLEC.
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XIII. FORCE MAJEURE
Neither party shall be responsible for delays or failures in performance
resulting from acts or occurrences beyond the reasonable control of such
Party, regardless of whether such delays or failures in performance were
foreseen or foreseeable as of the date of this Agreement, including,
without limitation: fire, explosion, power failure, cable cuts, acts of
God, war, revolution, civil commotion, or acts of public enemies; any law,
order, regulation, ordinance or requirement of any government or legal
body; or labor unrest, including, without limitation, strikes, slowdowns,
picketing or boycotts; or delays caused by the other party or by other
service or equipment vendors; or any other circumstances beyond the Party's
reasonable control. In such event, the Party affected shall, upon giving
prompt notice to the other Party, be excused from such performance on a
day-to-day basis to the extent of such interference (and the other Party
shall likewise be excused from performance of its obligations on a
day-for-day basis to the extent such Party's obligations relate to the
performance so interfered with). The affected party shall use its best
efforts to avoid or remove the cause of nonperformance and both parties
shall proceed to perform with dispatch once the causes are removed or
cease.
XIV. LIMITATION OF LIABILITY
A. With respect to any claim or suit arising out of SWBT's performance
under this Agreement, by a CLEC or any others, for damages arising out
of mistakes, omissions, interruptions, delays or errors, or defects in
transmission occurring in the course of furnishing service hereunder,
SWBT's liability, if any, shall not exceed an amount equivalent to the
proportionate charge to the CLEC for the period of service during
which such mistake, omission, interruption, delay, error, or defect in
transmission or service occurs and continues. In no event shall SWBT
be responsible for any special indirect, consequential or exemplary
damages. Any mistakes, omissions, interruptions, delays, errors, or
defects in transmission or service which are caused or contributed to
by the negligence or willful act of the CLEC or which arise from the
use of CLEC-provided facilities or equipment shall not result in the
imposition of any liability whatsoever upon SWBT.
B. SWBT shall have no liability to the end users of the CLEC for claims
arising from the provision of the CLEC's service to its end users
including, but not limited to, claims for interruption of service,
quality of service or billing disputes, unless such loss is caused by
SWBT's own negligence or intentional misconduct in which case
liability shall be limited as provided in paragraph A, above. In the
case of any loss alleged
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or made by an end user of CLEC, CLEC shall defend and indemnify SWBT
against any and all such claims or loss by its end users, unless the
loss was caused by SWBT's sole negligence or intentional misconduct.
C. CLEC hereby releases SWBT and agrees that it shall indemnify SWBT
with regard to any and all liability for damages due to errors or
omissions in CLEC's subscriber listing information (including
erroneous inclusion of nonpublished or nonlisted subscriber listing
information) as such information is submitted by CLEC, and for
inclusion in the White Pages directory including, but not limited to,
special, indirect, consequential, punitive or incidental damages.
D. CLEC agrees to indemnify, defend and hold harmless SWBT from any Loss
arising out of SWBT's provision of 911 services or out of CLEC's end
users' use of the 911 service, whether suffered, made, instituted, or
asserted by CLEC or its end users, including for any personal injury
or death of any person or persons, except for Loss which is the direct
result of SWBT's own negligence or willful misconduct.
E. CLEC shall indemnify and hold SWBT harmless from all claims and
damages arising from the discontinuance of service for nonpayment to
SWBT by the CLEC. Notice of discontinuance shall be as specified in
the Substantive Rules of the State Commission.
F. When the lines or services of other companies and carriers are used
in providing service or establishing connections to and/or from points
not reached by SWBT's lines, SWBT is not liable for any act or
omission of the other companies or carriers.
G. CLEC shall be responsible for any and damage to SWBT equipment or
facilities caused by CLEC's own actions.
XV. NONDISCLOSURE
The Parties to this Agreement anticipate and recognize that they will
exchange or come into possession of, data about each other's end users and
each other's business as a result of this Agreement which will be
designated as confidential by that Party. Each Party agrees (1) to treat
all such data as strictly confidential and (2) to use such data only for
purposes of performance under this Agreement. Each Party agrees not to
disclose data on the other Party's end users or business which has been
designated as confidential to any person without first securing the written
consent of the other Party. The foregoing shall not apply to information
which is in the public domain.
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If a court or governmental agency orders, or a third party requests, a
Party to disclose or to provide any data or information covered by this
Section, that Party will immediately inform the other Party of the order or
request both by telephone and overnighted mail before disclosing the data
or information. Notification and consent requirements described above are
not applicable in cases where a court order requires the production of toll
billing records of an individual residence or business end user customer.
This section will not preclude the disclosure by the Parties of information
or material described in this Section to consultants, agents, or attorneys
representing the respective Parties or the Office of the Public Counsel for
the state of Texas, and state Public Utility Commission or staffs, or FCC
Staff, provided that these third parties are bound by the same or
comparable confidentiality requirements as the Parties to this Agreement.
The provisions of this Section will remain in effect notwithstanding the
termination of this Agreement, unless agreed to in writing by both Parties.
Pursuant to Section 222 of the Act, both Parties agree to limit their use
of proprietary information received from the other to the permitted
purposes identified in the Act.
XVI. PUBLICITY
The Parties agree not to use in any advertising or sales promotion, press
releases or other publicity matters any endorsements, direct or indirect
quotes, or pictures implying endorsement by the other Party or any of its
employees without such Party's prior written approval. The Parties will
submit to each other for written approval, prior to publication, all
publicity matters that mention or display one another's name and/or marks
or contain language from which a connection to said name and/or marks may
be inferred or implied.
XVII. ASSIGNMENT
Neither Party may assign, subcontract, or otherwise transfer its rights or
obligations under this Agreement except under such terms and conditions as
are mutually acceptable to the other Party (e.g., a conversion charge will
apply per billable telephone number) and with such Party's prior written
consent, which consent shall not be unreasonably withheld. Assignment
without consent shall be grounds for immediate termination of this
Agreement.
<PAGE>
PAGE 30 OF 40
XVIII. DISPUTE RESOLUTION
A. FINALITY OF DISPUTES
1. Except as otherwise specifically provided for in this Agreement,
no claims will be brought for disputes arising from this
Agreement more than 24 months from the date the occurrence which
gives rise to the dispute is discovered or reasonably should have
been discovered with the exercise of due care and attention.
B. ALTERNATIVE TO LITIGATION
1. The Parties desire to resolve disputes arising out of this
Agreement without litigation. Accordingly, the Parties agree to
use the following Dispute Resolution procedure with respect to
any controversy or claim arising out of or relating to this
Agreement or its breach.
C. COMMENCING DISPUTE RESOLUTION
1. Dispute Resolution shall commence upon the sending from one Party
to the other of written notice of a controversy or claim arising
out of or relating to this Agreement or its breach. No Party may
pursue any claim unless such written notice has first been given
to the other Party.
D. INFORMAL RESOLUTION OF DISPUTES
1. When such written notice has been given, as required by Section
C, Commencing Dispute Resolution, each Party will appoint a
knowledgeable, responsible representative to meet and negotiate
in good faith to resolve any dispute arising under this Agreement
The location, form, frequency, duration, and conclusion of these
discussions will be left to the discretion of the
representatives. Upon agreement, the representatives may utilize
other alternative dispute resolution procedures such as mediation
to assist in the negotiations. Discussions and the correspondence
among the representatives for purposes of settlement are exempt
from discovery and production and will not be admissible in the
arbitration described below or in any lawsuit without the
concurrence of both parties. Documents identified in or provided
with such communications, which are not prepared for purposes of
the negotiations, are not so exempted and, if otherwise
admissible, may be admitted in evidence in the arbitration or
lawsuit.
<PAGE>
PAGE 31 OF 40
E. FORMAL DISPUTE RESOLUTION
1. If the Parties are unable to resolve the dispute through the
informal procedure described above in Section D, Informal
Resolution of Disputes, then either Party may invoke the
following formal Dispute Resolution procedures. Unless agreed
upon by the Parties, formal dispute resolution procedures
described below, including arbitration or other procedures as
appropriate, may be invoked not earlier than sixty (60) days
after the date of the letter initiating dispute resolution under
Section C, Commencing Dispute Resolution.
2. CLAIMS SUBJECT TO MANDATORY ARBITRATION. The following claims, if
not settled through informal dispute resolution, will be subject
to mandatory arbitration pursuant to Section F, Arbitration
below:
a. All unresolved billing disputes involving one (1) percent or
less of the amounts charged to CLEC by SWBT under this
Agreement during the Contract Year in which the dispute
arises. During the first Contract Year the Parties will
annualize the initial months up to one year.
b. All other claims involving one (1) percent or less of the
amounts charged to CLEC by SWBT under this Agreement during
the Contract Year in which the matter in dispute arises,
whether measured by the disputing Party in terms of actual
amounts owed or owing, or as amounts representing its
business or other risks or obligations relating to the
matter in dispute. During the first Contract Year the
Parties will annualize the initial months up to one year.
3. CLAIMS SUBJECT TO ELECTIVE ARBITRATION. The following claims will
be subject to arbitration pursuant to Section F, Arbitration if
and only if, the claim is not settled through informal dispute
resolution and both parties agree to arbitration. If both parties
do not agree to arbitration, then either party may proceed with
any remedy available to it pursuant to law, equity or agency
mechanism.
a. All unresolved billing disputes involving more than one (1)
percent of the amounts charged to CLEC by SWBT under this
Agreement during the Contract Year in which the matter in
dispute arises, whether measured by the disputing Party in
terms of actual amounts owed or owning, or as
<PAGE>
PAGE 32 OF 40
amounts representing its business or other risks or
obligation relating to the matter in dispute. During the
first Contract Year the Parties will annualize the initial
months up to one year.
b. All other claims involving more than one (1) percent of the
amounts charged to CLEC by SWBT under this Agreement during
the Contract Year in which the matter in dispute arises,
whether measured by the disputing Party in terms of actual
amounts owed or owing, or as amounts representing its
business or other risks or obligations relating to the
matter in dispute. During the first Contract Year the
Parties will annualize the initial months up to one year.
4. CLAIMS NOT SUBJECT TO ARBITRATION If the following claims are not
resolved through informal dispute resolution, they will not be
subject to arbitration and must be resolved through any remedy
available to a Party pursuant to law, equity or agency mechanism.
a. Actions seeking a temporary restraining order or an
injunction related to the purposes of this Agreement.
b. Actions to compel compliance with the Dispute Resolution
process.
c. All claims arising under federal or state statute(s),
including, but not limited to, antitrust claims.
F. ARBITRATION
1. Disputes subject to mandatory or elective arbitration under the
provisions of this Agreement will be submitted to a single
arbitrator pursuant to the Commercial Arbitration Rules of the
American Arbitration Association or pursuant to such other
provider of arbitration services or rules as the Parties may
agree. Each arbitration will be held in Dallas, Texas, unless the
parties agree otherwise. The arbitration hearing will be
requested to commence within sixty (60) days of the demand for
arbitration. The arbitrator will control the scheduling so as to
process the matter expeditiously. The Parties may submit written
briefs upon a schedule determined by the arbitrator. The Parties
will request that the arbitrator rule on the dispute by issuing a
written opinion within thirty (30) days after the close of
hearings. The Federal Arbitration Act, 9 U.S.C. Secs. 1-16, not
state law, shall govern the
<PAGE>
PAGE 33 OF 40
arbitrability of all disputes. The arbitrator will have no
authority to award punitive damages, exemplary damages,
consequential damages, multiple damages, or any other damages not
measured by the prevailing party's actual damages, and may not in
any event make any ruling, finding or award that does not conform
to the terms and conditions of the Agreement. The arbitrator
shall be knowledgeable of telecommunications issues. The times
specified in this Section may be extended or shortened upon
mutual agreement of the Parties or by the arbitrator upon a
showing of good cause. Each Party will bear its own costs of
these procedures, including attorneys' fees. The Parties will
equally split the fees of the arbitration and the arbitrator. The
arbitrator's award shall be final and binding and may be entered
in any court having jurisdiction thereof. Judgment upon the award
rendered by the arbitrator may be entered in any court having
jurisdiction.
G. BILLING DISPUTES
1. The following provisions apply specifically to billing disputes.
a. The Parties agree that all bills, including bills disputed
in whole or in part, are to be paid when due, that interest
applies to all overdue invoices as set forth in the
applicable provisions of this Agreement, and that no other
late payment fee or charge applies to overdue invoices. The
Parties further agree that if any billing dispute is
resolved in favor of the disputing Party the disputing Party
will receive, by crediting or otherwise, interest applied to
the disputed amount as set forth in the applicable
provisions of this Agreement.
b. To the extent that any other portions of this Agreement
provide for a bill closure process between the parties, or
if such a process is mutually agreed to by the Parties, the
procedures involved in such processes will not be deemed to
place a particular billing item in dispute for purposes of
Section XVIII, Dispute Resolution.
c. Each Party agrees to notify the other Party of a billing
dispute and may invoke the- informal dispute resolution
process described in Section D, Informal Resolution of
Disputes. The parties will endeavor to resolve the dispute
within sixty (60) calendar days of the Bill Date on which
such disputed charges appear, or, if the charges have been
<PAGE>
PAGE 34 OF 40
subject to the bill closure process described in Section E,
Formal Dispute Resolution, above, within sixty (60) calendar
days of the closure of the billing period covered by such
bill closure process.
H. NO CONFLICT
1. The Dispute Resolution procedures set forth in this Agreement are
not intended to conflict with applicable requirements of the Act
or the state commission with regard to procedures for the
resolution of disputes arising out of this Agreement.
XIX. VERIFICATION REVIEWS
Each Party to this Agreement will be responsible for the accuracy and
quality of its data as submitted to the respective Parties involved. Upon
reasonable written notice, each Party or its authorized representative
(providing such authorized representative does not have a conflict of
interest related to other matters before one of the Parties) shall have the
right to conduct a review and verification of the other Party to give
assurances of compliance with the provisions of this Agreement. This
includes on-site verification reviews at the other Party's or the Party's
vendor locations.
After the initial year of this Agreement verification reviews will
normally be conducted on an annual basis with provision for staged reviews,
as mutually agreed, so that all subject matters are not required to be
reviewed at the same time. Follow up reviews will be permitted between
annual reviews where significant deviations are found. During the initial
year of the Agreement more frequent reviews may occur.
The review will consist of an examination and verification of data
involving records, systems, procedures and other information related to the
services performed by either Party as related to settlement charges or
payments made in connection with this Agreement as determined by either
Party to be reasonably required. Each Party, whether or not in connection
with an on-site verification review, shall maintain reasonable records for
a period of time no less than twenty-four (24) months from the date such
records are created and provide the other Party with reasonable access to
such information as is necessary to determine amounts receivable or payable
under this Agreement.
Each Party's right to access information for verification review purposes
is limited to data not in excess of 24 months in age. Once specific data
has been reviewed and verified, it is unavailable for future reviews. Any
items not reconciled at the end of a review will, however, be subject to a
follow-up review effort. Any
<PAGE>
PAGE 35 OF 40
retroactive adjustments required subsequent to previously reviewed and
verified data will also be subject to follow-up review. Information of
either Party involved with a verification review shall be subject to the
nondisclosure terms of this Agreement.
The Party requesting a verification review shall fully bear its costs
associated with conducting the review. The Party being reviewed will
provide access to required information, as outlined in this Section, at no
charge to the reviewing Party. Should the reviewing Party request
information or assistance beyond that reasonably required to conduct such a
review, the Party being reviewed may, as its option, decline to comply with
such request or may bill actual costs incurred in complying subsequent to
the concurrence of reviewing Party.
XX. COMPLIANCE WITH LAWS
The Parties believe in good faith that the Services to be provided under
this Agreement satisfy the requirements of the Act In the event a court or
regulatory agency of competent jurisdiction should determine that
modifications of this Agreement are required to bring the Services being
provided hereunder into compliance with the Act, the affected Party shall
promptly give the other Party written notice of the modifications deemed
required. Upon delivery of such notice, the Parties shall expend diligent
efforts to arrive at an agreement respecting such modifications required,
and if the Parties are unable to arrive at such agreement, either Party may
terminate this Agreement, without penalty, effective the day the affected
Party is ordered to implement the modifications deemed required, or
effective on the day either Party concludes and gives notice that the
Parties will not be able to arrive at any agreement respecting such
modifications, whichever date shall occur earlier.
This Agreement is an integrated package that reflects a balancing of
interests critical to the Parties. It will be submitted to the applicable
state regulatory Commission and the FCC as a compliance filing, and the
Parties will specifically request that the applicable state regulatory
Commission and the FCC refrain from taking any action to change, suspend or
otherwise delay implementation of the Agreement. In the event the
Commission or the FCC rejects any portion or provision of this Agreement or
subsequently issues a ruling or order that results in a provision being
contrary to law, or is invalid for any reason, the parties shall continue
to be bound by the terms of this Agreement, insofar as possible, except for
the portion rejected or subsequently determined to be unlawful, invalid, or
unenforceable. In such event, the Parties shall negotiate in good faith to
replace the rejected, unlawful, invalid, or unenforceable provision and
shall not discontinue service to the other Party during such period if to
do so would disrupt existing service being provided to an end user. So long
as the Agreement remains in effect, the Parties shall not advocate before
any legislative, regulatory, or other
<PAGE>
PAGE 36 OF 40
public forum that any terms of this specific Agreement be modified or
eliminated. Notwithstanding this mutual commitment, however, the Parties
enter into this Agreement without prejudice to any positions they have
taken previously, or may take in the future in any legislative,
regulatory, or other public forum addressing any matters, including
matters related to the types of arrangements prescribed by this
Agreement.
XXI. CERTIFICATION REQUIREMENTS
CLEC warrants that it has obtained all certifications required in those
jurisdictions in which CLEC has ordered services pursuant to this
Agreement. Subject to restrictions in Article II.A. (Permitted Use of
Resold Service by CLEC and Its End Users), CLEC covenants that any
originating service provider utilizing the resold services under this
Agreement has obtained all required certification.
Upon request by any governmental entity, the CLEC is required to provide
proof of certification.
XXII. INTENTIONALLY LEFT BLANK
XXIII. NOTIFICATION
SWBT will notify CLEC of any changes in the prices, terms and conditions
under which SWBT offers telecommunications services at retail to
subscribers who are not telecommunications service providers or carriers,
including, but not limited to, the introduction of any new features,
functions, services, promotions, grandfathering or the discontinuance of
current features or services at the time a tariff filing is transmitted
to the State Commission, or, in situations where a tariff filing is not
so transmitted, within ninety (90) days (forty-five (45) days for price
changes) of the expected effective date of such change.
With regard to new services, the notification shall advise CLEC of the
category in which such new service shall be placed and the discount
applicable to the new service.
SWBT currently uses the Accessible Letter process to notify CLEC of such
changes to the services available for resale. Any change to the process
of notification to the CLEC will provide no less notice than the current
Accessible Letter process.
XXIV. NOTICES
In the event any notices are required to be sent under the terms of this
Agreement, they may be sent by registered mail and are deemed to have
been
<PAGE>
PAGE 37 OF 40
given on the date received. Notice may also be effected by personal
delivery or by overnight courier, and will be effective upon receipt.
Notice may also be provided by facsimile, which will be effective on the
next business day following the date of transmission; provided, however,
notices to a Party's 24-hour maintenance contact number will be by
telephone and/or facsimile and will be deemed to have been received on the
date transmitted. The Parties will provide the appropriate telephone and
facsimile numbers to each other.
Unless otherwise specifically provided in this Agreement, notice will be
directed as follows:
To CLEC: To SWBT:
essential.com Contract Administration
John Duffy, Vice President ATTN: Contract Management
Of Business Development, Four Bell Plaza, 9th Floor
Telecom Services 311 S. Akard St.
3 Burlington Woods Dr., 4th Floor Dallas, TX 75202-5398
Burlington, MA O1803
Either Party may unilaterally change its designated representative,
address, telephone contact number and/or facsimile number for the receipt
of notices by giving written notice to the other Party in compliance with
this Section. Any notice to change the designated representative, address,
telephone contact and/or facsimile number for the receipt of notices shall
be deemed effective ten (10) days following receipt by the other Party.
XXV. BENEFICIARIES
This Agreement shall not provide any nonparty with any remedy, claim, cause
of action or other right.
XXVI. TERM
SWBT and CLEC agree that the initial term of this Agreement shall commence
upon approval of this Agreement by the Public Utility Commission of Texas
and shall expire on October 12, 2000. Following expiration of the initial
term, the Agreement shall renew for additional terms of one (1) year unless
and until terminated as provided herein. Either Party may terminate this
Agreement by providing written notice of termination to the other Party, at
least 60 days in advance of the date of proposed termination. Upon the
termination date, if CLEC has not made arrangements to provide service to
its end users over its own or alternative facilities, SWBT shall invoke the
notification and transfer of
<PAGE>
PAGE 38 OF 40
end user procedures outlined in Article XII. D. and F. (Termination of
service to CLEC).
XXVII. EFFECTIVE DATE
The effective date of this Agreement shall be ten (10) days after the
date that the appropriate state regulatory Commission approves this
Agreement.
XXVIII. WAIVER
The failure of either Party to enforce or insist that the other party
comply with any of the terms or conditions of this Agreement, or the
waiver by either Party in a particular instance of any of the terms and
conditions of this Agreement, shall not be construed as a general
waiver or relinquishment of the terms and conditions, but the Agreement
shall be and remain at all times in full force and effect.
XXIX. DISCLAIMER OF WARRANTIES
SWBT MAKES NO REPRESENTATION OR WARRANTIES, EXPRESS OR IMPLIED,
INCLUDING BUT NOT LIMITED TO ANY WARRANTY AS TO MERCHANTABILITY OR
FITNESS FOR INTENDED OR PARTICULAR PURPOSE WITH RESPECT TO SERVICES
PROVIDED HEREUNDER. ADDITIONALLY, SWBT ASSUMES NO RESPONSIBILITY WITH
REGARD TO THE CORRECTNESS OF DATA OR INFORMATION SUPPLIED BY CLEC WHEN
THIS DATA OR INFORMATION IS ACCESSED AND USED BY A THIRD PARTY.
XXX. RELATIONSHIP OF THE PARTIES
This Agreement shall not establish, be interpreted as establishing, or
be used by either Party to establish or to represent their relationship
as any form of agency, partnership or joint venture. Neither Party
shall have any authority to bind the other or to act as an agent for
the other unless written authority, separate from this Agreement, is
provided. Nothing in the Agreement shall be construed as providing for
the sharing of profits or losses arising out of the efforts of either
or both of the Parties. Nothing herein shall be construed as making
either Party responsible or liable for the obligations and undertakings
of the other Party.
XXXI. INTERVENING LAW AND PRESERVATION OF RIGHTS
This Agreement is entered into as a result of both private negotiation
between the Parties and the incorporation of some of the results of
arbitration by the Public Utility Commission of Texas. If the actions
of the State of Texas or federal legislative bodies, courts, or
regulatory agencies of competent jurisdiction
<PAGE>
PAGE 39 OF 40
invalidate, modify, or stay the enforcement of laws or regulations
that were the basis or rationale for a provision of the contract,
the affected provision shall be invalidated, modified, or stayed,
consistent with the action of the legislative body, court, or
regulatory agency upon the written request of either party. In such
event, the Parties shall expend diligent efforts to arrive at an
agreement respecting the appropriate modifications to the Agreement.
If negotiations fail, disputes between the Parties concerning the
interpretation of the actions required or provisions affected by
such governmental actions shall be resolved pursuant to the dispute
resolution process provided for in this Agreement. Without limiting
the general applicability of the foregoing, the Parties acknowledge
that on January 25, 1999, the United States Supreme Court issued its
opinion in AT&T CORP. V. IOWA UTILITIES BD, 119 S. Ct. 721 (1999)
and on June 1, 1999, the United States Supreme Court issued its
opinion in AMERITECH V. FCC, NO. 98-1381, 1999 WL 116994, 1999 LEXIS
3671 (1999). The Parties further acknowledge and agree that by
executing this Agreement, neither Party waives any of its rights,
remedies, or arguments with respect to such decisions and any remand
thereof, including its rights under this paragraph.
XXXII. COMPLETE TERMS
This Agreement, together with its exhibits constitutes the entire
agreement between the Parties and supersedes all prior discussions,
representations or oral understandings reached between the Parties.
The corresponding tariffs and this Agreement (including the exhibits)
contain all of the applicable rates and charges to be paid by the
CLEC to SWBT in connection with SWBT's provision of
telecommunications service to CLEC for Resale to its end user
customers.
Neither Party shall be bound by any amendment, modification or
additional terms unless it is reduced to writing signed by an
authorized representative of the Party sought to be bound.
By their signatures in the space provided below, CLEC and SWBT
indicate their acceptance of this Agreement. This agreement shall
not bind CLEC and SWBT until executed by both Parties. This
Agreement will be governed by and interpreted in accordance with the
laws of the State of Texas.
<PAGE>
PAGE 40 OF 40
THIS AGREEMENT CONTAINS A BINDING ARBITRATION AGREEMENT.
essential.com SOUTHWESTERN BELL TELEPHONE
AECN/OCN: COMPANY
---------
/s/ Akhil Garland President
- -------------------------------- -----------------------------------
Signature, Signature
Akhil Garland
- -------------------------------- -----------------------------------
Printed Name Printed Name
President President - Industry Markets
- -------------------------------- -----------------------------------
Position/Title Position/Title
27 Sept. 1999
- -------------------------------- -----------------------------------
Date Date
<PAGE>
PAGE 1 OF 6
<TABLE>
<CAPTION>
EXHIBIT A
SOUTHWESTERN BELL'S RESALE TELECOMMUNICATIONS SERVICES* LIST - BUSINESS
TEXAS
RESALE DISCOUNTS
RECURRING NON-RECURRING
LOCAL EXCHANGE SERVICE
<S> <C> <C>
Business 1 Party 21.6% 21.6%
Business - Multi-Line Hunting 21.6% 21.6%
Business - Measured 21.6% 21.6%
Business - Measured (HTG Class of Service) 21.6% 21.6%
Customer Operated Pay Telephone (COPT) 21.6% 21.6%
EXPANDED LOCAL CALLING
EMS - Optional 21.6% 21.6%
Expanded Local Calling (Mandatory) 21.6% 21.6%
Extended Area Calling Service - Optional 21.6% 21.6%
Mandatory EACS - Hotel/Motel Measured Trunk 21.6% 21.6%
Mandatory EACS - Multi-Line Hunting 21.6% 21.6%
Mandatory EACS - One element measured, 1-party 21.6% 21.6%
Mandatory EACS - PBX Trunk 21.6% 21.6%
Mandatory Extended Area Calling Service (EACS)- 1 21.6% 21.6%
Party
VERTICAL SERVICES
Anonymous Call Rejection 21.6% 21.6%
Auto Redial 21.6% 21.6%
Auto Redial - Usage Sensitive 21.6% 21.6%
Call Blocker 21.6% 21.6%
Call Forwarding 21.6% 21.6%
Call Forwarding - Busy Line 21.6% 21.6%
Call Forwarding - Busy Line/Don't Answer 21.6% 21.6%
Call Forwarding - Don't Answer 21.6% 21.6%
Call Return 21.6% 21.6%
Call Return - Usage Sensitive 21.6% 21.6%
Call Trace 21.6% 21.6%
Call Waiting 21.6% 21.6%
Calling Name 21.6% 21.6%
Calling Number 21.6% 21.6%
</TABLE>
*Some Services are not available in all Areas.
Resale products available subject to state and federal rules, regulations and
tariffs.
<PAGE>
PAGE 2 OF 6
<TABLE>
<CAPTION>
RESALE DISCOUNTS
RECURRING NON-RECURRING
VERTICAL SERVICES (CONT.)
<S> <C> <C>
ComCall -Registered Trademark- 21.6% 21.6%
Personalized Ring (1 dependent number) 21.6% 21.6%
Personalized Ring (2 dependent numbers - 1st 21.6% 21.6%
number)
Personalized Ring (2 dependent numbers - 2nd 21.6% 21.6%
number)
Priority Call 21.6% 21.6%
Remote Access to Call Forwarding 21.6% 21.6%
Selective Call Forwarding 21.6% 21.6%
Simultaneous Call Forwarding 21.6% 21.6%
Speed Calling 8 21.6% 21.6%
Speed Calling 30 21.6% 21.6%
Three Way Calling 21.6% 21.6%
DID
DID (First Block of 100 - Category 1) 21.6% 21.6%
DID (First Block of 10 - Category 1) 21.6% 21.6%
DID (Ea. adl. block of 10 after first 10 - Category 1) 21.6% 21.6%
DID (Ea. adl. block of 100 after first 100 - Category 2) 21.6% 21.6%
DID (Ea. adl. block of 10 assigned over 1st 100 - 21.6% 21.6%
Category 2)
DID (with dial pulse) 21.6% 21.6%
DID (with Multifrequency) 21.6% 21.6%
DID (with Dual-Tone Multifrequency) 21.6% 21.6%
DID (1 st 10 Trunks or access lines) 21.6% 21.6%
DID (11 th thru 50th trunk or network access line) 21.6% 21.6%
DID (51st trunk or network access line) 21.6% 21.6%
TRUNKS
Trunk 21.6% 21.6%
AIN
Area Wide Networking 21.6% 21.6%
Caller Intellidata -Registered Trademark- 21.6% 21.6%
Disaster Routing Service 21.6% 21.6%
Intelligent Redirect -SM- 21.6% 21.6%
IntelliNumber 21.6% 21.6%
Positive ID 21.6% 21.6%
</TABLE>
*Some Services are not available in all Areas.
Resale products available subject to state and federal rules, regulations and
tariffs.
<PAGE>
PAGE 3 OF 6
<TABLE>
<CAPTION>
RESALE DISCOUNTS
RECURRING NON-RECURRING
OTHER
<S> <C> <C>
Customer Alerting Enablement 21.6% 21.6%
Grandfathered Services 21.6% 21.6%
Hot Line 21.6% 21.6%
Hunting 21.6% 21.6%
Local Operator Assistance Service 21.6% 21.6%
Night Number associated with Telephone Number 21.6% 21.6%
Night Number associated with a Terminal 21.6% 21.6%
Bundled Telecommunications Services (e.g., the 21.6% 21.6%
Works)
Promotions (Greater than 90 days) 21.6% 21.6%
Telebranch -Registered Trademark- 21.6% 21.6%
TouchTone (Business) 21.6% 21.6%
TouchTone (Trunk) 21.6% 21.6%
Voice Dial 21.6% 21.6%
Warm Line 21.6% 21.6%
ISDN
Digiline -SM- 21.6% 21.6%
Select Video Plus -Registered Trademark- 21.6% 21.6%
Smart Trunk -SM- 21.6% 21.6%
DIRECTORY ASSISTANCE SERVICES 21.6% 21.6%
TOLL
IntraLATA MTS 21.6% 21.6%
MaxiMizer 800 -Registered Trademark- 21.6% 21.6%
OutWATS 21.6% 21.6%
OPTIONAL TOLL CALLING PLANS
1+SAVER -SM- 21.6% 21.6%
PLEXAR -Registered Trademark-
Plexar I -Registered Trademark- 21.6% 21.6%
Plexar II -Registered Trademark- 21.6% 21.6%
Plexar Custom 21.6% 21.6%
</TABLE>
*Some Services are not available in all Areas.
Resale products available subject to state and federal rules, regulations and
tariffs.
<PAGE>
PAGE 4 OF 6
<TABLE>
<CAPTION>
RESALE DISCOUNTS
RECURRING NON-RECURRING
<S> <C> <C>
PRIVATE LINE
Analog Private Lines 21.6% 21.6%
Business Video Service 21.6% 21.6%
DOVLink 21.6% 21.6%
Frame Relay 21.6% 21.6%
MegaLink I -Registered Trademark- 21.6% 21.6%
MegaLink II -Registered Trademark- 21.6% 21.6%
MegaLink III -Registered Trademark- 21.6% 21.6%
MicroLink I -Registered Trademark- 21.6% 21.6%
Network Reconfiguration Service 21.6% 21.6%
</TABLE>
*Some Services are not available in all Areas.
Resale products available subject to state and federal rules, regulations and
tariffs.
<PAGE>
PAGE 5 OF 6
SOUTHWESTERN BELL'S RESALE TELECOMMUNICATIONS SERVICES* LIST - RESIDENCE
TEXAS
<TABLE>
<CAPTION>
RESALE DISCOUNTS
RECURRING NON-RECURRING
<S> <C> <C>
LOCAL EXCHANGE SERVICE
Life Line and Link Up America Services 21.6% 21.6%
Residence 1 Party 21.6% 21.6%
Residence Measured 21.6% 21.6%
EXPANDED LOCAL CALLING
Expanded Local Calling (Mandatory) 21.6% 21.6%
Mandatory Extended Area Calling Service (EACS)- 1 Party 21.6% 21.6%
Mandatory EACS - One element measured, 1 Party 21.6% 21.6%
EMS - Optional 21.6% 21.6%
Extended Area Calling Service - Optional 21.6% 21.6%
VERTICAL SERVICES
Anonymous Call Rejection 21.6% 21.6%
Auto Redial 21.6% 21.6%
Auto Redial - Usage Sensitive 21.6% 21.6%
Call Blocker 21.6% 21.6%
Call Forwarding 21.6% 21.6%
Call Forwarding - Busy Line 21.6% 21.6%
Call Forwarding - Busy Line/Don't Answer 21.6% 21.6%
Call Forwarding - Don't Answer 21.6% 21.6%
Call Return 21.6% 21.6%
Call Return - Usage Sensitive 21.6% 21.6%
Call Trace 21.6% 21.6%
Call Waiting 21.6% 21.6%
Calling Name 21.6% 21.6%
Calling Number 21.6% 21.6%
ComCall -Registered Trademark- 21.6% 21.6%
Personalized Ring (1 dependent number) 21.6% 21.6%
Personalized Ring (2 dependent numbers - 1st number) 21.6% 21.6%
Personalized Ring (2 dependent numbers - 2nd number) 21.6% 21.6%
Priority Call 21.6% 21.6%
Remote Access to Call Forwarding 21.6% 21.6%
Selective Call Forwarding 21.6% 21.6%
Simultaneous Call Forwarding 21.6% 21.6%
</TABLE>
*Some Services are not available in all Areas.
Resale products available subject to state and federal rules, regulations and
tariffs.
<PAGE>
PAGE 6 OF 6
<TABLE>
<CAPTION>
RESALE DISCOUNTS
RECURRING NON-RECURRING
<S> <C> <C>
VERTICAL SERVICES (cont.)
Speed Calling 8 21.6% 21.6%
Three Way Calling 21.6% 21.6%
DIRECTORY ASSISTANCE SERVICES 21.6% 21.6%
ISDN
Digiline-SM- 21.6% 21.6%
OTHER
Customer Alerting Enablement 21.6% 21.6%
Grandfathered Services 21.6% 21.6%
Hot Line 21.6% 21.6%
Local Operator Assistance Service 21.6% 21.6%
Bundled Telecommunications Services (e.g., the 21.6% 21.6%
Works)
Promotions (Greater than 90 days) 21.6% 21.6%
Preferred Number Service 21.6% 21.6%
TouchTone 21.6% 21.6%
Voice Dial 21.6% 21.6%
Warm Line 21.6% 21.6%
TOLL
Home 800-SM- 21.6% 21.6%
IntraLATA MTS 21.6% 21.6%
</TABLE>
*Some Services are not available in all Areas.
Resale products available subject to state and federal rules, regulations and
tariffs.
<PAGE>
PAGE 1 OF 1
EXHIBIT B
SOUTHWESTERN BELL'S RESALE OTHER SERVICES* LIST
TEXAS
<TABLE>
<CAPTION>
RESALE DISCOUNTS
RECURRING NON-RECURRING
--------- -------------
<S> <C> <C>
900/976 Call Restriction 21.6% 21.6%
976 Information Delivery Service 0% 0%
Access Services 0% 0%
Additional Directory Listings 21.6% 21.6%
Bill Plus 5% 5%
Cellular Mobile Telephone Interconnection Services 0% 0%
Company Initiated Suspension Service 0% 0%
Connections with Terminal Equipment and 0% 0%
Communications Equipment
Consolidated Billing 5% 5%
Construction Charges 0% 0%
Customer Initiated Suspension Service 0% 0%
Distance Learning 21.6% 21.6%
Exchange Connection Service 0% 0%
Maintenance of Service Charges 0% 0%
Shared Tenant Service 0% 0%
Telecommunications Service Priority Systems 0% 0%
Toll Restriction 21.6% 21.6%
</TABLE>
*Some Services not available in all Areas.
Resale products available subject to state and federal rules, regulations and
tariffs.
<PAGE>
PAGE 1 OF 1
EXHIBIT C
APPENDIX RESALE
TEXAS
OS/DA PRICING - BRANDING, RATE & REFERENCE
The following rates will apply for each service element:
- --------------------------------------------------------------------------
A. CALL BRANDING
An initial non-recurring charge applies per TOPS switch, per
brand for the establishment of CLEC specific Call Branding.
A Per Call charge also applies. When there are subsequent
changes to the branding announcement, an additional non-
recurring charge will also apply per TOPS, per brand, for
each change.
Rate per initial load group $1,081.00
Rate per load for Brand change $1,081.00
Per Call $0.0312
- --------------------------------------------------------------------------
B. DIRECTORY ASSISTANCE RATE/REFERENCE
INFORMATION
An initial non-recurring charge applies per TOPS switch, per
rate schedule for the initial load of CLEC's DA Services
Rate/Reference Information. An additional non-recurring
charge applies per TOPS switch, per rate schedule for each
subsequent change to Rate/Reference Information.
*Rate per initial load $1,958.67
Rate per subsequent rate change $934.44
Rate per subsequent reference change $934.44
- --------------------------------------------------------------------------
C. OPERATOR SERVICES RATE/REFERENCE
INFORMATION
An initial non-recurring charge applies per TOPS switch, per
rate schedule for the initial load of CLEC's Operator
Services Rate/Reference Information. An additional non-
recurring charge applies per TOPS switch, per rate schedule
for each subsequent change to Rate/Reference Information.
*Rate per initial load $1,958.67
Rate per subsequent rate change $934.44
Rate per subsequent reference change $934.44
- --------------------------------------------------------------------------
* Initial Load Charges for Rate/Reference (B and C) when ordered together,
will incur a single Initial Load Charge. In cases where Rate/Reference
information is ordered separately, individual Initial Load charges will apply
to each order.
<PAGE>
PAGE 1 OF 11
APPENDIX OSS-RESALE
<PAGE>
PAGE 2 OF 11
APPENDIX OSS
ACCESS TO OPERATIONS SUPPORT SYSTEMS FUNCTIONS
1. GENERAL CONDITIONS
1.1 This Appendix sets forth the terms and conditions under which SWBT
provides nondiscriminatory access to SWBT's operations support systems (OSS)
"functions" to CLEC for pre-ordering, ordering, provisioning, maintenance /
repair, and billing.
1.2 Resale functions will be accessible via electronic interface, as
described herein, where such functions are available. Manual access is available
for all pre-ordering, ordering, provisioning, and billing functions via the
Local Service Center (LSC). Repair and maintenance functions are available in a
manual mode through the Local Operations Center (LOC).
1.3 CLEC agrees to utilize SWBT electronic interfaces, as described herein,
only for the purposes of establishing and maintaining Resale services through
SWBT. In addition, CLEC agrees that such use will comply with the summary of
SWBT's Operating Practice No. 113, Protection of Electronic Information, titled
Competitive Local Exchange Carrier Security Policies and Guidelines. Failure to
comply with such security guidelines may result in forfeiture of electronic
access to OSS functionality.'
1.4 CLEC's access to pre-order functions described in 2.2.2 will only be
utilized to view Customer Proprietary Network Information (CPNI) of another
carrier's end-user where CLEC has obtained an authorization for release of CPNI
from the end-user and has obtained an authorization to become the end user's
local service provider. The authorization for release of CPNI must substantially
reflect the following:
1.4.1 "This written consent serves as instruction to all holders of my
local exchange telecommunications Customer Proprietary Network Information
(CPNI) and account identification information to provide such information to the
undersigned. Specifically, I authorize disclosure of my account billing name,
billing address, and directory listing information, and CPNI including, service
address, service and feature subscription, long distance carrier identity, and
pending service order activity. This Authorization remains in effect until such
time that I revoke it directly or appoint another individual/company with such
capacity or undersigned receives notice to disconnect my local exchange service
or notice that a service disconnect has been performed. At and from such time,
this Authorization is null and void."
Or
1.4.2 Authorization for change in local exchange service and release of
CPNI with documentation that adheres to all requirements of state and federal
law, as applicable.
<PAGE>
PAGE 3 OF 11
1.5 By utilizing electronic interfaces to access OSS functions, CLEC agrees
to perform accurate and correct ordering as it relates to the application of
Resale rates and charges where they are subject to the terms of this Agreement
and applicable SWBT tariffs. All exception handling must requested manually from
the LSC.
1.6 In areas where Resale order functions are not available via an
electronic interface for the pre-order, ordering and provisioning processes,
SWBT and CLEC will use manual processes. Should SWBT develop electronic
interfaces for these functions for itself, SWBT will make electronic access
available to CLEC.
1.7 The Information Services (I.S.) Call Center provides a technical
support function for electronic interfaces. CLEC will also provide a single
point of contact for technical issues related to the electronic interfaces.
1.8 SWBT and CLEC will establish interface contingency plans and disaster
recovery plans for the pre-order, ordering and provisioning of Resale services.
1.9 SWBT reserves the right to modify or discontinue the use of any system
or interface as it deems appropriate. Provided however,
(a) SWBT shall provide CLEC with at least 90 days prior written notice
of any planned discontinuance and provide CLEC with a functionally equivalent
interface to access the OSS functions for any system or interface that is
discontinued. Upon CLEC request, SWBT shall also provide a reasonable transition
period.
(b) SWBT shall provide CLEC with reasonable prior written notice of any
significant system modifications.
1.10 If CLEC elects to utilize electronic interfaces based upon industry
guidelines for Resale, SWBT and CLEC agree to participate in the Order and
Billing Forum (OBF) and the Telecommunications Industry Forum (TCIF) to
establish and conform to uniform industry guidelines for electronic interfaces
for pre-order, ordering, and - provisioning. Neither Party waives its rights as
participants in such forums or in the implementation of the guidelines. TO
achieve system functionality as quickly as possible, the Parties acknowledge
that SWBT may deploy these interfaces with requirements developed in advance of
industry guidelines. Thus, subsequent modifications may be necessary to comply
with emerging guidelines. CLEC and SWBT are individually responsible for
evaluating the risk of developing their respective systems in advance of
guidelines and agree to support their own system modifications to comply with
new requirements. In addition, SWBT has the right to define LSR Usage
requirements according to the General Section 1.0, paragraph 1.4 of the
practices in the OBF Local Service Ordering Guidelines (LSOG), which states:
"Options described in this practice may not be applicable to individual
providers tariffs; therefore, use of either the field or valid entries within
the field is based on the providers tariffs/practices."
<PAGE>
PAGE 4 OF 11
1.11 Due to enhancements and on-going development of access to SWBT's OSS
functions, certain interfaces described in this Appendix may be modified,
temporarily unavailable or may be phased out after execution of this Appendix.
In compliance with section 1.9 of this Appendix, SWBT agrees that interfaces
phased out will be accompanied with proper notice.
1.12 CLEC is responsible for obtaining operating system software and
hardware to access OSS functions as specified in the document "Requirements for
Access to Southwestern Bell OSS Functions."
2. PRE-ORDER
2.1 SWBT will provide real time access to pre-order functions to support
CLEC ordering of Resale services. The Parties acknowledge that ordering
requirements necessitate the use of current, real time pre-order information to
accurately build service orders. The following lists represent pre-order
functions that are available to CLEC so that CLEC order requests may be created
to comply with SWBT ordering requirements.
2.2 PRE-ORDERING FUNCTIONS FOR RESALE SERVICES INCLUDE:
2.2.1 Features and services available at a valid service address (as
applicable);
2.2.2 Access to SWBT retail or resold customer proprietary network
INFORMATION (CPNI) for preordering will include: billing name, service address,
billing address, service and feature subscription, directory listing
information, long distance carrier identity, and pending service order activity
(CLEC agrees that CLEC's representatives will not access the information
specified in this subsection until after the customer requests that his or her
local exchange service provider be changed to CLEC, and a customer authorization
for release of CPNI complies with conditions as described in section 1.4 of this
Appendix.)
2.2.3 A telephone number (if the customer does not have one assigned)
with the customer on-line;
2.2.4 Service availability dates to the customer;
2.2.5 Information regarding whether dispatch is required;
2.2.6 Primary Interexchange Carrier (PIC) options for intraLATA toll
(when available) and interLATA toll;
2.2.7 Service address verification.
2.3. ELECTRONIC ACCESS TO PRE-ORDER FUNCTIONS: SWBT will provide CLEC
access to one or more of the following systems:
<PAGE>
PAGE 5 OF 11
2.3.1 RESALE SERVICES PRE-ORDER SYSTEM AVAILABILITY:
2.3.1.1 Residential Easy Access Sales Environment (R-EASE): R-EASE
is an ordering entry system through which SWBT provides CLEC access to the
functions of preordering when R-EASE is utilized to order SWBT Residential
Resale Services.
2.3.1.2 Business Easy Access Sales Environment (B-EASE): B-EASE is
an ordering entry system through which SWBT provides CLEC access to the
functions of preordering when such access is utilized to order SWBT-Business
Resale Services.
2.3.1.3 DataGate is a transaction-based data query system through
which SWBT provides CLEC access to pre-ordering functions. This gateway shall be
a Transmission Control Protocol/Internet Protocol (TCP/IP) gateway and will
allow CLEC to access the preorder functions for Resale services by CLEC
developing its own end-user interface. SWBT and CLEC agree to cooperate in
developing and implementing an electronic communication interface that will be
consistent with industry guidelines developed by the OBF and the TCIF, assuming
they are different from that which SWBT is providing.
2.3.1.4 Verigate is an end-user interface developed by SWBT that
provides access to the pre-ordering functions for Resale Services. Verigate may
be used in connection with electronic or manual ordering. Verigate is accessible
via Toolbar.
2.3.2 OTHER PRE-ORDER FUNCTION AVAILABILITY:
2.3.2.1 Where pre-ordering functions are not available
electronically CLEC will manually request this information from SWBT's LSC for
inclusion on the service order request.
2.3.2.2 In addition to electronic interface access to pre-order
information, upon request but not more frequently than once a month, SWBT will
provide CLEC certain pre-order information in batch transmission for the
purposes of back-up data for periods of system unavailability. Specifically, the
following database information may be electronically provided, Street Address
Guide (SAG) Guide, Service and Feature Availability by NXX and a PIC list, to
support address verification, service and feature availability and PIC
availability, respectively. The parties recognize such information must be used
to construct order requests only in exception handling situations.
3. ORDERING/PROVISIONING
3.1 SWBT provides real time access to ordering functions (as measured from
the time SWBT receives accurate service requests from the interface) to support
CLEC provisioning of Resale services via one or more electronic interfaces. To
order Resale services, CLEC will format the service request to identify what
features, services, or elements it wishes SWBT to
<PAGE>
PAGE 6 OF 11
provision in accordance with SWBT ordering requirements. SWBT will provide CLEC
access to one or more of the following systems or interfaces:
3.2 RESALE SERVICES ORDER REQUEST SYSTEM AVAILABILITY:
3.2.1 R-EASE is available for the generation of Residential Resale
services orders. Ordering flows are available via this system.
3.2.2 B-EASE is available for the generation of Business Resale
services orders. Ordering flows are available via this system.
3.2.3 Service Order Retrieval and Distribution (SORD) interface
provides CLECs with the ability to create certain complex Resale orders that
cannot be ordered through EASE, EDI or LEX In addition, the SORD interface
supports the modification of Service Orders submitted electronically by CLEC.
Should CLEC elect to correct service order errors via SORD, CLEC will be
responsible for correcting all errors occurring prior to completion, on any
orders submitted electronically by CLEC.
3.2.4 SWBT makes available to CLEC an Electronic Data Interchange (EDI)
interface for transmission of SWBT ordering requirements via formats provided on
the Local Service Request (LSR) as defined by the Ordering and Billing Forum
(OBF) and via EDI mapping as defined by TCIF. In ordering and provisioning
Resale, CLEC and SWBT will utilize industry guidelines developed by OBF and TCIF
EDI to transmit data based upon SWBT's Resale ordering requirements.
3.2.5 LEX is an end-user interface that provides access to the ordering
functions for Resale Services.
3.3 PROVISIONING FOR RESALE SERVICES: SWBT will provision Resale Services
as detailed in CLEC order requests. Access to status on such orders will be
provided via the following electronic interfaces:
3.3.1 Order Status will allow CLEC to check service order status.
Order Status is accessible via SWBT Toolbar. In addition, pending orders can be
viewed in SORD.
3.3.2 In cases of EDI ordering, SWBT will provide CLEC with an EDI
interface for transferring and receiving orders, Firm Order Confirmation (FOC),
service completion, and, as available, other provisioning data and information.
SWBT will provide CLEC with a FOC for each Resale service request. The FOC will
include: purchase order number, telephone number, Local Service Request number,
due date, Service Order number, and completion date. Upon work completion, SWBT
will provide CLEC with an 855 EDI transaction-based Order Completion that states
when that order was completed. CLEC may submit supplement requests via the 860
EDI transaction, and, where available, SWBT will provide CLEC an 865 EDI
transaction-based Completion notice.
<PAGE>
PAGE 7 OF 11
3.3.2.1 The Parties agree that the following timelines are
applicable to electronically generated service orders with errors corrected
via SORD: 1) Errors occurring between application and distribution must be
corrected within 5 hours for a simple order and within 24 hours for a complex
order, 2)Error Service Order Image (ESOI) errors must be corrected within 3
business hours. Service orders will be excluded from calculation of the results
for all related performance measurements, described in Appendix Performance
Measurements, if CLEC fails to correct service order errors within the
timeframes specified above. Additionally, service orders, with errors that occur
after order generation, but prior to distribution will not qualify for a SBC
issued FOC.
3.3.3 In cases of EDI ordering, SWBT will provide CLEC with an EDI
interface for transferring and receiving orders, Firm Order Confirmation (FOC),
service completion, and, as available, other provisioning data and information.
SWBT will provide CLEC with a FOC for each Resale service request. The FOC will
include: purchase order number, telephone number, Local Service Request number,
due date, Service Order number, and completion date. Upon work completion, SWBT
will provide CLEC with an 855 EDI transaction-based Order Completion that states
when that order was completed. CLEC may submit supplement requests via the 860
EDI transaction, and, where available, SWBT will provide CLEC an 865 EDI
transaction-based Completion notice.
3.3.4 A file transmission may be provided to confirm order completions
for REASE or B-EASE order processing. This file will provide service order
information of all distributed and completed orders for CLEC.
3.3.4.1 The Parties agree that the following timelines are
applicable to electronically generated service orders with errors corrected via
SORD: 1) Errors occurring between application and distribution must be corrected
prior to releasing the order from EASE; 2) Error Service Order Image (ESOI)
errors must be corrected within 3 business hours Service orders will be excluded
from calculation of the results for the related performance measurements,
described in Appendix Performance Measurements, if CLEC fails to correct service
order errors within the timeframes specified above. Additionally, service orders
with errors that occur after order generation, but prior to distribution will
not qualify for a SBC issued FOC.
4. MAINTENANCE/REPAIR
4.1 Two real time electronic interfaces are accessible to place, and check
the status of trouble reports for both Resales. Upon request, CLEC may access
these functions via the following methods:
4.1.1 Trouble Administration (TA) system access provides CLEC with SWBT
software that allows CLEC to submit trouble reports and subsequently check
status on trouble reports for CLEC end-users. TA will provide the ability to
review the maintenance history of a converted Resale CLEC account. TA is
accessible via SWBT Toolbar.
<PAGE>
PAGE 8 OF 11
4.1.2 Electronic Bonding Interface (EBI) is an interface that is
available for trouble report submission and status updates. This EBI conforms to
ANSI guidelines T1:227:1995 and T1.228:1995, Electronic Communications
Implementation Committee (ECIC) Trouble Report Format Definition (TFRD) Number I
as defined in ECIC document ECIC/TRA/95-003, and all guidelines referenced
within those documents, as mutually agreed upon by CLEC and SWBT. Functions
currently implemented will include Enter Trouble, Request Trouble Report Status,
Add Trouble Information, Modify Trouble Report Attributes, Trouble Report
Attribute Value Change Notification, and Cancel Trouble Report, as explained in
6 and 9 of ANSI T1.228:1995. CLEC and SWBT will exchange requests over a
mutually agreeable X.25-based network.
5. BILLING
5.1 SWBT shall bill CLEC for resold services. SWBT shall send associated
billing information to CLEC as necessary to allow CLEC to perform billing
functions. At minimum SWBT will provide CLEC billing information in a paper
format or via magnetic tape, as agreed to between CLEC and SWBT.
5.2 ELECTRONIC ACCESS TO BILLING INFORMATION FOR RESALE SERVICES WILL ALSO
BE AVAILABLE VIA THE FOLLOWING INTERFACES:
5.2.1 CLEC may receive Bill Plus -TM-, an electronic version of their
bill as described in and in accordance with SWBT's Local Exchange Tariff.
5.2.2 CLEC may receive a mechanized bill format via the EDI 811
transaction set.
5.2.3 CLEC may also view billing information through the Bill
Information interface. Bill Information will be accessible via SWBT Toolbar.
5.2.4 SWBT shall provide CLECs a Usage Extract Feed electronically, on
a daily basis, with information on the usage billed to its accounts for resale
services in the industry standardized Exchange Message Record (EMR) format,
5.2.5 CLEC may receive Local Disconnect Report records (via CARE
records) electronically that indicate when CLEC's customers change their
Competitive Local Exchange Carrier.
6. REMOTE ACCESS FACILITY
6.1 CLEC must access the following SWBT OSS interfaces via a CLEC Remote
Access Facility (LRAF) located in Dallas, Texas: R-EASE; B-EASE; DataGate;
EDI-Ordering; SORD Supplement and via Toolbar, Trouble Administration, Order
Status, Verigate, LEX, and
<PAGE>
PAGE 9 OF 11
Bill Information. Connection to the LRAF will be established via a "port" either
through dial-up or direct connection as described in Section 6.2. CLEC may
utilize a port to access these interfaces to perform the supported functions in
any SWBT state where CLEC has executed an Appendix OSS and purchases System
Access in that state.
6.2 CLEC may use three types of access: Switched, Private Line, and Frame
Relay. For Private Line and Frame Relay "Direct Connections," CLEC shall provide
its own router, circuit, and two Channel Service Units/Data Service Units
(CSU/DSU). The demarcation point shall be the router interface at the LRAF.
Switched Acces "Dial-up Connections" require CLEC to provide its own modems and
connection to the SWBT LRAF. CLEC shall pay the cost of the call if Switched
Access is used.
6.3 CLEC shall use TCP/IP to access SWBT OSS via the LRAF. In addition,
each CLEC shall have one valid Internet Protocol (IP) network address. CLEC
shall maintain a user-id /password unique to each individual for accessing a
SWBT OSS on CLEC's behalf. CLEC shall provide estimates regarding its volume of
transactions, number of concurrent users, desired number of private line or
dial-up (switched) connections, and length of a typical session.
6.4 CLEC shall attend and participate in implementation meetings to discuss
CLEC LRAF access plans in detail and schedule testing of such connections.
7. OPERATIONAL READINESS TEST (ORT) FOR ORDERING/PROVISIONING AND REPAIR/
MAINTENANCE INTERFACES
7.1 Prior to live access to interface functionality, the Parties must
conduct Operational Readiness Testing (ORT), which will allow for the testing of
the systems, interfaces, and processes for the OSS functions ORT will be
completed in conformance with agreed upon processes and implementation dates.
7.2 Prior to live system usage, CLEC must complete user education classes
for SWBT-provided interfaces that affect the SWBT network. Classes are
train-the-trainer format to enable CLEC to devise its own course work for its
own employees. Charges will apply for each class. Classes will be required for
R-EASE, B-EASE, LEX, SORD Supplement and Trouble Administration. Optional
classes will be available for Order Status and Verigate. Classes are
train-the-trainer format to enable CLEC to devise its own coursework for its own
employees. Charges apply to training delivery. Schedules will be made available
upon request and are subject to change, with class lengths varying. Ongoing
class schedules may be requested from the CLEC's account manager.
<PAGE>
PAGE 10 OF 11
<TABLE>
<CAPTION>
- --------------------------------------------------------------------------------------------------------------------------------
Training Rates 5 day 4.5 day 4 day 3.5 day 3 day 2.5 day 2 day 1.5 day 1 day 1/2 day
class class class class class class class class class class
- -------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C>
1 to 5 students $4,050 $3,650 $3,240 $2,835 $2,430 $2,025 $1,620 $1,215 $810 $405
6 students $4,860 $4,380 $3,890 $3,402 $2,915 $2,430 $1,945 $1,455 $970 $490
7 students $5,670 $5,100 $4,535 $3,969 $3,400 $2,835 $2,270 $1,705 $1,135 $570
8 students $6,480 $5,830 $5,185 $4,536 $3,890 $3,240 $2,590 $1,950 $1,300 $650
9 students $7,290 $6,570 $5,830 $5,103 $4,375 $3,645 $2,915 $2,190 $1,460 $730
10 students $8,100 $7,300 $6,480 $5,670 $4,860 $4,050 $3,240 $2,430 $1,620 $810
11 students $8,910 $8,030 $7,130 $6,237 $5,345 $4,455 $3,565 $2,670 $1,780 $890
12 students $9,720 $8,760 $7,780 $6,804 $5,830 S4,860 $3,890 $2,920 $1,945 $970
- --------------------------------------------------------------------------------------------------------------------------------
</TABLE>
7.3 A separate agreement will be required as a commitment to pay for a
specific number of CLEC students in each class. CLEC agrees that charges will be
billed by SWBT and CLEC payment is due 30 days later. CLEC agrees that personnel
from other competitive Local Service Providers may be scheduled into any class
to fill any seats for which the CLEC has not contracted. Class availability is
first-come, first served with priority given to CLECs who have not yet attended
the specific class.
7.4 Class dates will based upon SWBT availability and will be coordinated
between CLEC, Account Manager and Product Management.
7.5 CLEC agrees to pay cancellation fee of the full price noted in the
separate agreement if CLEC cancels scheduled classes less than two weeks prior
to the scheduled start date. CLEC agrees to provide to SWBT completed
registration forms for each student no later than one week prior to the
scheduled training class.
7.6 CLEC agrees that CLEC personnel attending classes are to utilize only
training databases and training presented to them in class. Attempts to access
any other SWBT or SBC system are strictly prohibited.
7.7 CLEC further agrees that training material, manuals and instructor
guides can be duplicated only for internal use for the purpose of training
employees to utilize capabilities SWBT's OSS in accordance with this Appendix.
8. RATES
8.1 CLEC requesting access to one or more of the SWBT OSS functions (i.e.,
pre-ordering, ordering / provisioning, maintenance / repair, billing) agrees to
pay the following rate:
System Access $ 3,200.00/ month
8.2 CLEC requesting functions via interfaces that require connection to the
Remote Access Facility, as described in section 6, agrees to pay the following
rate(s) depending upon on method of access utilized:
<PAGE>
PAGE 11 OF 11
<TABLE>
<CAPTION>
Remote Access Facility Access Methods
<S> <C>
Direct Connection Per Port $ 1,505.00/ month
Dial Up Per Port $ 301.00/ month
</TABLE>
8.3 CLEC requesting the Bill Plus-TM- , as described in 5.2.1, agrees to
pay applicable tariffed rate, less Resale discount.
8.4 CLEC requesting the billing function for Usage Billable Records, as
described in 5.2.4, agrees to pay $.003 per message transmitted.
8.5 CLEC requesting the Local Disconnect Report, as described in 5.2.5,
agrees to pay $0.10 per record transmitted.
8.6 Should unforeseen modifications and costs to provision OSS functions
become required by SWBT or industry guidelines, or by regulatory rulings, SWBT
reserves the right to modify its rate structure. In addition, should CLEC
request custom development of an exclusive interface to support OSS functions,
such development will be considered by SWBT on an Individual Case Basis (ICB)
and priced as such.
9. EFFECTIVE DATE, TERM
9.1 Whereas CLEC is currently operational under an existing, approved
Interconnection Agreement, this Appendix OSS will be effective, pending
commission approval, 10 days after it is filed with the state commission.
Alternatively, this Appendix will be effective upon approval by the state
commission when it is approved as a part of the Interconnection Agreement.
10. APPLICABILITY OF OTHER RATES, TERMS AND CONDITIONS
This appendix, and every service provided hereunder, shall be subject to
all rates, terms and conditions contained in this Agreement or other appendices
or attachments to this Agreement which are legitimately related to such service;
and all such rates, terms and conditions are incorporated by reference herein
and as part of every service provided hereunder. Without limiting the general
applicability of the foregoing, the following terms and conditions of the
General Terms and Conditions of the Resale Agreement are specifically agreed by
the Parties to be legitimately related to, and to be applicable to, each service
provided hereunder description of rates and charges for services, terms and
conditions for resale of services, responsibilities of SWBT, additional
responsibilities of the parties, additional responsibilities of CLEC,
termination of service to CLEC, changes in subscriber carrier selection,
notices, effective date, terra, disclaimer of warranties, limitation of
liability, force majeure, nondisclosure, dispute resolution, verification
reviews, compliance with laws, intervening law and preservation of rights.
<PAGE>
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APPENDIX
PERFORMANCE MEASUREMENTS
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APPENDIX PERFORMANCE MEASUREMENTS
1.0 INTRODUCTION
This Appendix Performance Measurements contains Performance Criteria
which applies to resold services. The measurements set forth in this
Appendix illustrates non-discriminatory access to SWBT's Operations
Support Systems (OSS) and covers each of the five recognized OSS
functions (pre-ordering, ordering, provisioning, maintenance and repair,
and billing).
The performance measurements contained herein, notwithstanding any
provisions in any other appendix in this Agreement, are not intended to
create, modify or otherwise affect parties' rights and obligations. The
existence of any particular performance measure, or the language
describing that measure, is not evidence that CLEC is entitled to any
particular manner of access, nor is it evidence that SWBT is limited to
providing any particular manner of access. The parties' rights and
obligations to such access are defined elsewhere, including the relevant
laws, FCC and PUC. decisions/regulations, tariffs, and within this
agreement.
2.0 DEFINITIONS
When used in this Appendix, the following terms will have the meanings
indicated:
2.1 Performance Criteria means the target level of SWBT performance
specified for each Performance Measurement. Generally, the
Performance Measurements contained in this Appendix specify
performance equal to that which SWBT achieves for itself in
providing. equivalent end user, service as the Performance
Criterion.
2.2 For certain Performance Measurements, a specific quantitative
target has been adopted as the Performance Criterion. The
determination of compliance is through the comparison of the
measured performance delivered to CLEC and the applicable
benchmark.
2.3 Performance Measures means the set of measures listed in all
of section 6.0 of this Appendix.
3.0 SPECIFIED PERFORMANCE STANDARDS
3.1 SWBT will meet the Performance Criteria contained in this
Appendix, except in those instances where its failure to do so
is a result of a) the CLEC's failure to perform any of its
obligations set forth in this Agreement or under the Act, or
Texas law b) any delay, act or failure to act by an end user,
agent or subcontractor of the CLEC, c) any Force Majeure Event,
d) or non-SWBT
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problems associated with third party systems or equipment, which
could not have been avoided by SWBT in exercise of reasonable
diligence. Provided, however, the third party exclusion will not
be raised by SWBT more than three times within a calendar year.
4.0 RECORDS AND REPORTS
4.1 SWBT will not levy a separate charge for provision of the data
to CLEC called for under this Appendix. Notwithstanding other
provisions of this Agreement, the Parties agree that such data
and associated records will be deemed Proprietary Information.
4.2 Reports are to be made available to the CLEC by the 20th day
following the close of the calendar month. If the 20th falls on
a weekend or holiday, the reports will be made available the
next business day.
4.3 CLEC will have access to monthly reports through an interactive
Website.
4.4 CLEC and SWBT will consult with one another and attempt in good
faith to resolve any issues regarding the accuracy or integrity
of data collected, generated, and reported pursuant to this
Appendix.
4.5 UNE measurement categories included on the reports will be zero
filled as that data is not applicable to resold services.
5.0 INITIAL IMPLEMENTATION; DATA REVIEW
5.1 Every six months, SWBT, CLEC, and Commission representatives
will review the performance measures to determine whether
measurements should be added, deleted, or modified; whether
the applicable benchmark standards should be modified or
replaced by parity standards. The criterion for
reclassification of a measure shall be whether the actual
volume of data points was lesser or greater than anticipated.
Criteria for review of performance measures, other than for
possible reclassification, shall be whether there exists an
omission or failure to capture intended performance, and
whether there is duplication of another measurement.
Performance measures for 911 may be examined at any six month
review to determine whether they should be reclassified. The
first six month period will begin when an agreement is adopted
by CLEC and approved by the Commission. Any changes to
existing performance measures shall be by mutual agreement of
the parties and, if necessary, with respect to new measures and
their appropriate classification, by arbitration. The current
measurements and benchmarks will be in effect until modified
hereunder or expiration of the agreement.
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6.0 PERFORMANCE MEASUREMENTS
SWBT will provide the following Performance Measurements, in accordance
with the Business Rules, under this Agreement:
6.1 Pre-Ordering/Ordering
6.1.1 MEASUREMENT - Average Response Time For OSS
Pre-Order Interfaces
DEFINITION - The average response time in seconds from
the SWBT side of the Remote Access Facility (RAF) and
return for pre-order interfaces (Verigate, DataGate and
EDI where the pre-order functionality is integrated) by
function.
CALCULATION - Sigma[Query Response Date & Time)-(Query
Submission Date & Time)] DIVIDED BY (Number of Queries
Submitted in Reporting Period)
REPORT STRUCTURE -
BENCHMARK: TO BE DETERMINED
- ADDRESS VERIFICATION
- REQUEST FOR TELEPHONE NUMBER
- REQUEST FOR CUSTOMER SERVICE RECORD (CSR)
- SERVICE AVAILABILITY
- SERVICE APPOINTMENT SCHEDULING (DUE DATE)
- DISPATCH REQUIRED
- PIC
6.1.2 MEASUREMENT - Percent Response Received Within "X"
Seconds
DEFINITION - The average response time in seconds from
the SWBT side of the Remote Access Facility (RAF) and
return for pre-order interfaces (Verigate and DataGate)
by function.
CALCULATION - Sigma[(Query Response Date & Time) -
(Query Submission Date & Time)]/(Number of Queries
Submitted in Reporting Period)
REPORT STRUCTURE - Reported on a company basis by
interface for DATAGATE and VERIGATE.
BENCHMARK: TO BE DETERMINED
- ADDRESS VERIFICATION
- REQUEST FOR TELEPHONE NUMBER
- REQUEST FOR CUSTOMER SERVICE RECORD (CSR)
- SERVICE AVAILABILITY
- SERVICE APPOINTMENT SCHEDULING (DUE DATE)
- DISPATCH REQUIRED
- PIC
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6.1.3 MEASUREMENT - EASE Average Response Time
DEFINITION - Average screen to screen response from the
SWBT side of the Remote Access Facility (RAF) and return
CALCULATION - Sigma[(Query Response Date & Time) -
(Query Submission Date & Time)] DIVIDED BY (Number of
Queries Submitted in Reporting Period)
REPORT STRUCTURE - Reported for all CLECs and SWBT by
division name (CPU platform)
BENCHMARK - EQUAL TO SWBT'S OWN
6.1.4 MEASUREMENT - OSS Interface Availability
DEFINITION - Percent of time OSS interface is available
compared to scheduled availability
CALCULATION - ((# scheduled system available hours -
unscheduled unavailable system hours) DIVIDED BY
scheduled system available hours)) * 100
REPORT STRUCTURE - Reported on a company basis by
interface e.g. EASE, DATAGATE, VERIGATE, LEX, EDI and
TOOLBAR. The RAF will be reported by CLEC
BENCHMARK - 99%
6.1.5 MEASUREMENT - % Firm Order Confirmations (FOCs) Received
Within "X" Hours
DEFINITION - Percent of FOCs returned within a specified
time frame from receipt of service requests to return of
confirmation to CLEC All Res. And Bus. < 24 Hours
Complex Business - Negotiated
CALCULATION - (# FOCs returned within "X" hours DIVIDED
BY total FOCs sent) * 100.
REPORT STRUCTURE - Reported for CLEC and all CLECs. This
includes mechanized from EDI and LEX and manual (FAX or
phone orders). The FOC for EASE is considered to be at
the time the due date is negotiated and is not included
in the calculation.
BENCHMARK - 90% within "X" hours
6.1.6 MEASUREMENT - Average Time To Return FOC
DEFINITION - The average time to return FOC from receipt
of service order to return of confirmation to CLEC
CALCULATION - Sigma[(Date and Time of FOC) - (Date and
Time of Order Acknowledgment)] DIVIDED BY (# of FOCs)
REPORT STRUCTURE - Reported for CLEC and all CLECs
BENCHMARK - 90% within "X" hours
6.1.7 MEASUREMENT - Percent Mechanized Completions Returned
Within 1 Hour Upon Successful Execution Of The SORD
(BU340) Batch Cycle
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Which Updates The Order Status, Indicating A Completion
Notice. The batch process executes at the following
times: 9:00 AM, 12:00 noon, 3:00 PM, 6:00 PM, 10:30 PM.
DEFINITION - % mechanized completions returned within 1
hour for EDI and LEX
CALCULATION - (# mechanized completions returned to CLEC
within 1 hour DIVIDED BY total completions) * 100
REPORT STRUCTURE - Reported for CLEC and all CLECs for
the electronic interfaces (EDI and LEX). The 1 hour
interval above is subject to change as the EDI polling
time frame changes
BENCHMARK - 97%
6.1.8 MEASUREMENT - Average Time to Return Mechanized
Completions
DEFINITION - Average time required to return a
mechanized completion
CALCULATION - Sum [(Date and Time of Notice Of
Completion Issued to the CLEC) -(Date and Time of Work
Completion)]DIVIDED BY(# of Orders Completed).
REPORT STRUCTURE - Reported on CLEC and all CLECs for
the electronic interfaces (EDI and LEX). The 1 hour
interval is subject to change as the EDI polling time
frame changes
BENCHMARK - 97%
6.1.9 MEASUREMENT - Percent Rejects
DEFINITION - The number of rejects compared to the
issued orders for the electronic interfaces (EDI, RMI
and LEX)
CALCULATION - (# of rejects DIVIDED BY total orders
issued) * 100
REPORT STRUCTURE - Reported on CLEC and all CLECs for
the electronic interfaces (EDI and LEX)
BENCHMARK - Not required (Diagnostic)
6.1.10 MEASUREMENT - Percent Mechanized Rejects Returned Within
1 Hour Of The Start Of The EDI/LASR Batch Process
DEFINITION - Percent mechanized rejects returned within
1 hour of the start of the EDI/LASR batch process. The
EDI and LASR processes execute every two hours between
6:00 A.M. and 12:00 A.M
CALCULATION - (# mechanized rejects returned within 1
hour DIVIDED BY total rejects) * 100
REPORT STRUCTURE - Reported for CLEC and all CLECs for
the electronic interfaces (EDI and LEX
BENCHMARK - 97% within I hour of PON
6.1.11 MEASUREMENT - Mean Time to Return Mechanized Rejects
DEFINITION - Average time required to return a
mechanized reject
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CALCULATION - E[(Date and Time of Order Rejection) -
(Date and Time of Order Acknowledgment)]+ (# of Orders
Rejected)
REPORT STRUCTURE - Reported on CLEC and all
CLECs for the electronic interfaces (EDI and LEX)
BENCHMARK - 97% within I hour of PON
6.1.12 MEASUREMENT - Mechanized Provisioning Accuracy
DEFINITION - Percent of mechanized orders completed as
ordered
CALCULATION - (# of order's completed as ordered DIVIDED
BY total orders) * 100
REPORT STRUCTURE - Reported by individual CLEC, CLECs
and SWBT
BENCHMARK - EQUAL TO SWBT's OWN
6.1.13 MEASUREMENT - Order Process Percent Flow Through
DEFINITION - Percent of orders or LSRs from entry to
distribution that progress through SWBT ordering systems
excluding rejects
CALCULATION - (# of "good" orders that flow through
DIVIDED BY total orders) * 100
LASR orders that flow through are those orders that
go to the mechanized order generation (MOG). Total
orders are the sum or orders that go to the MOG and
those that go to folders for manual handling. EASE
orders that flow through are those orders that are
issued by using the PF11 key and do not go to the
error queue. The total orders are all PF11 issued
orders.
REPORT STRUCTURE - Reported by individual
CLEC, CLECs and SWBT for CLEC typed orders and LSC typed
orders
BENCHMARK - EQUAL TO SWBT'S OWN
6.2 BILLING
6.2.14 MEASUREMENT - Billing Accuracy
DEFINITION - SWBT performs three bill audits to
ensure the accuracy of the bills rendered to its
customers: CRIS and toll/usage. A sample of customer
accounts is selected on the basis of USOCs and
classes of service using CIDB. The purpose of this
audit is to assure that the monthly bill sent to the
CLECs for resale services is accurate according to
the rating of the USOCs and classes of service. For
all accounts that are audited, the numbers of bills
that have been released prior to correction are
counted as an error.
CALCULATION - (# of bills not corrected prior to
bill release DIVIDED BY total bills audited) * 100
REPORT STRUCTURE - Reported for aggregate of all CLECs
and SWBT for the CRIS, and Usage bill audits
BENCHMARK - EQUAL TO SWBT's OWN
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6.2.15 MEASUREMENT - Percent of Accurate And Complete Formatted
Mechanized Bills
DEFINITION - Measurements the % of monthly bills sent
to the CLECs via the mechanized EDI process that are
accurate and complete. if an error is found, a
decision must be made to correct the error before the
bill is rendered and jeopardize timeliness or to send
the bill out on time and in error.
CALCULATION - (Count of accurate and complete formatted
mechanized bills via EDI DIVIDED BY total # of
mechanized bills via EDI) * 100
REPORT STRUCTURE - Reported for CLEC and all CLECs
BENCHMARK - 99%
6.2.16 MEASUREMENT - Percent Of Billing Records Transmitted
Correctly
DEFINITION - Measurements % of billing records
transmitted correctly on the usage extract feed. Usage
records are sent to the CLEC each day containing
information to enable the CLEC to more promptly bill
their own customers. Controls and edits within the
billing system uncover certain types of errors, which
are likely to appear on the usage records. When these
errors are uncovered, a new release of the program will
be written to insure that the error does not occur
again. Thus, an error that is reported in one month
should not occur the next month because the billing
program error would have fixed by the next month.
CALCULATION - (Count of billing records transmitted
correctly DIVIDED BY total billing records transmitted)
* 100
REPORT STRUCTURE - Reported for CLEC and all CLECs
BENCHMARK - 95%
6.2.17 MEASUREMENT - Billing Completeness
DEFINITION - Percent of service orders that are posted
in the CRIS billing system prior to the customers bill
period
CALCULATION - (Count of service orders included in
current applicable bill period DIVIDED BY total service
orders in current applicable bill period) * 100
REPORT STRUCTURE - Reported for CLEC, all CLECs and SWBT
BENCHMARK - EQUAL TO SWBT'S OWN
6.2.18 MEASUREMENT - Billing Timeliness (Wholesale Bill)
DEFINITION - Billing timeliness measurements the length
of time from message creation to the time it is made
available to the CLECS. Data is collected from a
transmission report obtained each month from CIDB. A
mechanized bill will be considered timely if it is sent
by midnight of the 6th work day after the end of the
bill period. Since
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paper bills are handled via the same process that SWBT
uses for paper distribution no measurement is provided.
CALCULATION - (Count of bills released on time
DIVIDED BY total number of bills released) * 100
REPORT STRUCTURE - Reported for CLEC and all CLECs
BENCHMARK - 95% within the 6th work day
6.2.19 MEASUREMENT - Daily Usage Feed Timeliness
DEFINITION - Usage information is sent to the CLECs on
a daily basis. This usage data must be sent to the CLEC
within 6 days in order to be considered timely.
CALCULATION - (Number of usage feeds transmitted on time
DIVIDED BY total number of usage feeds) * 100
REPORT STRUCTURE - Reported for CLEC and all CLECs
BENCHMARK - 95% within the 6th work day
6.2.20 MEASUREMENT - Unbillable Usage
DEFINITION - Percentage of usage data that is
unbillable. For CRIS billing, the total dollars for
AMA/ECS write off is divided by the total CRIS AMA/ECS
billing.
CALCULATION - (Total unbillable usage DIVIDED BY total
usage)* 100
REPORT STRUCTURE - Reported for the aggregate of SWBT
and CLECs
BENCHMARK - Not required (Aggregate measurement)
6.3 MISCELLANEOUS ADMINISTRATIVE
6.3.21 MEASUREMENT - LSC Average Speed Of Answer
DEFINITION - The average time a customer is in queue.
The time begins when the customer enters the queue and
ends when the call is answered by a SWBT representative
CALCULATION - Total queue time DIVIDED BY total calls
REPORT STRUCTURE - Reported for all calls to the LSC by
operational separation and SWBT retail
BENCHMARK - EQUAL TO SWBT'S OWN
6.3.22 MEASUREMENT - LSC Grade Of Service (GOS)
DEFINITION - % of calls answered by the LSC within a
specified period of time
CALCULATION - Total number of calls answered by
the LSC within a specified period of time DIVIDED BY
total number of calls answered by the LSC
REPORT STRUCTURE - Reported for all calls to the LSC
by operational separation and SWBT retail (RSC and BSC)
BENCHMARK - EQUAL TO SWBT'S OWN
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6.3.23 MEASUREMENT - Percent Busy in the LSC
DEFINITION - Percent of calls which are unable to reach
the Local Service Center due to a busy condition in the
ACD
CALCULATION - (Count of blocked calls DIVIDED BY total
calls offered) * 100
REPORT STRUCTURE - Reported for all CLECs and SWBT
BENCHMARK - EQUAL TO SWBT'S OWN
6.3.24 MEASUREMENT - LOC Average Speed Of Answer
DEFINITION - The average time a customer is in queue.
The time begins when the customer enters the queue and
ends when the call is answered by a SWBT representative
CALCULATION - Total queue time DIVIDED BY total calls
REPORT STRUCTURE - Reported for all calls to the LOC for
all CLECs and SWBT retail
BENCHMARK - EQUAL TO SWBT'S OWN
6.3.25 MEASUREMENT - LOC Grade Of Service (GOS)
DEFINITION - % of calls answered by the LOC within a
specified period of time
CALCULATION - Total number of calls answered by the LOC
within a specified period of time DIVIDED BY total
number of calls answered by the LOC
REPORT STRUCTURE - Reported for all calls to the LSC by
operational separation and SWBT retail (Repair Bureau)
BENCHMARK - EQUAL TO SWBT'S OWN
6.3.26 MEASUREMENT - Percent Busy in the LOC
DEFINITION - Percent of calls which are unable to reach
the Local Operations Center due to a busy condition in
the ACD
CALCULATION - (Count of blocked calls DIVIDED BY total
calls offered) * 100
REPORT STRUCTURE - Reported for all CLECs and SWBT
BENCHMARK - EQUAL TO SWBT'S OWN
6.4 POTS - PROVISIONING
6.4.27 MEASUREMENT - Mean Installation Interval
DEFINITION - Average business days from application date
to completion date for N, T, C orders excluding customer
caused misses and customer requested due dates that are
earlier or greater than 5 business days
CALCULATION - [Sigma (completion date - application
date)] DIVIDED BY (Total number of orders completed)
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REPORT STRUCTURE - Reported for CLEC, all CLECs and
SWBT, by Field Work (FW), No Field Work (NFW), Business
and Residence
BENCHMARK - EQUAL TO SWBT'S OWN
6.4.28 MEASUREMENT - Percent Installations Completed Within "X"
Business Days (POTS)
DEFINITION - Measure of orders completed within "X"
business days, 5 business days for FW and 3 business
days for NFW, of receipt of confirmed service order for
POTS resale service excluding orders where customer
requested a due date greater than "X" business days and
excluding orders with only customer caused misses
CALCULATION - (Count of N,T,C orders installed within
business 5 days DIVIDED BY total N,T,C orders)* 100
REPORT STRUCTURE - Reported for CLEC, all CLECs and SWBT
by Field Work (FW), No Field Work (NFW), Business and
Residence
BENCHMARK - EQUAL TO SWBT'S OWN
6.4.29 MEASUREMENT - Percent SWBT Caused Missed Due Dates
DEFINITION - Percent of N,T,C orders where installation
was not completed by the due date, excluding customer
caused misses
CALCULATION - (Count of N,T,C orders not completed by
the due date, excluding customer caused misses DIVIDED
BY total number of N,T,C orders) * 100
REPORT STRUCTURE - Reported for CLEC all CLECs and SWBT
by Field Work (FW), No Field Work (NFW), Business and
Residence
BENCHMARK - EQUAL TO SWBT'S OWN
6.4.30 MEASUREMENT - Percent SWBT Missed Due Dates Due To Lack
Of Facilities
DEFINITION - Percent N,T,C orders with missed committed
due dates due to lack of facilities
CALCULATION - (Count N,T,C orders with missed committed
due dates due to lack of facilities DIVIDED BY total
N,T,C orders) * 100
REPORT STRUCTURE - Reported for CLEC, all CLECs and SWBT
Retail for POTS Reported for > 30 calendar days & > 90
calendar days (Calculated monthly based on posted
orders)
BENCHMARK - EQUAL TO SWBT'S OWN
6.4.31 MEASUREMENT - Average Delay Days For Missed Due Dates
Due To Lack Of Facilities
DEFINITION - Average calendar days from due date to
completion date on company missed orders due to lack
of facilities
CALCULATION - Sigma(Completion date - committed order
due date) DIVIDED BY (# of posted orders)
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REPORT STRUCTURE - Reported for CLEC, all CLECs and SWBT
Retail POTS
BENCHMARK - EQUAL TO SWBT'S OWN
6.4.32 MEASUREMENT - Average Delay Days for SWBT Caused Missed
Due Dates
DEFINITION - Average calendar days from due date to
completion date on company missed orders
CALCULATION - Sum (Completion date - committed order due
date) DIVIDED BY (# of posted orders)
REPORT STRUCTURE - Reported for CLEC, all CLECs and SWBT
Retail POTS,
BENCHMARK - EQUAL TO SWBT'S OWN
6.4.33 MEASUREMENT - Percent SWBT Caused Missed Due Dates > 30
Days
DEFINITION - Percent of N,T,C orders where installation
was completed > 30 days following the due date,
excluding customer caused misses
CALCULATION - (Count of N, T, C orders completed > 30
days following the due date, excluding customer caused
misses DIVIDED BY total number of N, T, C orders) * 100
REPORT STRUCTURE - Reported for CLEC, all CLECs and SWBT
for Resold POTS
BENCHMARK - EQUAL TO SWBT'S OWN
6.4.34 MEASUREMENT - Count of Orders Canceled After the Due
Date (SWBT Caused)
DEFINITION - Orders canceled after the due date caused
by SWBT
CALCULATION - (1-30, 31-90, and > 90 DIVIDED BY count
of canceled orders)
REPORT STRUCTURE - Reported for individual CLECs and the
aggregate of all CLECs
BENCHMARK - Not required (Diagnostic)
6.4.35 MEASUREMENT - Percent Trouble Reports Within 10 Days Of
Install
DEFINITION - Percent of N, T, C orders that receive a
network customer trouble report not caused by CPE or
wiring within 10 calendar days of service order
completion excluding subsequent reports and all
disposition code "13" reports 6
CALCULATION - (Count of N, T, C orders that receive a
network customer trouble report within 10 calendar days
of service order completion DIVIDED BY total N,T,C
orders (excludes trouble reports received on the due
date))* 100
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REPORT STRUCTURE - Reported for POTS Resale by CLEC,
total CLECs and SWBT retail by Field Work (FW), No Field
Work (NFW) business and residence
BENCHMARK - EQUAL TO SWBT'S OWN
6.4.36 MEASUREMENT - Percent No Access (Trouble Reports With No
Access)
DEFINITION - Percent of Field Work (FW) orders with
a status of "No Access"
CALCULATION - Count of orders that are No Access DIVIDED
BY total orders
REPORT STRUCTURE - Reported for CLEC, total CLECs and
SWBT
BENCHMARK - Resale POTS parity between FW compared to
SWBT FW (N, T, C order types) and NFW compared to SWBT
Retail NFW (N,T,C order types).
6.5 POTS - MAINTENANCE
6.5.37 MEASUREMENT - Trouble Report Rate
DEFINITION - The number of customer trouble reports not
caused by CPE or wiring, CPE and disposition code "13"
reports within a calendar month per 100 lines
CALCULATION - [Total number of customer trouble reports
DIVIDED BY (total lines DIVIDED BY 100)].
REPORT STRUCTURE - Reported for POTS Resale trouble
reports by CLEC, all CLECs and SWBT retail (valid for
line counts of 300,000 or greater)
BENCHMARK - EQUAL TO SWBT'S OWN
6.5.38 MEASUREMENT - Percent Missed Repair Commitments
DEFINITION - Percent of trouble reports not cleared by
the commitment time, excluding disposition code "13"
reports
CALCULATION - (Count of trouble reports not cleared by
the commitment time for company reasons DIVIDED BY total
trouble reports) * 100
REPORT STRUCTURE - Reported for CLEC, all CLECs and SWBT
retail by dispatch and no dispatch
BENCHMARK - EQUAL TO SWBT'S OWN
6.5.39 MEASUREMENT - Receipt To Clear Duration
DEFINITION - Average duration of customer trouble
reports from the receipt of the customer trouble report
to the time the trouble report is cleared with the
customer excluding subsequent, and all disposition code
"13" reports (excludable)
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CALCULATION - sigma[(Date and time ticket is cleared
with customer) - (Date and time ticket received)]
DIVIDED BY total customer network trouble reports
REPORT STRUCTURE - Reported for POTS Resale trouble
reports by CLEC, all CLECs and SWBT retail for Out of
Service and Affecting Service by Dispatch and
No-Dispatch
BENCHMARK - EQUAL TO SWBT'S OWN
6.5.40 MEASUREMENT - Percent Out Of Service (OOS) < 24 Hours
DEFINITION - Percent of OOS trouble reports cleared in
less than 24 hours excluding subsequents, tickets
received on Saturday or Sunday, no access and all
disposition code "13" reports (excludable)
CALCULATION - (Count of OOS trouble reports < 24 hours
DIVIDED BY total number of OOS trouble reports) * 100
REPORT STRUCTURE - Reported for CLEC, all CLECs and SWBT
retail
BENCHMARK - EQUAL TO SWBT'S OWN
6.5.41 MEASUREMENT - Percent Repeat Reports
DEFINITION - Percent of customer trouble reports
received within 10 calendar days of a previous customer
report that were not caused by CPE or wiring excluding
subsequent reports and all disposition code "13"
reports. (excludable)
CALCULATION - (Count of customer trouble reports, not
caused by CPE or wiring and excluding subsequent
reports, received within 10 calendar days of a previous
customer report DIVIDED BY total customer trouble
reports not caused by CPE or wiring and excluding
subsequent reports)*100
REPORT STRUCTURE - Reported by CLEC, all CLECs and SWBT
retail
BENCHMARK - EQUAL TO SWBT'S OWN
6.5.42 MEASUREMENT - Percent No Access (% Trouble reports
with No Access).
DEFINITION - Percent of dispatched customer trouble
reports with a status of "No Access".
CALCULATION - Count of trouble reports with a status of
"No Access" to customer's premise DIVIDED BY total
dispatched customer trouble reports
REPORT STRUCTURE - Reported for CLEC, total CLECs and
SWBT
BENCHMARK - POTS - Parity with SWBT Retail
6.6 SPECIALS - PROVISIONING
6.6.43 MEASUREMENT - Average Installation Interval
DEFINITION - Average business days from application
date to completion date for N,T,C orders by item.
Excludes customer caused
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misses and customer requested due dates that are earlier
or greater than "X" business days
CALCULATION - [Sigma(completion date - application
date)] DIVIDED BY (total number of orders completed)
REPORT STRUCTURE - Reported for CLEC, all CLECs and SWBT
by DDS, DS1, DS3, Voice Grade Private Line (VGPL) and
ISDN and any other services available for resale
BENCHMARK - EQUAL TO SWBT'S OWN
6.6.44 MEASUREMENT - Percent Installations Completed Within "X"
Business Days
DEFINITION - Percent installations completed within "X"
business days excluding customer caused misses and
customer requested due date greater than "X" business
days
CALCULATION - (Count of N,T,C orders by item installed
within business "X" business days DIVIDED BY total N,T,C
orders by item) * 100
REPORT STRUCTURE - Reported for CLEC, all CLECs and SWBT
by DDS, DS1, DS3, Voice Grade Private Line (VGPL) and
ISDN and any other services available for resale
BENCHMARK - EQUAL TO SWBT'S OWN
6.6.45 MEASUREMENT - Percent SWBT Caused Missed Due Dates
DEFINITION - Percent of N,T,C orders where installations
were not completed by the negotiated due date excluding
customer caused misses
CALCULATION - (Count of N,T,C orders by item with missed
due dates excluding customer caused misses DIVIDED BY
total number of N,T,C orders by item) * 100
REPORT STRUCTURE - Reported for CLEC, all CLECs and
SWBT by DDS, DS1, DS3, Voice Grade Private Line (VGPL)
and ISDN and any other services available for resale
BENCHMARK- EQUAL TO SWBT'S OWN
6.6.46 MEASUREMENT - Percent Installation Reports Within 30
Days (I-30)
DEFINITION - Percent of N,T,C orders by item that
receive a network customer trouble report within 30
calendar days of service order completion
CALCULATION - (Count of N,T,C orders by item that
receive a network customer trouble report within 30
calendar days of service order completion DIVIDED BY
total N,T,C orders by item (excludes trouble reports
received on the due date)) * 100
<PAGE>
PAGE 16 OF 21
REPORT STRUCTURE - Reported for CLEC, all CLECs and SWBT
by DDS, DS1, DS3, Voice Grade Private Line (VGPL) and
ISDN and any other services available for resale
BENCHMARK - EQUAL TO SWBT'S OWN
6.6.47 MEASUREMENT - Percent SWBT Missed Due Dates Due To Lack
Of Facilities
DEFINITION - Percent N,T,C orders by item with missed
committed due dates due to lack of facilities
CALCULATION - (Count of N,T,C orders by item with missed
committed due dates due to lack of facilities DIVIDED
BY total N,T,C orders by item) * 100
REPORT STRUCTURE - Reported for Specials Resale by CLEC,
all CLECs and SWBT Retail Reported for > 30 calendar
days & > 90 calendar days
BENCHMARK - EQUAL TO SWBT'S OWN
6.6.48 MEASUREMENT - Delay Days For Missed Due Dates Due To
Lack Of Facilities
DEFINITION - Average calendar days from due date to
completion date on company missed orders due to lack of
facilities
CALCULATION - Sigma(Completion date - Committed order
due date) DIVIDED BY (# of completed orders)
REPORT STRUCTURE - Reported for CLEC, all CLECs and SWBT
Retail Specials
BENCHMARK - EQUAL TO SWBT'S OWN
6.6.49 MEASUREMENT - Delay Days for SWBT Caused Missed Due
Dates
DEFINITION - Average calendar days from due date to
completion date on company missed orders
CALCULATION - Sum (Completion date - committed order due
date) DIVIDED BY (# of posted orders)
REPORT STRUCTURE - Reported for CLEC, all CLECs and SWBT
Retail Specials
BENCHMARK - EQUAL TO SWBT'S OWN
6.6.50 MEASUREMENT - Percent SWBT Caused Missed Due Dates > 30
Days
DEFINITION - Percent of N, T, C orders where
installation was completed > 30 days following the due
date, excluding customer caused misses
CALCULATION - (Count of N, T, C orders completed > 30
days following the due date, excluding customer caused
misses DIVIDED BY total number of N, T, C orders) * 100
<PAGE>
PAGE 17 OF 21
REPORT STRUCTURE - Reported for CLEC, all CLECs and SWBT
for Retail Specials
BENCHMARK - EQUAL TO SWBT'S OWN
6.6.51 MEASUREMENT - Count Of Orders Canceled After The Due
Date (SWBT Caused)
DEFINITION - Orders canceled after the due date which
were caused by SWBT
CALCULATION - (1-30, 31-90, and > 90 DIVIDED BY the
count of canceled orders)
REPORT STRUCTURE - Reported for individual CLECs and the
aggregate of all CLECs
BENCHMARK - Not required (Diagnostic)
6.7 SPECIALS - MAINTENANCE
6.7.52 MEASUREMENT - Mean Time To Restore
DEFINITION - Average duration of network customer
trouble reports from the receipt of the customer trouble
report to the time the trouble report is cleared
excluding no access and delayed maintenance
CALCULATION - Sigma[(Date and time trouble report is
cleared with the customer) - (date and time trouble
report is received)] DIVIDED BY total network customer
trouble reports
REPORT STRUCTURE - Reported for CLEC, all CLECs and SWBT
by DDS, DS1, DS3, Voice Grade Private Line (VGPL) and
ISDN and any other services available for resale
BENCHMARK - EQUAL TO SWBT'S OWN
6.7.53 MEASUREMENT - Percent Repeat Reports
DEFINITION - Percent of network customer trouble reports
received within 30 calendar days of a previous customer
report
CALCULATION - (Count of network customer trouble reports
received within 30 calendar days of a previous customer
report DIVIDED BY total network customer trouble
reports.) * 100
REPORT STRUCTURE - Reported for CLEC, all CLECs and SWBT
by DDS, DS1, DS3, Voice Grade Private Line (VGPL) and
ISDN and any other services available for resale
BENCHMARK - EQUAL TO SWBT'S OWN
6.7.54 MEASUREMENT - Failure Frequency
DEFINITION - The number of network customer trouble
reports within a calendar month per 100 circuits
CALCULATION - [Count of network trouble reports DIVIDED
BY (Total Resold circuits DIVIDED BY 100)]
<PAGE>
PAGE 18 OF 21
REPORT STRUCTURE - Reported for CLEC, all CLECs and SWBT
by DDS, DS1, DS3, Voice Grade Private Line (VGPL) and
ISDN and any other services available for resale
BENCHMARK - EQUAL TO SWBT's OWN
6.11 DIRECTORY ASSISTANCE (DA) AND OPERATOR SERVICES (OS)
6.11.55 MEASUREMENT - Directory Assistance Grade Of Service
DEFINITION - % of directory assistance calls answered
< 1.5, < 2.5, > 7.5, > 10.0, > 15.0, > 20.0, and > 25.0
seconds
CALCULATION - Calls answered within "X" seconds DIVIDED
BY total calls answered
REPORT STRUCTURE - Reported for the aggregate of SWBT
and CLECs
BENCHMARK - Not required (Aggregate measurement)
6.11.56 MEASUREMENT - Directory Assistance Average Speed Of
Answer
DEFINITION - The average time a customer is in queue.
The time begins when the customer enters the queue and
ends when the call is answered by a SWBT representative
CALCULATION - Total queue time DIVIDED BY total calls
REPORT STRUCTURE - Reported for the aggregate of SWBT
and CLECs
BENCHMARK - Not required (Aggregate measurement)
6.11.57 MEASUREMENT - Operator Services Grade Of Service
DEFINITION - % of operator services calls answered
< 1.5, < 2.5, > 7.5, > 10.0, > 15.0, > 20.0, and > 25.0
seconds
CALCULATION - Calls answered within "x" seconds DIVIDED
BY total calls answered
REPORT STRUCTURE - Reported for the aggregate of SWBT
and CLECs
BENCHMARK - Not required (Aggregate measurement)
6.11.58 MEASUREMENT - Operator Services Average Speed Of Answer
DEFINITION - The average time a customer is in queue.
The time begins when the customer enters the queue and
ends when the call is answered by a SWBT representative
CALCULATION - Total queue time DIVIDED BY total calls
Structure - Reported for the aggregate of SWBT and CLECs
BENCHMARK - Not required (Aggregate measurement)
6.11.59 MEASUREMENT - Percent Calls Abandoned
DEFINITION - The percent of calls where the customer
hangs up while the call is in queue
CALCULATION - (Number of calls abandoned DIVIDED BY
number of operator positions requested) * 100
<PAGE>
PAGE 19 OF 21
REPORT STRUCTURE - Reported for CLEC and SWBT in the
aggregate
BENCHMARK - Not required (Aggregate measurement)
6.11.60 MEASUREMENT - Percent Calls Deflected
DEFINITION - The percent of calls that are received and
are unable to be placed in queue
CALCULATION - (Number of calls deflected DIVIDED BY
number of operator positions requested) * 100
REPORT STRUCTURE - Reported for CLEC and SWBT in the
aggregate
BENCHMARK - Not required (Aggregate measurement)
6.11.61 MEASUREMENT - Average Work Time
DEFINITION - the average number of seconds an operator
spends handling a customer's request for assistance in
obtaining a telephone number, placing a call at the
customer's request or in a position busy state. The
Average Work Time normally begins when the customer
connects to an operator position and ends when the
operator position releases the customer after serving
his/her request.
CALCULATION - Sum (Time operator position releases
customer - time customer connects to an operator
position) DIVIDED BY calls
REPORT STRUCTURE - Reported for CLEC and SWBT in the
aggregate
BENCHMARK - Not required (Aggregate measurement)
6.11.62 MEASUREMENT - Non-Call Busy Work Volumes
DEFINITION - The amount of time in CCS (Centum Call
Second) that an operator has placed their position in
make busy or in a position busy state
CALCULATION - Sum (Time operator position in busy state
- time operator removed position from busy state)
REPORT STRUCTURE - Reported for CLEC and SWBT in the
aggregate
BENCHMARK - Not required (Aggregate measurement)
6.14 911
6.14.63 MEASUREMENT - Average Time To Clear Errors
DEFINITION - The average time it takes to clear an error
after it is detected during the processing of the 911
database file. The clock will start upon receipt of the
error file and end when the error is corrected. This is
only on resale orders that SWBT installs.
CALCULATION - sigma(Date and time error detected -
date and time error cleared) DIVIDED BY total number of
errors
REPORT STRUCTURE - Reported for CLEC, all CLECs and SWBT
BENCHMARK - EQUAL TO SWBT'S OWN
<PAGE>
PAGE 20 OF 21
6.14.64 MEASUREMENT - Percent Accuracy 911 Database Updates
DEFINITION - The percent of 911 records that were
updated by SWBT in error
CALCULATION - (Number of SWBT caused update errors
DIVIDED BY total number of updates) * 100
REPORT STRUCTURE - CLEC, all CLECs and SWBT
BENCHMARK - EQUAL TO SWBT'S OWN
6.17 DIRECTORY ASSISTANCE DATA BASE
6.17.65 MEASUREMENT - Percent DA Database Accuracy For Manual
Updates
DEFINITION - The percent of DA records that were updated
by SWBT in error. The data required to calculate this
measurement will be provided by the CLEC. The CLEC will
provide the number of records transmitted and the errors
found. SWBT will verify the records determined to be in
error to validate that the records were input by SWBT
incorrectly.
CALCULATION - (Number of SWBT caused update errors
DIVIDED BY total number of updates) * 100
REPORT STRUCTURE - Reported by CLEC and all CLECs for
facility based providers
BENCHMARK - 97% accuracy for DA database updates for the
manual DA process
6.17.66 MEASUREMENT - Percent of Electronic Updates that flow
Through the DSR Process Without Manual Intervention
DEFINITION - Percent of DSRs from entry to distribution
that progress through SWBT ordering systems to ALPS/LIRA
CALCULATION - (Number of DSRs that flow through to
ALPS/LIRA DIVIDED BY total LSRs)* 100
REPORT STRUCTURE - CLEC and all CLECs
BENCHMARK - 97%
6.19 NXX
6.19.67 MEASUREMENT - Percent NXXs Loaded And Tested Prior To
The LERG Effective Date
DEFINITION - The percent of NXXs loaded and tested prior
to the LERG effective date
CALCULATION - (Count of NM loaded and tested by LERG
date DIVIDED BY total NXXs loaded and tested) * 100
REPORT STRUCTURE - Reported by CLEC, all CLECs and SWBT
BENCHMARK - EQUAL TO SWBT's OWN
<PAGE>
PAGE 21 OF 21
6.19.68 MEASUREMENT - Average Delay Days For NXX Loading And
Testing
DEFINITION - Average calendar days from due date to
completion date on company missed NXX orders
CALCULATION - Sum (Completion date - LERG date)
DIVIDED BY (number of orders)
REPORT STRUCTURE - Reported for CLEC, all CLECs and
SWBT
BENCHMARK - Equal to SWBT's own
6.19.69 MEASUREMENT - Mean Time To Repair
DEFINITION - Average calendar days from due date to
completion date on company missed NXX orders
CALCULATION - Sum (Completion date - LERG date)
DIVIDED BY (number of orders)
REPORT STRUCTURE - Reported for CLEC, all CLECs and SWBT
BENCHMARK - EQUAL TO SWBT'S OWN
7.0 APPLICABILITY OF OTHER RATES, TERMS AND CONDITIONS
7.1 This appendix, and every service provided hereunder, shall be
subject to all rates, terms and conditions contained in this
Agreement or any other appendices or attachments to this
Agreement which are legitimately related to such service; and
all such rates, terms and conditions are incorporated by
reference herein and as part of every service provided
hereunder. Without limiting the general applicability of the
foregoing, the following terms and conditions of the General
Terms and Conditions are specifically agreed by the Parties to
be legitimately related to, and to be applicable to, each
service Provided hereunder: definitions, interpretation and
construction, notice of changes, general responsibilities of the
Parties, effective date, terra, termination, disclaimer of
representations and warranties, changes in end user local
exchange service provider selection, severability, intellectual
property, indemnification, limitation of liability, force
majeure, confidentiality, disputed amounts, dispute resolution,
intervening law and miscellaneous.
<PAGE>
RESALE
AGREEMENT
BETWEEN
U S WEST COMMUNICATIONS, INC.
AND
ESSENTIAL.COM
FOR
MINNESOTA
Page i
<PAGE>
TABLE OF CONTENTS
<TABLE>
<S> <C>
PART A - GENERAL TERMS....................................................................1
(A)1. SCOPE OF AGREEMENT ...............................................................1
(A)2. DEFINITIONS ......................................................................3
(A)3. TERMS AND CONDITIONS .............................................................4
(A)3.1 General Provisions .............................................................4
(A)3.2 Term of Agreement ..............................................................4
(A)3.3 Proof of Authorization .........................................................5
(A)3.4 Payment.........................................................................6
(A)3.5 Taxes ..........................................................................7
(A)3.6 Force Majeure...................................................................7
(A)3.7 Limitation of Liability.........................................................8
(A)3.8 Indemnity ......................................................................8
(A)3.9 Intellectual Property .........................................................10
(A)3.10 Warranties....................................................................12
(A)3.11 Assignments...................................................................12
(A)3.12 Default.......................................................................13
(A)3.13 Disclaimer of Agency..........................................................13
(A)3.14 Nondisclosure.................................................................14
(A)3.15 Survival......................................................................15
(A)3.16 Dispute Resolution............................................................16
(A)3.17 Controlling Law ..............................................................17
(A)3.18 Joint Work Product ...........................................................17
(A)3.19 Responsibility for Environmental Contamination ...............................17
(A)3.20 Notices.......................................................................18
(A)3.21 Responsibilities of Each Party................................................18
(A)3.22 No Third Party Beneficiaries..................................................19
(A)3.23 Referenced Documents .........................................................19
(A)3.24 Publicity.....................................................................19
(A)3.25 Amendment ....................................................................19
(A)3.26 Executed in Counterparts .....................................................19
(A)3.27 Headings of No Force or Effect ...............................................20
(A)3.28 Regulatory Approval ..........................................................20
(A)3.29 Compliance....................................................................20
(A)3.30 Compliance with the Communications Assistance for Law Enforcement
Act of 1994 ("CALEA") ........................................................20
(A)3.31 Cooperation ..................................................................20
(A)3.32 Availability of Other Agreements .............................................20
PART B - RESALE..........................................................................21
(B)1. Description......................................................................21
(B)2. Terms and Conditions.............................................................21
(B)3. Rates and Charges................................................................25
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<PAGE>
TABLE OF CONTENTS
(B)4. Ordering Process ...............................................................26
(B)5. Billing ........................................................................27
(B)6. Maintenance and Repair .........................................................28
PART C - WHITE PAGES DIRECTORY LISTINGS ...............................................29
(C)1. Description ....................................................................29
(C)2. Terms and Conditions ...........................................................29
PART D- MISCELLANEOUS PROVISIONS ......................................................32
(D)1. Network Security ...............................................................32
(D)2. Access To Operational Support Systems (OSS) ....................................32
(D)3. U S WEST Dex ...................................................................47
(D)4. Notice Of Changes ..............................................................47
(D)5. Maintenance and Repair..........................................................48
(D)6. Service Performance ............................................................54
PART E - MINNESOTA RATES .............................................................62
PART F - SIGNATURE ...................................................................63
</TABLE>
Page iii
<PAGE>
Part A
General Terms
PART A - GENERAL TERMS
This Resale Agreement is between essential.com ("RESELLER"), a Delaware
corporation, and U S WEST Communications, Inc. ("USW"), a Colorado corporation.
(A)1. SCOPE OF AGREEMENT
(A)1.1 Pursuant to this negotiated Resale Agreement ("Agreement"),
RESELLER and USW (collectively, "the Parties") will extend
certain arrangements to one another within the geographical
areas where USW is the incumbent Local Exchange Carrier within
the state of Minnesota for purposes of providing the resale of
local Telecommunications Services. This Agreement or the
portions of this Agreement relative to a particular state will
be submitted to the Minnesota Public Utilities Commission
("Commission") for approval. Notwithstanding this mutual
commitment, however, the Parties enter into this Agreement
without prejudice to any positions they have taken previously,
or may take in the future in any legislative, regulatory, or
other public forum addressing any matters, including matters
related to the types of arrangements prescribed by this
Agreement.
(A)1.2 The provisions in this Agreement are based, in large
part, on the existing state of the law, rules, regulations and
interpretations thereof, as of the date hereof (the "Existing
Rules"). Among the Existing Rules are or could be the results
of arbitrated decisions by the Commission which are currently
being challenged by USW. Among the Existing Rules are certain
FCC rules and orders that are the subject of, or affected by,
the opinion issued by the Supreme Court of the United States
in AT&T CORP., ET AL. V. IOWA UTILITIES BOARD, ET AL. on
January 25, 1999. Nothing in this Agreement shall preclude or
stop USW from taking any position in any forum concerning the
proper interpretation or effect of the Existing Rules or
concerning whether the Existing Rules should be changed,
dismissed, stayed or modified. To the extent that the Existing
Rules are changed, vacated, dismissed, stayed or modified,
then the Parties shall amend this Agreement and all contracts
adopting all or part of this Agreement pursuant to Section
252(i) of the Act, shall be amended to reflect such
modification or change of the Existing Rules. Where the
Parties fail to agree upon such an amendment, it shall be
resolved in accordance with the Dispute Resolution provision
of this Agreement. It is expressly understood that this
Agreement will be corrected to reflect the outcome of generic
pricing proceedings by the Commission. This Section (A)1.2
shall be considered part of the rates, terms and conditions of
each service resale arrangement contained in this Agreement,
and this Section (A)1.2 shall be considered legitimately
related to the purchase of each service for resale arrangement
contained in this Agreement.
(A)1.3 This Agreement is entered into as a result of both private
negotiations between the Parties and the incorporation of some
of the results of arbitrated decisions by the Commission,
acting pursuant to Section 252 (b) of the Act, and involving
interconnection/resale agreements of other parties. The
Parties have included for convenience certain rates, terms or
conditions in this Agreement which reflect
Page 1
<PAGE>
Part A
General Terms
rates, terms or conditions established in some or all of those
other arbitrations. RESELLER acknowledges: (1) that those
rates, terms or conditions are extended only because of the
arbitrated results in other dockets, (2) that USW intends to
appeal certain of those decisions, and (3) that any
negotiations, appeal, stay, injunction or similar proceeding
impacting the applicability of those rates, terms or
conditions to the local service providers who were parties to
those arbitrations will similarly impact the applicability of
those rates, terms or conditions to RESELLER. The Parties
further recognize that this Agreement is subject to the
generic proceedings by the Commission addressing the services
in this Agreement.
(A)1.4 This Agreement sets forth the terms, conditions and prices
under which USW agrees to provide services for resale to
RESELLER, all for the sole purpose of providing
Telecommunications Services.
(A)1.5 In the performance of their obligations under this Agreement,
the Parties shall act in good faith and consistently with the
intent of the Act. Where notice, approval or similar action by
a Party is permitted or required by any provision of this
Agreement, (including, without limitation, the obligation of
the Parties to further negotiate the resolution of new or open
issues under this Agreement) such action shall not be
unreasonably delayed, withheld or conditioned.
(A)1.6 USW may make services and features available to RESELLER for
resale under this Agreement consistent with the way they are
available to USW end users, without a formal amendment to this
Agreement. Nothing herein prevents either Party from raising
other issues through additional good faith negotiations.
(A)1.7 This Agreement is structured in the following format:
Part A - General Terms
Part B - Resale
Part C - Directory Services
Part D - Miscellaneous Provisions
Part E - Rates
Part F - Signature
(A)1.8 Prior to placing any orders for services under this Agreement,
the Parties will jointly complete USW's "Reseller
Questionnaire". This questionnaire will then be used to:
Determine geographical requirements
Identify RESELLER Ids
Determine USW system requirements to support RESELLER specific
activity
Collect credit information
Obtain billing information
Create summary bills
Establish input and output requirements
Create and distribute USW and RESELLER contact lists
Identify client hours and holidays
Page 2
<PAGE>
Part A
General Terms
(A)2. DEFINITIONS
(A)2.1 "Act" means the Communications Act of 1934 (47 U.S.C. 151
et. seq.), as amended by the Telecommunications Act of 1996,
and as from time to time interpreted in the duly authorized
rules and regulations of the FCC or a Commission within its
state of jurisdiction.
(A)2.2 "Basic Exchange Features" are optional end user switched
services that include, but are not necessarily limited to:
Automatic Call Back; Call Trace; Caller ID and Related
Blocking Features; Distinctive Ringing/Call Waiting;
Selective Call Forward; and Selective Call Rejection.
(A)2.3 "Basic Exchange Telecommunications Service" means a service
offered to end users which provides the end user with a
telephonic connection to, and a unique local telephone
number address on the public switched telecommunications
network, and which enables such end user to generally place
calls to, or receive calls from, other stations on the
public switched telecommunications network. Basic residence
and business line services are Basic Exchange
Telecommunications Services. As used solely in the context
of this statement and unless otherwise agreed, Basic
Exchange Telecommunications Service includes access to
ancillary services such as 911, directory assistance and
operator services.
(A)2.4 "Commission" means the Public Utilities Commission(s) in the
state of Minnesota.
(A)2.5 "Enhanced Services" means any service offered over common
carrier transmission facilities that employ computer
processing applications that act on format, content, code,
protocol or similar aspects of the subscriber's transmitted
information; that provide the subscriber with additional,
different or restructured information; or involve end user
interaction with stored information.
(A)2.6 "Interconnect & Resale Resource Guide" is a USW document
that provides essential information needed to request
services available under this Agreement. It is available on
USW's Web site.
(A)2.7 "Interexchange Carrier" or "IXC" means a carrier that
provides interLATA or IntraLATA Toll services.
(A)2.8 "IntraLATA Toll" is defined in accordance with USW's current
intraLATA toll serving areas, as determined by the Federal
Communications Commission.
(A)2.9 "Local Exchange Carrier" or "LEC" means any person that is
engaged in the provision of telephone exchange service or
exchange access. Such term does not include a person insofar
as such person is engaged in the provision of a commercial
mobile service under Section 332(c) of the Act, except to
the extent that the FCC finds that such service should be
included in the definition of such term.
(A)2.10 "Party" means either USW or RESELLER and "Parties" means USW
and RESELLER.
Page 3
<PAGE>
Part A
General Terms
(A)2.11 "Reseller" is a category of local exchange service
provider that obtains dial tone and associated
Telecommunications Services from another provider through
the purchase of finished services for resale to its end
users.
(A)2.12 "Tariff" as used throughout this Agreement refers to USW
interstate Tariffs and state Tariffs, price lists, price
schedules and catalogs.
(A)2.13 "Telecommunications Carrier" means any provider of
Telecommunications Services, except that such term does not
include aggregators of Telecommunications Services (as
defined in Section 226 of the Act). A Telecommunications
Carrier shall be treated as a common carrier under the Act
only to the extent that it is engaged in providing
Telecommunications Services, except that the Federal
Communications Commission shall determine whether the
provision of fixed and mobile satellite service shall be
treated as common carriage.
(A)2.14 "Telecommunications Services" means the offering of
telecommunications for a fee directly to the public, or to
such classes of users as to be effectively available
directly to the public, regardless of the facilities used.
(A)2.15 Terms not otherwise defined here, but defined in the Act
shall have the meaning defined there. Where a term is
defined in the regulations implementing the Act but not in
this Agreement, the Parties do not necessarily intend to
adopt the definition as set forth in said regulations.
(A)3. TERMS AND CONDITIONS
(A)3.1 GENERAL PROVISIONS
(A)3.1.1 Each Party is solely responsible for the
services it provides to its end users and to
other Telecommunications Carriers.
(A)3.1.2 The Parties shall work cooperatively to
minimize fraud associated with intra-LATA
toll, third-number billed calls, and any
other services related to this Agreement.
(A)3.1.3 Nothing in this Agreement shall prevent
either Party from seeking to recover the
costs and expenses, if any, it may incur in
(a) complying with and implementing its
obligations under this Agreement, the Act,
and the rules, regulations and orders of
the FCC and the Commission, and (b) the
development, modification, technical
installation and maintenance of any systems
or other infrastructure which it requires to
comply with and to continue complying with
its responsibilities and obligations under
this Agreement.
(A)3.2 TERM OF AGREEMENT
This Agreement shall become effective upon Commission
approval, pursuant to Sections 251 and 252 of the Act, shall
terminate on January 16, 2002, and shall be binding upon the
Parties during that term, notwithstanding Section 252(i) of
the Act. After the date specified above, this Agreement shall
continue in force and
Page 4
<PAGE>
Part A
General Terms
effect until terminated by either Party providing one hundred
sixty (160) days written notice of termination to the other
Party. The day the notice is served will determine the
starting point for a 160-day negotiation period (in accordance
with 252(b)1 of the Act. In the event of such termination,
existing or pending service arrangements made available under
this Agreement shall continue in total without interruption
under either a) a new or adoption agreement executed by the
Parties, or b) tariff terms and conditions generally
available to all resellers.
(A)3.2.1 If the Parties are unable to negotiate a new
agreement during the negotiation period
described above, the window of opportunity
to file for arbitration to resolve
outstanding contractual issues in accordance
with the Act will occur between days 135 and
160 of the 160 day notice period.
(A)3.2.2 If the Parties are able to reach agreement,
this Agreement shall continue for the brief
period of time needed to secure the
Commission's approval of an adoption
agreement or a new resale agreement. In the
case of Section (A)3.2.1, this Agreement
will expire on the termination date
specified in the one hundred sixty (160) day
notice referenced above, unless a petition
for arbitration has been filed, but if such
a petition has been filed then this
Agreement shall continue for the period
necessary for the Commission to act and
resolve the disputed issues so that the
Parties will have an effective resale
agreement.
(A)3.3 PROOF OF AUTHORIZATION
Where so indicated in specific sections of this Agreement,
each party shall be responsible for obtaining and having in
its possession Proof of Authorization ("POA"). POA shall
consist of verification of the end user's selection and
authorization adequate to document the end user's selection..
Such selection may be obtained in the following ways:
(A)3.3.1 The end user's written Letter of
Authorization.
(A)3.3.2 The end user's electronic authorization by
use of an 1-8XX number.
(A)3.3.3 The end user's oral authorization verified by
an independent third party (with third party
verification as POA).
The Parties shall make POAs available to each other upon
request, in accordance with the applicable laws and rules.
Unless prohibited by applicable laws or regulations, a. charge
of $100.00 ("slamming charge") will be assessed if the POA
cannot be provided supporting the change in service provider.
If there is a conflict between the end user designation and
the other Party's written evidence of its authority, the
Parties shall honor the designation of the end user and change
the end user back to the previous service provider.
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(A)3.4 PAYMENT
(A)3.4.1 Amounts payable under this Agreement are due
and payable within thirty (30) calendar days
after the date of USW's invoice, or within
twenty (20) days after receipt of the
invoice, whichever is later. If the payment
due date is not a Business Day, the payment
shall be made the next Business Day..
USW may discontinue processing orders for the
failure by RESELLER to make full payment for
the services provided under this Agreement
within thirty (30) days of the due date on
RESELLER's bill.
USW may disconnect for the failure by
RESELLER to make full payment for the
services provided under this Agreement within
sixty (60) days of the due date on RESELLER's
bill. RESELLER will pay the Tariff charge
required to reconnect each end user line
disconnected pursuant to this paragraph.
(A)3.4.2 Should RESELLER dispute, in good faith, any
portion of the monthly billing under this
Agreement, RESELLER will notify USW in
writing within thirty (30) calendar days of
the receipt of such billing, identifying the
amount, reason and rationale of such dispute.
RESELLER shall pay all amounts due. Both
RESELLER and USW agree to expedite the
investigation of any disputed amounts in an
effort to resolve and settle the dispute
prior to initiating any other rights or
remedies. Should the dispute be resolved in
RESELLER's favor and the resolved amount did
not appear as a credit on RESELLER's next
invoice from USW, USW will reimburse RESELLER
the resolved amount plus interest from the
date of payment. The amount of interest will
be calculated using the late payment factor
that would have applied to such amount had it
not been paid on time.
(A)3.4.3 USW will determine RESELLER's credit status
based on previous payment history with USW or
credit reports such as Dun and Bradstreet. If
RESELLER has not established satisfactory
credit with USW or if RESELLER is repeatedly
delinquent in making its payments, USW may
require a deposit to be held as security for
the payment of charges. "Repeatedly
delinquent" means being thirty (30) calendar
days or more delinquent for three (3)
consecutive months. The deposit may not
exceed the estimated total monthly charges
for a two (2) month period. The deposit may
be a surety bond, a letter of credit with
terms and conditions acceptable to USW or
some other form of mutually acceptable
security such as a cash deposit. Required
deposits are due and payable within ten (10)
calendar days after demand in accordance with
Commission requirements.
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(A)3.4.4 Interest will be paid on cash deposits at the
rate applying to deposits under applicable
Commission rules, regulations, or Tariffs.
Cash deposits and accrued interest will be
credited to RESELLER's account or refunded,
as appropriate, upon the earlier of the
termination of this Agreement or the
establishment of satisfactory credit with
USW, which will generally be one (1) full
year of timely payments in full by RESELLER.
The fact that a deposit has been made does
not relieve RESELLER from any requirements of
this Agreement.
(A)3.4.5 USW may review RESELLER's credit standing
and modify the amount of deposit required.
(A)3.4.6 The late payment charge for amounts that are
billed under this Agreement shall be in
accordance with state Tariffs/Commission
Rules and Orders.
(A)3.5 TAXES
Each Party purchasing services hereunder shall pay or
otherwise be responsible for all federal, state, or local
sales, use, excise, gross receipts, transaction or similar
taxes, fees or surcharges levied against or upon such
purchasing Party (or the providing Party when such providing
Party is permitted to pass along to the purchasing Party such
taxes, fees or surcharges), except for any tax on either
Party's corporate existence, status or income. Whenever
possible, these amounts shall be billed as a separate item on
the invoice. To the extent a sale is claimed to be for resale
tax exemption, the purchasing Party shall furnish the
providing Party a proper resale tax exemption certificate as
authorized or required by statute or regulation by the
jurisdiction providing said resale tax exemption. Until such
time as a resale tax exemption certificate is provided, no
exemptions will be applied.
(A)3.6 FORCE MAJEURE
Neither Party shall be liable for any delay or failure in
performance of any part of this Agreement from any cause
beyond its control and without its fault or negligence
including, without limitation, acts of nature, acts of civil
or military authority, government regulations, embargoes,
epidemics, terrorist acts, riots, insurrections, fires,
explosions, earthquakes, nuclear accidents, floods, work
stoppages, equipment failure, power blackouts, volcanic
action, other major environmental disturbances, unusually
severe weather conditions, inability to secure products or
services of other persons or transportation facilities or acts
or omissions of transportation carriers (collectively, a
"Force Majeure Event"). The Party affected by a Force Majeure
Event shall give prompt notice to the other Party, shall be
excused from performance of its obligations hereunder on a day
to day basis to the extent those obligations are prevented by
the Force Majeure Event, and shall use reasonable efforts to
remove or mitigate the Force Majeure Event. In the event of a
labor dispute or strike the Parties agree to provide service
to each other at a level equivalent to the level they provide
themselves.
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(A)3.7 LIMITATION OF LIABILITY
(A)3.7.1 Except for losses relating to or arising out
of any act or omission in its performance of
services or functions provided under this
Agreement, each Party shall be liable to the
other for direct damages for any loss,
defect or equipment failure resulting from
the causing Party's conduct or the conduct of
its agents or contractors in performing the
obligations contained in this Agreement.
(A)3.7.2 Neither Party shall be liable to the other
for indirect, incidental, consequential, or
special damages, including (without
limitation) damages for lost profits, lost
revenues, lost savings suffered by the other
Party regardless of the form of action,
whether in contract, warranty, strict
liability, tort, including (without
limitation) negligence of any kind and
regardless of whether the Parties know the
possibility that such damages could result.
(A)3.7.3 Except for indemnity obligations, each
Party's liability to the other Party
for any loss relating to or arising out
of any act or omission in its performance
of services or functions provided under
this Agreement, whether in contract or in
tort, shall be limited to the total
amount that is or would have been charged
to the other Party by such breaching
Party for the service(s) or function(s)
not performed or improperly performed.
(A)3.7.4 Nothing contained in this Section shall limit
either Party's liability to the other for
intentional, malicious misconduct.
(A)3.7.5 Nothing contained in this Section shall limit
either Party's obligations of indemnification
as specified in the Indemnity Section of this
Agreement.
(A)3.7.6 Neither Party shall be liable to the other
under any theory including indemnity on
account of such Party's failure or neglect to
have or maintain a system or systems that are
Year 2000 compliant. As the Parties approach
the Year 2000, date information associated
with any interfaces between the Parties is
expected to remain as it is.
(A)3.8 INDEMNITY
(A)3.8.1 With respect to third party claims, the
Parties agree to indemnify each other as
follows:
(A)3.8.1.1 Except for claims made by end
users of one Party against the
other Party, which claims are
based on defective or faulty
services provided by the other
Party to the one Party, each of
the Parties agree to release,
indemnify, defend and hold
harmless the other Party and
each of its officers,
directors, employees and
agents (each an "Indemnitee")
from and against and in respect
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of any loss, debt, liability,
damage, obligation, claim,
demand, judgment or
settlement of any nature or
kind, known or unknown,
liquidated or unliquidated
including, but not limited to,
costs and attorneys' fees,
whether suffered, made,
instituted, or asserted by any
other party or person, for
invasion of privacy, personal
injury to or death of any
person or persons, or for
loss, damage to, or
destruction of property,
whether or not owned by
others, resulting from the
indemnifying Party's
performance, breach of
applicable law, or status of
its employees, agents and
subcontractors; or for failure
to perform under this
Agreement, regardless of the
form of action.
(A)3.8.1.2 Where the third party claim is
made by (or through) an end user
of one Party against the other
Party, which claim is based on
defective or faulty services
provided by the other Party to
the one Party then there shall
be no obligation of indemnity
unless the act or omission giving
rise to the defective or
faulty services is shown to be
intentional, malicious
misconduct of the other Party.
(A)3.8.1.3 If the claim is made by (or
through) an end user and where a
claim is in the nature of a claim
for invasion of privacy, libel,
slander, or other claim based
on the content of a
transmission, and it is made
against a Party who is not the
immediate provider of the
Telecommunications Service to
the end user (the indemnified
provider), then in the absence
of fault or neglect on the
part of the indemnified
provider, the Party who is the
immediate seller of such
Telecommunications Service
shall indemnify, defend and
hold harmless the indemnified
provider from such claim.
(A)3.8.2 The indemnification provided herein shall be
conditioned upon:
(A)3.8.2.1 The indemnified Party shall
promptly notify the
indemnifying Party of any
action taken against the
indemnified Party relating to
the indemnification. Failure to
so notify the indemnifying
Party shall not relieve the
indemnifying Party of any
liability that the indemnifying
Party might have, except to the
extent that such failure
prejudices the indemnifying
Party's ability to defend such
claim.
(A)3.8.2.2 The indemnifying Party shall have
sole authority to defend any such
action, including the selection
of legal
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counsel, and the indemnified Party may engage
separate legal counsel only at its sole cost and
expense.
(A)3.8.2.3 In no event shall the indemnifying Party settle
or consent to any judgment pertaining to any such
action without the prior written consent of the
indemnified Party.
(A)3.9 INTELLECTUAL PROPERTY
(A)3.9.1 Each Party hereby grants to the other Party the limited,
personal and nonexclusive right and license to use its
patents, copyrights and trade secrets but only to the extent
necessary to implement this Agreement or specifically required
by the then applicable federal and state rules and regulations
relating to Interconnection and access to telecommunications
facilities and services, and for no other purposes. Nothing in
this Agreement shall be construed as the grant to the other
Party of any rights or licenses to trademarks.
(A)3.9.2 The rights and licenses above are granted "AS IS" and the
other Party's exercise of any such right and license shall
be at the sole and exclusive risk of the other Party.
Neither Party shall have any obligation to defend,
indemnify or hold harmless, or acquire any license or
right for the benefit of, or owe any other obligation or
have any liability to, the other based on or arising from
any claim, demand, or proceeding (hereinafter "claim") by
any third party alleging or asserting that the use of any
circuit, apparatus, or system, or the use of any software,
or the performance of any service or method, or the
provision of any facilities by either Party under this
Agreement constitutes infringement, or misuse or
misappropriation of any patent, copyright, trade secret,
or any other proprietary or intellectual property right of
any third party.
(A)3.9.3 As a condition to the access or use of patents, copyrights,
trade secrets and other intellectual property (including
software) owned or controlled by a third party to the
extent necessary to implement this Agreement or
specifically required by the then applicable federal and
state rules and regulations relating to Interconnection
and access to telecommunications facilities and services,
the Party providing access may require the other, upon
written notice, from time to time, to obtain a license or
permission for such access or use, make all payments in
connection with obtaining such license, and provide
evidence of such license.
(A)3.9.4 Except as expressly provided in this Intellectual Property
Section, nothing in this Agreement shall be construed as
the grant of a license, either express or implied, with
respect to any patent, copyright, logo, trademark, trade
name, trade secret or any other intellectual property
right now or hereafter owned, controlled or licensable by
either Party.
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Neither Party may use any patent, copyright, logo,
trademark, trade name, trade secret or other intellectual
property rights of the other Party or its affiliates
without execution of a separate agreement between the
Parties.
(A)3.9.5 Neither Party shall without the express written permission of
the other Party, state or imply that: 1) it is connected,
or in any way affiliated with the other or its
affiliates, 2) it is part of a joint business association
or any similar arrangement with the other or its
affiliates, 3) the other Party and its affiliates are in
any way sponsoring, endorsing or certifying it and its
goods and services, or 4) with respect to its advertising
or promotional activities or materials, that the resold
goods and services are in any way associated with or
originated from the other or any of its affiliates.
Nothing in this paragraph shall prevent either Party from
truthfully describing the network elements it uses to
provide service to its end users, provided it does not
represent the network elements as originating from the
other Party or its affiliates.
(A)3.9.6 For purposes of resale only and notwithstanding the above,
unless otherwise prohibited by USW pursuant to an
applicable provision herein, RESELLER may use the phrase
"RESELLER is a reseller of U S WEST Communications
services" (the "Authorized Phrase") in RESELLER's printed
materials provided:
(A)3.9.6.1 The Authorized Phrase is not used in connection
with any goods or services other than USW services
resold by RESELLER.
(A)3.9.6.2 RESELLER's use of the Authorized Phrase does not
cause end users to believe that RESELLER is USW.
(A)3.9.6.3 RESELLER may not use the U S WEST logo. The
Authorized Phrase, when displayed, appears only
in text form with all letters being the same font
and point size. The point size of the Authorized
Phrase shall be no greater than one fourth the
point size of the smallest use of RESELLER's
name and in no event shall exceed 8 point size.
(A)3.9.6.4 RESELLER shall provide all printed materials using
the Authorized Phrase to USW for its prior
written approval.
(A)3.9.6.5 If USW determines that RESELLER's use of the
Authorized Phrase causes end user confusion, USW
may immediately terminate RESELLER's right to use
the Authorized Phrase.
(A)3.9.6.6 Upon termination of RESELLER's right to use the
Authorized Phrase or termination of this
Agreement, all
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permission or right to use the Authorized
Phrase shall immediately cease to exist and
RESELLER shall immediately cease any and all
such use of the Authorized Phrase. RESELLER
shall either promptly return to USW or destroy
all materials in its possession or control
displaying the Authorized Phrase.
(A)3.9.7 RESELLER acknowledges the value of the marks "U S WEST" and
"U S WEST Communications" (the "Marks") and the goodwill
associated therewith and acknowledges that such goodwill is
a property right belonging to U S WEST, Inc. and USW
respectively (the "Owners"). RESELLER recognizes that
nothing contained in this Agreement is intended as an
assignment or grant to RESELLER of any right, title or
interest in or to the Marks and that this Agreement does
not confer any right or license to grant sublicenses or
permission to third parties to use the Marks and is not
assignable. RESELLER will do nothing inconsistent with the
Owner's ownership of the Marks, and all rights, if any,
that may be acquired by use of the Marks shall inure to the
benefit of the Owners. RESELLER will not adopt, use (other
than as authorized herein), register or seek to register
any mark anywhere in the world which is identical or
confusingly similar to the Marks or which is so similar
thereto as to constitute a deceptive colorable imitation
thereof or to suggest or imply some association,
sponsorship, or endorsement by the Owners. The Owners make
no warranties regarding ownership of any rights in or the
validity of the Marks.
(A)3.10 WARRANTIES
NOTWITHSTANDING ANY OTHER PROVISION OF THIS AGREEMENT, THE
PARTIES AGREE THAT NEITHER PARTY HAS MADE, AND THAT THERE DOES
NOT EXIST, ANY WARRANTY, EXPRESS OR IMPLIED, INCLUDING BUT NOT
LIMITED TO WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A
PARTICULAR PURPOSE.
(A)3.11 ASSIGNMENT
(A)3.11.1 Neither Party may assign or transfer (whether by
operation of law or otherwise) this Agreement (or
any rights or obligations hereunder) to a third
party without the prior written consent of the
other Party. Notwithstanding the foregoing,
either Party may assign or transfer this
Agreement to a corporate affiliate or an entity
under its common control; however, if RESELLER's
assignee or transferee has an interconnection
agreement with USW, no assignment or transfer of
this Agreement shall be effective without the
prior written consent of USW. Such consent shall
include appropriate resolutions of conflicts and
discrepancies between the assignee's or
transferee's interconnection agreement and this
Agreement. The Party making
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the assignment shall notify the Commission
sixty (60) days in advance of the effective
date of the assignment. Any attempted
assignment or transfer that is not permitted is
void AB INITIO. Without limiting the generality
of the foregoing, this Agreement shall be
binding upon and shall inure to the benefit of
the Parties' respective successors and assigns.
(A) 3.11.2 Without limiting the generality of the
foregoing subsection, any merger,
dissolution, consolidation or other
reorganization of RESELLER, or any sale,
transfer, pledge or other disposition by
RESELLER of securities representing more
than 50% of the securities entitled to vote
in an election of RESELLER's board of
directors or other similar governing body,
or any sale, transfer, pledge or other
disposition by RESELLER of substantially
all of its assets, shall be deemed a
transfer of control. If any entity, other
than RESELLER, involved in such merger,
dissolution, consolidation, reorganization,
sale, transfer, pledge or other
disposition of RESELLER has an
interconnection agreement with USW, the
Parties agree that only one agreement,
either this Agreement or the
interconnection agreement of the other
entity, will remain valid. All other
interconnection agreements will be
terminated. The Parties agree to work
together to determine which interconnection
agreement should remain valid and which
should terminate. In the event the Parties
cannot reach agreement on this issue, the
issue shall be resolved through the Dispute
Resolution process contained in this
Agreement.
(A)3.12 DEFAULT
If either Party defaults in the payment of any amount due
hereunder, or if either Party violates any other material
provision of this Agreement, and such default or violation
shall continue for thirty (30) calendar days after written
notice thereof, the other Party must notify the Minnesota
Public Utilities Commission in writing and may seek relief in
accordance with the Dispute Resolution provision of this
Agreement. The failure of either Party to enforce any of the
provisions of this Agreement or the waiver thereof in any
instance shall not be construed as a general waiver or
relinquishment on its part of any such provision, but the same
shall, nevertheless, be and remain in full force and effect.
Neither Party will disconnect the other without first
obtaining the approval of the Commission.
(A)3.13 DISCLAIMER OF AGENCY
Except for provisions herein expressly authorizing a Party to
act for another, nothing in this Agreement shall constitute a
Party as a legal representative or agent of the other Party,
nor shall a Party have the right or authority to assume,
create or incur any liability or any obligation of any kind,
express or implied, against or in the name or on behalf of the
other Party unless otherwise expressly permitted by such other
Party. Except as otherwise expressly provided in this
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Agreement, no Party undertakes to perform any obligation of
the other Party whether regulatory or contractual, or to
assume any responsibility for the management of the other
Party's business.
(A)3.14 NONDISCLOSURE
(A)3.14.1 To the extent permitted by applicable law,
either Party may disclose to the other
proprietary or confidential customer,
technical or business information. All
information, including but not limited to
specifications, microfilm, photocopies,
magnetic disks, magnetic tapes, drawings,
sketches, models, samples, tools, technical
information, data, employee records, maps,
financial reports, and market data, (i)
furnished by one Party to the other Party
dealing with end user specific, facility
specific, or usage specific information,
other than end user information
communicated for the purpose of providing
directory assistance or publication of
directory database, or (ii) in written,
graphic, electromagnetic, or other tangible
form and marked at the time of delivery as
"Confidential" or "Proprietary", or (iii)
communicated and declared to the receiving
Party at the time of delivery, or by
written notice given to the receiving Party
within ten (10) calendar days after
delivery, to be "Confidential" or
"Proprietary" (collectively referred to as
"Proprietary Information"), shall remain
the property of the disclosing Party. A
Party who receives Proprietary Information
via an oral communication may request
written confirmation that the material is
Proprietary Information. A Party who
delivers Proprietary Information via an
oral communication may request written
confirmation that the Party receiving the
information understands that the material
is Proprietary Information.
(A)3.14.2 Upon request by the disclosing Party, the
receiving Party shall return all tangible
copies of Proprietary Information, whether
written, graphic or otherwise, except that the
receiving Party may retain one copy for
archival purposes.
(A)3.14.3 Each Party shall keep all of the other Party's
Proprietary Information confidential and shall
use the other Party's Proprietary Information
only in connection with this Agreement. Neither
Party shall use the other Party's Proprietary
Information for any other purpose except upon
such terms and conditions as may be agreed upon
between the Parties in writing.
(A)3.14.4 Unless otherwise agreed, the obligations of
confidentiality and nonuse set forth in this
Agreement do not apply to such Proprietary
Information as:
(A)3.14.4.1 was at the time of receipt
already known to the
receiving Party free of any
obligation to keep it
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General Terms
confidential evidenced by
written records prepared prior
to delivery by the disclosing
Party; or
(A)3.14.4.2 is or becomes publicly known
through no wrongful act of the
receiving Party; or
(A)3.14.4.3 is rightfully received from a
third person having no direct
or indirect secrecy or
confidentiality obligation to
the disclosing Party with
respect to such information;
or
(A)3.14.4.4 is independently developed by
an employee, agent, or
contractor of the receiving
Party which individual is not
involved in any manner with
the provision of services
pursuant to the Agreement and
does not have any direct or
indirect access to the
Proprietary Information; or
(A)3.14.4.5 is disclosed to a third person
by the disclosing Party
without similar restrictions
on such third person's rights;
or
(A)3.14.4.6 is approved for release by
written authorization of the
disclosing Party; or
(A)3.14.4.7 is required to be made public
by the receiving Party
pursuant to applicable law or
regulation provided that the
receiving Party shall give
sufficient notice of the
requirement to the disclosing
Party to enable the disclosing
Party to seek protective
orders.
(A)3.14.5 Nothing herein is intended to prohibit a Party
from supplying factual information about its
network and Telecommunications Services on or
connected to its network to regulatory agencies
including the Federal Communications Commission
and the Commission so long as any confidential
obligation is protected.
(A)3.14.6 Effective Date Of This Section. Notwithstanding
any other provision of this Agreement, the
Proprietary Information provisions of this
Agreement shall apply to all information
furnished by either Party to the other in
furtherance of the purpose of this Agreement,
even if furnished before the date of this
Agreement.
(A)3.15 SURVIVAL
Any liabilities or obligations of a Party for acts or
omissions prior to the cancellation or termination of this
Agreement; any obligation of a Party under the provisions
regarding indemnification, Confidential or Proprietary
Information, limitations of liability, and any other
provisions of this Agreement which, by their terms, are
contemplated to survive (or to be performed after) termination
of this Agreement, shall survive cancellation or termination
hereof.
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(A)3.16 DISPUTE RESOLUTION
(A)3.16.1 If any claim, controversy or dispute between
the Parties, their agents, employees, officers,
directors or affiliated agents should arise,
and the Parties do not resolve it in the
ordinary course of their dealings (the
"Dispute"), then it shall be resolved in
accordance with the dispute resolution process
set forth in this Section. Each notice of
default, unless cured within the applicable
cure period, shall be resolved in accordance
herewith.
(A)3.16.2 At the written request of either Party, and
prior to any other formal dispute
resolution proceedings, each Party shall
designate an officer-level employee, at no
less than the vice president level, to
review, meet, and negotiate, in good faith,
to resolve the Dispute. The Parties intend
that these negotiations be conducted by
non-lawyer, business representatives, and
the locations, format, frequency, duration,
and conclusions of these discussions shall
be at the discretion of the
representatives. By mutual agreement, the
representatives may use other procedures,
such as mediation, to assist in these
negotiations. The discussions and
correspondence among the representatives
for the purposes of these negotiations
shall be treated as Confidential
Information developed for purposes of
settlement, and shall be exempt from
discovery and production, and shall not be
admissible in any subsequent arbitration or
other proceedings without the concurrence
of both of the Parties.
(A)3.16.3 If the vice-presidential level
representatives have not reached a
resolution of the Dispute within thirty
(30) calendar days after the matter is
referred to them, then either Party may
demand that the Dispute be settled by
arbitration. Such an arbitration proceeding
shall be conducted by a single arbitrator,
knowledgeable about the telecommunications
industry. The arbitration proceedings shall
be conducted under the then current rules
of the American Arbitration Association
("AAA"). The Federal Arbitration Act, 9
U.S.C. Sections 1-16, not state law, shall
govern the arbitrability of the Dispute.
The arbitrator shall not have authority to
award punitive damages. All expedited
procedures prescribed by the AAA rules
shall apply. The arbitrator's award shall
be final and binding and may be entered in
any court having jurisdiction thereof,
subject to review by the Commission. The
Parties shall submit a copy of each
arbitration opinion to the Commission, the
Department of Public Service, and the
Office of Attorney General, Residential and
Small Business Utilities Division. The
arbitrator's decision shall prevail in
effect unless the Commission decides
otherwise within forty-five (45) days. Each
Party shall bear its own costs and
attorneys' fees, and shall share equally in
the fees and expenses of the arbitrator.
The arbitration proceedings
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General Terms
shall occur in the Denver, Colorado metropolitan area.
It is acknowledged that the Parties, by mutual, written
agreement, may change any of these arbitration practices
for a particular, some, or all Dispute(s).
(A)3.16.4 Should it become necessary to resort to court
proceedings to enforce a Party's compliance with the
dispute resolution process set forth herein, and the
court directs or otherwise requires compliance herewith,
then all of the costs and expenses, including its
reasonable attorney fees, incurred by the Party
requesting such enforcement shall be reimbursed by the
non-complying Party to the requesting Party.
(A)3.16.5 No Dispute, regardless of the form of action, arising
out of this Agreement, may be brought by either Party
more than two (2) years after the cause of action
accrues.
(A)3.17 CONTROLLING LAW
This Agreement was negotiated by the Parties in accordance with the
terms of the Act and the laws of the state where service is provided
hereunder. It shall be interpreted solely in accordance with the terms
of the Act and the applicable state law in the state where the service
is provided.
(A)3.18 JOINT WORK PRODUCT
This Agreement is the joint work product of the Parties and has been
negotiated by the Parties and their respective counsel and shall be
fairly interpreted in accordance with its terms and, in the event of
any ambiguities, no inferences shall be drawn against either Party.
(A)3.19 Responsibility for Environmental Contamination
Neither Party shall be liable to the other for any costs whatsoever
resulting from the presence or release of any environmental hazard that
either Party did not introduce to the affected work location. Both
Parties shall defend and hold harmless the other, its officers,
directors and employees from and against any losses, damages, claims,
demands, suits, liabilities, fines, penalties and expenses (including
reasonable attorneys' fees) that arise out of or result from (i) any
environmental hazard that the indemnifying Party, its contractors or
agents introduce to the work locations or (ii) the presence or release
of any environmental hazard for which the indemnifying Party is
responsible under applicable law.
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Part A
General Terms
(A)3.20 NOTICES
Any notices required by or concerning this Agreement shall be
sent to the Parties at the addresses shown below:
USW
Director Interconnection Compliance
1801 California, Room 2410
Denver, CO 80202
With copy to:
U S WEST Law Department
Attention: General Counsel, Interconnection
1801 California Street, 51st Floor
Denver, CO 80202
RESELLER
John Duffy
Peter Mills
3 Burlington Woods Drive
4" Floor
Burlington, MA 01803
Phone: 781-229-9599, ext. 136
Fax: 781-229-9499
E-mail: [email protected]
and
Executive Secretary
Minnesota Public Utilities Commission
121 Seventh Place East, Suite 350
St. Paul, MN 55101-2147
Each Party shall inform the other of any changes in the above
addresses.
(A)3.21 RESPONSIBILITY OF EACH PARTY
Each Party is an independent contractor, and has and hereby
retains the right to exercise full control of and supervision
over its own performance of its obligations under this
Agreement and retains full control over the employment,
direction, compensation and discharge of all employees
assisting in the performance of such obligations. Each Party
will be solely responsible for all matters relating to payment
of such employees, including compliance with social security
taxes, withholding taxes and all other regulations governing
such matters. Each Party will be solely responsible for proper
handling, storage, transport and disposal at its own expense
of all (i) substances or materials that it or its contractors
or agents bring to, create or assume control over at work
locations or, (ii) waste resulting therefrom or otherwise
generated in connection with its or its contractors' or
agents' activities at the work locations. Subject to the
limitations on liability and except as otherwise provided in
this Agreement, each Party shall be responsible for (i) its
own acts and performance of all obligations imposed by
applicable law in
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<PAGE>
connection with its activities, legal status and property,
real or personal and, (ii) the acts of its own affiliates,
employees, agents and contractors during the performance of
that Party's obligations hereunder.
(A)3.22 NO THIRD PARTY BENEFICIARIES
This Agreement does not provide and shall not be construed to
provide third parties with any remedy, claim, liability,
reimbursement, cause of action, or other privilege.
Notwithstanding the foregoing, the Parties agree to give
notice to the Commission of any lawsuits or other proceedings
that involve or arise under the Agreement to ensure that the
Commission has the opportunity to seek to intervene in these
proceedings on behalf of the public interest.
(A)3.23 REFERENCED DOCUMENTS
All references to Sections shall be deemed to be references to
Sections of this Agreement unless the context shall otherwise
require. Whenever any provision of this Agreement refers to a
technical reference, technical publication, RESELLER practice,
USW practice, any publication of telecommunications industry
administrative or technical standards, or any other document
specifically incorporated into this Agreement, it will be
deemed to be a reference to the most recent version or edition
(including any amendments, supplements, addenda, or
successors) of such document that is in effect, and will
include the most recent version or edition (including any
amendments, supplements, addenda, or successors) of each
document incorporated by reference in such a technical
reference, technical publication, RESELLER practice, USW
practice, or publication of industry standards. USW will not
implement changes in the most recent version or edition in the
documents described above when such changes are optional. The
existing configuration of either Party's network may not be in
immediate compliance with the latest release of applicable
referenced documents.
(A)3.24 PUBLICITY
Neither Party shall publish or use any publicity materials
with respect to the execution and delivery or existence of
this Agreement without the prior written approval of the other
Party.
(A)3.25 AMENDMENT
RESELLER and USW may mutually agree to amend this Agreement in
writing. Since it is possible that amendments to this
Agreement may be needed to fully satisfy the purposes and
objectives of this Agreement, the Parties agree to work
cooperatively, promptly and in good faith to negotiate and
implement any such additions, changes and corrections to this
Agreement. The Commission must approve of any amendment,
modification, or supplement to this Agreement.
(A)3.26 EXECUTED IN COUNTERPARTS
This Agreement may be executed in any number of counterparts,
each of which shall be deemed an original; but such
counterparts shall together constitute one and the same
instrument.
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(A)3.27 HEADINGS OF NO FORCE OR EFFECT
The headings of Sections of this Agreement are for convenience
of reference only, and shall in no way define, modify or
restrict the meaning or interpretation of the terms or
provisions of this Agreement.
(A)3.28 REGULATORY APPROVAL
The Parties understand and agree that this Agreement will be
filed with the Commission for approval. In the event the
Commission rejects any portion of this Agreement, renders it
inoperable or creates an ambiguity that requires further
amendment, the Parties agree to meet and negotiate in good
faith to arrive at a mutually acceptable modification.
(A)3.29 COMPLIANCE
Each Party shall comply with all federal, state, and local
laws, rules and regulations applicable to its performance
under this Agreement. Without limiting the foregoing, USW and
RESELLER agree to take all action necessary to keep and
maintain in full force and effect all permits, licenses,
certificates, insurance, and other authorities needed to
perform their respective obligations hereunder.
(A)3.30 COMPLIANCE WITH THE COMMUNICATIONS ASSISTANCE FOR LAW
ENFORCEMENT ACT OF 1994 ("CALEA")
Each Party represents and warrants that any equipment,
facilities or services provided to the other Party under this
Agreement comply with CALEA. Each Party shall indemnify and
hold the other Party harmless from any and all penalties
imposed upon the other Party for such noncompliance and shall
at the noncompliant Party's sole cost and expense, modify or
replace any equipment, facilities or services provided to the
other Party under this Agreement to ensure that such
equipment, facilities and services fully comply with CALEA.
(A)3.31 COOPERATION
The Parties agree that this Agreement involves the provision
of USW services in ways such services were not previously
available and the introduction of new processes and procedures
to provide and bill such services. Accordingly, the Parties
agree to work jointly and cooperatively in testing and
implementing processes for pre-ordering, ordering,
maintenance, provisioning and billing and in reasonably
resolving issues which result from such implementation on a
timely basis. Electronic processes and procedures are
addressed in Part D of this Agreement.
(A)3.32 AVAILABILITY OF OTHER AGREEMENTS
With regard to the availability of other agreements, the
Parties agree that the provisions of Section 252(i) of the Act
shall apply, including state and federal, Commission and court
interpretive regulations and decisions in effect from time to
time.
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PART B - RESALE
(B)1. DESCRIPTION
(B)1.1 Pursuant to the Act and this Part B, USW shall offer
for resale at wholesale rates any Telecommunications
Services it provides to end users who are not
Telecommunications Carriers including terms and
conditions (except prices) in the USW Tariffs, where
applicable. RESELLER may obtain intraLATA toll service
from USW for resale or RESELLER has the option to
self-provision intraLATA toll or to obtain intraLATA
toll for resale from another provider.
(B)1.2 The Parties agree that certain USW services are not
available for resale under this Agreement and certain
other USW services are available for resale but not at
a discount, as identified in Part E or in individual
state Tariffs. The availability of services and
applicable discounts identified in Part E or in
individual Tariffs are subject to change pursuant to
the Rates and Charges sub-section of this Resale
section.
(B)2. TERMS AND CONDITIONS
(B)2.1 Basic Exchange Telecommunications Service, Basic Exchange
Features, Private Line Service, Frame Relay Service and
intraLATA Toll may be resold only for their intended or
disclosed use and only to the same class of end user to
which USW sells such services (e.g., residence service may
not be resold to business end users). Service provided
directly to RESELLER for its own use, such as
administrative services, must be identified by RESELLER
and RESELLER must pay the full retail rates and prices for
such services.
(B)2.2 USW shall provide to RESELLER Telecommunications Services
for resale that are at least equal in quality, and in
substantially the same time and manner that USW provides
these services to others, including other Resellers and
end users, and in accordance with any applicable
Commission service quality standards, including standards
the Commission may impose pursuant to Section 252 (e)(3)
of the Act.
(B)2.3 In the event that there are existing agreements between
RESELLER and USW for resale under USW retail Tariff
discounts, RESELLER may elect to continue to obtain
services for resale under the existing agreements and
retail Tariff discounts or RESELLER may elect to terminate
such existing agreements and obtain such services under
this Agreement with the associated wholesale discount
specified in Part E of this Agreement.
(B)2.4 In accordance with the Act, RESELLER will provide the date
it will begin to offer Telecommunications Services to
residential and business end users. RESELLER will provide
a two (2) year forecast within ninety (90) calendar days
of signing this Agreement The forecast shall be updated
and provided to USW on a annual basis or as requested by
USW. Each forecast will provide:
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Part B
Resale
- The date service will be offered (by city and/or
state)
- The type and quantity of service(s) which will be
offered
- RESELLER's anticipated number of service orders
- Name of RESELLER's key contact personnel
The information provided pursuant to this paragraph shall
be considered Proprietary Information under the
Nondisclosure Section of this Agreement.
(B)2.5 RESELLER may not reserve blocks of USW telephone numbers,
except as allowed by Tariffs.
(B)2.6 USW will accept at no charge one primary listing for each
main telephone number belonging to RESELLER's end user
based on end user information provided to USW by RESELLER.
USW will place RESELLER's listings in USW's directory
listing database for directory assistance purposes.
Additional terms and conditions with respect to directory
listings are described in Part C of this Agreement.
(B)2.7 USW shall provide to RESELLER, for RESELLER's end
users, E911/911 call routing to the appropriate Public
Safety Answering Point ("PSAP). USW shall not be
responsible for any failure of RESELLER to provide
accurate end user information for listings in any
databases in which USW is required to retain and/or
maintain end user information.. USW shall provide and
validate RESELLER's end user information to the
Automatic Location Identification/Database Management
System ("ALI/DMS"). USW shall use its standard process
to update and maintain, on the same schedule that it
uses for its end users, RESELLER's end user service
information in the ALI/DMS used to support E911/911
services. USW assumes no liability for the accuracy of
information provided by RESELLER.
(B)2.8 If USW provides and RESELLER accepts operator
services, directory assistance, and intraLATA long
distance as a part of the resold line, it will be
offered with standard USW branding. RESELLER is not
permitted to alter the branding of these services in
any manner when the services are a part of the resold
line without the prior written approval of USW.
However, at the request of RESELLER and where
technically feasible, USW will rebrand operator
services and directory assistance in RESELLER's name,
provided the charges associated with such rebranding
are paid by RESELLER.
(B)2.9 RESELLER shall designate the Primary Interexchange Carrier
(PIC) assignments on behalf of its end users for interLATA
services and intraLATA services.
(B)2.10 When end users switch from USW to RESELLER, or to
RESELLER from any other Reseller, and if they do not
change their service address to an address served by a
different Central Office, such end users shall be
permitted to retain their current telephone numbers if
they so desire. USW shall take no action to prevent
RESELLER end users from retaining their current telephone
numbers.
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Part B
Resale
(B)2.11 RESELLER is liable for all fraud associated with service
to its end-users and accounts. USW takes no
responsibility, will not investigate, and will make no
adjustments to RESELLER's account in cases of fraud unless
such fraud is the result of any intentional act or gross
negligence of USW. Notwithstanding the above, if USW
becomes aware of potential fraud with respect to
RESELLER's accounts, USW will promptly inform RESELLER
and, at the direction of RESELLER, take reasonable action
to mitigate the fraud where such action is possible.
(B)2.12 Resold services are available only where facilities
currently exist and are capable of providing such
services without construction of additional facilities
or enhancement of existing facilities. However, if
RESELLER requests that facilities be constructed or
enhanced to provide resold services, USW will review
such requests on a case-by-case basis and determine if
it is economically feasible for USW to build or
enhance facilities. If USW decides to build or enhance
the requested facilities, USW will develop and provide
to RESELLER a price quote for the construction.
Construction charges associated with resold services
will be applied in the same manner that construction
charges apply to USW's retail end users. If the quote
is accepted, RESELLER will be billed the quoted price
and construction will commence after receipt of
payment.
(B)2.13 In the event USW terminates the provisioning of any
resold services to RESELLER for any reason, including
RESELLER's non-payment of charges, RESELLER shall be
responsible for providing any and all necessary notice to
its end users of the termination. In no case shall USW be
responsible for providing such notice to RESELLER's end
users. USW will provide notice to RESELLER of USW's
termination of a resold service on a timely basis
consistent with Commission rules and notice requirements.
(B)2.14 The underlying network provider of a resold service shall
be entitled to receive, from the purchaser of Switched
Access, the appropriate access charges pursuant to its
then effective Switched Access Tariff.
(B)2.15 Centrex terms and conditions related to calculation of
charges for, and provisioning of common blocks, station
lines, and optional features will be based on the Centrex
definition of a system and a [Resellers] serving location.
(B) 2.15.1 Where a common block is applicable, a
Centrex system is defined by a single common
block or multiple common blocks for a single
RESELLER within a single Central Office
switching system. A common block defines the
dialing plan for intercom calling, access to
Public Switched Network and/or private
facilities, station line and system
restrictions and feature access arrangements
and functionality. RESELLER may purchase
multiple common blocks within a single
Central Office switching system when
RESELLER
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<PAGE>
Part B
Resale
requires different dialing plans, feature
access arrangements and station line or
system restrictions within a single system
operation. A Reseller with multiple common
blocks within the same Central Office switch
may have Network Access Register and Private
Facility trunk groups aggregated across
multiple common blocks. Centrex system based
optional features (i.e. Automatic Route
Selection) may not be aggregated across
multiple common blocks. A Centrex system
must provide station lines to at least one
location and may provide station lines to
multiple locations.
(B) 2.15.2 Centrex station lines are provisioned
and charges are calculated based on
serving [Reseller's] location. A location
is defined as the site where USW
facilities (cable plant from the serving
Central Office switch) meet RESELLER
facilities (inside wire). In a multi-
tenant building, USW may bring
facilities directly to a single point of
interconnection with RESELLER
facilities, typically in a basement
equipment room, which would be
considered a single location for this
multi-tenant building. Should USW bring
service to multiple floors or offices
within a multi-tenant building each
floor or office with a separate RESELLER
facilities termination point is
considered a location. Multiple
buildings within contiguous property
(campus) will be provisioned and billed
as a single location. Contiguous
property is defined as property owned or
leased by a single end user and not
separated by public thoroughfare, river
or railroad rights-of-way. Property will
be considered contiguous when connected
via connecting passageways or conduit
acceptable to USW for its facilities. A
Reseller with Centrex station lines from
multiple Central Office switching
systems, within the same USW Wire
Center, and provisioned to the same
location will not be charged for service
or provisioned as if service was
originating from a single Centrex
system. For example, station lines may
only be aggregated from a single Centrex
Reseller system to a single Reseller
serving location for rating purposes.
RESELLER may not specify a USW Central
Office as a RESELLER location for
termination of Centrex station lines.
(B)2.16 Private Line Service used for Special Access is available
for resale but not at a discount.
(B)2.17 DSL Service (such as Megabit Service) is available for resale
by RESELLER out of USW's Interstate Tariff, but at no
wholesale discount.
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<PAGE>
Part B
Resale
(B)3. RATES AND CHARGES
(B)3.1 The Telecommunications Services identified in Part E are
available for resale at the wholesale discount percentage
shown in Part E. Telecommunications Services available for
resale but excluded from the wholesale pricing arrangement
in this Agreement are available at the retail Tariff
rates.
(B)3.2 The Customer Transfer Charges (CTC) as specified in
Part E apply when transferring services to RESELLER.
(B)3.3 A Subscriber Line Charge (SLC), or any subsequent
federally mandated charge to end users, will continue to
be paid by RESELLER without discount for each local
exchange line resold under this Agreement. All federal and
state rules and regulations associated with SLC as found
in the applicable Tariffs also apply.
(B)3.4 RESELLER will pay to USW the PIC change charge without
discount for RESELLER end user changes of interexchange or
intraLATA carriers. Any change in RESELLER's end users'
interexchange or intraLATA carrier must be requested by
RESELLER on behalf of its end user.
(B)3.5 RESELLER agrees to pay USW when its end user activates any
services or features that are billed on a per use or per
activation basis subject to the applicable discount in
Part E as such may be amended pursuant to this Section
(e.g., continuous redial, last call return, call back
calling, call trace, etc.).
(B)3.6 Product specific non-recurring charges, as set forth in
USW's applicable Tariffs will apply when additional lines,
trunks or circuits are added or when the end user adds
features or services to existing lines or trunks.
(B)3.7 Miscellaneous charges, if applicable, will be consistent
with charges for equivalent services ordered by USW end
users.
(B)3.8 The wholesale discount rates in Part E established in
the Minnesota Docket Nos. P-442,421/M-96-855, P5321,
421/M96-909 and P-3167, 421M/-96-729, Order Resolving
Issues after Reconsideration and Approving Contract,
"In the Matter of AT&T Communications of the Midwest,
Inc., MCIMetro Access Transmission Services, Inc. and
MFS Communications Company, for Arbitration of the
Interconnection Rates, Terms and Pursuant to 47 U.S.C.
Sec. 252(b) of the Telecommunications Act of 1996",
(the "AT&T Rate Arbitration") are interim rates and
are pending the outcome of a final Commission decision
in an interconnection cost docket. Such rates, as
adopted in this Agreement, will be subject to true-up
from the date those rates became effective in this
Agreement to the effective date of the final
interconnection cost docket order. Notwithstanding
this true-up obligation, the Parties agree that rates
in this Agreement will remain in effect as described
below until the exhaustion of all appeals of the final
order in the interconnection cost docket.
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Part B
Resale
(B)3.9 The Parties intend that, if the AT&T rates or the
services in the AT&T Arbitration are changed by any
negotiations, appeal, stay, injunction, settlement, or
similar proceeding with respect to AT&T, those rates
and services, if they have been adopted into this
Agreement, shall be changed in this Agreement to the
same extent as the rates and services in the AT&T
Arbitration. Notwithstanding the above, the Parties
agree that in the event a stay or injunction is
granted with respect to the implementation of the
services and rates in the AT&T Arbitration, the
Parties agree that the telecommunications services
still available for resale following the stay or
injunction will be available to RESELLER, effective as
of the date of the stay order or injunction, at a
wholesale discount rate of 12% (the "Standard Rate")
until such time as a nonappealable order establishes a
wholesale discount rate(s). If the Standard Rate
becomes effective pursuant to this paragraph, the
Standard Rate will also be subject to true-up to the
rate(s) established in the nonappealable order for the
period that the Standard Rate was in effect. If the
AT&T rates or the applicability of the rate to the
services in Part E is changed by a nonappealable
administrative or judicial order following approval of
negotiated rates, rates reached in an approved
settlement agreement, a decision on appeal or other
similar proceeding, such changed rate(s) will be
available to RESELLER, effective as of the date of the
order. The AT&T rate shall be subject to true-up to
the changed rates for the period of time the AT&T rate
was in effect. Notwithstanding the above, no true-up
of either the Standard Rate or the AT&T rate will
occur unless ordered as a part of the nonappealable
administrative or judicial order.
(B)3.10 If the resold services are purchased pursuant to Tariffs
and the Tariff rates change, charges billed to RESELLER
for such services will be based upon the new Tariff rates
less the applicable wholesale discount, if any, as agreed
to herein or as established by Commission order and/or
resale Tariff. The new rate will be effective upon the
Tariff effective date.
(B)4. ORDERING PROCESS
(B)4.1 RESELLER, or RESELLER's agent, shall act as the single
point of contact for its end users' service needs,
including without limitation, sales, service design,
order taking, provisioning, change orders, training,
maintenance, trouble reports, repair, post-sale
servicing, billing, collection and inquiry. RESELLER
shall inform its end users that they are end users of
RESELLER for resold services. RESELLER's end users
contacting USW will be instructed to contact RESELLER;
however, nothing in this Agreement, except as provided
below, shall be deemed to prohibit USW from discussing
its products and services with RESELLER's end users
who call USW.
(B)4.2 RESELLER shall transmit to USW all information necessary
for the ordering (billing, listing and other information),
installation, repair, maintenance and post-installation
servicing according to USW's standard procedures, as
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Part B
Resale
described in the USW Interconnect & Resale Resource Guide
available on USW's Web site. Information shall be provided
using USW's designated Local Service Request (LSR) format
which may include the LSR, end user and resale forms.
RESELLER must send USW complete and accurate end user
listing information for Directory Assistance, Directory
Listings, and 911 Emergency Services using USW's
designated resale directory listing order forms. When
USW's end user or the end user's new service provider
orders the discontinuance of the end user's existing
service in anticipation of moving to another service
provider, USW will render its closing bill to the end user
effective with the disconnection. If another service
provider, RESELLER's end user or RESELLER requests that
service be discontinued from RESELLER and subsequently
USW's service to RESELLER is discontinued USW will issue a
bill to RESELLER for that portion of the service provided
to RESELLER.. USW will notify RESELLER by FAX, OSS
interface or other agreed upon processes, in accordance
with the OSS section of this Agreement when an end user
moves to another service provider. USW will not provide
RESELLER with the name of the other service provider
selected by the end user.
(B)4.3 RESELLER shall provide USW and USW shall provide RESELLER
with points of contact for order entry, problem resolution
and repair of the resold services.
(B)4.4 Prior to placing orders on behalf of the end user,
RESELLER shall be responsible for obtaining and have in
its possession Proof of Authorization ("POA"), as set
forth in Part A of this Agreement.
(B)4.5 Due date interval standards are addressed in the
Interconnect & Resale Resource Guide.
(B)4.6 Firm Order Confirmation (FOC) guidelines are addressed in
the Interconnect & Resale Resource Guide.
(B)4.7 USW will provide completion notification that is equal to
that provided to USW end users.
(B)4.8 USW will provide Design Layout Records when requested
under terms and conditions consistent with USW end users.
(B)4.9 USW will handle jeopardy orders based upon the same
performance standards and criteria that USW provides to
itself.
(B)5. BILLING
(B)5.1 USW shall bill RESELLER and RESELLER is responsible for
all applicable charges for the resold services as
provided herein. RESELLER shall also be responsible for
all Tariffed charges and charges separately identified in
this Agreement associated with services that RESELLER
resells to an end user under this Agreement.
(B)5.2 USW shall provide RESELLER, on a monthly basis, within
7-10 calendar days of the last day of the most recent
billing period, in an agreed upon standard electronic
billing format as detailed in Part D, billing information
including (1) a
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Part B
Resale
summary bill, and (2) individual end user sub-account
information consistent with the samples available for
RESELLER review.
(B)6. MAINTENANCE AND REPAIR
RESELLER and USW will employ the procedures for handling misdirected
repair calls as specified in the Maintenance and Repair Section of this
Agreement.
(B)6.1 USW will maintain facilities and equipment used to provide
RESELLER resold services. RESELLER or its end user may not
rearrange, move, disconnect, or attempt to repair USW
facilities or equipment, other than by connection or
disconnection to any interface between USW and the end user,
without written consent of USW.
(B)6.2 Maintenance and repair processes are detailed in the
Maintenance and Repair Section of this Agreement.
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Part C
Directory Listings
PART C - WHITE PAGES DIRECTORY LISTINGS
(C)1. DESCRIPTION
White Pages Listings Service (Listings) consists of USW placing the
names, addresses and telephone numbers of RESELLER's end users in
USW's listing database, based on end user information provided to
USW by RESELLER. USW is authorized to use Listings in Directory
Assistance (DA) and as noted below.
(C)2. TERMS AND CONDITIONS
(C)2.1 RESELLER will provide in standard, mechanized format, and USW
will accept at no charge, one primary listing for each main
telephone number belonging to RESELLER's end users. Primary
listings for RESELLER will include the end user Listings for
any resold services or wireless services and are further
defined in USW's general exchange Tariffs. RESELLER will be
charged for premium and privacy listings, (e.g., additional,
foreign, cross reference, informational, etc.), at USW's
general exchange listing Tariff rates, less the wholesale
discount. If RESELLER utilizes Remote Call Forwarding for
local number portability, RESELLER can list only one number
without charge - either the end user's original telephone
number or RESELLER-assigned number. The standard discounted
rate for an additional listing applies to the other number.
(C)2.2 USW will furnish RESELLER the Listings format specifications.
All manual requests are considered a project and require
coordination between RESELLER and USW to determine time frames.
(C)2.3 RESELLER grants USW a non-exclusive license to incorporate
Listings information into its Directory Assistance database.
With this license USW will incorporate Listings in the DA
database.
(C)2.4 No prior authorization is needed for USW to release Listings to
directory publishers or other third parties. USW will incorporate
Listings information in all existing and future directory
assistance applications developed by USW. RESELLER authorizes USW
to sell and otherwise make Listings available to directory
publishers. Listings shall not be provided or sold in such a
manner as to segregate end users by carrier. USW will not charge
for updating and maintaining the Listings database. RESELLER
will not receive compensation from USW for any sale of Listings
by USW.
(C)2.5 To the extent that state Tariffs limit USW's liability with
regard to Listings, the applicable state Tariff(s) is
incorporated herein and supersedes the Limitation of Liability
section of this Agreement with respect to Listings only.
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(C)2.6 USW is responsible for maintaining Listings, including entering,
changing, correcting, rearranging and removing Listings in
accordance with RESELLER orders. USW will take reasonable steps
in accordance with industry practices to accommodate
non-published and non-listed Listings provided that RESELLER
has supplied USW the necessary privacy indicators on such
Listings.
(C)2.7 USW will include RESELLER Listings in USW's Directory Assistance
service to ensure that callers to USW's Directory Assistance
service have non-discriminatory access to RESELLER's Listings.
(C)2.8 USW will ensure RESELLER Listings provided to USW are included
in the white pages directory published on USW's behalf.
(C)2.9 RESELLER agrees to provide to USW its end user names, addresses
and telephone numbers in a standard mechanized format, as
specified by USW.
(C)2.10 RESELLER will supply its ACNA/CIC or CLCC/OCN, as appropriate,
with each order to provide USW the means of identifying
Listings ownership.
(C)2.11 Upon request by USW, RESELLER shall submit proof to USW, of
authorization from each end user for which RESELLER submits
a change in end user's Listing.
(C)2.12 RESELLER represents and warrants the end user information
provided to USW is accurate and correct. RESELLER further
represents and warrants that it has reviewed all Listings
provided to USW, including end user requested restrictions
on use such as non-published and non-listed. RESELLER shall
be solely responsible for knowing and adhering to state laws
or rulings regarding Listings (e.g., no solicitation
requirements in the states of Arizona and Oregon, privacy
requirements in Colorado), and for supplying USW with the
applicable Listing information.
(C)2.13 RESELLER is responsible for all dealings with, and on behalf
of, RESELLER's end users, including:
(C)2.13.1 All end user account activity, (e.g. end user
queries and complaints).
(C)2.13.2 All account maintenance activity, (e.g., additions,
changes, issuance of orders for Listings to USW).
(C)2.13.3 Determining privacy requirements and accurately
coding the privacy indicators for RESELLER's end
user information. If end user information provided
by RESELLER to USW does not contain a privacy
indicator, no privacy restrictions will apply.
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(C)2.13.4 Any additional services requested by RESELLER's
end users.
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PART D - MISCELLANEOUS PROVISIONS
(D)1. NETWORK SECURITY
(D)1.1 Protection of Service and Property - Each Party shall exercise
the same degree of care to prevent harm or damage to the other
Party and any third parties, its employees, agents or end users,
or their property as it employs to protect its own personnel,
end users and property, etc. Each Party shall comply at all
times with USW security and safety procedures and requirements.
(D)1.2 Revenue Protection - USW shall make available to RESELLER all
present and future fraud prevention or revenue protection
features. These features include, but are not limited to
screening codes, and 900 numbers.
(D)1.3. Law Enforcement Interface - USW provides emergency assistance
to 911 centers and law enforcement agencies seven (7) days a
week/twenty-four (24) hours a day. Assistance includes, but is
not limited to release of 911 trace and subscriber
information; in-progress trace requests; establishing
emergency trace equipment, release of information from an
emergency trap/trace or *57 trace; requests for emergency
subscriber information; assistance to law enforcement agencies
in hostage/barricade situations, kidnappings, bomb threats,
extortion/scams, runaways and life threats.
(D)1.4 USW provides trap/trace, pen register and Title III assistance
directly to law enforcement, if such assistance is directed by
a court order. This service is provided during normal business
hours, Monday through Friday. Exceptions are addressed in the
above paragraph. The charges for these services will be billed
directly to the law enforcement agency, without involvement of
RESELLER, for any lines served from USW Wire Centers or cross
boxes.
(D)1.5 In all cases involving telephone lines served from USW Wire
Centers or cross boxes, USW will perform trap/trace Title III
and pen register assistance directly with law enforcement.
RESELLER will not be involved or notified of such actions, due
to non-disclosure court order considerations, as well as
timely response duties when law enforcement agencies are
involved. Exceptions to the above will be those cases, as yet
undetermined, where RESELLER must participate due to technical
reasons wherein its circuitry must be accessed or modified to
comply with law enforcement, or for legal reasons that may
evolve over time. RESELLER will provide USW with a 24 hour a
day, 7 days a week contact for processing such requests,
should they occur.
(D)2. ACCESS TO OPERATIONAL SUPPORT SYSTEMS (OSS)
(D)2.1 Description
(D)2.1.1 USW has developed and shall continue to provide
Operational Support Systems OSS interfaces using
electronic gateways. These gateways act as a
mediation or control point between RESELLER's
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and USW's OSS. These gateways provide security
for the interfaces, protecting the integrity of
the USW OSS and its databases. USW's OSS
interfaces have been developed to support
Pre-ordering, Ordering and Provisioning,
Maintenance and Repair and Billing. Included
below is a description of the products and
functions supported by USW OSS interfaces and
the technology used by each. This section
describes the interfaces that USW has developed
and shall provide RESELLER. Additional
technical information and details shall be
provided by USW in training sessions and
documentation, such as the "Interconnect
Mediated Access User's Guide". USW will
continue to make improvements to the electronic
interfaces as technology evolves, providing
notification to RESELLER consistent with the
provisions of this Section.
(D)2.1.2 Through its electronic gateways, USW shall
provide RESELLER nondiscriminatory access to
USW's operational support systems for
pre-ordering, ordering and provisioning,
maintenance and repair, and billing for resale.
For the pre-ordering, ordering and provisioning
of resold services, USW shall provide RESELLER
access to its OSS in substantially the same
time and manner as it provides to itself.
(D)2.2 OSS Support for Pre-Ordering, Ordering and Provisioning
(D)2.2.1 LSR (Local Service Request) Ordering Process
(D)2.2.1.1 RESELLER shall use electronic interfaces
for orders placed using the LSR Ordering
Process for the services it supports. The
electronic interface gateways include both
the Electronic Data Interchange (EDI)
interface and the Interconnect Mediated
Access (IMA) Graphical User Interface
(GUI).
(D)2.2.1.2 The EDI interface provides a single
interface for Pre-Order and Order
transactions from RESELLER to USW and is
transaction based rather than batch based.
The interface standards for EDI are based
upon the Order & Billing Forum (OBF) Local
Service Order Guidelines (LSOG), the
Telecommunication Industry Forum (TCIF)
Customer Service Guideline and the American
National Standards Institute/Accredited
Standards Committee (ANSI ASC) X12 with
exceptions as specified in the IMA and EDI
disclosure documents which are provided in
conjunction with the implementation
responsibilities contained in this Section.
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(D)2.2.1.3 The IMA GUI also provides a single
interface for Pre-Order and Order
transactions from RESELLER to USW and is
browser based The IMA GUI interface is
based on the LSOG and utilizes a WEB
standard technology, Hyper Text Markup
Language (HTML), JAVA, and the
Transmission Control Protocol/Internet
Protocol (TCP/IP) to transmit messages.
(D)2.2.1.4 Functions
(D)2.2.1.4.1 Pre-ordering
Pre-Ordering refers to the set of
activities performed in conjunction
with placing an order. Pre-order
consists of the following functions:
validate address, service
availability, review Customer Service
Record (CSR), check facility
availability, reserve telephone
numbers, and schedule an appointment.
The electronic interface gateways
provide on-line capabilities to
perform these functions. Not all
functions apply to all products.
(D)2.2.1.4.1.1 Validate address will verify
the end user's address.
(D)2.2.1.1.4.1.2 Service Availability
will return the list of
(1) POTS products and
services available in
the Central Office
switch serving a
particular end user
address, which will
indicate to RESELLER,
among other things,
which products and
services are authorized
for resale in the
Central Office switch
serving a particular
end user address and
(2) non-switched-based
products and services
that RESELLER is
authorized to provide
according to its
resale agreement with
USW.
(D)2.2.1.1.4.1.3 Review Customer Service
Record (CSR) gives
RESELLER the ability to
request a display of
local exchange services
and features (CPNI) USW
is currently providing
to an end user.
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(D)2.2.1.4.1.4 Check Facility Availability
will provide an indication of whether
existing facilities are available or
if new facilities are required, and
if a technician must be dispatched to
provide the facilities requested at
the end user's address. This
transaction does not reserve
facilities and does not guarantee
that facilities will or will not be
available when the order is submitted.
(D)2.2.1.4.1.5 Reserve Telephone Numbers
provides RESELLER with the ability
to select an end user's telephone
number. The reservation process is
further divided into telephone
number availability, selection,
exchange and return functionality.
Expiration period for selection and
submission of Telephone Number are:
- A period up to thirty (30) minutes
in which to make a telephone number
selection. If this time limit is
exceeded, and no attempt has been made
to select the telephone numbers, the
telephone numbers are sent back to the
OSS and an error message is displayed
on the LSR. A new query will need to
be performed for available telephone
numbers.
- When a telephone number has been
reserved, there is a twenty-four (24)
hour business period that the
telephone number may be included on
an LSR. If the time limit is exceeded,
the telephone number is returned to
the OSS.
(D)2.2.1.4.1.6 Schedule Appointment allows
RESELLER to retrieve a calendar of
available appointments and to reserve
an appointment date and time so that a
technician can be dispatched for
premises and/or non-premises work.
(D)2.2.1.4.1.7 Expiration period for
selection and submission of
Appointment Reservation are:
- A selection must be made within a
thirty (30) minute period. If an
appointment
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has been selected and the time
limit was exceeded, an error
message will display. If the error
message displays, an updated list
of available appointments will
need to be requested. If an
appointment has already been
reserved for this Purchase Order
Number, the Appointment
Confirmation window will be
displayed and will be
pre-populated with confirmation
number, appointment date and time,
and after and before times.
- Appointments are reserved for a
24-hour business period. If the
appointment is not attached to a
submitted order within 24 business
hours, the appointment is
returned. When the appointment is
successfully reserved,
confirmation of the appointment
will be displayed to RESELLER.
(D)2.2.1.4.2 Ordering and Provisioning
Submitting an LSR will result in the
provisioning and installation, if
necessary, of an end user's service.
The functional set associated with
ordering is: Create New LSR, Open LSR,
Query LSR Status and FOC Return.
(D)2.2.1.4.2.1 Create New LSR allows entry
of information specific to the LSR,
including required OBF forms,
validates information and submits the
LSR for processing.
(D)2.2.1.4.2.2 Open LSR allows RESELLER to
save LSRs it is not ready to submit
for processing as a pending status.
When an LSR is saved as pending, all
the data in all the forms associated
with the LSR is saved. This feature
permits RESELLER to access, edit,
submit, re-save, and purge pending
LSRs. In addition, for issued LSRs,
RESELLER can issue supplemental LSRs
and cancellations.
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(D)2.2.1.4.2.3 Query LSR Status allows
RESELLER to obtain the status of the
LSR. Status is provided to RESELLER
upon inquiry. Order status functions
include the following: Submitted, In
Review, Issued, Rejected, Erred,
Completed and Jeopardy.
(D)2.2.1.4.2.4 FOC Return returns a Firm
Order Confirmation to RESELLER. The
FOC confirms that USW has received a
SR, issued an order, and assigned an
order number for tracking.
(D)2.2.1.5 Forecast of Usage
(D)2.2.1.5.1 RESELLER shall supply USW with a
forecast of products and volumes
they anticipate ordering through
the electronic interface
gateways on a quarterly basis.
(D)2.2.1.5.2 USW will use RESELLER's forecast
to provide RESELLER sufficient
capacity to provide the services
and elements requested. If
RESELLER exceeds its capacity
without notification, to the
extent that it causes
degradation to other users'
response times, RESELLER's use
of its capacity on the IMA or
EDI server may be discontinued
until a resolution can be
mutually agreed to by both
Parties. USW will attempt to
notify RESELLER before
discontinuing RESELLER's use of
the IMA or EDI server; however
USW reserves the right to
discontinue use if it is unable
to contact RESELLER.
(D)2.2.1.5.3 When RESELLER requests more than
twenty (20) Secure IDs from USW
RESELLER shall use a T1 line
instead of dial-up capabilities.
(D)2.2.1.6. Access Service Request (ASR) Ordering
Process
(D)2.2.1.6.1 The Exchange Access Control and
Tracking (EXACT) system may be
used for orders placed using the
ASR process. EXACT is based upon
the OBF Access Service Order
Guidelines (ASOG). The EXACT
interface accepts a batch
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file that is transmitted via a
Network Data Mover (NDM)
connection to USW from RESELLER.
It is RESELLER's responsibility
to obtain the appropriate
software to interface with USW's
EXACT system.
(D)2.2.1.7 Facility Based EDI Listing Process
(D)2.2.1.7.1 The Facility Based EDI Listing
Process is a single interface
from RESELLER to USW. This
interface is based upon the OBF
LSOG and ANSI ASC X12 standards,
version 4010. This interface
enables RESELLER listing data to
be translated and passed into
the USW listing database. After
USW's daily batch processing, a
Confirmation/Completion record
(for every PON provided on
input) is returned to RESELLER
via an EDI 855 transaction.
(D)2.2.2 Maintenance and Repair
(D)2.2.2.1 Maintenance and Repair electronic
interfaces support the tracking and
resolution of end users' repair and
maintenance needs as reported to
RESELLER. They facilitate the exchange
of updated information and progress
reports between USW and RESELLER while
the Trouble Report (TR) is open and a
USW technician is working on the
resolution.
(D)2.2.2.2 RESELLER shall use the electronic
interface gateways for reporting
trouble. The electronic interface
gateways are comprised of either the
Mediated Access System Electronic
Bonding (MEDIACC EB) interface or the
IMA GUI interface.
(D)2.2.2.3 The MEDIACC Electronic Bonding (EB)
interface uses CMIP protocol over
X.25 packet switching network using
ANS T1M1.5 227/228 standards.
(D)2.2.2.4 The IMA GUI also provides a single
interface for trouble reporting from
RESELLER to USW and is browser based.
The IMA GUI interface uses a Berkley
Socket interface using ANSI T1M1.5
227/228 standards. The IMA GUI uses
JAVA as the standard. The IMA GUI
Interface currently supports trouble
reporting for resale services.
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(D)2.2.2.5 Functions
(D)2.2.2.5.1 Maintenance and Repair - The
functions, processes and systems
used in repair are based on a
Trouble Report (TR), which is an
electronic document maintained
in one or more OSS. A TR
contains information about the
end user, the trouble, the
status of the work on the
trouble and the results of the
investigation and resolution
efforts. These business
processes will be made available
to RESELLER in the following
functional set: open a trouble
report, modify a trouble report,
notification of status change,
view trouble report status,
cancel a trouble report, receive
a trouble report history,
resubmit/delete an erred trouble
report and close a trouble
report.
(D)2.2.2.5.1.1 Open Trouble Report is
the mechanism that captures
information needed to resolve
the trouble. Once a TR has been
opened, if RESELLER is using
MEDIACC EB, USW sends an
electronic transaction to
RESELLER identifying information
about the TR (E.G., commitment
date and tracking number).
(D)2.2.2.5.1.2 In IMA for POTS, and in
EBTA for POTS and designed
services, Modify Trouble Report
allows RESELLER to modify the
trouble severity (for example;
change from "service affecting"
to "out of service") and trouble
narrative on a TR until it has
been cleared.
(D)2.2.2.5.1.3 Status Change
Notification provides
notification to RESELLER that
the status of a previously
opened TR has changed. if
RESELLER is using MEDIACC EB,
RESELLER will receive this
notification via an electronic
transaction. If RESELLER is
using the IMA GUI Interface,
RESELLER will receive this
notification via email and/or
fax.
(D)2.2.2.5.1.4 View Trouble Report
Status/Trouble Report Status
Request allows RESELLER to
view the status of an opened
Trouble Report. If RESELLER is
using MEDIACC EB, USW sends an
electronic transaction to
RESELLER with the
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status of an opened TR after
RESELLER sends an electronic
transaction to request the
status.
(D)2.2.2.5.1.5 Cancel Trouble Report
allows RESELLER to request
cancellation of a previously
opened TR. Once a request to
cancel is received, an orderly
cessation of the trouble
resolution process begins. If
USW has completed any work
before the trouble resolution
process is stopped, charges to
RESELLER may apply.
(D)2.2.2.5.1.6 Trouble Report History
provides RESELLER with
historical information on up to
the last three trouble reports.
For POTS resale, the disposition
and trouble report date and time
are provided. For design
services resale, the trouble
report date and time, a text
description of the disposition,
the USW Trouble Report Number,
and the trouble type are
provided. IMA provides trouble
report history.
(D)2.2.2.5.1.7 Resubmit/Delete allows
trouble reports to be
resubmitted or deleted via IMA
GUI if, prior to entering USW's
OSS, the transaction fails or
errors. This transaction is
only valid if the TR has not
entered USW's OSS. This
transaction is currently only
available via IMA GUI.
(D)2.2.5.1.8 Close a Trouble Report for
resale, allows USW to close the
TR once work is complete. For
design resale services, USW
sends RESELLER a request for
verification to close. RESELLER
then authorizes or denies the
closure. RESELLER has
twenty-four (24) hours to
respond. If a response is not
received within that time frame,
the TR will automatically be
closed. USW provides
notification to RESELLER that a
TR has been closed because the
trouble was resolved. Additional
information, (e.g., disposition,
disposition description, outage
duration, maintenance of
service, charge indicator) is
also included. If RESELLER is
using EB, RESELLER will receive
this response via an electronic
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transaction. If RESELLER is using
the IMA GUI Interface, RESELLER will
receive this response via email and/or
fax.
(D)2.2.2.5.1.9 MLT test results give [-Reseller] the
ability to request a loop test for
POTS service via EBTA. When RESELLER
submits a TR throught IMA, the
technician handling the TR will order
a MLT test in appropriate situations.
(D)2.3 Hours of Operation
USW's electronic interface gateways will be available to Resellers
according to the following schedule:
<TABLE>
<CAPTION>
- --------------------------------------- ------------------------ --------------------- ------------------------
Function Monday - Friday Saturday Sunday
- --------------------------------------- ------------------------ --------------------- ------------------------
<S> <C> <C> <C>
IMA Pre-Order & Order 06:00 - 20:00
- --------------------------------------- ------------------------ --------------------- ------------------------
Exact Order 06:00 - 19:00 07:00 - 17:00
- --------------------------------------- ------------------------ --------------------- ------------------------
Repair 02:15 - 23:15 07:00 - 21:00 13:00 - 17:00
- --------------------------------------- ------------------------ --------------------- ------------------------
</TABLE>
USW shall notify Resellers regarding system downtime through
mass facsimile distribution and pop-up windows in the IMA
GUI. All referenced times are Mountain Time.
The preceding times represent the period when USW commits that
its OSS interfaces and downstream systems will be functioning
(except for unforeseen system crashes) and its personnel will
be available to assist RESELLER. USW's OSS interfaces are
typically available 23 hours a day. RESELLER may call any
maintenance and repair issues to the applicable repair center
24 hours per day, seven days per week. USW shall provide
RESELLER current repair contact numbers.
(D)2.4 Billing
(D)2.4.1 For products billed out of the USW
Interexchange Access Billing System (IABS), USW
will utilize the existing CABS/BOS format and
technology for the transmission of bills.
(D)2.4.2 For products billed out of the USW Customer Record
Information System (CRIS), USW will utilize the existing
EDI standard for the transmission of monthly local billing
information. EDI is an established standard under the
auspices of the American National Standards Institute/
Accredited Standards Committee (ANSI/ASC) X12 Committee. A
proper subset of this specification has been adopted by
the Telecommunications Industry Forum (TCIF) as the "811
Guidelines" specifically for the purposes of
telecommunications billing.
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(D)2.5 Outputs
Output information will be provided to RESELLER in the form of bills,
files, and reports. Bills will capture all regular monthly and
incremental/usage charges and present them in a summarized format. The
files and reports delivered to RESELLER provide more detailed
information than the bills. They come in the following categories:
<TABLE>
<CAPTION>
- ----------------------------------- ---------------------------------------------------------------
Usage Record File Line Usage Information
- ----------------------------------- ---------------------------------------------------------------
<S> <C>
Loss and Completion Order Information
- ----------------------------------- ---------------------------------------------------------------
Category 11 Facility Based Line Usage Information
- ----------------------------------- ---------------------------------------------------------------
SAG/FAM Street Address/Facility Availability Information
- ----------------------------------- ---------------------------------------------------------------
</TABLE>
(D)2.5.1 Bills
(D)2.5.1.1 CRIS Summary Bill - The CRIS (Customer Record
Information System) Summary Bill represents
a monthly summary of charges for most
wholesale products sold by USW. This bill
includes a total of all charges by entity
plus a summary of current charges and
adjustments on each sub-account. Individual
sub-accounts are provided as billing detail
and contain monthly, one time charges and
incremental/call detail information. The
Summary provides one bill and one payment
document for RESELLER. These bills are
segmented by state and bill cycle. The number
of bills received by RESELLER is dictated by
the product ordered and the USW region in
which RESELLER is operating.
(D)2.5.1.2 IABS Bill - The IABS (Interexchange Access
Billing System) Bill represents a monthly
summary of charges. This bill includes
monthly and one time charges plus a summary
of any usage charges. These bills are
segmented by product, LATA, billing account
number (BAN) and bill cycle.
(D)2.5.2 Files and Reports
(D)2.5.2.1 Daily Usage Record File provides the
accumulated set of call information for a
given day as captured, or " recorded" by the
network switches. This file will be
transmitted Monday through Friday, excluding
USW holidays. This information is a file of
un-rated USW originated usage messages and
rated RESELLER originated usage messages. It
is provided in Alliance for Telecommunication
Industry Solution (ATIS) standard
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Electronic Message Interface (EMI) format.
This EMI format is outlined in the document
SR-320; which can be obtained directly from
ATIS. The Daily Usage Record File contains
multi-state data for the Data Processing
Center generating this information.
Individual state identification information
is contained with the message detail. USW
will provide this data to RESELLER with the
same level of precision and accuracy it
provides itself. This file will be provided
for Resale services.
(D)2.5.2.2 The charge for this Daily Usage Record File
is contained in Part E of this Agreement.
(D)2.5.2.3 Routing of in-region IntraLATA Collect,
Calling Card, and Third Number Billed
Messages - USW will distribute in-region
intraLATA collect, calling card, and third
number billed messages to RESELLER and
exchange with other Co-Providers operating
in region in a manner consistent with
existing inter-company processing agreements.
Whenever the daily usage information is
transmitted to a carrier, it will contain
these records for these types of calls as
well.
(D)2.5.2.4 Loss Report provides RESELLER with a daily
report that contains a list of accounts that
have had lines and/or services disconnected.
This may indicate that the end user has
changed Resellers or removed services from an
existing account. This report also details
the order number, service name and address,
and date this change was made. Individual
reports will be provided for resale services.:
(D)2.5.2.5 Completion Report provides RESELLER with a
daily report. This report is used to advise
RESELLER that the order(s) for the service(s)
requested is complete. It details the order
number, service name and address and date
this change was completed. Individual reports
will be provided for resale services.:
This report media is described in Exhibit C.
(D)2.5.2.6 Category 11 Records are Exchange Message
Records (EMR) which provide mechanized record
formats that can be used to exchange access
usage information between USW and RESELLER.
Category 1101 series
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records are used to exchange detailed
access usage information.
(D)2.5.2.7 Category 1150 series records are used
to exchange summarized Meet Point
Billed access minutes-of-use.
These mechanized records are
available from USW in the following
formats:
NDM (direct connect or dial-up)
Comet
Tape
Cartridge
(D)2.5.2.8 SAG/FAM Files - The SAG (Street
Address Guiders)/FAM (Facility
Availability Matrix) files contain the
following information:
SAG provide: - Address and Serving
Central Office Information.
FAM provides USOCs and descriptions
by state - (POTS services only.) USOC
availability by NPA-NXX (with the
exception of Centrex). interLATA/
intraLATA carriers by NPA/NXX.
These files are made available via a
download process. They can be
retrieved by ftp (file transfer
protocol), NDM (Network Data Mover)
connectivity, or a Web browser.
(D)2.6 Modifications to OSS Interfaces
(D)2.6.1 RESELLER and USW agree to discuss the
modification of OSS interfaces based upon
evolving standards (e.g., data elements,
protocols, transport networks, etc.) and
guidelines issued by or referenced by relevant
Alliance for Telecommunication Industry Solution
(ATIS) committees. Establishment of new, or
changes to industry standards and guidelines will
be reviewed semi-annually. The review will
consider standards and guidelines that have
reached final closure as well as those published
in final form. Both Parties agree to evaluate
evolving standards and determine the relevant
modification to be implemented based upon the
latest approved version adopted or the latest
version reflecting final closure by the relevant
ATIS committee or subcommittee. As a result of
the review, USW shall draft appropriate interface
specifications that shall be made available to
RESELLER through the electronic gateway
disclosure document. Changes shall be implemented
in the next release after the distribution of the
electronic gateway disclosure document to the
Resellers.
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(D)2.6.2 In the course of establishing operational ready
system interfaces between USW and RESELLER to
support local service delivery, RESELLER and USW
may need to define and implement system interface
specifications that are supplemental to existing
standards. RESELLER and USW will submit such
specifications to the appropriate standards
committee and will work towards their acceptance
as a standard.
(D)2.6.3 Release updates will be based on regulatory
obligations as dictated by the FCC or Commissions
and, as time permits, business requirements. USW
will provide to RESELLER the features list for
modifications to the interface. Specifications
for interface modifications will be provided to
RESELLER three (3) weeks prior to the release
date. RESELLER is required to upgrade to the
current release within six (6) months of the
installation date.
(D)2.7 Reseller Responsibilities for Implementation of OSS Interfaces
(D)2.7.1 Before any RESELLER implementation can begin,
RESELLER must completely and accurately answer
the New Customer Questionnaire. This
questionnaire is provided by the USW account
manager and details information needed by USW
in order to establish service for RESELLER.
(D)2.7.2 Once USW receives a complete and accurate New
Customer Questionnaire, USW and RESELLER will
mutually agree upon time frames for RESELLER
implementation.
(D)2.7.3 If using the EDI interfaces, USW will provide
RESELLER with a copy of the Production
Readiness Verification document. RESELLER is
obligated to meet the requirements specified in
the Production Readiness Verification document
regardless of whether RESELLER chooses to
participate in the Production Readiness
Verification Test.
(D)2.8 Reseller Responsibilities for On-going Support for OSS
Interfaces
(D)2.8.1 If using the IMA GUI interface, RESELLER must
work with USW to train RESELLER personnel on
the IMA GUI functions that RESELLER will be
using. USW and RESELLER shall concur on which
IMA GUI functions should be included in
RESELLER's training. USW and RESELLER shall
make reasonable efforts to schedule training in
a timely fashion.
(D)2.8.2 An exchange protocol will be used to transport
EDI formatted content. RESELLER must perform
certification testing of exchange protocol
prior to using EDI.
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(D)2.8.3 If RESELLER is using EDI, USW shall provide
RESELLER with a pre-allotted amount of time to
complete certification of its business scenarios.
It is the sole responsibility of RESELLER to
schedule an appointment with USW for
certification of its business scenarios. RESELLER
must comply with the agreed upon dates and times
scheduled for the certification of its business
scenarios. If the certification of business
scenarios is delayed due to RESELLER, it is the
sole responsibility of RESELLER to schedule new
appointments for certification of its business
scenarios. Conflicts in the schedule could result
in certification being delayed. If a delay is due
to USW, USW will honor RESELLER's schedule
through the use of alternative hours.
(D)2.8.4 If RESELLER is using the EDI interface, RESELLER
must work with USW to certify the business
scenarios that RESELLER will be using in order to
ensure successful transaction processing. USW and
RESELLER shall mutually agree to the business
scenarios for which RESELLER is required to be
certified. Certification is granted only for a
specific release of EDI. New releases of EDI may
require recertification of some or all business
scenarios. A determination as to the need for
re-certification will be made by the USW
Coordinator in conjunction with the release
manager of each EDI release. Notice of the need
for re-certification will be provided to RESELLER
three (3) weeks prior to the release date.
(D)2.8.5 In the event of Electronic Interface trouble,
RESELLER shall use its best efforts to isolate
and resolve the trouble using the guidelines
provided in the Production Readiness
Verification document. If RESELLER cannot
resolve the problem, then RESELLER should
contact the LSP Systems Help Desk. The LSP
Systems Help Desk is RESELLER's Single Point of
Contact for electronic interface trouble.
(D)2.9 Reseller Support
(D)2.9.1 USW shall provide adequate assistance to RESELLER
for RESELLER to understand how to implement and
use the OSS functions for which USW provides
access. This assistance will include training,
documentation, and a LSP Help Desk. The LSP Help
Desk will provide a single point of entry for
RESELLER to gain assistance in areas involving
connectivity, system availability, and file
outputs. The LSP Systems Help Desk is available
Monday through Friday, 6:00 a.m. until 8:00 p.m.
Mountain Time, excluding USW holidays. The Help
Desk areas are further described below..
(D)2.9.1.1 Connectivity covers trouble with
RESELLER's access to the USW
system for hardware configuration
requirements with relevance to
EDI and IMA GUI;
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software configuration
requirements with relevance to
EDI and IMA GUI; modem
configuration requirements; T1
configuration and dial in string
requirements; firewall access
configuration; Secure ID
configuration; Profile Setup and
password verification.
(D)2.9.1.2 System availability covers system
errors generated during an
attempt by RESELLER to place
orders or open trouble reports
through EDI and IMA GUI. These
system errors are limited to:
POTS; Design Services and Repair.
(D)2.9.1.3 File Outputs covers RESELLER's
output files and reports produced
from its usage and order activity.
File outputs system errors are
limited to: Daily Usage File;
Loss / Completion File; IABS
Bill; CRIS Summary Bill; Category
11 Report and SAG/FAM Reports.
(D)2.9.2 Additional assistance to Resellers is available
through various web sites. These web sites
provide electronic interface training information
and user documentation and technical
specifications.
(D)2.1 Compensation/ Cost Recovery
On-going and one-time startup charges, as applicable, will be
billed at rates to be specified by the Commission at the
completion of an appropriate cost docket hearing. USW shall
establish rates for any systems charges not included in
appropriate cost docket hearings.
(D)3. US WEST DEX
USW and RESELLER agree that certain issues outside the provision of basic
white page directory listings, such as yellow pages advertising, yellow
pages listings, directory coverage, directory distribution, access to call
guide pages (phone service pages), applicable listings criteria, white
page enhancements and publication schedules will be the subject of
negotiations between RESELLER and directory publishers, including
U S WEST Dex. USW acknowledges that RESELLER may request USW to
facilitate discussions between RESELLER and U S WEST Dex.
(D)4. NOTICE OF CHANGES
Notice should be written and provide pertinent descriptive information of
such changes, within the limitations of confidentiality and disclosure,
such that the other Party can evaluate potential effects. Also included
with the written notice should be contact names and phone numbers for
subsequent discussions.
This represents good faith effort on the part of the Parties and will
evolve over time as required for the effective provision of resale
services and end user service delivery.
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(D)5. MAINTENANCE AND REPAIR
(D)5.1 Service Levels
(D)5.1.1 USW will provide repair and maintenance for all
services covered by this Agreement in a manner
equal to that which USW provides for itself.
(D)5.1.2 During the term of this Agreement, USW will
provide necessary maintenance business process
support to allow RESELLER to provide similar
service quality to that provided by USW to its
end users.
(D)5.1.3 USW will perform repair service that is equal
in timeliness and quality to that which it
provides to its own end users.
(D)5.2 Branding
(D)5.2.1 Should USW need to use various forms for
communication with RESELLER end users (while
out on premises dispatch on behalf of
RESELLER, for example), USW will use unbranded
forms.
(D)5.2.2 If required by RESELLER, USW will use branded
forms provided at RESELLER's full expense,
covering training costs, storage, printing,
distribution and all other branding-related
costs.
(D)5.3 Service interruptions
(D) 5.3.1 The characteristics and methods of operation of
any circuits, facilities or equipment of either
Party connected with the services, facilities or
equipment of the other Party pursuant to this
Agreement shall not: 1) interfere with or impair
service over any facilities of the other Party;
its affiliated companies, or its connecting and
concurring carriers involved in providing its
services; 2) cause damage to their plant; 3)
violate any applicable law or regulation
regarding the invasion of privacy of any
communications carried over the Party's
facilities; or 4) create hazards to the employees
of either Party or to the public. Each of these
requirements is hereinafter referred to as an
"Impairment of Service".
(D) 5.3.2 If it is confirmed that either Party is causing
an Impairment of Service, as set forth in this
Section, the Party whose network or service is
being impaired (the "Impaired Party") shall
promptly notify the Party causing the Impairment
of Service (the "Impairing Party") of the nature
and location of the problem. The Impaired Party
shall advise the Impairing Party that, unless
promptly rectified, a temporary discontinuance
of the use of any circuit, facility or equipment
may be required. The Impairing Party and the
Impaired Party agree to work together to attempt
to promptly resolve the Impairment of Service. If
the Impairing Party is unable to promptly remedy
the Impairment of
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Service, the Impaired Party may temporarily
discontinue use of the affected circuit,
facility or equipment.
(D) 5.3.3 To facilitate trouble reporting and to
coordinate the repair of the service provided
by each Party to the other under this
Agreement, each Party shall designate a repair
center for such service.
(D) 5.3.4 Each Party shall furnish a trouble reporting
telephone number for the designated repair
center. This number shall give access to
the location where records are normally located
and where current status reports on any trouble
reports are readily available. If necessary,
alternative out-of-hours procedures shall be
established to ensure access to a location that
is staffed and has the authority to initiate
corrective action.
(D) 5.3.5 Before either Party reports a trouble condition,
it shall use its best efforts to isolate the
trouble to the other's facilities
(D) 5.3.5.1 In cases where a trouble condition
affects a significant portion of
the other's service, the Parties
shall assign the same priority
provided to other Resellers and
to itself.
(D) 5.3.5.2 The Parties shall cooperate in
isolating trouble conditions.
(D)5.4 Trouble Isolation
(D)5.4.1 According to applicable state Tariffs, USW will
bill appropriate Trouble Isolation Charges for
dispatched work done by USW where the trouble
is found to be on the end user's side of the
NID or trouble is found to be in RESELLER's
portion of the network.
(D)5.4.2 Other Trouble Isolation Charges may also be
imposed by USW on RESELLER for other internal
repair work incurred on behalf of RESELLER and
later found to be in RESELLER network
components.
(D)5.5 Inside Wire Maintenance
Except where specifically required by state or federal
regulatory mandates, USW will not perform any maintenance of
inside wire (premises wiring beyond the end user's NID) for
RESELLER or its end users.
(D)5.6 Testing/Test Requests/Coordinated Testing
(D)5.6.1 USW will make the decision to test an end
user's line or circuit. The test systems used
by USW are finite, and their capacity has been
designed according to USW's operating standards.
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(D)5.6.2 Although some types of trouble reports
typically will not require a test, USW usually
runs certain standard tests on each line on
which trouble has been reported.
(D)5.6.3 Prior to any test being conducted on a line, USW
must receive a trouble report from RESELLER.
(D)5.6.4 USW end users are not given test results. On
manually-reported trouble USW will not provide
to RESELLER the test results for its trouble
reports. For electronically-reported trouble,
RESELLER may see various basic test results.
(D)5.7 Workcenter Interfaces
(D)5.7.1 USW and RESELLER shall work cooperatively to
develop positive, close working relationships
among corresponding work centers involved in
the trouble resolution processes..
(D)5.8 Misdirected Repair Calls
(D)5.8.1 RESELLER shall inform its own end users where
to report their trouble conditions. Persons
placing a misdirected repair call will be
advised to call their own telephone service
provider and will be provided the correct
telephone number for that purpose (this
referral may occur within a voice response
system or other interactive systems).
(D)5.8.2 RESELLER and USW will employ the following
procedures for handling misdirected repair calls;
(D)5.8.2.1 RESELLER and USW will provide
their respective end users with
the correct telephone numbers
to call for access to their
respective repair bureaus.
(D)5.8.2.2 End users of RESELLER shall be
instructed to report all cases
of trouble to RESELLER. End
users of USW shall be
instructed to report all cases
of trouble to USW.
(D)5.8.2.3 To the extent the correct
provider can be determined,
misdirected repair calls will
be referred to the proper
provider of Basic Exchange
Telecommunications Service.
(D)5.8.2.4 RESELLER and USW will provide
their respective repair contact
numbers to one another on a
reciprocal basis.
(D)5.8.2.5 In responding to repair calls,
neither Party shall make
disparaging remarks about each
other, nor shall they use these
repair calls as the basis for
internal referrals or to
solicit end users to market
services.
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(D)5.8.2.6 Performance targets for speed
of repair call answering will
be the same as USW`s
performance targets for its own
end users.
(D)5.9 Major Outages/Restoral/Notification
(D)5.9.1 USW will notify RESELLER of major network
outages as soon as is practical. This
notification will be via e-mail to RESELLER's
identified contact. With the minor exception
of certain proprietary information, USW will
utilize the same thresholds and processes for
external notification as it does for internal
purposes. This major outage information will
be sent via E-mail on the same frequency
schedule as is provided internally within USW.
Service restoration will be non-
discriminatory, and will be accomplished as
quickly as possible according to USW and/or
industry standards.
(D)5.9.2 If desired, USW will meet with associated
personnel from RESELLER to share contact
information and review USW's outage restoral
processes and notification processes.
(D)5.9.3 USW's emergency restoration process operates on a
7X24 basis.
(D)5.10 Proactive Maintenance
(D)5.10.1 USW will perform scheduled maintenance equal in
quality to what it provides to itself.
(D)5.10.2 USW will work cooperatively with RESELLER to
develop industry-wide processes to provide as
much notice as possible to RESELLER of pending
maintenance activity. Such process work will
include establishment of reasonable thresholds
and notification standards.
(D)5.11 Hours of Coverage
(D)5.11.1 USW's repair operation is 7 days a week, 24
hours a day. Not all functions or locations
are covered with scheduled employees on a 7X24
basis. Where such 7X24 coverage is not
available USW's repair operations center
(always available 7X24) can call-out
technicians or other personnel required for
the situation.
(D)5.12 Escalations
(D)5.12.1 USW will provide trouble escalation procedures
to RESELLER. Such procedures will be based on
the processes USW employs for its own end
users. USW escalations are manual processes.
(D)5.12.2 USW repair escalations begin with calls to the
up-front trouble reporting centers.
(D)5.13 Dispatch
(D)5.13.1 USW will provide maintenance dispatch
personnel on the same schedule provided for
its end users.
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(D)5.13.2 Upon receipt of a trouble report from
RESELLER, USW will do all that is reasonable
and practical, according to internal and
industry standards, to resolve the repair
condition. USW will dispatch repair personnel,
if necessary, to repair the condition. It will
be USW's decision whether it is necessary to
send a technician on a dispatch. USW will make
this dispatch decision based on the best
information available in the trouble
resolution process. Since it is not always
necessary to dispatch to resolve trouble;
should RESELLER require a dispatch when USW
believes the dispatch is not necessary,
appropriate charges may be billed to RESELLER
for dispatch-related costs.
(D)5.13.3 For non-designed resale services USW will not
request authorization from RESELLER prior to
dispatch. For lines supported by USW's
designed services process, USW may accept
RESELLER authorization to dispatch. USW's
operational processes are regularly reviewed
and may be altered in the future. Should
processes be changed, RESELLER will be
notified.
(D)5.13.4 USW expects that RESELLER will have performed
appropriate trouble isolation and screening
prior to handing the trouble report off to
USW.
(D)5.14 Electronic Reporting
(D)5.14.1 USW will accept repair reports from RESELLER
through a mechanized system (IMA).
(D)5.14.2 USW will work cooperatively to develop repair
reporting via electronic bonding (other than
IMA), based on national standards.
(D)5.15 Intervals
(D)5.15.1 Similar trouble conditions, whether reported
by USW end users or on behalf of RESELLER end
users, will receive similar commitment
intervals.
(D)5.16 Jeopardy Management
(D)5.16.1 Notification will be given as soon as USW is
aware that a trouble report interval is likely
to be missed. This process will be the same as
that used by USW for its own end users.
(D)5.17 Trouble Screening
(D)5.17.1 RESELLER shall screen and test its end user
trouble reports completely enough to insure
that it sends USW only trouble reports that
involve USW facilities.
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(D)5.17.2 If desired, USW will cooperate with RESELLER to
show RESELLER how USW screens trouble
conditions in its own centers, so that RESELLER
may employ similar techniques in its centers.
(D)5.18 Maintenance Standards
(D)5.18.1 USW will cooperate with RESELLER to meet the
maintenance standards outlined in this Agreement.
(D)5.18.2 For manually-reported trouble, USW will inform
RESELLER of repair completion as soon as
practical after completion. On electronically
reported trouble reports the electronic system
will automatically update status information,
including trouble completion, across the joint
electronic gateway.
(D)5.19 End User Interfaces
(D)5.19.1 RESELLER will be responsible for all
interactions with its end users including
service call handling and notifying end users
of trouble status and resolution.
(D)5.19.2 All USW employees who perform repair service
for RESELLER end users will be trained in
non-discriminatory behavior.
(D)5.20 Repair Call Handling
(D)5.20.1 Manually-reported repair calls by RESELLER to
USW will be answered with the same quality and
speed USW answers calls from its own end users.
(D)5.21 Single Point of Contact
(D)5.21.1 USW will provide a single point of contact for
RESELLER to report maintenance issues and
trouble reports via electronic interfaces seven
days a week, twenty-four hours a day.
(D)5.21.2 For manually-reported trouble reports, a single
7X24 trouble reporting telephone number will be
provided to RESELLER for each category of
trouble situation encountered.
(D)5.22 Maintenance Windows
(D)5.22.1 Generally, USW performs major switch
maintenance activities during off-hours time
periods, during certain "maintenance windows"
in the early morning hours and/or on weekends.
(D)5.22.2 Generally, the maintenance window is from
10:00 PM to 6:00 AM Monday through Friday and
from 10:00 PM Saturday to 6:00 AM Monday.
(D)5.22.3 Although USW attempts to perform major switch
maintenance at these times, on some occasions
this will not be possible.
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(D)6. SERVICE PERFORMANCE
(D)6.1 General Provisions
(D)6. 1.1 USW will provide reports of service indicators
that will assist in an evaluation of the service
provided to RESELLER.
(D)6.1.2 In no instance shall this Agreement be
construed to require USW to provide superior
levels of service to RESELLER in comparison to
the level of service USW provides to itself or
its own end users.
(D)6.1.3 As further specified in this Section, USW will
provide results for the list of performance
indicators identified for the following
Standard Service Groupings: Resold Residential
Plain Old Telephone Service (POTS); Resold
Business POTS; Resold ISDN; Resold Centrex
service; Resold PBX trunks, Resold Direct
Inward Dialing (DID) and Resold Digital
Switched Service (DSS); Resold DS-0, Resold
DS-1,. Resold DS-3.
(D)6.1.4 As specified in this Section, USW will provide
results for the following types of Orders:
C = Change in existing service or billing
number
D = total disconnect of service
F = From the outward service associated with a
transfer (To or "T") of service from one
address to another
N = New connection for service
R = Record order; record change only.
(For Resale services, service migrations
without changes for non-designed services
are record orders.)
T = To or transfer of service from one
address to another
X = USW initiated internal work order
(D)6.2 Service Performance Indicators
The following Service Performance Indicators will be provided
to RESELLER when available and upon request, but no more
frequently than once per month subject to the provisions of
this Section. The requests for additional Service Performance
Indicators during the term of this Agreement shall be
considered by USW However, USW is not required to provide
additional Service Performance Indicators during the term of
this Agreement. Service Performance Indicators characterized
as "Core" indicators measure most directly the service or
process outcome USW provides to RESELLER.
Performance Indicators characterized as "Diagnostic"
indicators are those that measure aspects of service quality
that support aspects measured by core indicators, that
represent sub-process outcomes, or that are otherwise
duplicative to some degree of aspects measured by "Core"
indicators.
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(D)6.2.1 Core Performance Indicators
(D)6.2.1.1 Gateway Availability Indicator
GA-1 Gateway Availability - via
Human-to-Computer Interface
(percent).
GA-2 Gateway Availability - via
Computer-to-Computer Interface
(percent).
(D)6.2.1.2 Pre-Ordering Indicators
PO-1 Pre-Order/Order Response times
A. Appointment Scheduling (Due
Date Reservation, where
appointment is required)
B. Feature Function and Service
Availability Information
C. Facility Availability
D. Street Address Validation
E. Customer Service Records
F. Telephone Number
(D)6.2.1.3 Ordering and Provisioning
Indicators
OP-1 Speed of Answer - Interconnect
Provisioning Center (average)
OP-2 Calls Answered within 20 Seconds -
Interconnect Provisioning
Center (percent)
OP-3 Installation Commitments Met
(percent)
OP-4 Installation Interval (average)
OP-5 Installation Trouble Reports
(percent)l
OP-6 Delayed Days (average)
(D)6.2.1.4 Maintenance and Repair Indicators
MR-1 Speed of Answer - Interconnect
Repair Center (average)
MR-2 Percent Calls Answered Within 20
Seconds - Interconnect Repair
Center (percent)
MR-3 Out of Service Cleared Within 24
hours - Non-Designed Repair
Process (percent)
MR-4 All Troubles Cleared Within
48 hours - Non-Designed
Repair Process (percent)
MR-5 All Troubles Cleared Within
4 hours - Designed Repair
Process (percent)
MR-6 Mean Time to Restore -
Non-Designed Repair Process
(average)
MR-7 Repair Repeat Report Rate
(percent)
MR-8 Trouble Rate (percent)
(D)6.2.1.5 Billing Indicators
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BI-1 Mean Time to Provide USW Recorded
Usage Records ((average)
BI-2 Mean Time to Deliver Invoices
(average)BI-3 Billing
Accuracy
(D)6.2.1.6 Emergency Services
ES-1 ALI Database Updates Completed
Within 24 hours (percent)
ES-2 911/E911 Emergency Services Trunk
Installation Interval (average)
(D)6.2.1.7 Directory Assistance
DA-1 Speed of Answer - Directory
Assistance (average)
DA-2 Calls Answered Within Ten
Seconds - Directory Assistance
(percent)
(D)6.2.1.8 Operator Services
OS-1 Speed of Answer - Operator
Services (average)
OS-2 Calls Answered Within Ten
Seconds - Operator Services
(percent)
(D)6.2.2 Diagnostic Indicators
In addition to the performance indicators
identified above, USW will report the
following indicators that do not directly
address nondiscrimination but may be useful
in diagnosing problems or improving service:
(D)6.2.2.1 Pre-Order/Ordering
DPO-1 Electronic Flow - Through of Local
Service Requests (LSRs) to the
Service Order Processor (percent)
DPO-2 LSR Rejection Notice Interval
(average)
DPO-3 LSRs Rejection (percent)
DPO-4 Firm Order Confirmation (FOC)
Interval (average)
DPO-5 Pre-Order/Order Response Times
for USW Retail Transactions
(average)
DPO-6 Completion Notifications
Transmitted Within 24 hours
(percent)
DPO-7 Completion Notification Interval
(average)
(D)6.2.2.2 Ordering and Provisioning
DOP-1 RESELLER or RESELLER's Customer
- Caused Installation Misses
(percent)
DOP-2 Delayed Orders Completed equal to
greater than 15 days past the
Commitment Date (percent)
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DOP-3 Delayed Orders Completed equal to
or greater than 90 days past the
Commitment Date (percent)
DOP-4 RESELLER or RESELLER's
Customer-Caused Coordinated
Cutover Misses (percent)
(D)6.2.2.3 Maintenance and Repair
DMR-1 RESELLER or RESELLER's
Customer-Caused Trouble Reports
(percent)
(D)6.2.2.4 Access to OSS Functions:
(GA-1) Gateway Availability -
Human-to-Computer Interface
(percent)
(GA-2) Gateway Availability -
Computer-to-Computer Interface
(percent)
(PO-1) Per-Order/Order Response Times
(average)
(OP-1 and MR-1) Speed of Answer - Provisioning
and Repair Centers (average)
(OP-2 and MR-2) Calls Answered Within 20
Seconds - Provisioning and Repair
Centers (percent)
(BI-1) Mean Time to Provide USW -
Recorded Usage Records
(BI-2) Mean Time to Deliver Invoices
(BI-3) Billing Accuracy
(D)6.2.2.5 Access to Emergency Services
(ES-1) ALI Database Updates Within
24 Hours (percent)
(ES-1) 911/E911 ES Trunk Installation
Intervals (average)
(D)6.2.2.6 Access to Directory Assistance and
Operator Services:
(DA-1 and OP-1) Speed of Answer (average)
(DA-2 and OS-2) Calls Answered Within 10
Seconds (percent)
(D)6.2.2.7 Resale Services Ordering and
Provisioning: (OP-3) Installation
Commitments Met (percent)
(OP-4) Installation Interval (average)
(OP-5) Installation Trouble Reports
(percent)
(OP-6) Delayed Days (average)
(D)6.2.2.8 Resale Services Maintenance and
Repair:
(MR-3) Out of Service Cleared Within
24 Hours - Non-Designed Repair
Process (percent)
(MR-4) All Troubles Cleared Within
48 Hours - Non-Designed Repair
Process (percent)
(MR-5) All Troubles Cleared Within
4 Hours - Designed Repair Process
(percent)
(MR-6) Mean Time to Restore (average)
(MR-6) Repair Repeated Report Rate
(percent)
(MR-6) Trouble Rate (percent)
Page 57
<PAGE>
Part D
Miscellaneous Provisions
(D)6.3 Service Quality Performance Results Reports
(D)6.3.1 For Resale, USW will provide core service
performance results for the performance
indicators listed above for RESELLER, other
Resellers in aggregate and USW end users.
(D)6.4 Performance Results Provided to Reseller
The performance results provided to RESELLER by USW shall be
consistent with the current version of the USW Service
Performance Indicator Description (PID).
(D)6.5 The performance results provided under this Agreement are to
be used solely for the purposes set forth herein, and shall
be treated as "Proprietary Information" as provided in
Section (A)3.14 of this Agreement.
(D)6.6 Service Performance - Reported Events
(D)6.6.1 When applicable, USW will report
service-related performance results for all
"events". An "event" is the activity that
generates the measurement.
(D)6.6.2 The Parties will report RESELLER results
referenced above provided that RESELLER has
ordered and is utilizing the services reported;
(D)6.6.3 USW will provide the reports on a calendar
monthly basis. These reports will be provided
within forty-five (45) calendar days of the
close of the preceding month.
(D)6.7 Self Executing Remedies
The purpose and focus of remedies provisions under this Resale
Agreement shall be to resolve significant differences in
service quality that have been identified through appropriate
comparisons of the service performance results reported for
the core performance indicators defined above. Self-executing
remedies are those actions, defined herein, that USW will
undertake in good faith and in cooperation with RESELLER to
respond to such differences immediately, without waiting for
determination of whether actual discrimination may exist.
(D)6.7.1 For this purpose, significant differences shall
be considered to be those that are determined to
be statistically, operationally, and materially
significant in each of three (3) or more
consecutive months and that reflect a probability
that inferior service was apparently provided to
RESELLER, based on the relevant comparison of
performance indicator results. Statistical
significance shall be determined as defined
below. Operational and material significance
shall be established by including for comparison
only those results that have (a) minimum sample
sizes of 30 each, and (b) a relevant comparison
demonstrating a service performance difference of
a magnitude that can be reasonably considered to
have a perceptible effect on end users or
RESELLER operations.
Page 58
<PAGE>
Part D
Miscellaneous Provisions
(D)6.7.2 Determination of the statistical significance
of any difference in appropriately comparable
results shall be based on statistical testing
for (1) differences in means (where performance
indicator results are reported as averages) or
(2) difference in proportions (where performance
indicator results are reported as percentages),
as follows:
(D)6.7.2.1 Determination of the significance
of a difference in mean values of
each monthly service performance
indicator results shall be based
on a "permutation" test using what
is commonly referred to as a "Z"
statistic and a maximum of 1,000
randomly selected permutations of
the samples. Where sample sizes
exceed 600, the "Z" test using the
"modified Z statistic" may be used
instead of the permutation test.
Where used, the modified Z
statistic will be based on the
statistical variance associated
with USW's retail performance
results, where applicable, or on
the variance associated with
RESELLER aggregate performance
results, where there are no retail
performance results.
(D)6.7.2.2 The significance of a difference
in proportional measurements shall
be based on direct calculation of
the probability of the observed
difference using the binomial
distribution with a pooled P
value.
(D)6.7.2.3 A difference in results by either
test type (i.e., differences in
means or differences in
proportions) will be deemed
statistically significant if the
appropriate one tailed test
indicates, with 99 percent
confidence, that the performance
indicator results being compared
appear to be from different
populations of performance. In
other words, that service being
provided to RESELLER appears to be
inferior to that represented by
the comparable results (such as,
results representing service
provided to Resellers in
aggregate or to USW retail).
(D)6.7.3 For each case in which a significant difference
as defined above has occurred, USW shall:
(D)6.7.3.1 Immediately investigate to
determine the cause(s) of the
difference and, where feasible,
begin good-faith efforts to
resolve the difference;
(D)6.7.3.2 Within 45 days, provide to
RESELLER a written explanation of
the result of the investigation as
to
Page 59
<PAGE>
Part D
Miscellaneous Provisions
cause(s) and, as applicable, an
action plan describing (i) what
has and will be done to resolve
the difference, (ii) what
cooperative actions and timelines
on the part of RESELLER are needed
to facilitate or expedite
resolution, and (iii) listing key
milestones for use by the
Parties in tracking progress;
(D)6.7.3.3 Offer and meet with designated
RESELLER representatives monthly
to discuss progress on resolving
the difference(s);
(D)6.7.3.4 Escalate to vice president
level any significant
difference that has or is not
projected to be resolved within
three months of the difference
first being identified as
significant as defined above,
with commitment at that level
to direct due diligence toward
removing obstacles and
expediting resources where
feasible and necessary to
resolve the difference as soon
as possible.
(D)6.7.4 If a statistically and operationally
significant difference has occurred in the
trend results for any particular performance
indicator, the Parties shall allow three (3)
months to correct the difference in the trend
results. If the statistically, and
operationally significant difference in trend
results is corrected within the three (3)
month time, no action, formal or informal,
shall be taken by either Party with respect
to that difference.
(D)6.7.5 If the statistically and operationally
significant difference in trend results is not
corrected within the three (3) month
time frame, the Dispute Resolution provision
of this Resale Agreement shall apply.
(D)6.8 Delaying Events
(D)6.8.1 A Party's failure to meet a requirement in
this Section of this Agreement shall not be
included when that failure is a result,
directly or indirectly, of a Delaying Event.
(D)6.8.2 A "Delaying Event" means:
(D)6.8.2.1 Failure by either Party to perform
any of its obligations set forth
in this Agreement,
(D)6.8.2.2 Any delay, act or failure to act
by an end user, agent or
subcontractor of the other Party,
or
(D)6.8.2.3 Any Force Majeure Event.
Page 60
<PAGE>
Part D
Miscellaneous Provisions
(D)6.8.3 If a Delaying Event prevents either Party from
performing a measured activity, then such
measured activity shall be excluded from the
performance indicator(s).
(D)6.9 Records Retention for Service Performance Indicators
USW shall maintain complete and accurate records, for the
specified review period of its performance under this
Agreement for each measured activity. USW shall provide such
records to RESELLER in a self-reporting format. Such records
shall be in the format kept in USW's ordinary course of
business. The Parties agree that such records shall be
deemed "Confidential Information."
(D)6.10 Joint Defense and Advocacy
The Parties shall jointly and separately advocate and defend the
sufficiency of this Agreement in addressing the nondiscrimination
requirements of the Act and wholesale services performance measurements
reporting rights, remedies and related terms and conditions in any
forum in which its sufficiency might be challenged.
(D)6.11 Cost Recovery
Each Party reserves the right to recover the costs associated with
the creation of the above measures, indicators, and reports through a
future proceeding before a regulatory body. Such a proceeding may
address a wide range of implementation costs not otherwise recovered
through charges established herein.
Page 61
<PAGE>
Part E
Minnesota Rates
PART E - MINNESOTA RATES
LOCAL EXCHANGE SERVICES RESALE OF SERVICES
The Parties agree the following charges apply to the Resale of Local
Services:
1. Nonrecurring Charges.
a. Customer Transfer Charge (CTC): The following nonrecurring charges
apply when converting a USW account to a RESELLER account or when
changing an end user from one reseller to another.
<TABLE>
<CAPTION>
Category of Service Nonrecurring Charge
------------------- -------------------
<S> <C>
RESIDENCE OR BUSINESS MECHANIZED $14.56
First Line $ 6.57
Each Additional Line
RESIDENCE OR BUSINESS MANUAL $27.52
First Line $ 7.12
Each Additional Line
PRIVATE LINE TRANSPORT $45.08
First Circuit $31.19
Additional Circuits, Same CSR $50.48
ADVANCED COMMUNICATIONS SERVICES, PER CIRCUIT
</TABLE>
b. Product Specific Nonrecurring Charge: As set forth in USW tariffs, the
product specific nonrecurring charges, without discount, will apply
when additional lines or trunks are added or when the end user adds
features or services to existing lines or trunks.
2. Except as qualified below, all USW telecommunications services,
including IntraLATA Toll, shall be available for resale at a 21.5% discount.
a. The following products and services are not available for resale:
- Concession Service
- Customer Premises Equipment (separately or in packages)
Promotions equal to or less than 90 days
- USW Calling Cards Enhanced Services (Including Voice Messaging
Service)
- Inside Wire (including installation, sale or maintenance)
b. The following products and services are available at the 21.5%
discount only to the same class of customer eligible to purchase that
service from USW:
<TABLE>
<S> <C>
- Lifeline/Link-up - Residential
- Grandfathered - Contract services
- Special arrangements - Packaged services
- Discounted service - Promotional offerings of more than 90 days
</TABLE>
c. The following services are available for resale under this Agreement but
are not included in the wholesale pricing reflected above:
- Private Line Used For Special Access
3. Daily Usage Record File: Recurring Charge - $.0011 per record.
Page 62
<PAGE>
RESALE
AGREEMENT
BETWEEN
U S WEST COMMUNICATIONS, INC.
AND
ESSENTIAL.COM
FOR
OREGON
Page i
<PAGE>
TABLE OF CONTENTS
<TABLE>
<CAPTION>
<S> <C>
PART A - GENERAL TERMS ....................................................... 1
(A)1. SCOPE OF AGREEMENT ..................................................... 1
(A)2. DEFINITIONS ............................................................ 3
(A)3. TERMS AND CONDITIONS ................................................... 4
(A)3.1 General Provisions .............................................. 4
(A)3.2 Term of Agreement ............................................... 4
(A)3.3 Proof of Authorization .......................................... 5
(A)3.4 Payment ......................................................... 6
(A)3.5 Taxes ........................................................... 7
(A)3.6 Force Majeure ................................................... 7
(A)3.7 Limitation of Liability ......................................... 8
(A)3.8 Indemnity ....................................................... 8
(A)3.9 Intellectual Property ...........................................10
(A)3.10 Warranties ......................................................12
(A)3.11 Assignment ......................................................12
(A)3.12 Default .........................................................13
(A)3.13 Disclaimer of Agency ............................................13
(A)3.14 Nondisclosure ...................................................14
(A)3.15 Survival ........................................................15
(A)3.16 Dispute Resolution ..............................................15
(A)3.17 Controlling Law .................................................17
(A)3.18 Joint Work Product ..............................................17
(A)3.19 Responsibility for Environmental Contamination ..................17
(A)3.20 Notices .........................................................17
(A)3.21 Responsibility of Each Party ....................................18
(A)3.22 No Third Party Beneficiaries ....................................18
(A)3.23 Referenced Documents ............................................18
(A)3.24 Publicity .......................................................19
(A)3.25 Amendment .......................................................19
(A)3.26 Executed in Counterparts ........................................19
(A)3.27 Headings of No Force or Effect ..................................19
(A)3.28 Regulatory Approval .............................................19
(A)3.29 Compliance ......................................................19
(A)3.30 Compliance with the Communications Assistance for Law Enforcement
Act of 1994 ("CALEA") ...........................................20
(A)3.31 Cooperation .....................................................20
(A)3.32 Availability of Other Agreements ................................20
PART B - RESALE.............................................................. 21
(B)1. Description ...........................................................21
(B)2. Terms and Conditions ..................................................21
(B)3. Rates and Charges .................................................... 25
Page ii
<PAGE>
TABLE OF CONTENTS
(B)4. Ordering Process .................................................... 26
(B)5. Billing ............................................................. 27
(B)6. Maintenance and Repair .............................................. 28
PART C - WHITE PAGES DIRECTORY LISTINGS .................................... 29
(C)1. Description ......................................................... 29
(C)2. Terms and Conditions ................................................ 29
PART D- MISCELLANEOUS PROVISIONS ........................................... 32
(D)1. Network Security .................................................... 32
(D)2. Access To Operational Support Systems (OSS) ......................... 32
(D)3. U S WEST Dex ........................................................ 47
(D)4. Notice Of Changes ................................................... 47
(D)5. Maintenance and Repair .............................................. 48
(D)6. Service Performance ................................................. 54
PART E - OREGON RATES ...................................................... 62
PART F - SIGNATURE ......................................................... 63
</TABLE>
Page iii
<PAGE>
Part A
General Terms
PART A - GENERAL TERMS
This Resale Agreement is between essential.com ("RESELLER"), a
Delaware corporation, and U S WEST Communications, Inc. ("USW"), a Colorado
corporation.
(A)1. SCOPE OF AGREEMENT
(A)1.1 Pursuant to this negotiated Resale Agreement ("Agreement"),
RESELLER and USW (collectively, "the Parties") will extend
certain arrangements to one another within the geographical
areas where USW is the incumbent Local Exchange Carrier
within the state of Oregon for purposes of providing the
resale of local Telecommunications Services. This Agreement
or the portions of this Agreement relative to a particular
state will be submitted to the Oregon Public Utility
Commission ("Commission") for approval. Notwithstanding this
mutual commitment, however, the Parties enter into this
Agreement without prejudice to any positions they have taken
previously, or may take in the future in any legislative,
regulatory, or other public forum addressing any matters,
including matters related to the types of arrangements
prescribed by this Agreement.
(A)1.2 The provisions in this Agreement are based, in large part, on
the existing state of the law, rules, regulations and
interpretations thereof, as of the date hereof (the "Existing
Rules"). Among the Existing Rules are or could be the results
of arbitrated decisions by the Commission which are currently
being challenged by USW. Among the Existing Rules are certain
FCC rules and orders that are the subject of, or affected by,
the opinion issued by the Supreme Court of the United States
in AT&T CORP., ET AL V. IOWA UTILITIES BOARD, ET AL. on
January 25, 1999. Nothing in this Agreement shall preclude or
stop USW from taking any position in any forum concerning the
proper interpretation or effect of the Existing Rules or
concerning whether the Existing Rules should be changed,
dismissed, stayed or modified. To the extent that the Existing
Rules are changed, vacated, dismissed, stayed or modified,
then the Parties shall amend this Agreement and all contracts
adopting all or part of this Agreement pursuant to Section
252(i) of the Act, shall be amended to reflect such
modification or change of the Existing Rules. Where the
Parties fail to agree upon such an amendment, it shall be
resolved in accordance with the Dispute Resolution provision
of this Agreement. It is expressly understood that this
Agreement will be corrected to reflect the outcome of generic
pricing proceedings by the Commission. This Section (A)1.2
shall be considered part of the rates, terms and conditions of
each service resale arrangement contained in this Agreement,
and this Section (A)1.2 shall be considered legitimately
related to the purchase of each service for resale arrangement
contained in this Agreement.
(A)1.3 This Agreement is entered into as a result of both private
negotiations between the Parties and the incorporation of some
of the results of arbitrated decisions by the Commission,
acting pursuant to Section 252 (b) of the Act, and involving
interconnection/resale agreements of other parties. The
Parties have included for convenience certain rates, terms or
conditions in this Agreement which reflect
Page 1
<PAGE>
Part A
General Terms
rates, terms or conditions established in some or all of those
other arbitrations. RESELLER acknowledges: (1) that those
rates, terms or conditions are extended only because of the
arbitrated results in other dockets, (2) that USW intends to
appeal certain of those decisions, and (3) that any
negotiations, appeal, stay, injunction or similar proceeding
impacting the applicability of those rates, terms or
conditions to the local service providers who were parties to
those arbitrations will similarly impact the applicability of
those rates, terms or conditions to RESELLER. The Parties
further recognize that this Agreement is subject to the
generic proceedings by the Commission addressing the services
in this Agreement.
(A)1.4 This Agreement sets forth the terms, conditions and prices
under which USW agrees to provide services for resale to
RESELLER, all for the sole purpose of providing
Telecommunications Services.
(A)1.5 In the performance of their obligations under this Agreement,
the Parties shall act in good faith and consistently with the
intent of the Act. Where notice, approval or similar action
by a Party is permitted or required by any provision of this
Agreement, (including, without limitation, the obligation of
the Parties to further negotiate the resolution of new or
open issues under this Agreement) such action shall not be
unreasonably delayed, withheld or conditioned.
(A)1.6 USW may make services and features available to RESELLER for
resale under this Agreement consistent with the way they are
available to USW end users, without a formal amendment to this
Agreement. Nothing herein prevents either Party from raising
other issues through additional good faith negotiations.
(A)1.7 This Agreement is structured in the following format:
Part A - General Terms
Part B - Resale
Part C - Directory Services
Part D - Miscellaneous Provisions
Part E - Rates
Part F - Signature
(A)1.8 Prior to placing any orders for services under this Agreement,
the Parties will jointly complete USW's "Reseller
Questionnaire". This questionnaire will then be used to:
Determine geographical requirements
Identify RESELLER Ids
Determine USW system requirements to support RESELLER specific
activity
Collect credit information
Obtain billing information
Create summary bills
Establish input and output requirements
Create and distribute USW and RESELLER contact lists
Identify client hours and holidays
Page 2
<PAGE>
Part A
General Terms
(A)2. DEFINITIONS
(A)2.1 "Act" means the Communications Act of 1934 (47 U.S.C. 151 et.
seq.), as amended by the Telecommunications Act of 1996, and
as from time to time interpreted in the duly authorized rules
and regulations of the FCC or a Commission within its state
of jurisdiction.
(A)2.2 "Basic Exchange Features" are optional end user switched
services that include, but are not necessarily limited to:
Automatic Call Back; Call Trace; Caller ID and Related
Blocking Features; Distinctive Ringing/Call Waiting;
Selective Call Forward; and Selective Call Rejection.
(A)2.3 "Basic Exchange Telecommunications Service" means a service
offered to end users which provides the end user with a
telephonic connection to, and a unique local telephone number
address on the public switched telecommunications network, and
which enables such end user to generally place calls to, or
receive calls from, other stations on the public switched
telecommunications network. Basic residence and business line
services are Basic Exchange Telecommunications Services. As
used solely in the context of this statement and unless
otherwise agreed, Basic Exchange Telecommunications Service
includes access to ancillary services such as 911, directory
assistance and operator services.
(A)2.4 "Commission" means the Public Utility Commission(s) in the
state of Oregon.
(A)2.5 "Enhanced Services" means any service offered over common
carrier transmission facilities that employ computer
processing applications that act on format, content, code,
protocol or similar aspects of the subscriber's transmitted
information; that provide the subscriber with additional,
different or restructured information; or involve end user
interaction with stored information.
(A)2.6 "Interconnect & Resale Resource Guide" is a USW document that
provides essential information needed to request services
available under this Agreement. It is available on USW's Web
site.
(A)2.7 "Interexchange Carrier" or "IXC" means a carrier that provides
interLATA or IntraLATA Toll services.
(A)2.8 "IntraLATA Toll" is defined in accordance with USW's current
intraLATA toll serving areas, as determined by the Federal
Communications Commission.
(A)2.9 "Local Exchange Carrier" or "LEC" means any person that is
engaged in the provision of telephone exchange service or
exchange access. Such term does not include a person insofar
as such person is engaged in the provision of a commercial
mobile service under Section 332(c) of the Act, except to the
extent that the FCC finds that such service should be included
in the definition of such term.
(A)2.10 "Party" means either USW or RESELLER and "Parties" means USW
and RESELLER.
Page 3
<PAGE>
Part A
General Terms
(A)2.11 "Reseller" is a category of local exchange service provider
that obtains dial tone and associated Telecommunications
Services from another provider through the purchase of
finished services for resale to its end users.
(A)2.12 "Tariff" as used throughout this Agreement refers to USW
interstate Tariffs and state Tariffs, price lists, price
schedules and catalogs.
(A)2.13 "Telecommunications Carrier" means any provider of
Telecommunications Services, except that such term does not
include aggregators of Telecommunications Services (as
defined in Section 226 of the Act). A Telecommunications
Carrier shall be treated as a common carrier under the Act
only to the extent that it is engaged in providing
Telecommunications Services, except that the Federal
Communications Commission shall determine whether the
provision of fixed and mobile satellite service shall be
treated as common carriage.
(A)2.14 "Telecommunications Services" means the offering of
telecommunications for a fee directly to the public, or to
such classes of users as to be effectively available directly
to the public, regardless of the facilities used.
(A)2.15 Terms not otherwise defined here, but defined in the Act shall
have the meaning defined there. Where a term is defined in the
regulations implementing the Act but not in this Agreement,
the Parties do not necessarily intend to adopt the definition
as set forth in said regulations.
(A)3. TERMS AND CONDITIONS
(A)3.1 GENERAL PROVISIONS
(A)3.1.1 Each Party is solely responsible for the services
it provides to its end users and to other
Telecommunications Carriers.
(A)3.1.2 The Parties shall work cooperatively to minimize
fraud associated with intra-LATA toll, third-number
billed calls, and any other services related to
this Agreement.
(A)3.1.3 Nothing in this Agreement shall prevent either
Party from seeking to recover the costs and
expenses, if any, it may incur in (a) complying
with and implementing its obligations under this
Agreement, the Act, and the rules, regulations
and orders of the FCC and the Commission, and (b)
the development, modification, technical
installation and maintenance of any systems or
other infrastructure which it requires to comply
with and to continue complying with its
responsibilities and obligations under this
Agreement.
(A)3.2 TERM OF AGREEMENT
This Agreement shall become effective upon Commission
approval, pursuant to Sections 251 and 252 of the Act, shall
terminate on January 16, 2002, and shall be binding upon the
Parties during that term, notwithstanding Section 252(i) of
the Act. After the date specified above, this Agreement shall
continue in force and
Page 4
<PAGE>
Part A
General Terms
effect until terminated by either Party providing one hundred
sixty (160) days written notice of termination to the other
Party. The day the notice is served will determine the
starting point for a 160-day negotiation period (in accordance
with 252(b)1 of the Act. In the event of such termination,
existing or pending service arrangements made available under
this Agreement shall continue in total without interruption
under either a) a new or adoption agreement executed by the
Parties, or b) tariff terms and conditions generally available
to all resellers.
(A)3.2.1 If the Parties are unable to negotiate a new
agreement during the negotiation period described
above, the window of opportunity to file for
arbitration to resolve outstanding contractual
issues in accordance with the Act will occur
between days 135 and 160 of the 160 day notice
period.
(A)3.2.2 If the Parties are able to reach agreement, this
Agreement shall continue for the brief period of
time needed to secure the Commission's approval
of an adoption agreement or a new resale
agreement. In the case of Section (A)3.2.1, this
Agreement will expire on the termination date
specified in the one hundred sixty (160) day
notice referenced above, unless a petition for
arbitration has been filed, but if such a
petition has been filed then this Agreement shall
continue for the period necessary for the
Commission to act and resolve the disputed issues
so that the Parties will have an effective resale
agreement.
(A)3.3 PROOF OF AUTHORIZATION
Where so indicated in specific sections of this Agreement,
each party shall be responsible for obtaining and having in
its possession Proof of Authorization ("POA"). POA shall
consist of verification of the end users selection and
authorization adequate to document the end user's selection.
Such selection may be obtained in the following ways:
(A)3.3.1 The end user's written Letter of Authorization.
(A)3.3.2 The end user's electronic authorization by use of
an 1-8XX number.
(A)3.3.3 The end user's oral authorization verified by an
independent third party (with third party
verification as POA).
The Parties shall make POAs available to each other upon
request, in accordance with the applicable laws and rules.
Unless prohibited by applicable laws or regulations, a
charge of $100.00 ("slamming charge") will be assessed if
the POA cannot be provided supporting the change in service
provider. If there is a conflict between the end user
designation and the other Party's written evidence of its
authority, the Parties shall honor the designation of the
end user and change the end user back to the previous
service provider.
Page 5
<PAGE>
Part A
General Terms
(A)3.4 Payment
(A)3.4.1 Amounts payable under this Agreement are due and
payable within thirty (30) calendar days after
the date of USW's invoice, or within twenty (20)
days after receipt of the invoice, whichever is
later. If the payment due date is not a Business
Day, the payment shall be made the next Business
Day.
USW may discontinue processing orders for the
failure by RESELLER to make full payment for the
services provided under this Agreement within
thirty (30) days of the due date on RESELLER's
bill.
USW may disconnect for the failure by RESELLER
to make full payment for the services provided
under this Agreement within sixty (60) days of
the due date on RESELLER's bill. RESELLER will
pay the Tariff charge required to reconnect each
end user line disconnected pursuant to this
paragraph.
(A)3.4.2 Should RESELLER dispute, in good faith, any
portion of the monthly billing under this
Agreement, RESELLER will notify USW in writing
within thirty (30) calendar days of the receipt
of such billing, identifying the amount, reason
and rationale of such dispute. RESELLER shall pay
all amounts due. Both RESELLER and USW agree to
expedite the investigation of any disputed
amounts in an effort to resolve and settle the
dispute prior to initiating any other rights or
remedies. Should the dispute be resolved in
RESELLER's favor and the resolved amount did not
appear as a credit on RESELLER's next invoice
from USK USW will reimburse RESELLER the resolved
amount plus interest from the date of payment.
The amount of interest will be calculated using
the late payment factor that would have applied
to such amount had it not been paid on time.
(A)3.4.3 USW will determine RESELLER's credit status based
on previous payment history with USW or credit
reports such as Dun and Bradstreet. If RESELLER
has not established satisfactory credit with USW
or if RESELLER is repeatedly delinquent in making
its payments, USW may require a deposit to be
held as security for the payment of charges.
"Repeatedly delinquent" means being thirty (30)
calendar days or more delinquent for three (3)
consecutive months. The deposit may not exceed
the estimated total monthly charges for a two (2)
month period. The deposit may be a surety bond, a
letter of credit with terms and conditions
acceptable to USW or some other form of mutually
acceptable security such as a cash deposit.
Required deposits are due and payable within ten
(10) calendar days after demand in accordance
with Commission requirements.
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(A)3.4.4 Interest will be paid on cash deposits at the
rate applying to deposits under applicable
Commission rules, regulations, or Tariffs.
Cash deposits and accrued interest will be
credited to RESELLER's account or refunded, as
appropriate, upon the earlier of the termination
of this Agreement or the establishment of
satisfactory credit with USW, which will
generally be one (1) full year of timely
payments in full by RESELLER. The fact that a
deposit has been made does not relieve RESELLER
from any requirements of this Agreement.
(A)3.4.5 USW may review RESELLER's credit standing and
modify the amount of deposit required.
(A)3.4.6 The late payment charge for amounts that are
billed under this Agreement shall be in
accordance with state Tariffs/Commission Rules
and Orders.
(A)3.5 TAXES
Each Party purchasing services hereunder shall pay or
otherwise be responsible for all federal, state, or local
sales, use, excise, gross receipts, transaction or similar
taxes, fees or surcharges levied against or upon such
purchasing Party (or the providing Party when such providing
Party is permitted to pass along to the purchasing Party such
taxes, fees or surcharges), except for any tax on either
Party's corporate existence, status or income. Whenever
possible, these amounts shall be billed as a separate item on
the invoice. To the extent a sale is claimed to be for resale
tax exemption, the purchasing Party shall furnish the
providing Party a proper resale tax exemption certificate as
authorized or required by statute or regulation by the
jurisdiction providing said resale tax exemption. Until such
time as a resale tax exemption certificate is provided, no
exemptions will be applied.
(A)3.6 FORCE MAJEURE
Neither Party shall be liable for any delay or failure in
performance of any part of this Agreement from any cause
beyond its control and without its fault or negligence
including, without limitation, acts of nature, acts of civil
or military authority, government regulations, embargoes,
epidemics, terrorist acts, riots, insurrections, fires,
explosions, earthquakes, nuclear accidents, floods, work
stoppages, equipment failure, power blackouts, volcanic
action, other major environmental disturbances, unusually
severe weather conditions, inability to secure products or
services of other persons or transportation facilities or acts
or omissions of transportation carriers (collectively, a
"Force Majeure Event"). The Party affected by a Force Majeure
Event shall give prompt notice to the other Party, shall be
excused from performance of its obligations hereunder on a day
to day basis to the extent those obligations are prevented by
the Force Majeure Event, and shall use reasonable efforts to
remove or mitigate the Force Majeure Event. In the event of a
labor dispute or strike the Parties agree to provide service
to each other at a level equivalent to the level they provide
themselves.
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(A)3.7 LIMITATION OF LIABILITY
(A)3.7.1 Except for losses relating to or arising out of
any act or omission in its performance of
services or functions provided under this
Agreement, each Party shall be liable to the
other for direct damages for any loss, defect or
equipment failure resulting from the causing
Party's conduct or the conduct of its agents or
contractors in performing the obligations
contained in this Agreement.
(A)3.7.2 Neither Party shall be liable to the other for
indirect, incidental, consequential, or special
damages, including (without limitation) damages
for lost profits, lost revenues, lost savings
suffered by the other Party regardless of the
form of action, whether in contract, warranty,
strict liability, tort, including (without
limitation) negligence of any kind and regardless
of whether the Parties know the possibility that
such damages could result.
(A)3.7.3 Except for indemnity obligations, each Party's
liability to the other Party for any loss
relating to or arising out of any act or omission
in its performance of services or functions
provided under this Agreement, whether in
contract or in tort, shall be limited to the
total amount that is or would have been charged
to the other Party by such breaching Party for
the service(s) or function(s) not performed or
improperly performed.
(A)3.7.4 Nothing contained in this Section shall limit
either Party's liability to the other for
intentional, malicious misconduct.
(A)3.7.5 Nothing contained in this Section shall limit
either Party's obligations of indemnification as
specified in the Indemnity Section of this
Agreement.
(A)3.7.6 Neither Party shall be liable to the other under
any theory including indemnity on account of such
Party's failure or neglect to have or maintain a
system or systems that are Year 2000 compliant.
As the Parties approach the Year 2000, date
information associated with any interfaces
between the Parties is expected to remain as it
is.
(A)3.8 INDEMNITY
(A)3.8.1 With respect to third party claims, the Parties
agree to indemnify each other as follows:
(A)3.8.1.1 Except for claims made by end users
of one Party against the other Party,
which claims are based on defective
or faulty services provided by the
other Party to the one Party, each of
the Parties agree to release,
indemnify, defend and hold harmless
the other Party and each of its
officers, directors, employees and
agents (each an "Indemnitee") from
and against and in respect
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of any loss, debt, liability, damage,
obligation, claim, demand, judgment
or settlement of any nature or kind,
known or unknown, liquidated or
unliquidated including, but not
limited to, costs and attorneys'
fees, whether suffered, made,
instituted, or asserted by any other
party or person, for invasion of
privacy, personal injury to or death
of any person or persons, or for loss,
damage to, or destruction of property,
whether or not owned by others,
resulting from the indemnifying
Party's performance, breach of
applicable law, or status of its
employees, agents and subcontractors;
or for failure to perform under this
Agreement, regardless of the form of
action.
(A)3.8.1.2 Where the third party claim is made
by (or through) an end user of one
Party against the other Party, which
claim is based on defective or faulty
services provided by the other Party
to the one Party then there shall be
no obligation of indemnity unless the
act or omission giving rise to the
defective or faulty services is shown
to be intentional, malicious
misconduct of the other Party.
(A)3.8.1.3 If the claim is made by (or through)
an end user and where a claim is in
the nature of a claim for invasion of
privacy, libel, slander, or other
claim based on the content of a
transmission, and it is made against
a Party who is not the immediate
provider of the Telecommunications
Service to the end user (the
indemnified provider), then in the
absence of fault or neglect on the
part of the indemnified provider, the
Party who is the immediate seller of
such Telecommunications Service shall
indemnify, defend and hold harmless
the indemnified provider from such
claim.
(A)3.8.2 The indemnification provided herein shall be
conditioned upon:
(A)3.8.2.1 The indemnified Party shall promptly
notify the indemnifying Party of any
action taken against the indemnified
Party relating to the indemnification.
Failure to so notify the indemnifying
party shall not relieve the
indemnifying Party of any liability
that the indemnifying party might
have, except to the extent that such
failure prejudices the indemnifying
Party's ability to defend such claim.
(A)3.8.2.2 The indemnifying Party shall have
sole authority to defend any such
action, including the selection of
legal
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counsel, and the indemnified Party
may engage separate legal counsel
only at its sole cost and expense.
(A)3.8.2.3 In no event shall the indemnifying
Party settle or consent to any
judgment pertaining to any such
action without the prior written
consent of the indemnified Party.
(A)3.9 INTELLECTUAL PROPERTY
(A)3.9.1 Each Party hereby grants to the other Party the
limited, personal and nonexclusive right and
license to use its patents, copyrights and trade
secrets but only to the extent necessary to
implement this Agreement or specifically required
by the then applicable federal and state rules
and regulations relating to Interconnection and
access to telecommunications facilities and
services, and for no other purposes. Nothing in
this Agreement shall be construed as the grant to
the other Party of any rights or licenses to
trademarks.
(A)3.9.2 The rights and licenses above are granted "AS IS"
and the other Party's exercise of any such right
and license shall be at the sole and exclusive
risk of the other Party. Neither Party shall have
any obligation to defend, indemnify or hold
harmless, or acquire any license or right for the
benefit of, or owe any other obligation or have
any liability to, the other based on or arising
from any claim, demand, or proceeding
(hereinafter "claim") by any third party alleging
or asserting that the use of any circuit,
apparatus, or system, or the use of any software,
or the performance of any service or method, or
the provision of any facilities by either Party
under this Agreement constitutes infringement, or
misuse or misappropriation of any patent,
copyright, trade secret, or any other proprietary
or intellectual property right of any third party.
(A)3.9.3 As a condition to the access or use of patents,
copyrights, trade secrets and other intellectual
property (including software) owned or controlled
by a third party to the extent necessary to
implement this Agreement or specifically required
by the then applicable federal and state rules
and regulations relating to Interconnection and
access to telecommunications facilities and
services, the Party providing access may require
the other, upon written notice, from time to
time, to obtain a license or permission for such
access or use, make all payments in connection
with obtaining such license, and provide evidence
of such license.
(A)3.9.4 Except as expressly provided in this Intellectual
Property Section, nothing in this Agreement shall
be construed as the grant of a license, either
express or implied, with respect to any patent,
copyright, logo, trademark, trade name, trade
secret or any other intellectual property right
now or hereafter owned, controlled or licensable
by either Party.
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Neither Party may use any patent, copyright, logo,
trademark, trade name, trade secret or other
intellectual property rights of the other Party or
its affiliates without execution of a separate
agreement between the Parties.
(A)3.9.5 Neither Party shall without the express written
permission of the other Party, state or imply
that: 1) it is connected, or in any way
affiliated with the other or its affiliates, 2)
it is part of a joint business association or
any similar arrangement with the other or its
affiliates, 3) the other Party and its affiliates
are in any way sponsoring, endorsing or
certifying it and its goods and services, or 4)
with respect to its advertising or promotional
activities or materials, that the resold goods
and services are in any way associated with or
originated from the other or any of its
affiliates. Nothing in this paragraph shall
prevent either Party from truthfully describing
the network elements it uses to provide service
to its end users, provided it does not represent
the network elements as originating from the
other Party or its affiliates.
(A)3.9.6 For purposes of resale only and notwithstanding
the above, unless otherwise prohibited by USW
pursuant to an applicable provision herein,
RESELLER may use the phrase "RESELLER is a
reseller of U S WEST Communications services"
(the "Authorized Phrase") in RESELLER's printed
materials provided:
(A)3.9.6.1 The Authorized Phrase is not used in
connection with any goods or services
other than USW services resold by
RESELLER.
(A)3.9.6.2 RESELLER's use of the Authorized
Phrase does not cause end users to
believe that RESELLER is USW.
(A)3.9.6.3 RESELLER may not use the U S WEST
logo. The Authorized Phrase, when
displayed, appears only in text form
with all letters being the same font
and point size. The point size of the
Authorized Phrase shall be no greater
than one fourth the point size of the
smallest use of RESELLER's name and
in no event shall exceed 8 point size.
(A)3.9.6.4 RESELLER shall provide all printed
materials using the Authorized Phrase
to USW for its prior written approval.
(A)3.9.6.5 If USW determines that RESELLER's use
of the Authorized Phrase causes end
user confusion, USW may immediately
terminate RESELLER's right to use
the Authorized Phrase.
(A)3.9.6.6 Upon termination of RESELLER's right
to use the Authorized Phrase or
termination of this Agreement, all
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permission or right to use the
Authorized Phrase shall immediately
cease to exist and RESELLER shall
immediately cease any and all such
use of the Authorized Phrase.
RESELLER shall either promptly return
to USW or destroy all materials in
its possession or control displaying
the Authorized Phrase.
(A)3.9.7 RESELLER acknowledges the value of the marks "U S
WEST' and "U S WEST Communications" (the "Marks")
and the goodwill associated therewith and
acknowledges that such goodwill is a property
right belonging to U S WEST, Inc. and USW
respectively (the "Owners"). RESELLER recognizes
that nothing contained in this Agreement is
intended as an assignment or grant to RESELLER of
any right, title or interest in or to the Marks
and that this Agreement does not confer any right
or license to grant sublicenses or permission to
third parties to use the Marks and is not
assignable. RESELLER will do nothing inconsistent
with the Owner's ownership of the Marks, and all
rights, if any, that may be acquired by use of
the Marks shall inure to the benefit of the
Owners. RESELLER will not adopt, use (other than
as authorized herein), register or seek to
register any mark anywhere in the world which is
identical or confusingly similar to the Marks or
which is so similar thereto as to constitute a
deceptive colorable imitation thereof or to
suggest or imply some association, sponsorship,
or endorsement by the Owners. The Owners make no
warranties regarding ownership of any rights in
or the validity of the Marks.
(A)3.10 WARRANTIES
NOTWITHSTANDING ANY OTHER PROVISION OF THIS AGREEMENT,
THE PARTIES AGREE THAT NEITHER PARTY HAS MADE, AND THAT
THERE DOES NOT EXIST, ANY WARRANTY, EXPRESS OR IMPLIED,
INCLUDING BUT NOT LIMITED TO WARRANTIES OF
MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
(A)3.11 ASSIGNMENT
(A)3.11.1 Neither Party may assign or transfer
(whether by operation of law or
otherwise) this Agreement (or any
rights or obligations hereunder) to a
third party without the prior written
consent of the other Party.
Notwithstanding the foregoing, either
Party may assign or transfer this
Agreement to a corporate affiliate or
an entity under its common control;
however, if RESELLER's assignee or
transferee has an interconnection
agreement with USW, no assignment or
transfer of this Agreement shall be
effective without the prior written
consent of USW. Such consent shall
include appropriate resolutions of
conflicts and discrepancies between
the assignee's or transferee's
interconnection agreement and this
Agreement. Any attempted
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assignment or transfer that is not permitted is
void AB INITIO. Without limiting the generality
of the foregoing, this Agreement shall be binding
upon and shall inure to the benefit of the
Parties' respective successors and assigns.
(A)3.11.2 Without limiting the generality of the foregoing
subsection, any merger, dissolution,
consolidation or other reorganization of
RESELLER, or any sale, transfer, pledge or other
disposition by RESELLER of securities
representing more than 50% of the securities
entitled to vote in an election of RESELLER's
board of directors or other similar governing
body, or any sale, transfer, pledge or other
disposition by RESELLER of substantially all of
its assets, shall be deemed a transfer of
control. If any entity, other than RESELLER,
involved in such merger, dissolution,
consolidation, reorganization, sale, transfer,
pledge or other disposition of RESELLER has an
interconnection agreement with USW, the Parties
agree that only one agreement, either this
Agreement or the interconnection agreement of
the other entity, will remain valid. All other
interconnection agreements will be terminated.
The Parties agree to work together to determine
which interconnection agreement should remain
valid and which should terminate. In the event
the Parties cannot reach agreement on this issue,
the issue shall be resolved through the Dispute
Resolution process contained in this Agreement.
(A)3.12 DEFAULT
If either Party defaults in the payment of any amount due
hereunder, or if either Party violates any other material
provision of this Agreement, and such default or violation
shall continue for thirty (30) calendar days after written
notice thereof, the other Party may seek relief in accordance
with the Dispute Resolution provision of this Agreement. The
failure of either Party to enforce any of the provisions of
this Agreement or the waiver thereof in any instance shall not
be construed as a general waiver or relinquishment on its part
of any such provision, but the same shall, nevertheless, be
and remain in full force and effect.
(A)3.13 DISCLAIMER OF AGENCY
Except for provisions herein expressly authorizing a Party to
act for another, nothing in this Agreement shall constitute a
Party as a legal representative or agent of the other Party,
nor shall a Party have the right or authority to assume,
create or incur any liability or any obligation of any kind,
express or implied, against or in the name or on behalf of the
other Party unless otherwise expressly permitted by such other
Party. Except as otherwise expressly provided in this
Agreement, no Party undertakes to perform any obligation of
the other Party whether regulatory or contractual, or to
assume any responsibility for the management of the other
Party's business.
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(A)3.14 NONDISCLOSURE
(A)3.14.1 All information, including but not limited to
specifications, microfilm, photocopies, magnetic
disks, magnetic tapes, drawings, sketches,
models, samples, tools, technical information,
data, employee records, maps, financial reports,
and market data, (i) furnished by one Party to
the other Party, dealing with end user specific,
facility specific, or usage specific information,
other than end user information communicated for
the purpose of providing directory assistance or
publication of directory database, or (ii) in
written, graphic, electromagnetic, or other
tangible form and marked at the time of delivery
as "Confidential" or "Proprietary", or (iii)
communicated and declared to the receiving Party
at the time of delivery, or by written notice
given to the receiving Party within ten (10)
calendar days after delivery, to be "Confidential"
or "Proprietary" (collectively referred to as
"Proprietary Information"), shall remain the
property of the disclosing Party. A Party who
receives Proprietary Information via an oral
communication may request written confirmation
that the material is Proprietary Information. A
Party who delivers Proprietary Information via an
oral communication may request written
confirmation that the Party receiving the
information understands that the material is
Proprietary Information.
(A)3.14.2 Upon request by the disclosing Party, the
receiving Party shall return all tangible copies
of Proprietary Information, whether written,
graphic or otherwise, except that the receiving
Party may retain one copy for archival purposes.
(A)3.14.3 Each Party shall keep all of the other Party's
Proprietary Information confidential and shall
use the other Party's Proprietary Information
only in connection with this Agreement. Neither
Party shall use the other Party's Proprietary
Information for any other purpose except upon
such terms and conditions as may be agreed upon
between the Parties in writing.
(A)3.14.4 Unless otherwise agreed, the obligations of
confidentiality and nonuse set forth in this
Agreement do not apply to such Proprietary
Information as:
(A)3.14.4.1 was at the time of receipt already
known to the receiving Party free of
any obligation to keep it confidential
evidenced by written records prepared
prior to delivery by the disclosing
Party; or
(A)3.14.4.2 is or becomes publicly known through
no wrongful act of the receiving
Party; or
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(A)3.14.4.3 is rightfully received from a third
person having no direct or indirect
secrecy or confidentiality obligation
to the disclosing Party with respect
to such information; or
(A)3.14.4.4 is independently developed by an
employee, agent, or contractor of the
receiving Party which individual is
not involved in any manner with the
provision of services pursuant to the
Agreement and does not have any
direct or indirect access to the
Proprietary Information; or
(A)3.14.4.5 is disclosed to a third person by the
disclosing Party without similar
restrictions on such third person's
rights; or
(A)3.14.4.6 is approved for release by written
authorization of the disclosing
Party; or
(A)3.14.4.7 is required to be made public by the
receiving Party pursuant to
applicable law or regulation provided
that the receiving Party shall give
sufficient notice of the requirement
to the disclosing Party to enable the
disclosing Party to seek protective
orders.
(A)3.14.5 Nothing herein is intended to prohibit a Party
from supplying factual information about its
network and Telecommunications Services on or
connected to its network to regulatory agencies
including the Federal Communications Commission
and the Commission so long as any confidential
obligation is protected.
(A)3.14.6 Effective Date Of This Section. Notwithstanding
any other provision of this Agreement, the
Proprietary Information provisions of this
Agreement shall apply to all information
furnished by either Party to the other in
furtherance of the purpose of this Agreement,
even if furnished before the date of this
Agreement.
(A)3.15 SURVIVAL
Any liabilities or obligations of a Party for acts or
omissions prior to the cancellation or termination of this
Agreement; any obligation of a Party under the provisions
regarding indemnification, Confidential or Proprietary
Information, limitations of liability, and any other
provisions of this Agreement which, by their terms, are
contemplated to survive (or to be performed after) termination
of this Agreement, shall survive cancellation or termination
hereof.
(A)3.16 DISPUTE RESOLUTION
(A)3.16.1 If any claim, controversy or dispute between the
Parties, their agents, employees, officers,
directors or affiliated agents should arise, and
the Parties do not resolve it in the ordinary
course of their dealings (the "Dispute"), then
it shall be resolved in accordance with the
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dispute resolution process set forth in this Section.
Each notice of default, unless cured within the
applicable cure period, shall be resolved in accordance
herewith.
(A)3.16.2 At the written request of either Party, and prior to any
other formal dispute resolution proceedings, each Party
shall designate an officer-level employee, at no less
than the vice president level, to review, meet, and
negotiate, in good faith, to resolve the Dispute. The
Parties intend that these negotiations be conducted by
non-lawyer, business representatives, and the locations,
format, frequency, duration, and conclusions of these
discussions shall be at the discretion of the
representatives. By mutual agreement, the
representatives may use other procedures, such as
mediation, to assist in these negotiations. The
discussions and correspondence among the representatives
for the purposes of these negotiations shall be treated
as Confidential Information developed for purposes of
settlement, and shall be exempt from discovery and
production, and shall not be admissible in any
subsequent arbitration or other proceedings without the
concurrence of both of the Parties.
(A)3.16.3 If the vice-presidential level representatives have not
reached a resolution of the Dispute within thirty (30)
calendar days after the matter is referred to them, then
either Party may demand that the Dispute be settled by
arbitration. Such an arbitration proceeding shall be
conducted by a single arbitrator, knowledgeable about
the telecommunications industry. The arbitration
proceedings shall be conducted under the then current
rules of the American Arbitration Association ("AAA").
The Federal Arbitration Act, 9 U.S.C. Sections 1-16, not
state law, shall govern the arbitrability of the
Dispute. The arbitrator shall not have authority to
award punitive damages. All expedited procedures
prescribed by the AAA rules shall apply. The
arbitrator's award shall be final and binding and may be
entered in any court having jurisdiction thereof. Each
Party shall bear its own costs and attorneys' fees, and
shall share equally in the fees and expenses of the
arbitrator. The arbitration proceedings shall occur in
the Denver, Colorado metropolitan area. It is
acknowledged that the Parties, by mutual, written
agreement, may change any of these arbitration practices
for a particular, some, or all Dispute(s).
(A)3.16.4 Should it become necessary to resort to court
proceedings to enforce a Party's compliance with the
dispute resolution process set forth herein, and the
court directs or otherwise requires compliance herewith,
then all of the costs and expenses, including its
reasonable attorney fees, incurred by the Party
requesting such enforcement shall be reimbursed by the
non-complying Party to the requesting Party.
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(A)3.16.5 No Dispute, regardless of the form of action,
arising out of this Agreement, may be brought by
either Party more than two (2) years after the
cause of action accrues.
(A)3.17 CONTROLLING LAW
This Agreement was negotiated by the Parties in accordance
with the terms of the Act and the laws of the state where
service is provided hereunder. It shall be interpreted solely
in accordance with the terms of the Act and the applicable
state law in the state where the service is provided.
(A)3.18 JOINT WORK PRODUCT
This Agreement is the joint work product of the Parties and
has been negotiated by the Parties and their respective
counsel and shall be fairly interpreted in accordance with its
terms and, in the event of any ambiguities, no inferences
shall be drawn against either Party.
(A)3.19 RESPONSIBILITY FOR ENVIRONMENTAL CONTAMINATION
Neither Party shall be liable to the other for any costs
whatsoever resulting from the presence or release of any
environmental hazard that either Party did not introduce to
the affected work location. Both Parties shall defend and hold
harmless the other, its officers, directors and employees from
and against any losses, damages, claims, demands, suits,
liabilities, fines, penalties and expenses (including
reasonable attorneys' fees) that arise out of or result from
(i) any environmental hazard that the indemnifying Party, its
contractors or agents introduce to the work locations or (ii)
the presence or release of any environmental hazard for which
the indemnifying Party is responsible under applicable law.
(A)3.20 NOTICES
Any notices required by or concerning this Agreement shall be
sent to the Parties at the addresses shown below:
USW
Director Interconnection Compliance
1801 California, Room 2410
Denver, CO 80202
With copy to:
U S WEST Law Department
Attention: General Counsel, Interconnection
1801 California Street, 51st Floor
Denver, CO 80202
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RESELLER
John Duffy
Peter Mills
3 Burlington Woods Drive
4th Floor
Burlington, MA 01803
Phone: 781-229-9599, ext. 136
Fax: 781-229-9499
E-mail: [email protected]
Each Party shall inform the other of any changes in the above
addresses.
(A)3.21 RESPONSIBILITY OF EACH PARTY
Each Party is an independent contractor, and has and hereby
retains the right to exercise full control of and supervision
over its own performance of its obligations under this
Agreement and retains full control over the employment,
direction, compensation and discharge of all employees
assisting in the performance of such obligations. Each Party
will be solely responsible for all matters relating to payment
of such employees, including compliance with social security
taxes, withholding taxes and all other regulations governing
such matters. Each Party will be solely responsible for proper
handling, storage, transport and disposal at its own expense
of all (i) substances or materials that it or its contractors
or agents bring to, create or assume control over at work
locations or, (ii) waste resulting therefrom or otherwise
generated in connection with its or its contractors" or
agents' activities at the work locations. Subject to the
limitations on liability and except as otherwise provided in
this Agreement, each Party shall be responsible for (i) its
own acts and performance of all obligations imposed by
applicable law in connection with its activities, legal status
and property, real or personal and, (ii) the acts of its own
affiliates, employees, agents and contractors during the
performance of that Party's obligations hereunder.
(A)3.22 NO THIRD PARTY BENEFICIARIES
This Agreement does not provide and shall not be construed to
provide third parties with any remedy, claim, liability,
reimbursement, cause of action, or other privilege.
(A)3.23 REFERENCED DOCUMENTS
All references to Sections shall be deemed to be references to
Sections of this Agreement unless the context shall otherwise
require. Whenever any provision of this Agreement refers to a
technical reference, technical publication, RESELLER practice,
USW practice, any publication of telecommunications industry
administrative or technical standards, or any other document
specifically incorporated into this Agreement, it will be
deemed to be a reference to the most recent version or edition
(including any amendments, supplements, addenda, or
successors) of such document that is in effect, and will
include the most recent version or edition (including any
amendments, supplements, addenda, or
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successors) of each document incorporated by reference in such
a technical reference, technical publication, RESELLER
practice, USW practice, or publication of industry standards.
USW will not implement changes in the most recent version or
edition in the documents described above when such changes are
optional. The existing configuration of either Party's network
may not be in immediate compliance with the latest release of
applicable referenced documents.
(A)3.24 PUBLICITY
Neither Party shall publish or use any publicity materials
with respect to the execution and delivery or existence of
this Agreement without the prior written approval of the other
Party.
(A)3.25 AMENDMENT
RESELLER and USW may mutually agree to amend this Agreement in
writing. Since it is possible that amendments to this
Agreement may be needed to fully satisfy the purposes and
objectives of this Agreement, the Parties agree to work
cooperatively, promptly and in good faith to negotiate and
implement any such additions, changes and corrections to this
Agreement.
(A)3.26 EXECUTED IN COUNTERPARTS
This Agreement may be executed in any number of counterparts,
each of which shall be deemed an original; but such
counterparts shall together constitute one and the same
instrument.
(A)3.27 HEADINGS OF NO FORCE OR EFFECT
The headings of Sections of this Agreement are for convenience
of reference only, and shall in no way define, modify or
restrict the meaning or interpretation of the terms or
provisions of this Agreement.
(A)3.28 REGULATORY APPROVAL
The Parties understand and agree that this Agreement will be
filed with the Commission for approval. In the event the
Commission rejects any portion of this Agreement, renders it
inoperable or creates an ambiguity that requires further
amendment, the Parties agree to meet and negotiate in good
faith to arrive at a mutually acceptable modification.
(A)3.29 COMPLIANCE
Each Party shall comply with all federal, state, and local
laws, rules and regulations applicable to its performance
under this Agreement. Without limiting the foregoing, USW and
RESELLER agree to take all action necessary to keep and
maintain in full force and effect all permits, licenses,
certificates, insurance, and other authorities needed to
perform their respective obligations hereunder.
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Part A
General Terms
(A)3.30 COMPLIANCE WITH THE COMMUNICATIONS ASSISTANCE FOR LAW
ENFORCEMENT ACT OF 1994 ("CALEA")
Each Party represents and warrants that any equipment,
facilities or services provided to the other Party under this
Agreement comply with CALEA. Each Party shall indemnify and
hold the other Party harmless from any and all penalties
imposed upon the other Party for such noncompliance and shall
at the noncompliant Party's sole cost and expense, modify or
replace any equipment, facilities or services provided to the
other Party under this Agreement to ensure that such
equipment, facilities and services fully comply with CALEA.
(A)3.31 COOPERATION
The Parties agree that this Agreement involves the provision
of USW services in ways such services were not previously
available and the introduction of new processes and procedures
to provide and bill such services. Accordingly, the Parties
agree to work jointly and cooperatively in testing and
implementing processes for pre-ordering, ordering,
maintenance, provisioning and billing and in reasonably
resolving issues which result from such implementation on a
timely basis. Electronic processes and procedures are
addressed in Part D of this Agreement.
(A)3.32 AVAILABILITY OF OTHER AGREEMENTS
With regard to the availability of other agreements, the
Parties agree that the provisions of Section 252(i) of the Act
shall apply, including state and federal, Commission and court
interpretive regulations and decisions in effect from time to
time.
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Part B
Resale
PART B - RESALE
(B)1. DESCRIPTION
(B)1.1 Pursuant to the Act and this Part B, USW shall offer for
resale at wholesale rates any Telecommunications Services it
provides to end users who are not Telecommunications Carriers
including terms and conditions (except prices) in the USW
Tariffs, where applicable. RESELLER may obtain intraLATA toll
service from USW for resale or RESELLER has the option to
self-provision intraLATA toll or to obtain intraLATA toll for
resale from another provider.
(B)1.2 The Parties agree that certain USW services are not available
for resale under this Agreement and certain other USW services
are available for resale but not at a discount, as identified
in Part E or in individual state Tariffs. The availability of
services and applicable discounts identified in Part E or in
individual Tariffs are subject to change pursuant to the Rates
and Charges sub-section of this Resale section.
(B)2. TERMS AND CONDITIONS
(B)2.1 Basic Exchange Telecommunications Service, Basic Exchange
Features, Private Line Service, Frame Relay Service and
intraLATA Toll may be resold only for their intended or
disclosed use and only to the same class of end user to which
USW sells such services (e.g., residence service may not be
resold to business end users). Service provided directly to
RESELLER for its own use, such as administrative services,
must be identified by RESELLER and RESELLER must pay the full
retail rates and prices for such services.
(B)2.2 USW shall provide to RESELLER Telecommunications Services for
resale that are at least equal in quality, and in
substantially the same time and manner that USW provides these
services to others, including other Resellers and end users,
and in accordance with any applicable Commission service
quality standards, including standards the Commission may
impose pursuant to Section 252 (e)(3) of the Act.
(B)2.3 In the event that there are existing agreements between
RESELLER and USW for resale under USW retail Tariff discounts,
RESELLER may elect to continue to obtain services for resale
under the existing agreements and retail Tariff discounts or
RESELLER may elect to terminate such existing agreements and
obtain such services under this Agreement with the associated
wholesale discount specified in Part E of this Agreement.
(B)2.4 In accordance with the Act, RESELLER will provide the date it
will begin to offer Telecommunications Services to residential
and business end users. RESELLER will provide a two (2) year
forecast within ninety (90) calendar days of signing this
Agreement The forecast shall be updated and provided to USW on
a annual basis or as requested by USW. Each forecast will
provide:
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Part B
Resale
- The date service will be offered (by city and/or state)
- The type and quantity of service(s) which will be
offered
- RESELLER's anticipated number of service orders
- Name of RESELLER's key contact personnel
The information provided pursuant to this paragraph shall be
considered Proprietary Information under the Nondisclosure
Section of this Agreement,
(B)2.5 RESELLER may not reserve blocks of USW telephone numbers,
except as allowed by Tariffs.
(B)2.6 USW will accept at no charge one primary listing for each main
telephone number belonging to RESELLER's end user based on end
user information provided to USW by RESELLER. USW will place
RESELLER's listings in USW's directory listing database for
directory assistance purposes. Additional terms and conditions
with respect to directory listings are described in Part C of
this Agreement.
(B)2.7 USW shall provide to RESELLER, for RESELLER's end users,
E911/911 call routing to the appropriate Public Safety
Answering Point ("PSAP"). USW shall not be responsible for any
failure of RESELLER to provide accurate end user information
for listings in any databases in which USW is required to
retain and/or maintain end user information.. USW shall
provide and validate RESELLER's end user information to the
Automatic Location Identification/Database Management System
("ALI/DMS"). USW shall use its standard process to update and
maintain, on the same schedule that it uses for its end users,
RESELLER's end user service information in the ALI/DMS used to
support E911/911 services. USW assumes no liability for the
accuracy of information provided by RESELLER.
(B)2.8 If USW provides and RESELLER accepts operator services,
directory assistance, and intraLATA long distance as a part of
the resold line, it will be offered with standard USW
branding. RESELLER is not permitted to alter the branding of
these services in any manner when the services are a part of
the resold line without the prior written approval of USW.
However, at the request of RESELLER and where technically
feasible, USW will rebrand operator services and directory
assistance in RESELLER's name, provided the charges associated
with such rebranding are paid by RESELLER.
(B)2.9 RESELLER shall designate the Primary Interexchange Carrier
(PIC) assignments on behalf of its end users for interLATA
services and intraLATA services.
(B)2.10 When end users switch from USW to RESELLER, or to RESELLER
from any other Reseller, and if they do not change their
service address to an address served by a different Central
Office, such end users shall be permitted to retain their
current telephone numbers if they so desire. USW shall take no
action to prevent RESELLER end users from retaining their
current telephone numbers.
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Part B
Resale
(B)2.11 RESELLER is liable for all fraud associated with service to
its end-users and accounts. USW takes no responsibility, will
not investigate, and will make no adjustments to RESELLER's
account in cases of fraud unless such fraud is the result of
any intentional act or gross negligence of USW.
Notwithstanding the above, if USW becomes aware of potential
fraud with respect to RESELLER's accounts, USW will promptly
inform RESELLER and, at the direction of RESELLER, take
reasonable action to mitigate the fraud where such action is
possible.
(B)2.12 Resold services are available only where facilities currently
exist and are capable of providing such services without
construction of additional facilities or enhancement of
existing facilities. However, if RESELLER requests that
facilities be constructed or enhanced to provide resold
services, USW will review such requests on a case-by-case
basis and determine if it is economically feasible for USW to
build or enhance facilities. If USW decides to build or
enhance the requested facilities, USW will develop and provide
to RESELLER a price quote for the construction. Construction
charges associated with resold services will be applied in the
same manner that construction charges apply to USW`s retail
end users. If the quote is accepted, RESELLER will be billed
the quoted price and construction will commence after receipt
of payment.
(B)2.13 In the event USW terminates the provisioning of any resold
services to RESELLER for any reason, including RESELLER's
non-payment of charges, RESELLER shall be responsible for
providing any and all necessary notice to its end users of the
termination. In no case shall USW be responsible for providing
such notice to RESELLER's end users. USW will provide notice
to RESELLER of USW`s termination of a resold service on a
timely basis consistent with Commission rules and notice
requirements.
(B)2.14 The underlying network provider of a resold service shall be
entitled to receive, from the purchaser of Switched Access,
the appropriate access charges pursuant to its then effective
Switched Access Tariff.
(B)2.15 Centrex terms and conditions related to calculation of charges
for, and provisioning of common blocks, station lines, and
optional features will be based on the Centrex definition of a
system and a [Resellers] serving location.
(B)2.15.1 Where a common block is applicable, a Centrex system is
defined by a single common block or multiple common
blocks for a single RESELLER within a single Central
Office switching system. A common block defines the
dialing plan for intercom calling, access to public
switched network and/or private facilities, station line
and system restrictions and feature access arrangements
and functionality. RESELLER may purchase multiple common
blocks within a single Central Office switching system
when RESELLER
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Part B
Resale
requires different dialing plans, feature access
arrangements and station line or system restrictions
within a single system operation. A Reseller with
multiple common blocks within the same Central Office
switch may have Network Access Register and Private
Facility trunk groups aggregated across multiple common
blocks. Centrex system based optional features (i.e.
Automatic Route Selection) may not be aggregated across
multiple common blocks. A Centrex system must provide
station lines to at least one location and may provide
station lines to multiple locations.
(B)2.15.2 Centrex station lines are provisioned and charges are
calculated based on serving [Reseller's] location. A
location is defined as the site where USW facilities
(cable plant from the serving Central Office switch)
meet RESELLER facilities (inside wire). In a multi-
tenant building, USW may bring facilities directly to a
single point of interconnection with RESELLER
facilities, typically in a basement equipment room,
which would be considered a single location for this
multi-tenant building. Should USW bring service to
multiple floors or offices within a multi-tenant
building each floor or office with a separate RESELLER
facilities termination point is considered a location.
Multiple buildings within contiguous property (campus)
will be provisioned. and billed as a single location.
Contiguous property is defined as property owned or
leased by a single end user and not separated by public
thoroughfare, river or railroad rights-of-way. Property
will be considered contiguous when connected via
connecting passageways or conduit acceptable to USW for
its facilities. A Reseller with Centrex station lines
from multiple Central Office switching systems, within
the same USW Wire Center, and provisioned to the same
location will not be charged for service or provisioned
as if service was originating from a single Centrex
system. For example, station lines may only be
aggregated from a single Centrex Reseller system to a
single Reseller serving location for rating purposes.
RESELLER may not specify a USW Central Office as a
RESELLER location for termination of Centrex station
lines.
(B)2.16 Private Line Service used for Special Access is available for
resale but not at a discount.
(B)2.17 DSL Service (such as Megabit Service) is available for resale
by RESELLER out of USW's Interstate Tariff, but at no
wholesale discount.
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Part B
Resale
(B)3. RATES AND CHARGES
(B)3.1 The Telecommunications Services identified in Part E are
available for resale at the wholesale discount percentage
shown in Part E. Telecommunications Services available for
resale but excluded from the wholesale pricing arrangement in
this Agreement are available at the retail Tariff rates.
(B)3.2 The Customer Transfer Charges (CTC) as specified in Part E
apply when transferring services to RESELLER.
(B)3.3 A Subscriber Line Charge (SLC), or any subsequent federally
mandated charge to end users, will continue to be paid by
RESELLER without discount for each local exchange line resold
under this Agreement. All federal and state rules and
regulations associated with SLC as found in the applicable
Tariffs also apply.
(B)3.4 RESELLER will pay to USW the PIC change charge without
discount for RESELLER end user changes of interexchange or
intraLATA carriers. Any change in RESELLER's end users'
interexchange or intraLATA carrier must be requested by
RESELLER on behalf of its end user.
(B)3.5 RESELLER agrees to pay USW when its end user activates any
services or features that are billed on a per use or per
activation basis subject to the applicable discount in Part E
as such may be amended pursuant to this Section (e.g.,
continuous redial, last call return, call back calling, call
trace, etc.).
(B)3.6 Product specific non-recurring charges, as set forth in USW's
applicable Tariffs will apply when additional lines, trunks or
circuits are added or when the end user adds features or
services to existing lines or trunks.
(B)3.7 Miscellaneous charges, if applicable, will be consistent with
charges for equivalent services ordered by USW end users.
(B)3.8 The wholesale discount rates in Part E established in the
Oregon Docket No. OR ARB-10, "In the Matter of Sprint
Communications Company L.P. are interim rates incorporated
from OR ARB 3, "In the Matter of the Petition of AT&T
Communications of the Pacific Northwest, for Arbitration of
the Interconnection Rates, Terms and Pursuant to 47 U.S.C.
Sec. 252(b) of the Telecommunications Act of 1996", (the
"Sprint/AT&T Arbitration") are interim rates and are pending
the outcome of a final Commission decision in an
interconnection cost docket. Such rates, as adopted in this
Agreement, will be subject to true-up from the date those
rates became effective in this Agreement to the effective date
of the final interconnection cost docket order.
Notwithstanding this true-up obligation, the Parties agree
that rates in this Agreement will remain in effect as
described below until the exhaustion of all appeals of the
final order in the interconnection cost docket.
(B)3.9 The Parties intend that, if the Sprint/AT&T rates or the
services in the Sprint/AT&T Arbitration are changed by any
negotiations, appeal, stay,
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Part B
Resale
injunction, settlement, or similar proceeding with respect to
Sprint/AT&T, those rates and services, if they have been
adopted into this Agreement, shall be changed in this
Agreement to the same extent as the rates and services in the
Sprint/AT&T Arbitration. Notwithstanding the above, the
Parties agree that in the event a stay or injunction is
granted with respect to the implementation of the services and
rates in the Sprint/AT&T Arbitration, the Parties agree that
the telecommunications services still available for resale
following the stay or injunction will be available to
RESELLER, effective as of the date of the stay order or
injunction, at a wholesale discount rate of 12% (the "Standard
Rate") until such time as a nonappealable order establishes a
wholesale discount rate(s). If the Standard Rate becomes
effective pursuant to this paragraph, the Standard Rate will
also be subject to true-up to the rate(s) established in the
nonappealable order for the period that the Standard Rate was
in effect. If the Sprint/AT&T rates or the applicability of
the rate to the services in Part E is changed by a
nonappealable administrative or judicial order following
approval of negotiated rates, rates reached in an approved
settlement agreement, a decision on appeal or other similar
proceeding, such changed rate(s) will be available to
RESELLER, effective as of the date of the order. The
Sprint/AT&T rate shall be subject to true-up to the changed
rates for the period of time the Sprint/AT&T rate was in
effect. Notwithstanding the above, no true-up of either the
Standard Rate or the Sprint/AT&T rate will occur unless
ordered as a part of the nonappealable administrative or
judicial order.
(B)3.10 If the resold services are purchased pursuant to Tariffs and
the Tariff rates change, charges billed to RESELLER for such
services will be based upon the new Tariff rates less the
applicable wholesale discount, if any, as agreed to herein or
as established by Commission order and/or resale Tariff. The
new rate will be effective upon the Tariff effective date.
(B)4. ORDERING PROCESS
(B)4.1 RESELLER, or RESELLER's agent, shall act as the single point
of contact for its end users' service needs, including without
limitation, sales, service design, order taking, provisioning,
change orders, training, maintenance, trouble reports, repair,
post-sale servicing, billing, collection and inquiry. RESELLER
shall inform its end users that they are end users of RESELLER
for resold services. RESELLER's end users contacting USW will
be instructed to contact RESELLER; however, nothing in this
Agreement, except as provided below, shall be deemed to
prohibit USW from discussing its products and services with
RESELLER's end users who call USW.
(B)4.2 RESELLER shall transmit to USW all information necessary for
the ordering (billing, listing and other information),
installation, repair, maintenance and post-installation
servicing according to USW's standard procedures, as described
in the USW Interconnect & Resale Resource Guide available on
USW's Web Site. Information shall be provided using USW's
designated Local
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Part B
Resale
Service Request (LSR) format which may include the LSR, end
user and resale forms. RESELLER must send USW complete and
accurate end user listing information for Directory
Assistance, Directory Listings, and 911 Emergency Services
using USW`s designated resale directory listing order forms.
When USW`s end user or the end user's new service provider
orders the discontinuance of the end user's existing service
in anticipation of moving to another service provider, USW
will render its closing bill to the end user effective with
the disconnection. If another service provider, RESELLER's end
user or RESELLER requests that service be discontinued from
RESELLER and subsequently USW's service to RESELLER is
discontinued USW will issue a bill to RESELLER for that
portion of the service provided to RESELLER. USW will notify
RESELLER by FAX, OSS interface or other agreed upon processes,
in accordance with the OSS section of this Agreement when an
end user moves to another service provider. USW will not
provide RESELLER with the name of the other service provider
selected by the end user.
(B)4.3 RESELLER shall provide USW and USW shall provide RESELLER with
points of contact for order entry, problem resolution and
repair of the resold services.
(B)4.4 Prior to placing orders on behalf of the end user, RESELLER
shall be responsible for obtaining and have in its possession
Proof of Authorization ("POA"), as set forth in Part A of this
Agreement.
(B)4.5 Due date interval standards are addressed in the Interconnect
& Resale Resource Guide.
(B)4.6 Firm Order Confirmation (FOC) guidelines are addressed in the
Interconnect & Resale Resource Guide.
(B)4.7 USW will provide completion notification that is equal to that
provided to USW end users.
(B)4.8 USW will provide Design Layout Records when requested under
terms and conditions consistent with USW end users.
(B)4.9 USW will handle jeopardy orders based upon the same
performance standards and criteria that USW provides to
itself.
(B)5. BILLING
(B)5.1 USW shall bill RESELLER and RESELLER is responsible for all
applicable charges for the resold services as provided herein.
RESELLER shall also be responsible for all Tariffed
charges and charges separately identified in this Agreement
associated with services that RESELLER resells to an end user
under this Agreement.
(B)5.2 USW shall provide RESELLER, on a monthly basis, within 7-10
calendar days of the last day of the most recent billing
period, in an agreed upon standard electronic billing format
as detailed in Part D, billing information including (1) a
summary bill, and (2) individual end user sub-account
information consistent with the samples available for RESELLER
review.
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Part B
Resale
(B)6. MAINTENANCE AND REPAIR
RESELLER and USW will employ the procedures for handling misdirected
repair calls as specified in the Maintenance and Repair Section of this
Agreement.
(B)6.1 USW will maintain facilities and equipment used to provide
RESELLER resold services. RESELLER or its end user may not
rearrange, move, disconnect, or attempt to repair USW
facilities or equipment, other than by connection or
disconnection to any interface between USW and the end user,
without written consent of USW.
(B)6.2 Maintenance and repair processes are detailed in the
Maintenance and Repair Section of this Agreement.
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<PAGE>
Part C
Directory Listings
PART C - WHITE PAGES DIRECTORY LISTINGS
(C)1. DESCRIPTION
White Pages Listings Service (Listings) consists of USW placing the names,
addresses and telephone numbers of RESELLER's end users in USW's listing
database, based on end user information provided to USW by RESELLER. USW
is authorized to use Listings in Directory Assistance (DA) and as noted
below.
(C)2. TERMS AND CONDITIONS
(C)2.1 RESELLER will provide in standard, mechanized format, and USW
will accept at no charge, one primary listing for each main
telephone number belonging to RESELLER's end users. Primary
listings for RESELLER will include the end user Listings for
any resold services or wireless services and are further
defined in USW's general exchange Tariffs. RESELLER will be
charged for premium and privacy listings, (e.g., additional,
foreign, cross reference, informational, etc.), at USW's
general exchange listing Tariff rates, less the wholesale
discount. If RESELLER utilizes Remote Call Forwarding for
local number portability, RESELLER can list only one number
without charge - either the end user's original telephone
number or RESELLER-assigned number. The standard discounted
rate for an additional listing applies to the other number.
(C)2.2 USW will furnish RESELLER the Listings format specifications.
All manual requests are considered a project and require
coordination between RESELLER and USW to determine time
frames.
(C)2.3 RESELLER grants USW a non-exclusive license to incorporate
Listings information into its Directory Assistance database.
With this license USW will incorporate Listings in the DA
database.
(C)2.4 No prior authorization is needed for USW to release Listings
to directory publishers or other third parties. USW will
incorporate Listings information in all existing and future
directory assistance applications developed by USW. RESELLER
authorizes USW to sell and otherwise make Listings available
to directory publishers. Listings shall not be provided or
sold in such a manner as to segregate end users by carrier.
USW will not charge for updating and maintaining the Listings
database. RESELLER will not receive compensation from USW for
any sale of Listings by USW.
(C)2.5 To the extent that state Tariffs limit USW's liability with
regard to Listings, the applicable state Tariff(s) is
incorporated herein and supersedes the Limitation of Liability
section of this Agreement with respect to Listings only.
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Part C
Directory Listings
(C)2.6 USW is responsible for maintaining Listings, including
entering, changing, correcting, rearranging and removing
Listings in accordance with RESELLER orders. USW will take
reasonable steps in accordance with industry practices to
accommodate non-published and non-listed Listings provided
that RESELLER has supplied USW the necessary privacy
indicators on such Listings.
(C)2.7 USW will include RESELLER Listings in USW's Directory
Assistance service to ensure that callers to USWs Directory
Assistance service have non-discriminatory access to
RESELLER's Listings.
(C)2.8 USW will ensure RESELLER Listings provided to USW are included
in the white pages directory published on USW's behalf.
(C)2.9 RESELLER agrees to provide to USW its end user names,
addresses and telephone numbers in a standard mechanized
format, as specified by USW.
(C)2.10 RESELLER will supply its ACNA/CIC or CLCC/OCN, as appropriate,
with each order to provide USW the means of identifying
Listings ownership.
(C)2.11 Upon request by USW, RESELLER shall submit proof to USW, of
authorization from each end user for which RESELLER submits a
change in end user's Listing.
(C)2.12 RESELLER represents and warrants the end user information
provided to USW is accurate and correct. RESELLER further
represents and warrants that it has reviewed all Listings
provided to USW, including end user requested restrictions on
use such as non-published and non-listed. RESELLER shall be
solely responsible for knowing and adhering to state laws or
rulings regarding Listings (e.g., no solicitation requirements
in the states of Arizona and Oregon, privacy requirements in
Colorado), and for supplying USW with the applicable Listing
information.
(C)2.13 RESELLER is responsible for all dealings with, and on behalf
of, RESELLER's end users, including:
(C)2.13.1 All end user account activity, (e.g. end user queries
and complaints).
(C)2.13.2 All account maintenance activity, (e.g., additions,
changes, issuance of orders for Listings to USW).
(C)2.13.3 Determining privacy requirements and accurately coding
the privacy indicators for RESELLER's end user
information. If end user information provided by
RESELLER to USW does not contain a privacy indicator, no
privacy restrictions will apply.
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Part C
Directory Listings
(C)2.13.4 Any additional services requested by RESELLER's end
users.
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<PAGE>
Part D
Miscellaneous Provisions
PART D- MISCELLANEOUS PROVISIONS
(D)1. NETWORK SECURITY
(D)1.1 Protection of Service and Property - Each Party shall exercise
the same degree of care to prevent harm or damage to the other
Party and any third parties, its employees, agents or end
users, or their property as it employs to protect its own
personnel, end users and property, etc. Each Party shall
comply at all times with USW security and safety procedures
and requirements.
(D)1.2 Revenue Protection - USW shall make available to RESELLER all
present and future fraud prevention or revenue protection
features. These features include, but are not limited to
screening codes, and 900 numbers.
(D)1.3. Law Enforcement Interface - USW provides emergency assistance
to 911 centers and law enforcement agencies seven (7) days a
week/twenty-four (24) hours a day. Assistance includes, but is
not limited to release of 911 trace and subscriber
information; in-progress trace requests; establishing
emergency trace equipment, release of information from an
emergency trap/trace or *57 trace; requests for emergency
subscriber information; assistance to law enforcement agencies
in hostage/barricade situations, kidnappings, bomb threats,
extortion/scams, runaways and life threats.
(D)1.4 USW provides trap/trace, pen register and Title III assistance
directly to law enforcement, if such assistance is directed by
a court order. This service is provided during normal business
hours, Monday through Friday. Exceptions are addressed in the
above paragraph. The charges for these services will be billed
directly to the law enforcement agency, without involvement of
RESELLER, for any lines served from USW Wire Centers or cross
boxes.
(D)1.5 In all cases involving telephone lines served from USW Wire
Centers or cross boxes, USW will perform trap/trace Title III
and pen register assistance directly with law enforcement.
RESELLER will not be involved or notified of such actions, due
to non-disclosure court order considerations, as well as
timely response duties when law enforcement agencies are
involved. Exceptions to the above will be those cases, as yet
undetermined, where RESELLER must participate due to technical
reasons wherein its circuitry must be accessed or modified to
comply with law enforcement, or for legal reasons that may
evolve over time. RESELLER will provide USW with a 24 hour a
day, 7 days a week contact for processing such requests,
should they occur.
(D)2. ACCESS TO OPERATIONAL SUPPORT SYSTEMS (OSS)
(D)2.1 Description
(D)2.1.1 USW has developed and shall continue to provide
Operational Support Systems OSS interfaces using
electronic gateways. These gateways act as a mediation
or control point between RESELLER's
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and USW's OSS. These gateways provide security for the
interfaces, protecting the integrity of the USW OSS and
its databases. USW's OSS interfaces have been developed
to support Pre-ordering, Ordering and Provisioning,
Maintenance and Repair and Billing. Included below is a
description of the products and functions supported by
USW OSS interfaces and the technology used by each. This
section describes the interfaces that USW has developed
and shall provide RESELLER. Additional technical
information and details shall be provided by USW in
training sessions and documentation, such as the
"Interconnect Mediated Access User's Guide". USW will
continue to make improvements to the electronic
interfaces as technology evolves, providing notification
to RESELLER consistent with the provisions of this
Section.
(D)2.1.2 Through its electronic gateways, USW shall provide
RESELLER nondiscriminatory access to USW's operational
support systems for pre-ordering, ordering and
provisioning, maintenance and repair, and billing for
resale. For the pre-ordering, ordering and provisioning
of resold services, USW shall provide RESELLER access to
its OSS in substantially the same time and manner as it
provides to itself.
(D)2.2 OSS Support for Pre-Ordering, Ordering and Provisioning
(D)2.2.1 LSR (Local Service Request) Ordering Process
(D)2.2.1.1 RESELLER shall use electronic interfaces for
orders placed using the LSR Ordering Process for
the services it supports. The electronic interface
gateways include both the Electronic Data
Interchange (EDI) interface and the Interconnect
Mediated Access (IMA) Graphical User Interface
(GUI).
(D)2.2.1.2 The EDI interface provides a single interface for
Pre-Order and Order transactions from RESELLER to
USW and is transaction based rather than batch
based. The interface standards for EDI are based
upon the Order & Billing Forum (OBF) Local Service
Order Guidelines (LSOG), the Telecommunication
Industry Forum (TCIF) Customer Service Guideline
and the American National Standards
Institute/Accredited Standards Committee (ANSI
ASC) X12 with exceptions as specified in the IMA
and EDI disclosure documents which are provided in
conjunction with the implementation
responsibilities contained in this Section.
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(D)2.2.1.3 The IMA GUI also provides a single interface for
Pre-Order and Order transactions from RESELLER to
USW and is browser based The IMA GUI interface is
based on the LSOG and utilizes a WEB standard
technology, Hyper Text Markup Language (HTML),
JAVA, and the Transmission Control
Protocol/Internet Protocol (TCP/IP) to transmit
messages.
(D)2.2.1.4 Functions
(D)2.2.1.4.1 Pre-ordering
Pre-Ordering refers to the set of activities
performed in conjunction with placing an
order. Pre-order consists of the following
functions: validate address, service
availability, review Customer Service Record
(CSR), check facility availability, reserve
telephone numbers, and schedule an
appointment. The electronic interface
gateways provide on-line capabilities to
perform these functions. Not all functions
apply to all products.
(D)2.2.1.4.1.1 Validate address will verify the
end user's address.
(D)2.2.1.1.4.1.2 Service Availability will return
the list of (1) POTS products and
services available in the Central
Office switch serving a particular end
user address, which will indicate to
RESELLER, among other things, which
products and services are authorized
for resale in the Central Office
switch serving a particular end user
address and (2) non-switched-based
products and services that RESELLER is
authorized to provide according to its
resale agreement with USW.
(D)2.2.1.1.4.1.3 Review Customer Service Record
(CSR) gives RESELLER the ability to
request a display of local exchange
services and features (CPNI) USW is
currently providing to an end user.
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(D)2.2.1.4.1.4 Check Facility Availability will
provide an indication of whether
existing facilities are available or
if new facilities are required, and if
a technician must be dispatched to
provide the facilities requested at
the end user's address. This
transaction does not reserve
facilities and does not guarantee that
facilities will or will not be
available when the order is submitted.
(D)2.2.1.4.1.5 Reserve Telephone Numbers provides
RESELLER with the ability to select an
end user's telephone number. The
reservation process is further divided
into telephone number availability,
selection, exchange and return
functionality. Expiration period for
selection and submission of Telephone
Number are:
- A period up to thirty (30)
minutes in which to make a
telephone number selection. If
this time limit is exceeded, and
no attempt has been made to
select the telephone numbers,
the telephone numbers are sent
back to the OSS and an error
message is displayed on the LSR.
A new query will need to be
performed for available
telephone numbers.
- When a telephone number has been
reserved, there is a twenty-four
(24) hour business period that
the telephone number may be
included on an LSR. If the time
limit is exceeded, the telephone
number is returned to the OSS.
(D)2.2.1.4.1.6 Schedule Appointment allows
RESELLER to retrieve a calendar of
available appointments and to reserve
an appointment date and time so that a
technician can be dispatched for
premises and/or non-premises work.
(D)2.2.1.4.1.7 Expiration period for selection and
submission of Appointment Reservation
are:
- A selection must be made within
a thirty (30) minute period. If
an appointment
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has been selected and the time
limit was exceeded, an error
message will display. If the
error message displays, an
updated list of available
appointments will need to be
requested. If an appointment has
already been reserved for this
Purchase Order Number, the
Appointment Confirmation window
will be displayed and will be
pre-populated with confirmation
number, appointment date and
time, and after and before
times.
- Appointments are reserved
for a 24 hour business period.
If the appointment is not
attached to a submitted order
within 24 business hours, the
appointment is returned. When
the appointment is successfully
reserved, confirmation of the
appointment will be displayed to
RESELLER.
(D)2.2.1.4.2 Ordering and Provisioning
Submitting an LSR will result in the
provisioning and installation, if necessary,
of an end user's service. The functional set
associated with ordering is: Create New LSR,
Open LSR, Query LSR Status and FOC Return.
(D)2.2.1.4.2.1 Create New LSR allows entry of
information specific to the LSR,
including required OBF forms,
validates information and submits the
LSR for processing.
(D)2.2.1.4.2.2 Open LSR allows RESELLER to save
LSRs it is not ready to submit for
processing as a pending status. When
an LSR is saved as pending, all the
data in all the forms associated with
the LSR is saved. This feature permits
RESELLER to access, edit, submit,
re-save, and purge pending LSRs. In
addition, for issued LSRs, RESELLER
can issue supplemental LSRs and
cancellations.
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(D)2.2.1.4.2.3 Query LSR Status allows RESELLER to
obtain the status of the LSR. Status
is provided to RESELLER upon inquiry.
Order status functions include the
following: Submitted, In Review,
Issued, Rejected, Erred, Completed and
Jeopardy.
(D)2.2.1.4.2.4 FOC Return returns a Firm Order
Confirmation to RESELLER. The FOC
confirms that USW has received a SR,
issued an order, and assigned an order
number for tracking.
(D)2.2.1.5 Forecast of Usage
(D)2.2.1.5.1 RESELLER shall supply USW with a forecast
of products and volumes they anticipate
ordering through the electronic interface
gateways on a quarterly basis.
(D)2.2.1.5.2 USW will use RESELLER's forecast to provide
RESELLER sufficient capacity to provide the
services and elements requested. If RESELLER
exceeds its capacity without notification,
to the extent that it causes degradation to
other users' response times, RESELLER's use
of its capacity on the IMA or EDI server may
be discontinued until a resolution can be
mutually agreed to by both Parties. USW will
attempt to notify RESELLER before
discontinuing RESELLER's use of the IMA or
EDI server; however USW reserves the right
to discontinue use if it is unable to
contact RESELLER.
(D)2.2.1.5.3 When RESELLER requests more than twenty
(20) Secure IDs from USW RESELLER shall use
a T1 line instead of dial-up capabilities.
(D)2.2.1.6. Access Service Request (ASR) Ordering Process
(D)2.2.1.6.1 The Exchange Access Control and Tracking
(EXACT) system may be used for orders placed
using the ASR process. EXACT is based upon
the OBF Access Service Order Guidelines
(ASOG). The EXACT interface accepts a batch
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file that is transmitted via a Network Data
Mover (NDM) connection to USW from RESELLER.
It is RESELLER's responsibility to obtain
the appropriate software to interface with
USW's EXACT system.
(D)2.2.1.7 Facility Based EDI Listing Process
(D)2.2.1.7.1 The Facility Based EDI Listing Process is a
single interface from RESELLER to USW. This
interface is based upon the OBF LSOG and
ANSI ASC X12 standards, version 4010. This
interface enables RESELLER listing data to
be translated and passed into the USW
listing database. After USW's daily batch
processing, a Confirmation/Completion record
(for every PON provided on input) is
returned to RESELLER via an EDI 855
transaction.
(D)2.2.2 Maintenance and Repair
(D)2.2.2.1 Maintenance and Repair electronic interfaces
support the tracking and resolution of end users'
repair and maintenance needs as reported to
RESELLER. They facilitate the exchange of updated
information and progress reports between USW and
RESELLER while the Trouble Report (TR) is open and
a USW technician is working on the resolution.
(D)2.2.2.2 RESELLER shall use the electronic interface
gateways for reporting trouble. The electronic
interface gateways are comprised of either the
Mediated Access System Electronic Bonding (MEDIACC
EB) interface or the IMA GUI interface.
(D)2.2.2.3 The MEDIACC Electronic Bonding (EB) interface uses
CMIP protocol over X.25 packet switching network
using ANS T1M1.5 227/228 standards.
(D)2.2.2.4 The IMA GUI also provides a single interface for
trouble reporting from RESELLER to USW and is
browser based. The IMA GUI interface uses a
Berkley Socket interface using ANSI T1M1.5 227/228
standards. The IMA GUI uses JAVA as the standard.
The IMA GUI Interface currently supports trouble
reporting for resale services.
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(D)2.2.2.5 Functions
(D)2.2.2.5.1 Maintenance and Repair - The functions,
processes and systems used in repair are
based on a Trouble Report (TR), which is an
electronic document maintained in one or
more OSS. A TR contains information about
the end user, the trouble, the status of the
work on the trouble and the results of the
investigation and resolution efforts. These
business processes will be made available to
RESELLER in the following functional set:
open a trouble report, modify a trouble
report, notification of status change, view
trouble report status, cancel a trouble
report, receive a trouble report history,
resubmit/delete an erred trouble report and
close a trouble report.
(D)2.2.2.5.1.1 Open Trouble Report is the
mechanism that captures information
needed to resolve the trouble. Once a TR
has been opened, if RESELLER is using
MEDIACC EB, USW sends an electronic
transaction to RESELLER identifying
information about the TR (E.G.,
commitment date and tracking number).
(D)2.2.2.5.1.2 In IMA for POTS, and in EBTA for
POTS and designed services, Modify
Trouble Report allows RESELLER to modify
the trouble severity (for example; change
from "service affecting" to "out of
service") and trouble narrative on a TR
until it has been cleared.
(D)2.2.2.5.1.3 Status Change Notification
provides notification to RESELLER that
the status of a previously opened TR has
changed. If RESELLER is using MEDIACC EB,
RESELLER will receive this notification
via an electronic transaction. If
RESELLER is using the IMA GUI Interface,
RESELLER will receive this notification
via email and/or fax.
(D)2.2.2.5.1.4 View Trouble Report
Status/Trouble Report Status Request
allows RESELLER to view the status of an
opened Trouble Report. If RESELLER is
using MEDIACC EB, USW sends an electronic
transaction to RESELLER with the
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status of an opened TR after RESELLER
sends an electronic transaction to
request the status.
(D)2.2.2.5.1.5 Cancel Trouble Report allows
RESELLER to request cancellation of a
previously opened TR. Once a request
to cancel is received, an orderly
cessation of the trouble resolution
process begins. If USW has completed
any work before the trouble resolution
process is stopped, charges to
RESELLER may apply.
(D)2.2.2.5.1.6 Trouble Report History provides
RESELLER with historical information
on up to the last three trouble
reports. For POTS resale, the
disposition and trouble report date
and time are provided. For design
services resale, the trouble report
date and time, a text description of
the disposition, the USW Trouble
Report Number, and the trouble type
are provided. IMA provides trouble
report history.
(D)2.2.2.5.1.7 Resubmit/Delete allows trouble
reports to be resubmitted or deleted
via IMA GUI if, prior to entering
USW's OSS, the transaction fails or
errors. This transaction is only valid
if the TR has not entered USW's OSS.
This transaction is currently only
available via IMA GUI.
(D)2.2.5.1.8 Close a Trouble Report for resale, allows
USW to close the TR once work is complete.
For design resale services, USW sends
RESELLER a request for verification to
close. RESELLER then authorizes or denies
the closure. RESELLER has twenty-four (24)
hours to respond. If a response is not
received within that time frame, the TR
will automatically be closed. USW provides
notification to RESELLER that a TR has been
closed because the trouble was resolved.
Additional information, (e.g., disposition,
disposition description, outage duration,
maintenance of service, charge indicator) is
also included. If RESELLER is using EB,
RESELLER will receive this response via an
electronic
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transaction. If RESELLER is using the IMA
GUI Interface, RESELLER will receive this
response via email and/or fax.
(D)2.2.2.5.1.9 MLT test results give [-Reseller] the
ability to request a loop test for POTS
service via EBTA. When RESELLER submits a TR
through IMA, the technician handling the TR
will order a MLT test in appropriate
situations.
(D)2.3 Hours of Operation
USW's electronic interface gateways will be available to
Resellers according to the following schedule:
<TABLE>
<CAPTION>
Function Monday - Friday Saturday Sunday
<S> <C> <C> <C>
IMA Pre-Order & Order 06:00 - 20:00
Exact Order 06:00 - 19:00 07:00 - 17:00
Repair 02:15 - 23:15 07:00 - 21:00 13:00 - 17:00
</TABLE>
USW shall notify Resellers regarding system downtime through
mass facsimile distribution and pop-up windows in the IMA GUI.
All referenced times are Mountain Time.
The preceding times represent the period when USW commits that
its OSS interfaces and downstream systems will be functioning
(except for unforeseen system crashes) and its personnel will
be available to assist RESELLER. USW's OSS interfaces are
typically available 23 hours a day. RESELLER may call any
maintenance and repair issues to the applicable repair center
24 hours per day, seven days per week. USW shall provide
RESELLER current repair contact numbers.
(D)2.4 Billing
(D)2.4.1 For products billed out of the USW Interexchange Access
Billing System (IABS), USW will utilize the existing
CABS/BOS format and technology for the transmission of
bills.
(D)2.4.2 For products billed out of the USW Customer Record
Information System (CRIS), USW will utilize the existing
EDI standard for the transmission of monthly local
billing information. EDI is an established standard
under the auspices of the American National Standards
Institute/Accredited Standards Committee (ANSI/ASC) X12
Committee. A proper subset of this specification has
been adopted by the Telecommunications Industry Forum
(TCIF) as the "811 Guidelines" specifically for the
purposes of telecommunications billing.
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(D)2.5 Outputs
Output information will be provided to RESELLER in the form of
bills, files, and reports. Bills will capture all regular
monthly and incremental/usage charges and present them in a
summarized format. The files and reports delivered to RESELLER
provide more detailed information than the bills. They come in
the following categories:
<TABLE>
<S> <C>
Usage Record File Line Usage Information
Loss and Completion Order Information
Category 11 Facility Based Line Usage Information
SAG/FAM Street Address/Facility Availability Information
</TABLE>
(D)2.5.1 Bills
(D)2.5.1.1 CRIS Summary Bill - The CRIS (Customer Record
Information System) Summary Bill represents a
monthly summary of charges for most wholesale
products sold by USW. This bill includes a total
of all charges by entity plus a summary of current
charges and adjustments on each sub-account.
Individual sub-accounts are provided as billing
detail and contain monthly, one time charges and
incremental/call detail information. The Summary
provides one bill and one payment document for
RESELLER. These bills are segmented by state and
bill cycle. The number of bills received by
RESELLER is dictated by the product ordered and
the USW region in which RESELLER is operating.
(D)2.5.1.2 IABS Bill - The IABS (Interexchange Access Billing
System) Bill represents a monthly summary of
charges. This bill includes monthly and one time
charges plus a summary of any usage charges. These
bills are segmented by product, LATA, billing
account number (BAN) and bill cycle.
(D)2.5.2 Files and Reports
(D)2.5.2.1 Daily Usage Record File provides the accumulated
set of call information for a given day as
captured, or "recorded" by the network switches.
This file will be transmitted Monday through
Friday, excluding USW holidays. This information
is a file of unrated USW originated usage messages
and rated RESELLER originated usage messages. It
is provided in Alliance for Telecommunication
Industry Solution (ATIS) standard
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Electronic Message Interface (EMI) format. This
EMI format is outlined in the document SR-320;
which can be obtained directly from ATIS. The
Daily Usage Record File contains multi-state data
for the Data Processing Center generating this
information. Individual state identification
information is contained with the message detail.
USW will provide this data to RESELLER with the
same level of precision and accuracy it provides
itself. This file will be provided for Resale
services.
(D)2.5.2.2 The charge for this Daily Usage Record File is
contained in Part E of this Agreement.
(D)2.5.2.3 Routing of in-region IntraLATA Collect, Calling
Card, and Third Number Billed Messages - USW will
distribute in-region intraLATA collect, calling
card, and third number billed messages to RESELLER
and exchange with other Co-Providers operating in
region in a manner consistent with existing
inter-company processing agreements. Whenever the
daily usage information is transmitted to a
carrier, it will contain these records for these
types of calls as well.
(D)2.5.2.4 Loss Report provides RESELLER with a daily report
that contains a list of accounts that have had
lines and/or services disconnected. This may
indicate that the end user has changed Resellers
or removed services from an existing account. This
report also details the order number, service name
and address, and date this change was made.
Individual reports will be provided for resale
services.:
(D)2.5.2.5 Completion Report provides RESELLER with a daily
report. This report is used to advise RESELLER
that the order(s) for the service(s) requested is
complete. It details the order number, service
name and address and date this change was
completed. Individual reports will be provided
for resale services.:
This report media is described in Exhibit C.
(D)2.5.2.6 Category 11 Records are Exchange Message Records
(EMR) which provide mechanized record formats that
can be used to exchange access usage information
between USW and RESELLER. Category 1101 series
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records are used to exchange detailed access usage
information.
(D)2.5.2.7 Category 1150 series records are used to exchange
summarized Meet Point Billed access
minutes-of-use.
These mechanized records are available from USW
in the following formats:
NDM (direct connect or dial-up)
Comet
Tape
Cartridge
(D)2.5.2.8 SAG/FAM Files - The SAG (Street Address Guide)/
FAM (Facility Availability Matrix) files contain
the following information:
SAG provides: - Address and Serving Central Office
Information.
FAM provides USOCs and descriptions by state -
(POTS services only). USOC availability by NPA-NXX
(with the exception of Centrex).
interLATA/intraLATA carriers by NPA-NXX.
These files are made available via a download
process. They can be retrieved by ftp (file
transfer protocol), NDM (Network Data Mover)
connectivity, or a Web browser.
(D)2.6 Modifications to OSS Interfaces
(D)2.6.1 RESELLER and USW agree to discuss the modification of
OSS interfaces based upon evolving standards (e.g., data
elements, protocols, transport networks, etc.) and
guidelines issued by or referenced by relevant Alliance
for Telecommunication Industry Solution (ATIS)
committees. Establishment of new, or changes to industry
standards and guidelines will be reviewed semi-annually.
The review will consider standards and guidelines that
have reached final closure as well as those published in
final form. Both Parties agree to evaluate evolving
standards and determine the relevant modification to be
implemented based upon the latest approved version
adopted or the latest version reflecting final closure
by the relevant ATIS committee or subcommittee. As a
result of the review, USW shall draft appropriate
interface specifications that shall be made available to
RESELLER through the electronic gateway disclosure
document. Changes shall be implemented in the next
release after the distribution of the electronic gateway
disclosure document to the Resellers.
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(D)2.6.2 In the course of establishing operational ready system
interfaces between USW and RESELLER to support local
service delivery, RESELLER and USW may need to define
and implement system interface specifications that are
supplemental to existing standards. RESELLER and USW
will submit such specifications to the appropriate
standards committee and will work towards their
acceptance as a standard.
(D)2.6.3 Release updates will be based on regulatory obligations
as dictated by the FCC or Commissions and, as time
permits, business requirements. USW will provide to
RESELLER the features list for modifications to the
interface. Specifications for interface modifications
will be provided to RESELLER three (3) weeks prior to
the release date. RESELLER is required to upgrade to the
current release within six (6) months of the
installation date.
(D)2.7 Reseller Responsibilities for Implementation of OSS Interfaces
(D)2.7.1 Before any RESELLER implementation can begin,
RESELLER must completely and accurately answer the
New Customer Questionnaire. This questionnaire is
provided by the USW account manager and details
information needed by USW in order to establish
service for RESELLER.
(D)2.7.2 Once USW receives a complete and accurate New
Customer Questionnaire, USW and RESELLER will
mutually agree upon time frames for RESELLER
implementation.
(D)2.7.3 If using the EDI interfaces, USW will provide
RESELLER with a copy of the Production Readiness
Verification document. RESELLER is obligated to
meet the requirements specified in the Production
Readiness Verification document regardless of
whether RESELLER chooses to participate in the
Production Readiness Verification Test.
(D)2.8 Reseller Responsibilities for On-going Support for OSS
Interfaces
(D)2.8.1 If using the IMA GUI interface, RESELLER must work
with USW to train RESELLER personnel on the IMA GUI
functions that RESELLER will be using. USW and
RESELLER shall concur on which IMA GUI functions
should be included in RESELLER's training. USW and
RESELLER shall make reasonable efforts to schedule
training in a timely fashion.
(D)2.8.2 An exchange protocol will be used to transport EDI
formatted content. RESELLER must perform
certification testing of exchange protocol prior to
using EDI.
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(D)2.8.3 If RESELLER is using EDI, USW shall provide RESELLER
with a pre-allotted amount of time to complete
certification of its business scenarios. It is the sole
responsibility of RESELLER to schedule an appointment
with USW for certification of its business scenarios.
RESELLER must comply with the agreed upon dates and
times scheduled for the certification of its business
scenarios. If the certification of business scenarios is
delayed due to RESELLER, it is the sole responsibility
of RESELLER to schedule new appointments for
certification of its business scenarios. Conflicts in
the schedule could result in certification being
delayed. If a delay is due to USW, USW will honor
RESELLER's schedule through the use of alternative
hours.
(D)2.8.4 If RESELLER is using the EDI interface, RESELLER must
work with USW to certify the business scenarios that
RESELLER will be using in order to ensure successful
transaction processing. USW and RESELLER shall mutually
agree to the business scenarios for which RESELLER is
required to be certified. Certification is granted only
for a specific release of EDI. New releases of EDI may
require re-certification of some or all business
scenarios. A determination as to the need for
re-certification will be made by the USW Coordinator in
conjunction with the release manager of each EDI
release. Notice of the need for re-certification will be
provided to RESELLER three (3) weeks prior to the
release date.
(D)2.8.5 In the event of Electronic Interface trouble, RESELLER
shall use its best efforts to isolate and resolve the
trouble using the guidelines provided in the Production
Readiness Verification document. If RESELLER cannot
resolve the problem, then RESELLER should contact the
LSP Systems Help Desk. The LSP Systems Help Desk is
RESELLER's Single Point of Contact for electronic
interface trouble.
(D)2.9 Reseller Support
(D)2.9.1 USW shall provide adequate assistance to RESELLER for
RESELLER to understand how to implement and use the OSS
functions for which USW provides access. This assistance
will include training, documentation, and a LSP Help
Desk. The LSP Help Desk will provide a single point of
entry for RESELLER to gain assistance in areas involving
connectivity, system availability, and file outputs. The
LSP Systems Help Desk is available Monday through
Friday, 6:00 a.m. until 8:00 p.m. Mountain Time,
excluding USW holidays. The Help Desk areas are further
described below..
(D)2.9.1.1 Connectivity covers trouble with RESELLER's access
to the USW system for hardware configuration
requirements with relevance to EDI and IMA GUI;
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software configuration requirements with relevance
to EDI and IMA GUI; modem configuration
requirements; T1 configuration and dial in string
requirements; firewall access configuration;
Secure ID configuration; Profile Setup and
password verification.
(D)2.9.1.2 System availability covers system errors generated
during an attempt by RESELLER to place orders or
open trouble reports through EDI and IMA GUI.
These system errors are limited to: POTS; Design
Services and Repair.
(D)2.9.1.3 File Outputs covers RESELLER's output files and
reports produced from its usage and order
activity. File outputs system errors are limited
to: Daily Usage File; Loss / Completion File; IABS
Bill; CRIS Summary Bill; Category 11 Report and
SAG/FAM Reports.
(D)2.9.2 Additional assistance to Resellers; is available through
various web sites. These web sites provide electronic
interface training information and user documentation
and technical specifications.
(D)2.10 Compensation/ Cost Recovery
On-going and one-time startup charges, as applicable, will be
billed at rates to be specified by the Commission at the
completion of an appropriate cost docket hearing. USW shall
establish rates for any systems charges not included in
appropriate cost docket hearings.
(D)3. U S WEST DEX
USW and RESELLER agree that certain issues outside the provision of basic
white page directory listings, such as yellow pages advertising, yellow
pages listings, directory coverage, directory distribution, access to call
guide pages (phone service pages), applicable listings criteria, white
page enhancements and publication schedules will be the subject of
negotiations between RESELLER and directory publishers, including U S WEST
Dex. USW acknowledges that RESELLER may request USW to facilitate
discussions between RESELLER and U S WEST Dex.
(D)4. NOTICE OF CHANGES
Notice should be written and provide pertinent descriptive information of
such changes, within the limitations of confidentiality and disclosure,
such that the other Party can evaluate potential effects. Also included
with the written notice should be contact names and phone numbers for
subsequent discussions.
This represents good faith effort on the part of the Parties and will
evolve over time as required for the effective provision of resale
services and end user service delivery.
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(D)5. MAINTENANCE AND REPAIR
(D)5.1 Service Levels
(D)5.1.1 USW will provide repair and maintenance for all services
covered by this Agreement in a manner equal to that
which USW provides for itself.
(D)5.1.2 During the term of this Agreement, USW will provide
necessary maintenance business process support to allow
RESELLER to provide similar service quality to that
provided by USW to its end users.
(D)5.1.3 USW will perform repair service that is equal in
timeliness and quality to that which it provides to its
own end users.
(D)5.2 Branding
(D)5.2.1 Should USW need to use various forms for communication
with RESELLER end users (while out on premises dispatch
on behalf of RESELLER, for example), USW will use
unbranded forms.
(D)5.2.2 If required by RESELLER, USW will use branded forms
provided at RESELLER's full expense, covering training
costs, storage, printing, distribution and all other
branding-related costs.
(D)5.3 Service interruptions
(D)5.3.1 The characteristics and methods of operation of any
circuits, facilities or equipment of either Party
connected with the services, facilities or equipment of
the other Party pursuant to this Agreement shall not: 1)
interfere with or impair service over any facilities of
the other Party; its affiliated companies, or its
connecting and concurring carriers involved in providing
its services; 2) cause damage to their plant; 3) violate
any applicable law or regulation regarding the invasion
of privacy of any communications carried over the
Party's facilities; or 4) create hazards to the
employees of either Party or to the public. Each of
these requirements is hereinafter referred to as an
"Impairment of Service".
(D)5.3.2 If it is confirmed that either Party is causing an
Impairment of Service, as set forth in this Section, the
Party whose network or service is being impaired (the
"Impaired Party") shall promptly notify the Party
causing the Impairment of Service (the "Impairing
Party") of the nature and location of the problem. The
Impaired Party shall advise the Impairing Party that,
unless promptly rectified, a temporary discontinuance of
the use of any circuit, facility or equipment may be
required. The Impairing Party and the Impaired Party
agree to work together to attempt to promptly resolve
the Impairment of Service. If the Impairing Party is
unable to promptly remedy the Impairment of
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Service, the Impaired Party may temporarily discontinue
use of the affected circuit, facility or equipment.
(D)5.3.3 To facilitate trouble reporting and to coordinate the
repair of the service provided by each Party to the
other under this Agreement, each Party shall designate a
repair center for such service.
(D)5.3.4 Each Party shall furnish a trouble reporting telephone
number for the designated repair center. This number
shall give access to the location where records are
normally located and where current status reports on any
trouble reports are readily available. If necessary,
alternative out-of-hours procedures shall be established
to ensure access to a location that is staffed and has
the authority to initiate corrective action.
(D)5.3.5 Before either Party reports a trouble condition, it
shall use its best efforts to isolate the trouble to the
other's facilities
(D) 5.3.5.1 In cases where a trouble condition
affects a significant portion of the
other's service, the Parties shall assign
the same priority provided to other
Resellers and to itself.
(D)5.3.5.2 The Parties shall cooperate in isolating
trouble conditions.
(D)5.4 Trouble Isolation
(D)5.4.1 According to applicable state Tariffs, USW will bill
appropriate Trouble Isolation Charges for dispatched
work done by USW where the trouble is found to be on the
end user's side of the NID or trouble is found to be in
RESELLER's portion of the network.
(D)5.4.2 Other Trouble Isolation Charges may also be imposed by
USW on RESELLER for other internal repair work incurred
on behalf of RESELLER and later found to be in RESELLER
network components.
(D)5.5 Inside Wire Maintenance
Except where specifically required by state or federal
regulatory mandates, USW will not perform any maintenance of
inside wire (premises wiring beyond the end users NID) for
RESELLER or its end users.
(D)5.6 Testing/Test Requests/Coordinated Testing
(D)5.6.1 USW will make the decision to test an end users line or
circuit. The test systems used by USW are finite, and
their capacity has been designed according to USWs
operating standards.
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(D)5.6.2 Although some types of trouble reports typically will
not require a test, USW usually runs certain standard
tests on each line on which trouble has been reported.
(D)5.6.3 Prior to any test being conducted on a line, USW must
receive a trouble report from RESELLER.
(D)5.6.4 USW end users are not given test results. On
manually-reported trouble USW will not provide to
RESELLER the test results for its trouble reports. For
electronically-reported trouble, RESELLER may see
various basic test results.
(D)5.7 Workcenter Interfaces
(D)5.7.1 USW and RESELLER shall work cooperatively to develop
positive, close working relationships among
corresponding work centers involved in the trouble
resolution processes..
(D)5.8 Misdirected Repair Calls
(D)5.8.1 RESELLER shall inform its own end users where to report
their trouble conditions. Persons placing a misdirected
repair call will be advised to call their own telephone
service provider and will be provided the correct
telephone number for that purpose (this referral may
occur within a voice response system or other
interactive systems).
(D)5.8.2 RESELLER and USW will employ the following procedures
for handling misdirected repair calls;
(D)5.8.2.1 RESELLER and USW will provide their respective end
users with the correct telephone numbers to call
for access to their respective repair bureaus.
(D)5.8.2.2 End users of RESELLER shall be instructed to
report all cases of trouble to RESELLER. End users
of USW shall be instructed to report all cases of
trouble to USW.
(D)5.8.2.3 To the extent the correct provider can be
determined, misdirected repair calls will be
referred to the proper provider of Basic Exchange
Telecommunications Service.
(D)5.8.2.4 RESELLER and USW will provide their respective
repair contact numbers to one another on a
reciprocal basis.
(D)5.8.2.5 In responding to repair calls, neither Party shall
make disparaging remarks about each other, nor
shall they use these repair calls as the basis for
internal referrals or to solicit end users to
market services.
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(D)5.8.2.6 Performance targets for speed of repair call
answering will be the same as USW`s performance
targets for its own end users.
(D)5.9 Major Outages/Restoral/Notification
(D)5.9.1 USW will notify RESELLER of major network outages as
soon as is practical. This notification will be via
e-mail to RESELLER's identified contact. With the minor
exception of certain proprietary information, USW will
utilize the same thresholds and processes for external
notification as it does for internal purposes. This
major outage information will be sent via E-mail on the
same frequency schedule as is provided internally within
USW. Service restoration will be nondiscriminatory, and
will be accomplished as quickly as possible according to
USW and/or industry standards.
(D)5.9.2 If desired, USW will meet with associated personnel from
RESELLER to share contact information and review USW's
outage restoral processes and notification processes.
(D)5.9.3 USW's emergency restoration process operates on a 7X24
basis.
(D)5.10 Proactive Maintenance
(D)5.10.1 USW will perform scheduled maintenance equal in quality
to what it provides to itself.
(D)5.10.2 USW will work cooperatively with RESELLER to develop
industry-wide processes to provide as much notice as
possible to RESELLER of pending maintenance activity.
Such process work will include establishment of
reasonable thresholds and notification standards.
(D)5.11 Hours of Coverage
(D)5.11.1 USW's repair operation is 7 days a week, 24 hours a day.
Not all functions or locations are covered with
scheduled employees on a 7X24 basis. Where such 7X24
coverage is not available USW's repair operations center
(always available 7X24) can call-out technicians or
other personnel required for the situation.
(D)5.12 Escalations
(D)5.12.1 USW will provide trouble escalation procedures to
RESELLER. Such procedures will be based on the processes
USW employs for its own end users. USW escalations are
manual processes.
(D)5.12.2 USW repair escalations begin with calls to the up-front
trouble reporting centers.
(D)5.13 Dispatch
(D)5.13.1 USW will provide maintenance dispatch personnel on the
same schedule provided for its end users.
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(D)5.13.2 Upon receipt of a trouble report from RESELLER, USW will
do all that is reasonable and practical, according to
internal and industry standards, to resolve the repair
condition. USW will dispatch repair personnel, if
necessary, to repair the condition. It will be USW's
decision whether it is necessary to send a technician on
a dispatch. USW will make this dispatch decision based
on the best information available in the trouble
resolution process. Since it is not always necessary to
dispatch to resolve trouble; should RESELLER require a
dispatch when USW believes the dispatch is not
necessary, appropriate charges may be billed to RESELLER
for dispatch-related costs.
(D)5.13.3 For non-designed resale services USW will not request
authorization from RESELLER prior to dispatch. For lines
supported by USW's designed services process, USW may
accept RESELLER authorization to dispatch. USW's
operational processes are regularly reviewed and may be
altered in the future. Should processes be changed,
RESELLER will be notified.
(D)5.13.4 USW expects that RESELLER will have performed
appropriate trouble isolation and screening prior to
handing the trouble report off to USW.
(D)5.14 Electronic Reporting
(D)5.14.1 USW will accept repair reports from RESELLER through a
mechanized system (IMA).
(D)5.14.2 USW will work cooperatively to develop repair reporting
via electronic bonding (other than IMA), based on
national standards.
(D)5.15 Intervals
(D)5.15.1 Similar trouble conditions, whether reported by USW end
users or on behalf of RESELLER end users, will receive
similar commitment intervals.
(D)5.16 Jeopardy Management
(D)5.16.1 Notification will be given as soon as USW is aware that
a trouble report interval is likely to be missed. This
process will be the same as that used by USW for its own
end users.
(D)5.17 Trouble Screening
(D)5.17.1 RESELLER shall screen and test its end user trouble
reports completely enough to insure that it sends USW
only trouble reports that involve USW facilities.
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(D)5.17.2 If desired, USW will cooperate with RESELLER to show
RESELLER how USW screens trouble conditions in its own
centers, so that RESELLER may employ similar techniques
in its centers.
(D)5.18 Maintenance Standards
(D)5.18.1 USW will cooperate with RESELLER to meet the maintenance
standards outlined in this Agreement.
(D)5.18.2 For manually-reported trouble, USW will inform RESELLER
of repair completion as soon as practical after
completion. On electronically reported trouble reports
the electronic system will automatically update status
information, including trouble completion, across the
joint electronic gateway.
(D)5.19 End User Interfaces
(D)5.19.1 RESELLER will be responsible for all interactions with
its end users including service call handling and
notifying end users of trouble status and resolution.
(D)5.19.2 All USW employees who perform repair service for
RESELLER end users will be trained in non-discriminatory
behavior.
(D)5.20 Repair Call Handling
(D)5.20.1 Manually-reported repair calls by RESELLER to USW will
be answered with the same quality and speed USW answers
calls from its own end users.
(D)5.21 Single Point of Contact
(D)5.21.1 USW will provide a single point of contact for RESELLER
to report maintenance issues and trouble reports via
electronic interfaces seven days a week, twenty-four
hours a day.
(D)5.21.2 For manually-reported trouble reports, a single 7X24
trouble reporting telephone number will be provided to
RESELLER for each category of trouble situation
encountered.
(D)5.22 Maintenance Windows
(D)5.22.1 Generally, USW performs major switch maintenance
activities during off-hours time periods, during certain
"maintenance windows" in the early morning hours
and/or-on weekends.
(D)5.22.2 Generally, the maintenance window is from 10:00 PM to
6:00 AM Monday through Friday and from 10:00 PM Saturday
to 6:00 AM Monday.
(D)5.22.3 Although USW attempts to perform major switch
maintenance at these times, on some occasions this will
not be possible.
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(D)6. SERVICE PERFORMANCE
(D)6.1 General Provisions
(D)6.1.1 USW will provide reports of service indicators that will
assist in an evaluation of the service provided to
RESELLER.
(D)6.1.2 In no instance shall this Agreement be construed to
require USW to provide superior levels of service to
RESELLER in comparison to the level of service USW
provides to itself or its own end users.
(D)6.1.3 As further specified in this Section, USW will provide
results for the list of performance indicators
identified for the following Standard Service Groupings:
Resold Residential Plain Old Telephone Service (POTS);
Resold Business POTS; Resold ISDN; Resold Centrex
service; Resold PBX trunks, Resold Direct Inward Dialing
(DID) and Resold Digital Switched Service (DSS); Resold
DS-0, Resold DS-1, Resold DS-3.
(D)6.1.4 As specified in this Section, USW will provide results
for the following types of Orders:
C = Change in existing service or billing number
D = total disconnect of service
F = From the outward service associated with a
transfer (To or "T") of service from one address to
another
N = New connection for service
R = Record order; record change only. (For Resale
services, service migrations without changes for
non-designed services are record orders.)
T = To or transfer of service from one address to
another
X = USW initiated internal work order
(D)6.2 Service Performance Indicators
The following Service Performance Indicators will be provided
to RESELLER when available and upon request, but no more
frequently than once per month subject to the provisions of
this Section. The requests for additional Service Performance
Indicators during the term of this Agreement shall be
considered by USW. However, USW is not required to provide
additional Service Performance Indicators during the term of
this Agreement. Service Performance Indicators characterized
as "Core" indicators measure most directly the service or
process outcome USW provides to RESELLER.
Performance Indicators characterized as "Diagnostic"
indicators are those that measure aspects of service quality
that support aspects measured by core indicators, that
represent sub-process outcomes, or that are otherwise
duplicative to some degree of aspects measured by "Core"
indicators.
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(D)6.2.1 Core Performance Indicators
(D)6.2.1.1 Gateway Availability Indicator
GA-1 Gateway Availability - via Human-to-Computer
Interface (percent).
GA-2 Gateway Availability - via Computer-to-Computer
Interface (percent).
(D)6.2.1.2 Pre-Ordering Indicators
PO-1 Pre-Order/Order Response times
A. Appointment Scheduling (Due Date
Reservation, where appointment is required)
B. Feature Function and Service Availability
Information
C. Facility Availability
D. Street Address Validation
E. Customer Service Records
F. Telephone Number
(D)6.2.1.3 Ordering and Provisioning Indicators
OP-1 Speed of Answer - Interconnect Provisioning Center
(average)
OP-2 Calls Answered within 20 Seconds - Interconnect
Provisioning Center (percent)
OP-3 Installation Commitments Met (percent)
OP-4 Installation Interval (average)
OP-5 Installation Trouble Reports (percent)l
OP-6 Delayed Days (average)
(D)6.2.1.4 Maintenance and Repair Indicators
MR-1 Speed of Answer - Interconnect Repair Center
(average)
MR-2 Percent Calls Answered Within 20 Seconds -
Interconnect Repair Center (percent)
MR-3 Out of Service Cleared Within 24 hours -
Non-Designed Repair Process (percent)
MR-4 All Troubles Cleared Within 48 hours -
Non-Designed Repair Process (percent)
MR-5 All Troubles Cleared Within 4 hours - Designed
Repair Process (percent)
MR-6 Mean Time to Restore - Non-Designed Repair Process
(average)
MR-7 Repair Repeat Report Rate (percent)
MR-8 Trouble Rate (percent)
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(D)6.2.1.5 Billing Indicators
BI-1 Mean Time to Provide USW Recorded Usage Records
((average)
BI-2 Mean Time to Deliver Invoices (average)
BI-3 Billing Accuracy
(D)6.2.1.6 Emergency Services
ES-1 ALI Database Updates Completed Within 24 hours
(percent)
ES-2 911/E911 Emergency Services Trunk Installation
Interval (average)
(D)6.2.1.7 Directory Assistance
DA-1 Speed of Answer - Directory Assistance (average)
DA-2 Calls Answered Within Ten Seconds - Directory
Assistance (percent)
(D)6.2.1.8 Operator Services
OS-1 Speed of Answer - Operator Services (average)
OS-2 Calls Answered Within Ten Seconds - Operator
Services (percent)
(D)6.2.2 Diagnostic Indicators
In addition to the performance indicators identified
above, USW will report the following indicators that do
not directly address nondiscrimination but may be useful
in diagnosing problems or improving service:
(D)6.2.2.1 Pre-Order/Ordering
DPO-1 Electronic Flow - Through of Local Service
Requests (LSRs) to the Service Order Processor
(percent)
DPO-2 LSR Rejection Notice Interval (average)
DPO-3 LSRs Rejection (percent)
DPO-4 Firm Order Confirmation (FOC) Interval (average)
DPO-5 Pre-Order/Order Response Times for USW Retail
Transactions (average)
DPO-6 Completion Notifications Transmitted Within 24
hours (percent)
DPO-7 Completion Notification Interval (average)
(D)6.2.2.2 Ordering and Provisioning
DOP-1 RESELLER or RESELLER's Customer - Caused
Installation Misses (percent)
DOP-2 Delayed Orders Completed equal to greater than 15
days past the Commitment Date (percent)
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DOP-3 Delayed Orders Completed equal to or greater than
90 days past the Commitment Date (percent)
DOP-4 RESELLER or RESELLER's Customer-Caused Coordinated
Cutover Misses (percent)
(D)6.2.2.3 Maintenance and Repair
DMR-1 RESELLER or RESELLER's Customer-Caused Trouble
Reports (percent)
(D)6.2.2.4 Access to OSS Functions:
(GA-1) Gateway Availability - Human-to-Computer
Interface (percent)
(GA-2) Gateway Availability - Computer-to-Computer
Interface (percent)
(PO-1) Per-Order/Order Response Times (average)
(OP-1 and MR-1)Speed of Answer - Provisioning and Repair
Centers (average)
(OP-2 and MR-2) Calls Answered Within 20 Seconds
- Provisioning and Repair Centers (percent)
(BI-1) Mean Time to Provide USW - Recorded Usage Records
(BI-2) Mean Time to Deliver Invoices
(B1-3) Billing Accuracy
(D)6.2.2.5 Access to Emergency Services
(ES-1) ALI Database Updates Within 24 Hours (percent)
(ES-1) 911/E911 ES Trunk Installation Intervals
(average)
(D)6.2.2.6 Access to Directory Assistance and Operator
Services:
(DA-1 and OP-1) Speed of Answer (average)
(DA-2 and OS-2) Calls Answered Within 10 Seconds
(percent)
(D)6.2.2.7 Resale Services Ordering and Provisioning:
(OP-3) Installation Commitments Met (percent)
(OP-4) Installation Interval (average)
(OP-5) Installation Trouble Reports (percent)
(OP-6) Delayed Days (average)
(D)6.2.2.8 Resale Services Maintenance and Repair:
(MR-3) Out of Service Cleared Within 24 Hours -
Non-Designed Repair Process (percent)
(MR-4) All Troubles Cleared Within 48 Hours -
Non-Designed Repair Process (percent)
(MR-5) All Troubles Cleared Within 4 Hours - Designed
Repair Process (percent)
(MR-6) Mean Time to Restore (average)
(MR-6) Repair Repeated Report Rate (percent)
(MR-6) Trouble Rate (percent)
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(D)6.3 Service Quality Performance Results Reports
(D)6.3.1 For Resale, USW will provide core service performance
results for the performance indicators listed above for
RESELLER, other Resellers in aggregate and USW end
users.
(D)6.4 Performance Results Provided to Reseller
The performance results provided to RESELLER by USW shall be
consistent with the current version of the USW Service
Performance Indicator Description (PID).
(D)6.5 The performance results provided under this Agreement are to
be used solely for the purposes set forth herein, and shall be
treated as "Proprietary Information" as provided in Section
(A)3.14 of this Agreement.
(D)6.6 Service Performance - Reported Events
(D)6.6.1 When applicable, USW will report service-related
performance results for all "events". An "event" is the
activity that generates the measurement.
(D)6.6.2 The Parties will report RESELLER results referenced
above provided that RESELLER has ordered and is
utilizing the services reported;
(D)6.6.3 USW will provide the reports on a calendar monthly
basis. These reports will be provided within forty-five
(45) calendar days of the close of the preceding month.
(D)6.7 Self Executing Remedies
The purpose and focus of remedies provisions under this Resale
Agreement shall be to resolve significant differences in
service quality that have been identified through appropriate
comparisons of the service performance results reported for
the core performance indicators defined above. Self-executing
remedies are those actions, defined herein, that USW will
undertake in good faith and in cooperation with RESELLER to
respond to such differences immediately, without waiting for
determination of whether actual discrimination may exist.
(D)6.7.1 For this purpose, significant differences shall be
considered to be those that are determined to be
statistically, operationally, and materially significant
in each of three (3) or more consecutive months and that
reflect a probability that inferior service was
apparently provided to RESELLER, based on the relevant
comparison of performance indicator results.
Statistical significance shall be determined as defined
below. Operational and material significance shall be
established by including for comparison only those
results that have (a) minimum sample sizes of 30 each,
and (b) a relevant comparison demonstrating a service
performance difference of a magnitude that can be
reasonably considered to have a perceptible effect on
end users or RESELLER operations.
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(D)6.7.2 Determination of the statistical significance of any
difference in appropriately comparable results shall be
based on statistical testing for (1) differences in
means (where performance indicator results are reported
as averages) or (2) difference in proportions (where
performance indicator results are reported as
percentages), as follows:
(D)6.7.2.1 Determination of the significance of a
difference in mean values of each monthly
service performance indicator results shall be
based on a "permutation" test using what is
commonly referred to as a "Z" statistic and a
maximum of 1,000 randomly selected permutations
of the samples. Where sample sizes exceed 600,
the "Z" test using the "modified Z statistic"
may be used instead of the permutation test.
Where used, the modified Z statistic will be
based on the statistical variance associated
with USW's retail performance results, where
applicable, or on the variance associated with
RESELLER aggregate performance results, where
there are no retail performance results.
(D)6.7.2.2 The significance of a difference in proportional
measurements shall be based on direct calculation
of the probability of the observed difference
using the binomial distribution with a pooled p
value.
(D)6.7.2.3 A difference in results by either test type (i.e.,
differences in means or differences in
proportions) will be deemed statistically
significant if the appropriate one tailed test
indicates, with 99 percent confidence, that the
performance indicator results being compared
appear to be from different populations of
performance. In other words, that service being
provided to RESELLER appears to be inferior to
that represented by the comparable results (such
as, results representing service provided to
Resellers in aggregate or to USW retail).
(D)6.7.3 For each case in which a significant difference as
defined above has occurred, USW shall:
(D)6.7.3.1 Immediately investigate to determine the cause(s)
of the difference and, where feasible, begin
good-faith efforts to resolve the difference;
(D)6.7.3.2 Within 45 days, provide to RESELLER a written
explanation of the result of the investigation as
to
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cause(s) and, as applicable, an action plan
describing (i) what has and will be done to
resolve the difference, (ii) what cooperative
actions and timelines on the part of RESELLER are
needed to facilitate or expedite resolution, and
(iii) listing key milestones for use by the
Parties in tracking progress;
(D)6.7.3.3 Offer and meet with designated RESELLER
representatives monthly to discuss progress on
resolving the difference(s);
(D)6.7.3.4 Escalate to vice president level any significant
difference that has or is not projected to be
resolved within three months of the difference
first being identified as significant as defined
above, with commitment at that level to direct due
diligence toward removing obstacles and expediting
resources where feasible and necessary to resolve
the difference as soon as possible.
(D)6.7.4 If a statistically and operationally significant
difference has occurred in the trend results for any
particular performance indicator, the Parties shall
allow three (3) months to correct the difference in the
trend results. If the statistically, and operationally
significant difference in trend results is corrected
within the three (3) month time, no action, formal or
informal, shall be taken by either Party with respect to
that difference.
(D)6.7.5 If the statistically and operationally significant
difference in trend results is not corrected within the
three (3) month time frame, the Dispute Resolution
provision of this Resale Agreement shall apply.
(D)6.8 Delaying Events
(D)6.8.1 A Party's failure to meet a requirement in this Section
of this Agreement shall not be included when that
failure is a result, directly or indirectly, of a
Delaying Event.
(D)6.8.2 A "Delaying Event" means:
(D)6.8.2.1 Failure by either Party to perform any of
its obligations set forth in this Agreement,
(D)6.8.2.2 Any delay, act or failure to act by an end
user, agent or subcontractor of the other
Party, or
(D)6.8.2.3 Any Force Majeure Event.
(D)6.8.3 If a Delaying Event prevents either Party from
performing a measured activity, then such measured
activity shall be excluded from the performance
indicator(s).
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<PAGE>
Part D
Miscellaneous Provisions
(D)6.9 Records Retention for Service Performance Indicators
USW shall maintain complete and accurate records, for the
specified review period of its performance under this
Agreement for each measured activity. USW shall provide such
records to RESELLER in a self-reporting format. Such records
shall be in the format kept in USW's ordinary course of
business. The Parties agree that such records shall be deemed
"Confidential Information."
(D)6.10 Joint Defense and Advocacy
The Parties shall jointly and separately advocate and defend
the sufficiency of this Agreement in addressing the
nondiscrimination requirements of the Act and wholesale
services performance measurements reporting rights, remedies
and related terms and conditions in any forum in which its
sufficiency might be challenged.
(D)6.11 Cost Recovery
Each Party reserves the right to recover the costs associated
with the creation of the above measures, indicators, and
reports through a future proceeding before a regulatory body.
Such a proceeding may address a wide range of implementation
costs not otherwise recovered through charges established
herein.
Page 61
<PAGE>
Part E
Oregon Rates
PART E - OREGON RATES
LOCAL EXCHANGE SERVICES RESALE OF SERVICES
The Parties agree the following charges apply to the Resale of Local Services:
1. Nonrecurring Charges.
a. Customer Transfer Charge (CTC): The following nonrecurring charges
apply when converting a USW account to a RESELLER account or when
changing an end user from one reseller to another.
<TABLE>
<CAPTION>
CATEGORY OF SERVICE NONRECURRING CHARGE
------------------- -------------------
<S> <C>
RESIDENCE OR BUSINESS MECHANIZED
First Line $14.56
Each Additional Line $6.57
RESIDENCE OR BUSINESS MANUAL
First Line $27.52
Each Additional Line $ 7.12
PRIVATE LINE TRANSPORT
First Circuit $45.08
Additional Circuits, Same CSR $31.19
ADVANCED COMMUNICATIONS SERVICES, PER CIRCUIT $50.48
</TABLE>
b. Product Specific Nonrecurring Charge: As set forth in USW tariffs,
the product specific nonrecurring charges, without discount, will
apply when additional lines or trunks are added or when the end user
adds features or services to existing lines or trunks.
2. Except as qualified below, all USW telecommunications services, including
lntraLATA Toll, shall be available for resale at a 22% discount.
a. The following services are not available for resale:
- Customer Premises Equipment (separately or in a package)
- Promotions equal to or less than 90 days
- USW Calling Card
- Concession Service
b. The following services are available only to the same class of
customer eligible to purchase that service from USW:
- Grandfathered
- Residence
- Lifeline/Link-up
c. The following services are available for resale under this Agreement
but are not included in the wholesale pricing reflected above:
- Public Access Lines
- Private Line Used For Special Access
d. Telecommunications services offered by USW at a volume discount are
available at an 11 % discount.
3. Daily Usage Record File: Recurring Charge - $.0011 per record.
Page 62
<PAGE>
Part F
Signature
PART F - SIGNATURE
ENTIRE AGREEMENT
This Agreement constitutes the entire agreement between the Parties and
supersedes all prior oral or written agreements, representations, statements,
negotiations, understandings, proposals and undertakings with respect to the
subject matter hereof.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed
by their respective duly authorized representatives.
ESSENTIAL.COM, INC. U S WEST COMMUNICATIONS, INC.
/s/ Akhil Garland /s/ E. J. Stamp for
- ----------------------------------- -------------------------------------
Signature Signature
Akhil Garland Katherine L. Fleming
- ----------------------------------- -------------------------------------
Name Printed/Typed Name Printed/Typed
CEO Vice President - Interconnection
- ----------------------------------- -------------------------------------
Title Title
11-18-99 11-19-99
- ----------------------------------- -------------------------------------
Date Date
Page 63
<PAGE>
RESALE
AGREEMENT
BETWEEN
U S WEST COMMUNICATIONS, INC.
AND
ESSENTIAL.COM
FOR
WASHINGTON
Page i
<PAGE>
TABLE OF CONTENTS
<TABLE>
<S> <C>
PART A - GENERAL TERMS ..................................................... 1
(A)1. SCOPE OF AGREEMENT .................................................. 1
(A)2. DEFINITIONS ......................................................... 3
(A)3. TERMS AND CONDITIONS ................................................ 4
(A)3.1 GENERAL PROVISIONS ............................................... 4
(A)3.2 TERM OF AGREEMENT ................................................ 4
(A)3.3 PROOF OF AUTHORIZATION ........................................... 5
(A)3.4 PAYMENT .......................................................... 6
(A)3.5 TAXES ............................................................ 7
(A)3.6 FORCE MAJEURE .................................................... 7
(A)3.7 LIMITATION OF LIABILITY .......................................... 8
(A)3.8 INDEMNITY ........................................................ 8
(A)3.9 INTELLECTUAL PROPERTY ............................................ 10
(A)3.10 WARRANTIES ...................................................... 12
(A)3.11 ASSIGNMENT ...................................................... 12
(A)3.12 DEFAULT ......................................................... 13
(A)3.13 DISCLAIMER OF AGENCY ............................................ 13
(A)3.14 NONDISCLOSURE ................................................... 14
(A)3.15 SURVIVAL ........................................................ 15
(A)3.16 DISPUTE RESOLUTION .............................................. 15
(A)3.17 CONTROLLING LAW ................................................. 17
(A)3.18 JOINT WORK PRODUCT .............................................. 17
(A)3.19 RESPONSIBILITY FOR ENVIRONMENTAL CONTAMINATION .................. 17
(A)3.20 NOTICES ......................................................... 17
(A)3.21 RESPONSIBILITY OF EACH PARTY .................................... 18
(A)3.22 NO THIRD PARTY BENEFICIARIES .................................... 18
(A)3.23 REFERENCED DOCUMENTS ............................................ 18
(A)3.24 PUBLICITY ....................................................... 19
(A)3.25 AMENDMENT ....................................................... 19
(A)3.26 EXECUTED IN COUNTERPARTS ........................................ 19
(A)3.27 HEADINGS OF NO FORCE OR EFFECT .................................. 19
(A)3.28 REGULATORY APPROVAL ............................................. 19
(A)3.29 COMPLIANCE ...................................................... 19
(A)3.30 COMPLIANCE WITH THE COMMUNICATIONS ASSISTANCE FOR LAW ENFORCEMENT
ACT OF 1994 ("CALEA") ........................................... 20
(A)3.31 COOPERATION ..................................................... 20
(A)3.32 AVAILABILITY OF OTHER AGREEMENTS ................................ 20
PART B - RESALE ............................................................ 21
(B)1. DESCRIPTION ......................................................... 21
(B)2. TERMS AND CONDITIONS ................................................ 21
(B)3. RATES AND CHARGES ................................................... 25
Page ii
<PAGE>
TABLE OF CONTENTS
(B)4. ORDERING PROCESS .................................................... 26
(B)5. BILLING ............................................................. 27
(B)6. MAINTENANCE AND REPAIR .............................................. 28
PART C - WHITE PAGES DIRECTORY LISTINGS .................................... 29
(C)1. DESCRIPTION ......................................................... 29
(C)2. TERMS AND CONDITIONS ................................................ 29
PART D- MISCELLANEOUS PROVISIONS ........................................... 32
(D)1. NETWORK SECURITY .................................................... 32
(D)2. ACCESS TO OPERATIONAL SUPPORT SYSTEMS (OSS) ......................... 32
(D)3. U S WEST DEX ........................................................ 47
(D)4. NOTICE OF CHANGES ................................................... 47
(D)5. MAINTENANCE AND REPAIR .............................................. 48
(D)6. SERVICE PERFORMANCE ................................................. 54
PART E - WASHINGTON RATES .................................................. 62
PART F - SIGNATURE ......................................................... 64
</TABLE>
Page iii
<PAGE>
Part A
General Terms
PART A - GENERAL TERMS
This Resale Agreement is between essential.com ("RESELLER"), a Delaware
corporation, and U S WEST Communications, Inc. ("USW"), a Colorado
corporation.
(A)1. SCOPE OF AGREEMENT
(A)1.1 Pursuant to this negotiated Resale Agreement ("Agreement"),
RESELLER and USW (collectively, "the Parties") will extend
certain arrangements to one another within the geographical
areas where USW is the incumbent Local Exchange Carrier within
the state of Washington for purposes of providing the resale
of local Telecommunications Services. This Agreement or the
portions of this Agreement relative to a particular state will
be submitted to the Washington Utilities and Transportation
Commission ("Commission") for approval. Notwithstanding this
mutual commitment, however, the Parties enter into this
Agreement without prejudice to any positions they have taken
previously, or may take in the future in any legislative,
regulatory, or other public forum addressing any matters,
including matters related to the types of arrangements
prescribed by this Agreement.
(A)1.2 The provisions in this Agreement are based, in large part, on
the existing state of the law, rules, regulations and
interpretations thereof, as of the date hereof (the "Existing
Rules"). Among the Existing Rules are or could be the results
of arbitrated decisions by the Commission which are currently
being challenged by USW. Among the Existing Rules are certain
FCC rules and orders that are the subject of, or affected by,
the opinion issued by the Supreme Court of the United States
in AT&T CORP., ET AL. V. IOWA UTILITIES BOARD, ET AL. on
January 25, 1999. Nothing in this Agreement shall preclude or
stop USW from taking any position in any forum concerning the
proper interpretation or effect of the Existing Rules or
concerning whether the Existing Rules should be changed,
dismissed, stayed or modified. To the extent that the Existing
Rules are changed, vacated, dismissed, stayed or modified,
then the Parties shall amend this Agreement and all contracts
adopting all or part of this Agreement pursuant to Section
252(i) of the Act, shall be amended to reflect such
modification or change of the Existing Rules. Where the
Parties fail to agree upon such an amendment, it shall be
resolved in accordance with the Dispute Resolution provision
of this Agreement. It is expressly understood that this
Agreement will be corrected to reflect the outcome of generic
pricing proceedings by the Commission. This Section (A)1.2
shall be considered part of the rates, terms and conditions of
each service resale arrangement contained in this Agreement,
and this Section (A)1.2 shall be considered legitimately
related to the purchase of each service for resale arrangement
contained in this Agreement.
(A)1.3 This Agreement is entered into as a result of both private
negotiations between the Parties and the incorporation of some
of the results of arbitrated decisions by the Commission,
acting pursuant to Section 252 (b) of the Act, and involving
interconnection/resale agreements of other parties. The
Parties have included for convenience certain rates, terms or
conditions in this Agreement which reflect
Page 1
<PAGE>
Part A
General Terms
rates, terms or conditions established in some or all of those
other arbitrations. RESELLER acknowledges: (1) that those
rates, terms or conditions are extended only because of the
arbitrated results in other dockets, (2) that USW intends to
appeal certain of those decisions, and (3) that any
negotiations, appeal, stay, injunction or similar proceeding
impacting the applicability of those rates, terms or
conditions to the local service providers who were parties to
those arbitrations will similarly impact the applicability of
those rates, terms or conditions to Reseller. The Parties
further recognize that this Agreement is subject to the
generic proceedings by the Commission addressing the services
in this Agreement.
(A)1.4 This Agreement sets forth the terms, conditions and prices
under which USW agrees to provide services for resale to
RESELLER, all for the sole purpose of providing
Telecommunications Services.
(A)1.5 In the performance of their obligations under this Agreement,
the Parties shall act in good faith and consistently with the
intent of the Act. Where notice, approval or similar action by
a Party is permitted or required by any provision of this
Agreement, (including, without limitation, the obligation of
the Parties to further negotiate the resolution of new or open
issues under this Agreement) such action shall not be
unreasonably delayed, withheld or conditioned.
(A)1.6 USW may make services and features available to RESELLER for
resale under this Agreement consistent with the way they are
available to USW end users, without a formal amendment to this
Agreement. Nothing herein prevents either Party from raising
other issues through additional good faith negotiations.
(A)1.7 This Agreement is structured in the following format:
Part A - General Terms
Part B - Resale
Part C - Directory Services
Part D - Miscellaneous Provisions
Part E - Rates
Part F - Signature
(A)1.8 Prior to placing any orders for services under this Agreement,
the Parties will jointly complete USW's "Reseller
Questionnaire". This questionnaire will then be used to:
Determine geographical requirements
Identify RESELLER Ids
Determine USW system requirements to support RESELLER specific
activity
Collect credit information
Obtain billing information
Create summary bills
Establish input and output requirements
Create and distribute USW and RESELLER contact lists
Identify client hours and holidays
Page 2
<PAGE>
Part A
General Terms
(A)2. DEFINITIONS
(A)2.1 "Act" means the Communications Act of 1934 (47 U.S.C. 151 et.
seq.), as amended by the Telecommunications Act of 1996, and
as from time to time interpreted in the duly authorized rules
and regulations of the FCC or a Commission within its state of
jurisdiction.
(A)2.2 "Basic Exchange Features" are optional end user switched
services that include, but are not necessarily limited to:
Automatic Call Back; Call Trace; Caller ID and Related
Blocking Features; Distinctive Ringing/Call Waiting; Selective
Call Forward; and Selective Call Rejection.
(A)2.3 "Basic Exchange Telecommunications Service" means a service
offered to end users which provides the end user with a
telephonic connection to, and a unique local telephone number
address on the public switched telecommunications network, and
which enables such end user to generally place calls to, or
receive calls from, other stations on the public switched
telecommunications network. Basic residence and business line
services are Basic Exchange Telecommunications Services. As
used solely in the context of this statement and unless
otherwise agreed, Basic Exchange Telecommunications Service
includes access to ancillary services such as 911, directory
assistance and operator services.
(A)2.4 "Commission" means the Utilities and Transportation
Commission(s) in the state of Washington.
(A)2.5 "Enhanced Services" means any service offered over common
carrier transmission facilities that employ computer
processing applications that act on format, content, code,
protocol or similar aspects of the subscriber's transmitted
information; that provide the subscriber with additional,
different or restructured information; or involve end user
interaction with stored information.
(A)2.6 "Interconnect & Resale Resource Guide" is a USW document that
provides essential information needed to request services
available under this Agreement. It is available on USW`s Web
site.
(A)2.7 "Interexchange Carrier' or "IXC" means a carrier that provides
interLATA or IntraLATA Toll services.
(A)2.8 "IntraLATA Toll" is defined in accordance with USW's current
intraLATA toll serving areas, as determined by the Federal
Communications Commission.
(A)2.9 "Local Exchange Carrier" or "LEC" means any person that is
engaged in the provision of telephone exchange service or
exchange access. Such term does not include a person insofar
as such person is engaged in the provision of a commercial
mobile service under Section 332(c) of the Act, except to the
extent that the FCC finds that such service should be included
in the definition of such term.
(A)2.10 "Party" means either USW or RESELLER and "Parties" means USW
and RESELLER.
Page 3
<PAGE>
Part A
General Terms
(A)2.11 "Reseller" is a category of local exchange service provider
that obtains dial tone and associated Telecommunications
Services from another provider through the purchase of
finished services for resale to its end users.
(A)2.12 "Tariff" as used throughout this Agreement refers to USW
interstate Tariffs and state Tariffs, price lists, price
schedules and catalogs.
(A)2.13 "Telecommunications Carrier" means any provider of
Telecommunications Services, except that such term does not
include aggregators of Telecommunications Services (as defined
in Section 226 of the Act). A Telecommunications Carrier shall
be treated as a common carrier under the Act only to the
extent that it is engaged in providing Telecommunications
Services, except that the Federal Communications Commission
shall determine whether the provision of fixed and mobile
satellite service shall be treated as common carriage.
(A)2.14 "Telecommunications Services" means the offering of
telecommunications for a fee directly to the public, or to
such classes of users as to be effectively available directly
to the public, regardless of the facilities used.
(A)2.15 Terms not otherwise defined here, but defined in the Act shall
have the meaning defined there. Where a term is defined in the
regulations implementing the Act but not in this Agreement,
the Parties do not necessarily intend to adopt the definition
as set forth in said regulations.
(A)3. TERMS AND CONDITIONS
(A)3.1 GENERAL PROVISIONS
(A)3.1.1 Each Party is solely responsible for the services it
provides to its end users and to other
Telecommunications Carriers.
(A)3.1.2 The Parties shall work cooperatively to minimize fraud
associated with intra-LATA toll, third-number billed
calls, and any other services related to this
Agreement.
(A)3.1.3 Nothing in this Agreement shall prevent either Party
from seeking to recover the costs and expenses, if
any, it may incur in (a) complying with and
implementing its obligations under this Agreement,
the Act, and the rules, regulations and orders of
the FCC and the Commission, and (b) the development,
modification, technical installation and maintenance
of any systems or other infrastructure which it
requires to comply with and to continue complying
with its responsibilities and obligations under this
Agreement.
(A)3.2 TERM OF AGREEMENT
This Agreement shall become effective upon Commission approval,
pursuant to Sections 251 and 252 of the Act, shall terminate on
January 16, 2002, and shall be binding upon the Parties during
that term, notwithstanding Section 252(i) of the Act. After the
date specified above, this Agreement shall continue in force and
Page 4
<PAGE>
Part A
General Terms
effect until terminated by either Party providing one hundred
sixty (160) days written notice of termination to the other
Party. The day the notice is served will determine the starting
point for a 160-day negotiation period (in accordance with
252(b)1 of the Act. In the event of such termination, existing
or pending service arrangements made available under this
Agreement shall continue in total without interruption under
either a) a new or adoption agreement executed by the Parties,
or b) tariff terms and conditions generally available to all
resellers.
(A)3.2.1 If the Parties are unable to negotiate a new
agreement during the negotiation period described
above, the window of opportunity to file for
arbitration to resolve outstanding contractual
issues in accordance with the Act will occur between
days 135 and 160 of the 160 day notice period.
(A)3.2.2 If the Parties are able to reach agreement, this
Agreement shall continue for the brief period of time
needed to secure the Commission's approval of an
adoption agreement or a new resale agreement. In the
case of Section (A)3.2.1, this Agreement will expire
on the termination date specified in the one hundred
sixty (160) day notice referenced above, unless a
petition for arbitration has been filed, but if such
a petition has been filed then this Agreement shall
continue for the period necessary for the Commission
to act and resolve the disputed issues so that the
Parties will have an effective resale agreement.
(A)3.3 PROOF OF AUTHORIZATION
Where so indicated in specific sections of this Agreement, each
party shall be responsible for obtaining and having in its
possession Proof of Authorization ("POA"). POA shall consist of
verification of the end user's selection and authorization
adequate to document the end user's selection.. Such selection
may be obtained in the following ways:
(A)3.3.1 The end user's written Letter of Authorization.
(A)3.3.2 The end user's electronic authorization by use of an
1-8XX number.
(A)3.3.3 The end user's oral authorization verified by an
independent third party (with third party
verification as POA).
The Parties shall make POAs available to each other upon
request, in accordance with the applicable laws and rules.
Unless prohibited by applicable laws or regulations, a. charge
of $100.00 ("slamming charge") will be assessed if the POA
cannot be provided supporting the change in service provider.
If there is a conflict between the end user designation and
the other Party's written evidence of its authority, the
Parties shall honor the designation of the end user and change
the end user back to the previous service provider.
Page 5
<PAGE>
Part A
General Terms
(A)3.4 Payment
(A)3.4.1 Amounts payable under this Agreement are due and
payable within thirty (30) calendar days after the
date of USWs invoice, or within twenty (20) days
after receipt of the invoice, whichever is later.
If the payment due date is not a Business Day, the
payment shall be made the next Business Day..
USW may discontinue processing orders for the
failure by RESELLER to make full payment for the
services provided under this Agreement within thirty
(30) days of the due date on RESELLER's bill.
USW may disconnect for the failure by RESELLER to
make full payment for the services provided under
this Agreement within sixty (60) days of the due
date on RESELLER's bill. RESELLER will pay the
Tariff charge required to reconnect each end user
line disconnected pursuant to this paragraph.
(A)3.4.2 Should RESELLER dispute, in good faith, any portion
of the monthly billing under this Agreement,
RESELLER will notify USW in writing within thirty
(30) calendar days of the receipt of such billing,
identifying the amount, reason and rationale of such
dispute. RESELLER shall pay all amounts due. Both
RESELLER and USW agree to expedite the investigation
of any disputed amounts in an effort to resolve and
settle the dispute prior to initiating any other
rights or remedies. Should the dispute be resolved
in RESELLER's favor and the resolved amount did not
appear as a credit on RESELLER's next invoice from
USW, USW will reimburse RESELLER the resolved amount
plus interest from the date of payment. The amount
of interest will be calculated using the late payment
factor that would have applied to such amount had it
not been paid on time.
(A)3.4.3 USW will determine RESELLER's credit status based on
previous payment history with USW or credit reports
such as Dun and Bradstreet. If RESELLER has not
established satisfactory credit with USW or if
RESELLER is repeatedly delinquent in making its
payments, USW may require a deposit to be held as
security for the payment of charges. "Repeatedly
delinquent" means being thirty (30) calendar days
or more delinquent for three (3) consecutive months.
The deposit may not exceed the estimated total
monthly charges for a two (2) month period. The
deposit may be a surety bond, a letter of credit with
terms and conditions acceptable to USW or some other
form of mutually acceptable security such as a cash
deposit. Required deposits are due and payable within
ten (10) calendar days after demand in accordance
with Commission requirements.
Page 6
<PAGE>
Part A
General Terms
(A)3.4.4 Interest will be paid on cash deposits at the rate
applying to deposits under applicable Commission
rules, regulations, or Tariffs. Cash deposits and
accrued interest will be credited to RESELLER's
account or refunded, as appropriate, upon the
earlier of the termination of this Agreement or the
establishment of satisfactory credit with USK which
will generally be one (1) full year of timely
payments in full by RESELLER. The fact that a
deposit has been made does not relieve RESELLER from
any requirements of this Agreement.
(A)3.4.5 USW may review RESELLER's credit standing and modify
the amount of deposit required.
(A)3.4.6 The late payment charge for amounts that are billed
under this Agreement shall be in accordance with
state Tariffs/Commission Rules and Orders.
(A)3.5 TAXES
Each Party purchasing services hereunder shall pay or otherwise
be responsible for all federal, state, or local sales, use,
excise, gross receipts, transaction or similar taxes, fees or
surcharges levied against or upon such purchasing Party (or the
providing Party when such providing Party is permitted to pass
along to the purchasing Party such taxes, fees or surcharges),
except for any tax on either Party's corporate existence,
status or income. Whenever possible, these amounts shall be
billed as a separate item on the invoice. To the extent a sale
is claimed to be for resale tax exemption, the purchasing Party
shall furnish the providing Party a proper resale tax exemption
certificate as authorized or required by statute or regulation
by the jurisdiction providing said resale tax exemption. Until
such time as a resale tax exemption certificate is provided, no
exemptions will be applied.
(A)3.6 FORCE MAJEURE
Neither Party shall be liable for any delay or failure in
performance of any part of this Agreement from any cause beyond
its control and without its fault or negligence including,
without limitation, acts of nature, acts of civil or military
authority, government regulations, embargoes, epidemics,
terrorist acts, riots, insurrections, fires, explosions,
earthquakes, nuclear accidents, floods, work stoppages,
equipment failure, power blackouts, volcanic action, other
major environmental disturbances, unusually severe weather
conditions, inability to secure products or services of other
persons or transportation facilities or acts or omissions of
transportation carriers (collectively, a "Force Majeure Event").
The Party affected by a Force Majeure Event shall give prompt
notice to the other Party, shall be excused from performance
of its obligations hereunder on a day to day basis to the
extent those obligations are prevented by the Force Majeure
Event, and shall use reasonable efforts to remove or mitigate
the Force Majeure Event. In the event of a labor dispute or
strike the Parties agree to provide service to each other at a
level equivalent to the level they provide themselves.
Page 7
<PAGE>
Part A
General Terms
(A)3.7 LIMITATION OF LIABILITY
(A)3.7.1 Except for losses relating to or arising out of any
act or omission in its performance of services or
functions provided under this Agreement, each Party
shall be liable to the other for direct damages for
any loss, defect or equipment failure resulting from
the causing Party's conduct or the conduct of its
agents or contractors in performing the obligations
contained in this Agreement.
(A)3.7.2 Neither Party shall be liable to the other for
indirect, incidental, consequential, or special
damages, including (without limitation) damages for
lost profits, lost revenues, lost savings suffered
by the other Party regardless of the form of action,
whether in contract, warranty, strict liability,
tort, including (without limitation) negligence of
any kind and regardless of whether the Parties know
the possibility that such damages could result.
(A)3.7.3 Except for indemnity obligations, each Party's
liability to the other Party for any loss relating
to or arising out of any act or omission in its
performance of services or functions provided under
this Agreement, whether in contract or in tort,
shall be limited to the total amount that is or
would have been charged to the other Party by such
breaching Party for the service(s) or function(s)
not performed or improperly performed.
(A)3.7.4 Nothing contained in this Section shall limit either
Party's liability to the other for intentional,
malicious misconduct.
(A)3.7.5 Nothing contained in this Section shall limit either
Party's obligations of indemnification as specified
in the Indemnity Section of this Agreement.
(A)3.7.6 Neither Party shall be liable to the other under any
theory including indemnity on account of such
Party's failure or neglect to have or maintain a
system or systems that are Year 2000 compliant. As
the Parties approach the Year 2000, date information
associated with any interfaces between the Parties
is expected to remain as it is.
(A)3.8 INDEMNITY
(A)3.8.1 With respect to third party claims, the Parties
agree to indemnify each other as follows:
(A)3.8.1.1 Except for claims made by end users of
one Party against the other Party, which
claims are based on defective or faulty
services provided by the other Party to
the one Party, each of the Parties agree
to release, indemnify, defend and hold
harmless the other Party and each of its
officers, directors, employees and
agents (each an "Indemnitee") from and
against and in respect
Page 8
<PAGE>
Part A
General Terms
of any loss, debt, liability, damage,
obligation, claim, demand, judgment or
settlement of any nature or kind, known
or unknown, liquidated or unliquidated
including, but not limited to, costs and
attorneys' fees, whether suffered, made,
instituted, or asserted by any other
party or person, for invasion of
privacy, personal injury to or death of
any person or persons, or for loss,
damage to, or destruction of property,
whether or not owned by others, resulting
from the indemnifying Party's
performance, breach of applicable law,
or status of its employees, agents and
subcontractors; or for failure to perform
under this Agreement, regardless of the
form of action.
(A)3.8.1.2 Where the third party claim is made by
(or through) an end user of one Party
against the other Party, which claim is
based on defective or faulty services
provided by the other Party to the one
Party then there shall be no obligation
of indemnity unless the act or omission
giving rise to the defective or faulty
services is shown to be intentional,
malicious misconduct of the other Party.
(A)3.8.1.3 If the claim is made by (or through) an
end user and where a claim is in the
nature of a claim for invasion of
privacy, libel, slander, or other claim
based on the content of a transmission,
and it is made against a Party who is
not the immediate provider of the
Telecommunications Service to the end
user (the indemnified provider), then
in the absence of fault or neglect on
the part of the indemnified provider,
the Party who is the immediate seller
of such Telecommunications Service shall
indemnify, defend and hold harmless the
indemnified provider from such claim.
(A)3.8.2 The indemnification provided herein shall be
conditioned upon:
(A)3.8.2.1 The indemnified Party shall promptly
notify the indemnifying Party of any
action taken against the indemnified
Party relating to the indemnification.
Failure to so notify the indemnifying
Party shall not relieve the indemnifying
Party of any liability that the
indemnifying Party might have, except to
the extent that such failure prejudices
the indemnifying Party's ability to
defend such claim.
(A)3.8.2.2 The indemnifying Party shall have sole
authority to defend any such action,
including the selection of legal
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counsel, and the indemnified Party may
engage separate legal counsel only at its
sole cost and expense.
(A)3.8.2.3 In no event shall the indemnifying Party
settle or consent to any judgment
pertaining to any such action without
the prior written consent of the
indemnified Party.
(A)3.9 INTELLECTUAL PROPERTY
(A)3.9.1 Each Party hereby grants to the other Party the
limited, personal and nonexclusive right and license
to use its patents, copyrights and trade secrets but
only to the extent necessary to implement this
Agreement or specifically required by the then
applicable federal and state rules and regulations
relating to Interconnection and access to
telecommunications facilities and services, and for
no other purposes. Nothing in this Agreement shall
be construed as the grant to the other Party of any
rights or licenses to trademarks.
(A)3.9.2 The rights and licenses above are granted "AS IS" and
the other Party's exercise of any such right and
license shall be at the sole and exclusive risk of
the other Party. Neither Party shall have any
obligation to defend, indemnify or hold harmless, or
acquire any license or right for the benefit of, or
owe any other obligation or have any liability to,
the other based on or arising from any claim, demand,
or proceeding (hereinafter "claim") by any third
party alleging or asserting that the use of any
circuit, apparatus, or system, or the use of any
software, or the performance of any service or
method, or the provision of any facilities by either
Party under this Agreement constitutes infringement,
or misuse or misappropriation of any patent,
copyright, trade secret, or any other proprietary or
intellectual property right of any third party.
(A)3.9.3 As a condition to the access or use of patents,
copyrights, trade secrets and other intellectual
property (including software) owned or controlled by
a third party to the extent necessary to implement
this Agreement or specifically required by the then
applicable federal and state rules and regulations
relating to Interconnection and access to
telecommunications facilities and services, the Party
providing access may require the other, upon written
notice, from time to time, to obtain a license or
permission for such access or use, make all payments
in connection with obtaining such license, and
provide evidence of such license.
(A)3.9.4 Except as expressly provided in this Intellectual
Property Section, nothing in this Agreement shall be
construed as the grant of a license, either express
or implied, with respect to any patent, copyright,
logo, trademark, trade name, trade secret or any
other intellectual property right now or hereafter
owned, controlled or licensable by either Party.
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Neither Party may use any patent, copyright, logo,
trademark, trade name, trade secret or other
intellectual property rights of the other Party or
its affiliates without execution of a separate
agreement between the Parties.
(A)3.9.5 Neither Party shall without the express written
permission of the other Party, state or imply that:
1) it is connected, or in any way affiliated with
the other or its affiliates, 2) it is part of a
joint business association or any similar
arrangement with the other or its affiliates, 3)
the other Party and its affiliates are in any way
sponsoring, endorsing or certifying it and its goods
and services, or 4) with respect to its advertising
or promotional activities or materials, that the
resold goods and services are in any way associated
with or originated from the other or any of its
affiliates. Nothing in this paragraph shall prevent
either Party from truthfully describing the network
elements it uses to provide service to its end users,
provided it does not represent the network elements
as originating from the other Party or its affiliates.
(A)3.9.6 For purposes of resale only and notwithstanding the
above, unless otherwise prohibited by USW pursuant
to an applicable provision herein, RESELLER may use
the phrase "RESELLER is a reseller of U S WEST
Communications services" (the "Authorized Phrase")
in RESELLER's printed materials provided:
(A)3.9.6.1 The Authorized Phrase is not used in
connection with any goods or services
other than USW services resold by
RESELLER.
(A)3.9.6.2 RESELLER's use of the Authorized Phrase
does not cause end users to believe that
RESELLER is USW.
(A)3.9.6.3 RESELLER may not use the U S WEST logo.
The Authorized Phrase, when displayed,
appears only in text form with all
letters being the same font and point
size. The point size of the Authorized
Phrase shall be no greater than one
fourth the point size of the smallest
use of RESELLER's name and in no event
shall exceed 8 point size.
(A)3.9.6.4 RESELLER shall provide all printed
materials using the Authorized Phrase to
USW for its prior written approval.
(A)3.9.6.5 If USW determines that RESELLER's use of
the Authorized Phrase causes end user
confusion, USW may immediately terminate
RESELLER's right to use the Authorized
Phrase.
(A)3.9.6.6 Upon termination of RESELLER's right to
use the Authorized Phrase or termination
of this Agreement, all
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permission or right to use the Authorized
Phrase shall immediately cease to exist
and RESELLER shall immediately cease any
and all such use of the Authorized
Phrase. RESELLER shall either promptly
return to USW or destroy all materials
in its possession or control displaying
the Authorized Phrase.
(A)3.9.7 RESELLER acknowledges the value of the marks "U S
WEST" and "U S WEST Communications" (the "Marks")
and the goodwill associated therewith and
acknowledges that such goodwill is a property right
belonging to U S WEST, Inc. and USW respectively
(the "Owners"). RESELLER recognizes that nothing
contained in this Agreement is intended as an
assignment or grant to RESELLER of any right, title
or interest in or to the Marks and that this
Agreement does not confer any right or license to
grant sublicenses or permission to third parties to
use the Marks and is not assignable. RESELLER will
do nothing inconsistent with the Owner's ownership
of the Marks, and all rights, if any, that may be
acquired by use of the Marks shall inure to the
benefit of the Owners. RESELLER will not adopt,
use (other than as authorized herein), register
or seek to register any mark anywhere in the world
which is identical or confusingly similar to the
Marks or which is so similar thereto as to
constitute a deceptive colorable imitation thereof
or to suggest or imply some association,
sponsorship, or endorsement by the Owners. The
Owners make no warranties regarding ownership of any
rights in or the validity of the Marks.
(A)3.10 WARRANTIES
NOTWITHSTANDING ANY OTHER PROVISION OF THIS AGREEMENT, THE
PARTIES AGREE THAT NEITHER PARTY HAS MADE, AND THAT THERE DOES
NOT EXIST, ANY WARRANTY, EXPRESS OR IMPLIED, INCLUDING BUT NOT
LIMITED TO WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A
PARTICULAR PURPOSE.
(A)3.11 ASSIGNMENT
(A)3.11.1 Neither Party may assign or transfer (whether by
operation of law or otherwise) this Agreement (or any
rights or obligations hereunder) to a third party
without the prior written consent of the other Party.
Notwithstanding the foregoing, either Party may
assign or transfer this Agreement to a corporate
affiliate or an entity under its common control;
however, if RESELLER's assignee or transferee has an
interconnection agreement with USW, no assignment or
transfer of this Agreement shall be effective
without the prior written consent of USW. Such
consent shall include appropriate resolutions of
conflicts and discrepancies between the assignee's
or transferee's interconnection agreement and this
Agreement. Any attempted
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assignment or transfer that is not permitted is
void AB INITIO. Without limiting the generality of
the foregoing, this Agreement shall be binding upon
and shall inure to the benefit of the Parties'
respective successors and assigns.
(A)3.11.2 Without limiting the generality of the foregoing
subsection, any merger, dissolution, consolidation
or other reorganization of RESELLER, or any sale,
transfer, pledge or other disposition by RESELLER
of securities representing more than 50% of the
securities entitled to vote in an election of
RESELLER's board of directors or other similar
governing body, or any sale, transfer, pledge or
other disposition by RESELLER of substantially all
of its assets, shall be deemed a transfer of
control. If any entity, other than RESELLER,
involved in such merger, dissolution, consolidation,
reorganization, sale, transfer, pledge or other
disposition of RESELLER has an interconnection
agreement with USW, the Parties agree that only one
agreement, either this Agreement or the
interconnection agreement of the other entity, will
remain valid. All other interconnection agreements
will be terminated. The Parties agree to work
together to determine which interconnection
agreement should remain valid and which should
terminate. In the event the Parties cannot reach
agreement on this issue, the issue shall be resolved
through the Dispute Resolution process contained in
this Agreement.
(A)3.12 DEFAULT
If either Party defaults in the payment of any amount due
hereunder, or if either Party violates any other material
provision of this Agreement, and such default or violation
shall continue for thirty (30) calendar days after written
notice thereof, the other Party may seek relief in accordance
with the Dispute Resolution provision of this Agreement. The
failure of either Party to enforce any of the provisions of
this Agreement or the waiver thereof in any instance shall not
be construed as a general waiver or relinquishment on its part
of any such provision, but the same shall, nevertheless, be
and remain in full force and effect.
(A)3.13 DISCLAIMER OF AGENCY
Except for provisions herein expressly authorizing a Party to
act for another, nothing in this Agreement shall constitute a
Party as a legal representative or agent of the other Party,
nor shall a Party have the right or authority to assume, create
or incur any liability or any obligation of any kind, express
or implied, against or in the name or on behalf of the other
Party unless otherwise expressly permitted by such other Party.
Except as otherwise expressly provided in this Agreement, no
Party undertakes to perform any obligation of the other Party
whether regulatory or contractual, or to assume any
responsibility for the management of the other Party's business.
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(A)3.14 NONDISCLOSURE
(A)3.14.1 All information, including but not limited to
specifications, microfilm, photocopies, magnetic
disks, magnetic tapes, drawings, sketches, models,
samples, tools, technical information, data,
employee records, maps, financial reports, and
market data, (i) furnished by one Party to the
other Party dealing with end user specific, facility
specific, or usage specific information, other than
end user information communicated for the purpose
of providing directory assistance or publication of
directory database, or (ii) in written, graphic,
electromagnetic, or other tangible form and marked
at the time of delivery as "Confidential" or
"Proprietary", or (iii) communicated and declared
to the receiving Party at the time of delivery, or
by written notice given to the receiving Party
within ten (10) calendar days after delivery, to
be "Confidential" or "Proprietary" (collectively
referred to as "Proprietary Information"), shall
remain the property of the disclosing Party. A
Party who receives Proprietary Information via an
oral communication may request written confirmation
that the material is Proprietary Information. A
Party who delivers Proprietary Information via an
oral communication may request written confirmation
that the Party receiving the information understands
that the material is Proprietary Information.
(A)3.14.2 Upon request by the disclosing Party, the receiving
Party shall return all tangible copies of
Proprietary Information, whether written, graphic or
otherwise, except that the receiving Party may
retain one copy for archival purposes.
(A)3.14.3 Each Party shall keep all of the other Party's
Proprietary Information confidential and shall use
the other Party's Proprietary Information only in
connection with this Agreement. Neither Party shall
use the other Party's Proprietary Information for
any other purpose except upon such terms and
conditions as may be agreed upon between the Parties
in writing.
(A)3.14.4 Unless otherwise agreed, the obligations of
confidentiality and non-use set forth in this
Agreement do not apply to such Proprietary
Information as:
(A)3.14.4.1 was at the time of receipt already
known to the receiving Party free of
any obligation to keep it confidential
evidenced by written records prepared
prior to delivery by the disclosing
Party; or
(A)3.14.4.2 is or becomes publicly known through
no wrongful act of the receiving Party;
or
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(A)3.14.4.3 is rightfully received from a third
person having no direct or indirect
secrecy or confidentiality obligation
to the disclosing Party with respect to
such information; or
(A)3.14.4.4 is independently developed by an
employee, agent, or contractor of the
receiving Party which individual is not
involved in any manner with the
provision of services pursuant to the
Agreement and does not have any direct
or indirect access to the Proprietary
Information; or
(A)3.14.4.5 is disclosed to a third person by the
disclosing Party without similar
restrictions on such third person's
rights; or
(A)3.14.4.6 is approved for release by written
authorization of the disclosing Party; or
(A)3.14.4.7 is required to be made public by the
receiving Party pursuant to applicable
law or regulation provided that the
receiving Party shall give sufficient
notice of the requirement to the
disclosing Party to enable the
disclosing Party to seek protective
orders.
(A)3.14.5 Nothing herein is intended to prohibit a Party from
supplying factual information about its network and
Telecommunications Services on or connected to its
network to regulatory agencies including the Federal
Communications Commission and the Commission so long
as any confidential obligation is protected.
(A)3.14.6 Effective Date Of This Section. Notwithstanding any
other provision of this Agreement, the Proprietary
Information provisions of this Agreement shall apply
to all information furnished by either Party to the
other in furtherance of the purpose of this
Agreement, even if furnished before the date of this
Agreement.
(A)3.15 SURVIVAL
Any liabilities or obligations of a Party for acts or omissions
prior to the cancellation or termination of this Agreement; any
obligation of a Party under the provisions regarding
indemnification, Confidential or Proprietary Information,
limitations of liability, and any other provisions of this
Agreement which, by their terms, are contemplated to survive (or
to be performed after) termination of this Agreement, shall
survive cancellation or termination hereof.
(A)3.16 DISPUTE RESOLUTION
(A)3.16.1 If any claim, controversy or dispute between the
Parties, their agents, employees, officers, directors
or affiliated agents should arise, and the Parties
do not resolve it in the ordinary course of their
dealings (the "Dispute"), then it shall be resolved
in accordance with the
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dispute resolution process set forth in this
Section. Each notice of default, unless cured within
the applicable cure period, shall be resolved in
accordance herewith.
(A)3.16.2 At the written request of either Party, and prior to
any other formal dispute resolution proceedings, each
Party shall designate an officer-level employee, at
no less than the vice president level, to review,
meet, and negotiate, in good faith, to resolve the
Dispute. The Parties intend that these negotiations
be conducted by non-lawyer, business representatives,
and the locations, format, frequency, duration, and
conclusions of these discussions shall be at the
discretion of the representatives. By mutual
agreement, the representatives may use other
procedures, such as mediation, to assist in these
negotiations. The discussions and correspondence
among the representatives for the purposes of these
negotiations shall be treated as Confidential
Information developed for purposes of settlement,
and shall be exempt from discovery and production,
and shall not be admissible in any subsequent
arbitration or other proceedings without the
concurrence of both of the Parties.
(A)3.16.3 If the vice-presidential level representatives have
not reached a resolution of the Dispute within thirty
(30) calendar days after the matter is referred to
them, then either Party may demand that the Dispute
be settled by arbitration. Such an arbitration
proceeding shall be conducted by a single
arbitrator, knowledgeable about the telecommunications
industry. The arbitration proceedings shall be
conducted under the then current rules of the
American Arbitration Association ("AAA"). The Federal
Arbitration Act, 9 U.S.C. Sections 1-16, not state
law, shall govern the arbitrability of the Dispute.
The arbitrator shall not have authority to award
punitive damages. All expedited procedures prescribed
by the AAA rules shall apply. The arbitrator's award
shall be final and binding and may be entered in any
court having jurisdiction thereof. Each Party shall
bear its own costs and attorneys' fees, and shall
share equally in the fees and expenses of the
arbitrator. The arbitration proceedings shall occur
in the Denver, Colorado metropolitan area. It is
acknowledged that the Parties, by mutual, written
agreement, may change any of these arbitration
practices for a particular, some, or all Dispute(s).
(A)3.16.4 Should it become necessary to resort to court
proceedings to enforce a Party's compliance with the
dispute resolution process set forth herein, and the
court directs or otherwise requires compliance
herewith, then all of the costs and expenses,
including its reasonable attorney fees, incurred by
the Party requesting such enforcement shall be
reimbursed by the non-complying Party to the
requesting Party.
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(A)3.16.5 No Dispute, regardless of the form of action, arising
out of this Agreement, may be brought by either Party
more than two (2) years after the cause of action
accrues.
(A)3.17 CONTROLLING LAW
This Agreement was negotiated by the Parties in accordance with
the terms of the Act and the laws of the state where service is
provided hereunder. It shall be interpreted solely in
accordance with the terms of the Act and the applicable state
law in the state where the service is provided.
(A)3.18 JOINT WORK PRODUCT
This Agreement is the joint work product of the Parties and has
been negotiated by the Parties and their respective counsel and
shall be fairly interpreted in accordance with its terms and,
in the event of any ambiguities, no inferences shall be drawn
against either Party.
(A)3.19 RESPONSIBILITY FOR ENVIRONMENTAL CONTAMINATION
Neither Party shall be liable to the other for any costs
whatsoever resulting from the presence or release of any
environmental hazard that either Party did not introduce to
the affected work location. Both Parties shall defend and hold
harmless the other, its officers, directors and employees from
and against any losses, damages, claims, demands, suits,
liabilities, fines, penalties and expenses (including reasonable
attorneys' fees) that arise out of or result from (i) any
environmental hazard that the indemnifying Party, its
contractors or agents introduce to the work locations or (ii)
the presence or release of any environmental hazard for which
the indemnifying Party is responsible under applicable law.
(A)3.20 Notices
Any notices required by or concerning this Agreement shall be
sent to the Parties at the addresses shown below:
USW
Director Interconnection Compliance
1801 California, Room 2410
Denver, CO 80202
With copy to:
U S WEST Law Department
Attention: General Counsel, Interconnection
1801 California Street, 51st Floor
Denver, CO 80202
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General Terms
RESELLER
John Duffy
Peter Mills
3 Burlington Woods Drive
4th Floor
Burlington, MA 01803
Phone: 781-229-9599, ext. 136
Fax: 781-229-9499
E-mail: [email protected]
Each Party shall inform the other of any changes in the above
addresses.
(A)3.21 RESPONSIBILITY OF EACH PARTY
Each Party is an independent contractor, and has and hereby
retains the right to exercise full control of and supervision
over its own performance of its obligations under this Agreement
and retains full control over the employment, direction,
compensation and discharge of all employees assisting in the
performance of such obligations. Each Party will be solely
responsible for all matters relating to payment of such
employees, including compliance with social security taxes,
withholding taxes and all other regulations governing such
matters. Each Party will be solely responsible for proper
handling, storage, transport and disposal at its own expense
of all (i) substances or materials that it or its contractors
or agents bring to, create or assume control over at work
locations or, (ii) waste resulting therefrom or otherwise
generated in connection with its or its contractors' or agents'
activities at the work locations. Subject to the limitations on
liability and except as otherwise provided in this Agreement,
each Party shall be responsible for (i) its own acts and
performance of all obligations imposed by applicable law in
connection with its activities, legal status and property, real
or personal and, (ii) the acts of its own affiliates, employees,
agents and contractors during the performance of that Party's
obligations hereunder.
(A)3.22 NO THIRD PARTY BENEFICIARIES
This Agreement does not provide and shall not be construed to
provide third parties with any remedy, claim, liability,
reimbursement, cause of action, or other privilege.
(A)3.23 REFERENCED DOCUMENTS
All references to Sections shall be deemed to be references to
Sections of this Agreement unless the context shall otherwise
require. Whenever any provision of this Agreement refers to a
technical reference, technical publication, RESELLER practice,
USW practice, any publication of telecommunications industry
administrative or technical standards, or any other document
specifically incorporated into this Agreement, it will be deemed
to be a reference to the most recent version or edition
(including any amendments, supplements, addenda, or successors)
of such document that is in effect, and will include the most
recent
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General Terms
version or edition (including any amendments, supplements,
addenda, or successors) of each document incorporated by
reference in such a technical reference, technical
publication, RESELLER practice, USW practice, or publication
of industry standards. USW will not implement changes in the
most recent version or edition in the documents described
above when such changes are optional. The existing
configuration of either Party's network may not be in
immediate compliance with the latest release of applicable
referenced documents.
(A)3.24 PUBLICITY
Neither Party shall publish or use any publicity materials
with respect to the execution and delivery or existence of
this Agreement without the prior written approval of the other
Party.
(A)3.25 AMENDMENT
RESELLER and USW may mutually agree to amend this Agreement in
writing. Since it is possible that amendments to this
Agreement may be needed to fully satisfy the purposes and
objectives of this Agreement, the Parties agree to work
cooperatively, promptly and in good faith to negotiate and
implement any such additions, changes and corrections to this
Agreement.
(A)3.26 EXECUTED IN COUNTERPARTS
This Agreement may be executed in any number of counterparts,
each of which shall be deemed an original; but such
counterparts shall together constitute one and the same
instrument.
(A)3.27 Headings of No Force or Effect
The headings of Sections of this Agreement are for convenience
of reference only, and shall in no way define, modify or
restrict the meaning or interpretation of the terms or
provisions of this Agreement.
(A)3.28 REGULATORY APPROVAL
The Parties understand and agree that this Agreement will be
filed with the Commission for approval. In the event the
Commission rejects any portion of this Agreement, renders it
inoperable or creates an ambiguity that requires further
amendment, the Parties agree to meet and negotiate in good
faith to arrive at a mutually acceptable modification.
(A)3.29 COMPLIANCE
Each Party shall comply with all federal, state, and local
laws, rules and regulations applicable to its performance
under this Agreement. Without limiting the foregoing, USW and
RESELLER agree to take all action necessary to keep and
maintain in full force and effect all permits, licenses,
certificates, insurance, and other authorities needed to
perform their respective obligations hereunder.
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(A)3.30 COMPLIANCE WITH THE COMMUNICATIONS ASSISTANCE FOR LAW
ENFORCEMENT ACT OF 1994 ("CALEA")
Each Party represents and warrants that any equipment,
facilities or services provided to the other Party under this
Agreement comply with CALEA. Each Party shall indemnify and
hold the other Party harmless from any and all penalties
imposed upon the other Party for such noncompliance and shall
at the noncompliant Party's sole cost and expense, modify or
replace any equipment, facilities or services provided to the
other Party under this Agreement to ensure that such
equipment, facilities and services fully comply with CALEA.
(A)3.31 COOPERATION
The Parties agree that this Agreement involves the provision
of USW services in ways such services were not previously
available and the introduction of new processes and procedures
to provide and bill such services. Accordingly, the Parties
agree to work jointly and cooperatively in testing and
implementing processes for pre-ordering, ordering,
maintenance, provisioning and billing and in reasonably
resolving issues which result from such implementation on a
timely basis. Electronic processes and procedures are addressed
in Part D of this Agreement.
(A)3.32 AVAILABILITY OF OTHER AGREEMENTS
With regard to the availability of other agreements, the
Parties agree that the provisions of Section 252(i) of the Act
shall apply, including state and federal, Commission and court
interpretive regulations and decisions in effect from time to
time.
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Part B
Resale
PART B - RESALE
(B)1. DESCRIPTION
(B)1.1 Pursuant to the Act and this Part B, USW shall offer for resale
at wholesale rates any Telecommunications Services it provides
to end users who are not Telecommunications Carriers including
terms and conditions (except prices) in the USW Tariffs, where
applicable. RESELLER may obtain intraLATA toll service from USW
for resale or RESELLER has the option to self-provision
intraLATA toll or to obtain intraLATA toll for resale from
another provider.
(B)1.2 The Parties agree that certain USW services are not available
for resale under this Agreement and certain other USW services
are available for resale but not at a discount, as identified
in Part E or in individual state Tariffs. The availability of
services and applicable discounts identified in Part E or in
individual Tariffs are subject to change pursuant to the Rates
and Charges sub-section of this Resale section.
(B)2. TERMS AND CONDITIONS
(B)2.1 Basic Exchange Telecommunications Service, Basic Exchange
Features, Private Line Service, Frame Relay Service and
intraLATA Toll may be resold only for their intended or
disclosed use and only to the same class of end user to which
USW sells such services (e.g., residence service may not be
resold to business end users). Service provided directly to
RESELLER for its own use, such as administrative services,
must be identified by RESELLER and RESELLER must pay the full
retail rates and prices for such services.
(B)2.2 USW shall provide to RESELLER Telecommunications Services for
resale that are at least equal in quality, and in substantially
the same time and manner that USW provides these services to
others, including other Resellers and end users, and in
accordance with any applicable Commission service quality
standards, including standards the Commission may impose
pursuant to Section 252 (e)(3) of the Act.
(B)2.3 In the event that there are existing agreements between RESELLER
and USW for resale under USW retail Tariff discounts, RESELLER
may elect to continue to obtain services for resale under the
existing agreements and retail Tariff discounts or RESELLER may
elect to terminate such existing agreements and obtain such
services under this Agreement with the associated wholesale
discount specified in Part E of this Agreement.
(B)2.4 In accordance with the Act, RESELLER will provide the date it
will begin to offer Telecommunications Services to residential
and business end users. RESELLER will provide a two (2) year
forecast within ninety (90) calendar days of signing this
Agreement The forecast shall be updated and provided to USW on
a annual basis or as requested by USK. Each forecast will
provide:
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Resale
- The date service will be offered (by city and/or state)
- The type and quantity of service(s) which will be offered
- RESELLER's anticipated number of service orders
- Name of RESELLER's key contact personnel
The information provided pursuant to this paragraph shall be
considered Proprietary Information under the Nondisclosure
Section of this Agreement.
(B)2.5 RESELLER may not reserve blocks of USW telephone numbers, except
as allowed by Tariffs.
(B)2.6 USW will accept at no charge one primary listing for each main
telephone number belonging to RESELLER's end user based on end
user information provided to USW by RESELLER. USW will place
RESELLER's listings in USW's directory listing database for
directory assistance purposes. Additional terms and conditions
with respect to directory listings are described in Part C of
this Agreement.
(B)2.7 USW shall provide to RESELLER, for RESELLER's end users,
E911/911 call routing to the appropriate Public Safety
Answering Point ("PSAP"). USW shall not be responsible for any
failure of RESELLER to provide accurate end user information
for listings in any databases in which USW is required to retain
and/or maintain end user information.. USW shall provide and
validate RESELLER's end user information to the Automatic
Location Identification/Database Management System ("ALI/DMS").
USW shall use its standard process to update and maintain, on
the same schedule that it uses for its end users, RESELLER's
end user service information in the ALI/DMS used to support
E911/911 services. USW assumes no liability for the accuracy
of information provided by RESELLER.
(B)2.8 If USW provides and RESELLER accepts operator services, directory
assistance, and intraLATA long distance as a part of the resold
line, it will be offered with standard USW branding. RESELLER is
not permitted to alter the branding of these services in any
manner when the services are a part of the resold line without
the prior written approval of USW However, at the request of
RESELLER and where technically feasible, USW will rebrand
operator services and directory assistance in RESELLER's name,
provided the charges associated with such rebranding are paid
by RESELLER.
(B)2.9 RESELLER shall designate the Primary Interexchange Carrier (PIC)
assignments on behalf of its end users for interLATA services
and intraLATA services.
(B)2.10 When end users switch from USW to RESELLER, or to RESELLER from
any other Reseller, and if they do not change their service
address to an address served by a different Central Office, such
end users shall be permitted to retain their current telephone
numbers if they so desire. USW shall take no action to prevent
RESELLER end users from retaining their current telephone
numbers.
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Part B
Resale
(B)2.11 RESELLER is liable for all fraud associated with service to its
end-users and accounts. USW takes no responsibility, will not
investigate, and will make no adjustments to RESELLER's account
in cases of fraud unless such fraud is the result of any
intentional act or gross negligence of USW. Notwithstanding the
above, if USW becomes aware of potential fraud with respect to
RESELLER's accounts, USW will promptly inform RESELLER and, at
the direction of RESELLER, take reasonable action to mitigate
the fraud where such action is possible.
(B)2.12 Resold services are available only where facilities currently
exist and are capable of providing such services without
construction of additional facilities or enhancement of
existing facilities. However, if RESELLER requests that
facilities be constructed or enhanced to provide resold
services, USW will review such requests on a case-by-case
basis and determine if it is economically feasible for USW to
build or enhance facilities. If USW decides to build or enhance
the requested facilities, USW will develop and provide to
RESELLER a price quote for the construction. Construction
charges associated with resold services will be applied in the
same manner that construction charges apply to USW's retail
end users. If the quote is accepted, RESELLER will be billed
the quoted price and construction will commence after receipt
of payment.
(B)2.13 In the event USW terminates the provisioning of any resold
services to RESELLER for any reason, including RESELLER's
non-payment of charges, RESELLER shall be responsible for
providing any and all necessary notice to its end users of the
termination. In no case shall USW be responsible for providing
such notice to RESELLER's end users. USW will provide notice to
RESELLER of USW's termination of a resold service on a timely
basis consistent with Commission rules and notice requirements.
(B)2.14 The underlying network provider of a resold service shall be
entitled to receive, from the purchaser of Switched Access, the
appropriate access charges pursuant to its then effective
Switched Access Tariff.
(B)2.15 Centrex terms and conditions related to calculation of charges
for, and provisioning of common blocks, station lines, and
optional features will be based on the Centrex definition of a
system and a [Resellers] serving location.
(B)2.15.1 Where a common block is applicable, a Centrex system
is defined by a single common block or multiple
common blocks for a single RESELLER within a single
Central Office switching system. A common block
defines the dialing plan for intercom calling,
access to Public Switched Network and/or private
facilities, station line and system restrictions and
feature access arrangements and functionality.
RESELLER may purchase multiple common blocks within
a single Central Office switching system when RESELLER
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Part B
Resale
requires different dialing plans, feature access
arrangements and station line or system restrictions
within a single system operation. A Reseller with
multiple common blocks within the same Central Office
switch may have Network Access Register and Private
Facility trunk groups aggregated across multiple
common blocks. Centrex system based optional features
(i.e. Automatic Route Selection) may not be
aggregated across multiple common blocks. A Centrex
system must provide station lines to at least one
location and may provide station lines to multiple
locations.
(B)2.15.2 Centrex station lines are provisioned and charges are
calculated based on serving [Reseller's] location. A
location is defined as the site where USW facilities
(cable plant from the serving Central Office switch)
meet RESELLER facilities (inside wire). In a multi-
tenant building, USW may bring facilities directly to
a single point of interconnection with RESELLER
facilities, typically in a basement equipment room,
which would be considered a single location for this
multi-tenant building. Should USW bring service to
multiple floors or offices within a multi-tenant
building each floor or office with a separate
RESELLER facilities termination point is considered
a location. Multiple buildings within contiguous
property (campus) will be provisioned and billed as
a single location. Contiguous property is defined as
property owned or leased by a single end user and
not separated by public thoroughfare, river or
railroad rights-of-way. Property will be considered
contiguous when connected via connecting passageways
or conduit acceptable to USW for its facilities. A
Reseller with Centrex station lines from multiple
Central Office switching systems, within the same
USW Wire Center, and provisioned to the same location
will not be charged for service or provisioned as if
service was originating from a single Centrex system.
For example, station lines may only be aggregated
from a single Centrex Reseller system to a single
Reseller serving location for rating purposes.
RESELLER may not specify a USW Central Office as a
RESELLER location for termination of Centrex station
lines.
(B)2.16 Private Line Service used for Special Access is available for
resale but not at a discount.
(B)2.17 DSL Service (such as Megabit Service) is available for resale
by RESELLER out of USW's Interstate Tariff, but at no wholesale
discount.
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Part B
Resale
(B)3. RATES AND CHARGES
(B)3.1 The Telecommunications Services identified in Part E are
available for resale at the wholesale discount percentage
shown in Part E. Telecommunications Services available for
resale but excluded from the wholesale pricing arrangement in
this Agreement are available at the retail Tariff rates.
(B)3.2 The Customer Transfer Charges (CTC) as specified in Part E
apply when transferring services to RESELLER.
(B)3.3 A Subscriber Line Charge (SLC), or any subsequent federally
mandated charge to end users, will continue to be paid by
RESELLER without discount for each local exchange line resold
under this Agreement. All federal and state rules and
regulations associated with SLC as found in the applicable
Tariffs also apply.
(B)3.4 RESELLER will pay to USW the PIC change charge without
discount for RESELLER end user changes of interexchange or
intraLATA carriers. Any change in RESELLER's end users'
interexchange or intraLATA carrier must be requested by
RESELLER on behalf of its end user.
(B)3.5 RESELLER agrees to pay USW when its end user activates any
services or features that are billed on a per use or per
activation basis subject to the applicable discount in Part E
as such may be amended pursuant to this Section (e.g.,
continuous redial, last call return, call back calling, call
trace, etc.).
(B)3.6 Product specific non-recurring charges, as set forth in USW`s
applicable Tariffs will apply when additional lines, trunks or
circuits are added or when the end user adds features or
services to existing lines or trunks.
(B)3.7 Miscellaneous charges, if applicable, will be consistent with
charges for equivalent services ordered by USW end users.
(B)3.8 The wholesale discount rates in Part E established in the
Washington Docket No. UT-960309, "In the Matter of the Petition
for Arbitration of an Interconnection Agreement between AT&T
Communications of the Pacific Northwest, Inc. and U S WEST
Communications, Inc., for Arbitration of the Interconnection
Rates, Terms and Pursuant to 47 U.S.C. Sec. 252(b) of the
Telecommunications Act of 1996", (the "AT&T Arbitration") are
interim rates and are pending the outcome of a final Commission
decision in an interconnection cost docket. Such rates, as
adopted in this Agreement, will be subject to true-up from the
date those rates became effective in this Agreement to the
effective date of the final interconnection cost docket order.
Notwithstanding this true-up obligation, the Parties agree that
rates in this Agreement will remain in effect as described
below until the exhaustion of all appeals of the final order in
the interconnection cost docket.
(B)3.9 The Parties intend that, if the AT&T rates or the services in
the AT&T Arbitration are changed by any negotiations, appeal,
stay, injunction,
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Part B
Resale
settlement, or similar proceeding with respect to AT&T, those
rates and services, if they have been adopted into this
Agreement, shall be changed in this Agreement to the same
extent as the rates and services in the AT&T Arbitration.
Notwithstanding the above, the Parties agree that in the event
a stay or injunction is granted with respect to the
implementation of the services and rates in the AT&T
Arbitration, the Parties agree that the telecommunications
services still available for resale following the stay or
injunction will be available to RESELLER, effective as of the
date of the stay order or injunction, at a wholesale discount
rate of 12% (the "Standard Rate") until such time as a
nonappealable order establishes a wholesale discount rate(s).
If the Standard Rate becomes effective pursuant to this
paragraph, the Standard Rate will also be subject to true-up
to the rate(s) established in the nonappealable order for the
period that the Standard Rate was in effect. If the AT&T rates
or the applicability of the rate to the services in Part E is
changed by a nonappealable administrative or judicial order
following approval of negotiated rates, rates reached in an
approved settlement agreement, a decision on appeal or other
similar proceeding, such changed rate(s) will be available to
RESELLER, effective as of the date of the order. The AT&T rate
shall be subject to true-up to the changed rates for the period
of time the AT&T rate was in effect. Notwithstanding the above,
no true-up of either the Standard Rate or the AT&T rate will
occur unless ordered as a part of the nonappealable
administrative or judicial order.
(B)3.10 If the resold services are purchased pursuant to Tariffs and
the Tariff rates change, charges billed to RESELLER for such
services will be based upon the new Tariff rates less the
applicable wholesale discount, if any, as agreed to herein or
as established by Commission order and/or resale Tariff. The
new rate will be effective upon the Tariff effective date.
(B)4. ORDERING PROCESS
(B)4.1 RESELLER, or RESELLER's agent, shall act as the single point of
contact for its end users' service needs, including without
limitation, sales, service design, order taking, provisioning,
change orders, training, maintenance, trouble reports, repair,
post-sale servicing, billing, collection and inquiry. RESELLER
shall inform its end users that they are end users of RESELLER
for resold services. RESELLER's end users contacting USW will
be instructed to contact RESELLER; however, nothing in this
Agreement, except as provided below, shall be deemed to
prohibit USW from discussing its products and services with
RESELLER's end users who call USW.
(B)4.2 RESELLER shall transmit to USW all information necessary for
the ordering (billing, listing and other information),
installation, repair, maintenance and post-installation
servicing according to USW's standard procedures, as described
in the USW Interconnect & Resale Resource Guide available on
USW's Web site. Information shall be provided using USWs
designated Local Service Request (LSR) format which may
include the LSR, end user and
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Part B
Resale
resale forms. RESELLER must send USW complete and accurate end
user listing information for Directory Assistance, Directory
Listings, and 911 Emergency Services using USW's designated
resale directory listing order forms. When USW's end user or
the end user's new service provider orders the discontinuance
of the end user's existing service in anticipation of moving
to another service provider, USW will render its closing bill
to the end user effective with the disconnection. If another
service provider, RESELLER's end user or RESELLER requests
that service be discontinued from RESELLER and subsequently
USW's service to RESELLER is discontinued USW will issue a bill
to RESELLER for that portion of the service provided to
RESELLER. USW will notify RESELLER by FAX, OSS interface or
other agreed upon processes, in accordance with the OSS
section of this Agreement when an end user moves to another
service provider. USW will not provide RESELLER with the name
of the other service provider selected by the end user.
(B)4.3 RESELLER shall provide USW and USW shall provide RESELLER with
points of contact for order entry, problem resolution and
repair of the resold services.
(B)4.4 Prior to placing orders on behalf of the end user, RESELLER
shall be responsible for obtaining and have in its possession
Proof of Authorization ("POA"), as set forth in Part A of this
Agreement.
(B)4.5 Due date interval standards are addressed in the Interconnect
& Resale Resource Guide.
(B)4.6 Firm Order Confirmation (FOC) guidelines are addressed in the
Interconnect & Resale Resource Guide.
(B)4.7 USW will provide completion notification that is equal to that
provided to USW end users.
(B)4.8 USW will provide Design Layout Records when requested under
terms and conditions consistent with USW end users.
(B)4.9 USW will handle jeopardy orders based upon the same performance
standards and criteria that USW provides to itself.
(B)5. BILLING
(B)5.1 USW shall bill RESELLER and RESELLER is responsible for all
applicable charges for the resold services as provided herein.
RESELLER shall also be responsible for all Tariffed charges and
charges separately identified in this Agreement associated with
services that RESELLER resells to an end user under this
Agreement.
(B)5.2 USW shall provide RESELLER, on a monthly basis, within 7-10
calendar days of the last day of the most recent billing
period, in an agreed upon standard electronic billing format
as detailed in Part D, billing information including (1) a
summary bill, and (2) individual end user sub-account
information consistent with the samples available for RESELLER
review.
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Part B
Resale
(B)6. MAINTENANCE AND REPAIR
RESELLER and USW will employ the procedures for handling misdirected
repair calls as specified in the Maintenance and Repair Section of this
Agreement.
(B)6.1 USW will maintain facilities and equipment used to provide
RESELLER resold services. RESELLER or its end user may not
rearrange, move, disconnect, or attempt to repair USW
facilities or equipment, other than by connection or
disconnection to any interface between USW and the end user,
without written consent of USW.
(B)6.2 Maintenance and repair processes are detailed in the Maintenance
and Repair Section of this Agreement.
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Part C
Directory Listings
PART C - WHITE PAGES DIRECTORY LISTINGS
(C)1. DESCRIPTION
White Pages Listings Service (Listings) consists of USW placing the names,
addresses and telephone numbers of RESELLER's end users in USW's listing
database, based on end user information provided to USW by RESELLER. USW
is authorized to use Listings in Directory Assistance (DA) and as noted
below.
(C)2. TERMS AND CONDITIONS
(C)2.1 RESELLER will provide in standard, mechanized format, and USW
will accept at no charge, one primary listing for each main
telephone number belonging to RESELLER's end users. Primary
listings for RESELLER will include the end user Listings for
any resold services or wireless services and are further
defined in USW's general exchange Tariffs. RESELLER will be
charged for premium and privacy listings, (e.g., additional,
foreign, cross reference, informational, etc.), at USW's
general exchange listing Tariff rates, less the wholesale
discount. If RESELLER utilizes Remote Call Forwarding for
local number portability, RESELLER can list only one number
without charge - either the end user's original telephone
number or RESELLER-assigned number. The standard discounted
rate for an additional listing applies to the other number.
(C)2.2 USW will furnish RESELLER the Listings format specifications.
All manual requests are considered a project and require
coordination between RESELLER and USW to determine time
frames.
(C)2.3 RESELLER grants USW a non-exclusive license to incorporate
Listings information into its Directory Assistance database.
With this license USW will incorporate Listings in the DA
database.
(C)2.4 No prior authorization is needed for USW to release Listings
to directory publishers or other third parties. USW will
incorporate Listings information in all existing and future
directory assistance applications developed by USW. RESELLER
authorizes USW to sell and otherwise make Listings available
to directory publishers. Listings shall not be provided or
sold in such a manner as to segregate end users by carrier.
USW WILL NOT charge FOR UPDATING AND maintaining the Listings
database. RESELLER will not receive compensation from USW FOR
ANY SALE OF LISTINGS BY USW.
(C)2.5 To the extent that state Tariffs limit USW`s liability with
regard to Listings, the applicable state Tariff(s) is
incorporated herein and supersedes the Limitation of Liability
section of this Agreement with respect to Listings only.
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Part C
Directory Listings
(C)2.6 USW is responsible for maintaining Listings, including entering,
changing, correcting, rearranging and removing Listings in
accordance with RESELLER orders. USW will take reasonable steps
in accordance with industry practices to accommodate
non-published and non-listed Listings provided that RESELLER
has supplied USW the necessary privacy indicators on such
Listings.
(C)2.7 USW will include RESELLER Listings in USW's Directory Assistance
service to ensure that callers to USW's Directory Assistance
service have non-discriminatory access to RESELLER's Listings.
(C)2.8 USW will ensure RESELLER Listings provided to USW are included
in the white pages directory published on USW's behalf.
(C)2.9 RESELLER agrees to provide to USW its end user names, addresses
and telephone numbers in a standard mechanized format, as
specified by USW.
(C)2.10 RESELLER will supply its ACNA/CIC or CLCC/OCN, as appropriate,
with each order to provide USW the means of identifying Listings
ownership.
(C)2.11 Upon request by USW, RESELLER shall submit proof to USW, of
authorization from each end user for which RESELLER submits a
change in end user's Listing.
(C)2.12 RESELLER represents and warrants the end user information
provided to USW is accurate and correct. RESELLER further
represents and warrants that it has reviewed all Listings
provided to USW, including end user requested restrictions on
use such as non published and non-listed. RESELLER shall be
solely responsible for knowing and adhering to state laws or
rulings regarding Listings (e.g., no solicitation requirements
in the states of Arizona and Oregon, privacy requirements in
Colorado), and for supplying USW with the applicable Listing
information.
(C)2.13 RESELLER is responsible for all dealings with, and on behalf
of, RESELLER's end users, including:
(C)2.13.1 All end user account activity, (e.g. end user queries
and complaints).
(C)2.13.2 All account maintenance activity, (e.g., additions,
changes, issuance of orders for Listings to USW).
(C)2.13.3 Determining privacy requirements and accurately
coding the privacy indicators for RESELLER's end user
information. If end user information provided by
RESELLER to USW does not contain a privacy indicator,
no privacy restrictions will apply.
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Part C
Directory Listings
(C)2.13.4 Any additional services requested by RESELLER's end
users.
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<PAGE>
Part D
Miscellaneous Provisions
PART D- MISCELLANEOUS PROVISIONS
(D)I. NETWORK SECURITY
(D)1.1 Protection of Service and Property - Each Party shall exercise
the same degree of care to prevent harm or damage to the other
Party and any third parties, its employees, agents or end
users, or their property as it employs to protect its own
personnel, end users and property, etc. Each Party shall
comply at all times with USW security and safety procedures
and requirements.
(D)1.2 Revenue Protection - USW shall make available to RESELLER all
present and future fraud prevention or revenue protection
features. These features include, but are not limited to
screening codes, and 900 numbers.
(D)1.3. Law Enforcement Interface - USW provides emergency assistance
to 911 centers and law enforcement agencies seven (7) days a
week/twenty-four (24) hours a day. Assistance includes, but is
not limited to release of 911 trace and subscriber information;
in-progress trace requests; establishing emergency trace
equipment, release of information from an emergency trap/trace
or *57 trace; requests for emergency subscriber information;
assistance to law enforcement agencies in hostage/barricade
situations, kidnappings, bomb threats, extortion/scams,
runaways and life threats.
(D)1.4 USW provides trap/trace, pen register and Title III assistance
directly to law enforcement, if such assistance is directed by
a court order. This service is provided during normal business
hours, Monday through Friday. Exceptions are addressed in the
above paragraph. The charges for these services will be billed
directly to the law enforcement agency, without involvement of
RESELLER, for any lines served from USW Wire Centers or cross
boxes.
(D)1.5 In all cases involving telephone lines served from USW Wire
Centers or cross boxes, USW will perform trap/trace Title III
and pen register assistance directly with law enforcement.
RESELLER will not be involved or notified of such actions, due
to non-disclosure court order considerations, as well as timely
response duties when law enforcement agencies are involved.
Exceptions to the above will be those cases, as yet
undetermined, where RESELLER must participate due to technical
reasons wherein its circuitry must be accessed or modified to
comply with law enforcement, or for legal reasons that may
evolve over time. RESELLER will provide USW with a 24 hour a
day, 7 days a week contact for processing such requests, should
they occur.
(D)2. ACCESS TO OPERATIONAL SUPPORT SYSTEMS (OSS)
(D)2.1 Description
(D)2.1.1 USW has developed and shall continue to provide
Operational Support Systems OSS interfaces using
electronic gateways. These gateways act as a
mediation or control point between RESELLER's
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Part D
Miscellaneous Provisions
and USW's OSS. These gateways provide security for the
interfaces, protecting the integrity of the USW OSS
and its databases. USW's OSS interfaces have been
developed to support Pre-ordering, Ordering and
Provisioning, Maintenance and Repair and Billing.
Included below is a description of the products and
functions supported by USW OSS interfaces and the
technology used by each. This section describes the
interfaces that USW has developed and shall provide
RESELLER. Additional technical information and
details shall be provided by USW in training sessions
and documentation, such as the "Interconnect Mediated
Access User's Guide". USW will continue to make
improvements to the electronic interfaces as
technology evolves, providing notification to
RESELLER consistent with the provisions of this
Section.
(D)2.1.2 Through its electronic gateways, USW shall provide
RESELLER nondiscriminatory access to USW's
operational support systems for pre-ordering,
ordering and provisioning, maintenance and repair,
and billing for resale. For the pre-ordering,
ordering and provisioning of resold services, USW
shall provide RESELLER access to its OSS in
substantially the same time and manner as it provides
to itself.
(D)2.2 OSS Support for Pre-Ordering, Ordering and Provisioning
(D)2.2.1 LSR (Local Service Request) Ordering Process
(D)2.2.1.1 RESELLER shall use electronic interfaces
for orders placed using the LSR Ordering
Process for the services it supports.
The electronic interface gateways include
both the Electronic Data Interchange
(EDI) interface and the Interconnect
Mediated Access (IMA) Graphical User
Interface (GUI).
(D)2.2.1.2 The EDI interface provides a single
interface for PreOrder and Order
transactions from RESELLER to USW and is
transaction based rather than batch
based. The interface standards for EDI
are based upon the Order & Billing Forum
(OBF) Local Service Order Guidelines
(LSOG), the Telecommunication Industry
Forum (TCIF) Customer Service Guideline
and the American National Standards
Institute/Accredited Standards Committee
(ANSI ASC) X12 with exceptions as
specified in the IMA and EDI disclosure
documents which are provided in
conjunction with the implementation
responsibilities contained in this
Section.
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Part D
Miscellaneous Provisions
(D)2.2.1.3 The IMA GUI also provides a single interface for
Pre-Order and Order transactions from RESELLER to USW
and is browser based The IMA GUI interface is based
on the LSOG and utilizes a WEB standard technology,
Hyper Text Markup Language (HTML), JAVA, and the
Transmission Control Protocol/Internet Protocol
(TCP/IP) to transmit messages.
(D)2.2.1.4 Functions
(D)2.2.1.4.1 Pre-ordering
Pre-Ordering refers to the set of activities
performed in conjunction with placing an order.
Pre-order consists of the following functions:
validate address, service availability, review
Customer Service Record (CSR), check facility
availability, reserve telephone numbers, and
schedule an appointment. The electronic
interface gateways provide on-line capabilities
to perform these functions. Not all functions
apply to all products.
(D)2.2.1.4.1.1 Validate address will verify the
end user's address.
(D)2.2.1.1.4.1.2 Service Availability will return
the list of (1) POTS products and
services available in the Central
Office switch serving a particular
end user address, which will
indicate to RESELLER, among other
things, which products and
services are authorized for resale
in the Central Office switch
serving a particular end user
address and (2) non-switched-based
products and services that RESELLER
is authorized to provide according
to its resale agreement with USK
(D)2.2.1.1.4.1.3 Review Customer Service Record
(CSR) gives RESELLER the ability
to request a display of local
exchange services and features
(CPNI) USW is currently providing
to an end user.
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Part D
Miscellaneous Provisions
(D)2.2.1.4.1.4 Check Facility Availability will
provide an indication of whether
existing facilities are available or
if new facilities are required, and if
a technician must be dispatched to
provide the facilities requested at
the end user's address. This
transaction does not reserve
facilities and does not guarantee
that facilities will or will not be
available when the order is submitted.
(D)2.2.1.4.1.5 Reserve Telephone Numbers provides
RESELLER with the ability to select an
end user's telephone number. The
reservation process is further divided
into telephone number availability,
selection, exchange and return
functionality. Expiration period for
selection and submission of Telephone
Number are:
- A period up to thirty (30)
minutes in which to make a
telephone number selection. If
this time limit is exceeded, and
no attempt has been made to
select the telephone numbers,
the telephone numbers are sent
back to the OSS and an error
message is displayed on the LSR.
A new query will need to be
performed for available
telephone numbers.
- When a telephone number has been
reserved, there is a twenty-four
(24) hour business period that
the telephone number may be
included on an LSR. If the time
limit is exceeded, the telephone
number is returned to the OSS.
(D)2.2.1.4.1.6 Schedule Appointment allows
RESELLER to retrieve a calendar of
available appointments and to reserve
an appointment date and time so that a
technician can be dispatched for
premises and/or non-premises work.
(D)2.2.1.4.1.7 Expiration period for selection and
submission of Appointment Reservation
are:
- A selection must be made within
a thirty (30) minute period. If
an appointment
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has been selected and the time
limit was exceeded, an error
message will display. If the
error message displays, an
updated list of available
appointments will need to be
requested. If an appointment has
already been reserved for this
Purchase Order Number, the
Appointment Confirmation window
will be displayed and will be
pre-populated with confirmation
number, appointment date and
time, and after and before
times.
- Appointments are reserved
for a 24-hour business period.
If the appointment is not
attached to a submitted order
within 24 business hours, the
appointment is returned. When
the appointment is successfully
reserved, confirmation of the
appointment will be displayed to
RESELLER.
(D)2.2.1.4.2 Ordering and Provisioning
Submitting an LSR will result in the
provisioning and installation, if necessary,
of an end user's service. The functional set
associated with ordering is: Create New LSR,
Open LSR, Query LSR Status and FOC Return.
(D)2.2.1.4.2.1 Create New LSR allows entry of
information specific to the LSR,
including required OBF forms,
validates information and submits the
LSR for processing.
(D)2.2.1.4.2.2 Open LSR allows RESELLER to save
LSRs it is not ready to submit for
processing as a pending status. When
an LSR is saved as pending, all the
data in all the forms associated with
the LSR is saved. This feature permits
RESELLER to access, edit, submit,
re-save, and purge pending LSRs. In
addition, for issued LSRs, RESELLER
can issue supplemental LSRs and
cancellations.
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(D)2.2.1.4.2.3 Query LSR Status allows RESELLER to
obtain the status of the LSR. Status
is provided to RESELLER upon inquiry.
Order status functions include the
following: Submitted, In Review,
Issued, Rejected, Erred, Completed and
Jeopardy.
(D)2.2.1.4.2.4 FOC Return returns a Firm Order
Confirmation to RESELLER. The FOC
confirms that USW has received a SR,
issued an order, and assigned an order
number for tracking.
(D)2.2.1.5 Forecast of Usage
(D)2.2.1.5.1 RESELLER shall supply USW with a forecast
of products and volumes they anticipate
ordering through the electronic interface
gateways on a quarterly basis.
(D)2.2.1.5.2 USW will use RESELLER's forecast to provide
RESELLER sufficient capacity to provide the
services and elements requested. If RESELLER
exceeds its capacity without notification,
to the extent that it causes degradation to
other users' response times, RESELLER's use
of its capacity on the IMA or EDI server may
be discontinued until a resolution can be
mutually agreed to by both Parties. USW will
attempt to notify RESELLER before
discontinuing RESELLER's use of the IMA or
EDI server; however USW reserves the right
to discontinue use if it is unable to
contact RESELLER.
(D)2.2.1.5.3 When RESELLER requests more than twenty
(20) Secure IDs from USW RESELLER shall use
a T1 line instead of dial-up capabilities.
(D)2.2.1.6. Access Service Request (ASR) Ordering Process
(D)2.2.1.6.1 The Exchange Access Control and Tracking
(EXACT) system may be used for orders placed
using the ASR process. EXACT is based upon
the OBF Access Service Order Guidelines
(ASOG). The EXACT interface accepts a batch
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file that is transmitted via a Network Data
Mover (NDM) connection to USW from RESELLER.
It is RESELLER's responsibility to obtain
the appropriate software to interface with
USW's EXACT system.
(D)2.2.1.7 Facility Based EDI Listing Process
(D)2.2.1.7.1 The Facility Based EDI Listing Process is a
single interface from RESELLER to USW. This
interface is based upon the OBF LSOG and
ANSI ASC X12 standards, version 4010. This
interface enables RESELLER listing data to
be translated and passed into the USW
listing database. After USW's daily batch
processing, a Confirmation/Completion
record (for every PON provided on input) is
returned to RESELLER via an EDI 855
transaction.
(D)2.2.2 Maintenance and Repair
(D)2.2.2.1 Maintenance and Repair electronic interfaces
support the tracking and resolution of end users'
repair and maintenance needs as reported to
RESELLER. They facilitate the exchange of updated
information and progress reports between USW and
RESELLER while the Trouble Report (TR) is open and
a USW technician is working on the resolution.
(D)2.2.2.2 RESELLER shall use the electronic interface
gateways for reporting trouble. The electronic
interface gateways are comprised of either the
Mediated Access System Electronic Bonding (MEDIACC
EB) interface or the IMA GUI interface.
(D)2.2.2.3 The MEDIACC Electronic Bonding (EB) interface uses
CMIP protocol over X.25 packet switching network
using ANS T1M1.5 227/228 standards.
(D)2.2.2.4 The IMA GUI also provides a single interface for
trouble reporting from RESELLER to USW and is
browser based. The IMA GUI interface uses a
Berkley Socket interface using ANSI T1M1.5 227/228
standards. The IMA GUI uses JAVA as the standard.
The IMA GUI Interface currently supports trouble
reporting for resale services.
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(D)2.2.2.5 Functions
(D)2.2.2.5.1 Maintenance and Repair - The functions,
processes and systems used in repair are
based on a Trouble Report (TR), which is an
electronic document maintained in one or
more OSS. A TR contains information about
the end user, the trouble, the status of the
work on the trouble and the results of the
investigation and resolution efforts. These
business processes will be made available to
RESELLER in the following functional set:
open a trouble report, modify a trouble
report, notification of status change, view
trouble report status, cancel a trouble
report, receive a trouble report history,
resubmit/delete an erred trouble report and
close a trouble report.
(D)2.2.2.5.1.1 Open Trouble Report is the
mechanism that captures information
needed to resolve the trouble. Once a
TR has been opened, if RESELLER is
using MEDIACC EB, USW sends an
electronic transaction to RESELLER
identifying information about the TR
(E.G., commitment date and tracking
number).
(D)2.2.2.5.1.2 In IMA for POTS, and in EBTA for
POTS and designed services, Modify
Trouble Report allows RESELLER to
modify the trouble severity (for
example; change from "service
affecting" to "out of service") and
trouble narrative on a TR until it has
been cleared.
(D)2.2.2.5.1.3 Status Change Notification provides
notification to RESELLER that the
status of a previously opened TR has
changed. If RESELLER is using MEDIACC
EB, RESELLER will receive this
notification via an electronic
transaction. If RESELLER is using the
IMA GUI Interface, RESELLER will
receive this notification via email
and/or fax.
(D)2.2.2.5.1.4 View Trouble Report Status/Trouble
Report Status Request allows RESELLER
to view the status of an opened
Trouble Report. If RESELLER is using
MEDIACC EB, USW sends an electronic
transaction to RESELLER with the
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status of an opened TR after RESELLER
sends an electronic transaction to
request the status.
(D)2.2.2.5.1.5 Cancel Trouble Report allows
RESELLER to request cancellation of a
previously opened TR. Once a request
to cancel is received, an orderly
cessation of the trouble resolution
process begins. If USW has completed
any work before the trouble resolution
process is stopped, charges to
RESELLER may apply.
(D)2.2.2.5.1.6 Trouble Report History provides
RESELLER with historical information
on up to the last three trouble
reports. For POTS resale, the
disposition and trouble report date
and time are provided. For design
services resale, the trouble report
date and time, a text description of
the disposition, the USW Trouble
Report Number, and the trouble type
are provided. IMA provides trouble
report history.
(D)2.2.2.5.1.7 Resubmit/Delete allows trouble
reports to be resubmitted or deleted
via IMA GUI if, prior to entering USW's
OSS, the transaction fails or errors.
This transaction is only valid if the
TR has not entered USW's OSS. This
transaction is currently only
available via IMA GUI
(D)2.2.5.1.8 Close a Trouble Report for resale, allows
USW to close the TR once work is
complete. For design resale services, USW
sends RESELLER a request for verification
to close. RESELLER then authorizes or
denies the closure. RESELLER has
twenty-four (24) hours to respond. If a
response is not received within that time
frame, the TR will automatically be
closed. USW provides notification to
RESELLER that a TR has been closed
because the trouble was resolved.
Additional information, (e.g.,
disposition, disposition description,
outage duration, maintenance of service,
charge indicator) is also included. If
RESELLER is using EB, RESELLER will
receive this response via an electronic
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transaction. If RESELLER is using the IMA
GUI Interface, RESELLER will receive this
response via email and/or fax.
(D)2.2.2.5.1.9 MLT test results give [-Reseller] the
ability to request a loop test for POTS
service via EBTA. When RESELLER submits a
TR through IMA, the technician handling
the TR will order a MLT test in
appropriate situations.
(D)2.3 Hours of Operation
USW's electronic interface gateways will be available to
Resellers according to the following schedule:
<TABLE>
<CAPTION>
Function Monday - Friday Saturday Sunday
<S> <C> <C> <C>
IMA Pre-Order & Order 06:00 - 20:00
Exact Order 06:00 - 19:00 07:00 - 17:00
Repair 02:15 - 23:15 07:00 - 21:00 13:00 - 17:00
</TABLE>
USW shall notify Resellers regarding system downtime through
mass facsimile distribution and pop-up windows in the IMA GUI
All referenced times are Mountain Time.
The preceding times represent the period when USW commits
that its OSS interfaces and downstream systems will be
functioning (except for unforeseen system crashes) and its
personnel will be available to assist RESELLER. USW's OSS
interfaces are typically available 23 hours a day. RESELLER
may call any maintenance and repair issues to the applicable
repair center 24 hours per day, seven days per week. USW shall
provide RESELLER current repair contact numbers.
(D)2.4 Billing
(D)2.4.1 For products billed out of the USW Interexchange Access
Billing System (IABS), USW will utilize the existing
CABS/BOS format and technology for the transmission of
bills.
(D)2.4.2 For products billed out of the USW Customer Record
Information System (CRIS), USW will utilize the existing
EDI standard for the transmission of monthly local
billing information. EDI is an established standard
under the auspices of the American National Standards
Institute/Accredited Standards Committee (ANSI/ASC) X12
Committee. A proper subset of this specification has
been adopted by the Telecommunications Industry Forum
(TCIF) as the "811 Guidelines" specifically for the
purposes of telecommunications billing.
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(D)2.5 Outputs
Output information will be provided to RESELLER in the form of
bills, files, and reports. Bills will capture all regular
monthly and incremental/usage charges and present them in a
summarized format. The files and reports delivered to RESELLER
provide more detailed information than the bills. They come in
the following categories:
<TABLE>
<S> <C>
Usage Record File Line Usage Information
Loss and Completion Order Information
Category 11 Facility Based Line Usage Information
SAG/FAM Street Address/Facility Availability Information
</TABLE>
(D)2.5.1 BILLS
(D)2.5.1.1 CRIS Summary Bill - The CRIS (Customer Record
Information System) Summary Bill represents a
monthly summary of charges for most wholesale
products sold by USW. This bill includes a total
of all charges by entity plus a summary of current
charges and adjustments on each sub-account.
Individual sub-accounts are provided as billing
detail and contain monthly, one time charges and
incremental/call detail information. The Summary
provides one bill and one payment document for
RESELLER. These bills are segmented by state and
bill cycle. The number of bills received by
RESELLER is dictated by the product ordered and
the USW region in which RESELLER is operating.
(D)2.5.1.2 IABS Bill - The IABS (Interexchange Access Billing
System) Bill represents a monthly summary of
charges. This bill includes monthly and one time
charges plus a summary of any usage charges. These
bills are segmented by product, LATA, billing
account number (BAN) and bill cycle.
(D)2.5.2 Files and Reports
(D)2.5.2.1 Daily Usage Record File provides the accumulated
set of call information for a given day as
captured, or a "recorded" by the network switches.
This file will be transmitted Monday through
Friday, excluding USW holidays. This information
is a file of un-rated USW originated usage
messages and rated RESELLER originated usage
messages. It is provided in Alliance for
Telecommunication Industry Solution (ATIS)
standard
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Electronic Message Interface (EMI) format. This
EMI format is outlined in the document SR-320;
which can be obtained directly from ATIS. The
Daily Usage Record File contains multi-state data
for the Data Processing Center generating this
information. Individual state identification
information is contained with the message detail.
USW will provide this data to RESELLER with the
same level of precision and accuracy it provides
itself. This file will be provided for Resale
services.
(D)2.5.2.2 The charge for this Daily Usage Record File is
contained in Part E of this Agreement.
(D)2.5.2.3 Routing of in-region IntraLATA Collect, Calling
Card, and Third Number Billed Messages - USW will
distribute in-region intraLATA collect, calling
card, and third number billed messages to RESELLER
and exchange with other Co-Providers operating in
region in a manner consistent with existing
inter-company processing agreements. Whenever the
daily usage information is transmitted to a
carrier, it will contain these records for these
types of calls as well.
(D)2.5.2.4 Loss Report provides RESELLER with a daily report
that contains a list of accounts that have had
lines and/or services disconnected. This may
indicate that the end user has changed Resellers
or removed services from an existing account. This
report also details the order number, service name
and address, and date this change was made.
Individual reports will be provided for resale
services.:
(D)2.5.2.5 Completion Report provides RESELLER with a daily
report. This report is used to advise RESELLER
that the order(s) for the service(s) requested is
complete. It details the order number, service
name and address and date this change was
completed. Individual reports will be provided for
resale services.:
This report media is described in Exhibit C.
(D)2.5.2.6 Category 11 Records are Exchange Message Records
(EMR) which provide mechanized record formats that
can be used to exchange access usage information
between USW and RESELLER. Category 1101 series
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records are used to exchange detailed access usage
information.
(D)2.5.2.7 Category 1150 series records are used to exchange
summarized Meet Point Billed access
minutes-of-use.
These mechanized records are available from
USW in the following formats:
NDM (direct connect or dial-up)
Comet
Tape
Cartridge
(D)2.5.2.8 SAG/FAM Files - The SAG (Street Address Guide)/
FAM (Facility Availability Matrix) files contain
the following information:
SAG provides: - Address and Serving Central Office
Information.
FAM provides USOCs and descriptions by state -
(POTS services only). USOC availability by NPA-NXX
(with the exception of Centrex).
interLATA/intraLATA carriers by NPA-NXX.
These files are made available via a download
process. They can be retrieved by ftp (file
transfer protocol), NDM (Network Data Mover)
connectivity, or a Web browser.
(D)2.6 Modifications to OSS Interfaces
(D)2.6.1 RESELLER and USW agree to discuss the modification of
OSS interfaces based upon evolving standards (e.g., data
elements, protocols, transport networks, etc.) and
guidelines issued by or referenced by relevant Alliance
for Telecommunication Industry Solution (ATIS)
committees. Establishment of new, or changes to industry
standards and guidelines will be reviewed semi-annually.
The review will consider standards and guidelines that
have reached final closure as well as those published in
final form. Both Parties agree to evaluate evolving
standards and determine the relevant modification to be
implemented based upon the latest approved version
adopted or the latest version reflecting final closure
by the relevant ATIS committee or subcommittee. As a
result of the review, USW shall draft appropriate
interface specifications that shall be made available to
RESELLER through the electronic gateway disclosure
document. Changes shall be implemented in the next
release after the distribution of the electronic gateway
disclosure document to the Resellers.
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(D)2.6.2 In the course of establishing operational ready system
interfaces between USW and RESELLER to support local
service delivery, RESELLER and USW may need to define
and implement system interface specifications that are
supplemental to existing standards. RESELLER and USW
will submit such specifications to the appropriate
standards committee and will work towards their
acceptance as a standard.
(D)2.6.3 Release updates will be based on regulatory obligations
as dictated by the FCC or Commissions and, as time
permits, business requirements. USW will provide to
RESELLER the features list for modifications to the
interface. Specifications for interface modifications
will be provided to RESELLER three (3) weeks prior to
the release date. RESELLER is required to upgrade to the
current release within six (6) months of the
installation date.
(D)2.7 Reseller Responsibilities for Implementation of OSS Interfaces
(D)2.7.1 Before any RESELLER implementation can begin, RESELLER
must completely and accurately answer the New Customer
Questionnaire. This questionnaire is provided by the USW
account manager and details information needed by USW in
order to establish service for RESELLER.
(D)2.7.2 Once USW receives a complete and accurate New Customer
Questionnaire, USW and RESELLER will mutually agree upon
time frames for RESELLER implementation.
(D)2.7.3 If using the EDI interfaces, USW will provide RESELLER
with a copy of the Production Readiness Verification
document. RESELLER is obligated to meet the requirements
specified in the Production Readiness Verification
document regardless of whether RESELLER chooses to
participate in the Production Readiness Verification
Test.
(D)2.8 Reseller Responsibilities for On-going Support for OSS
Interfaces
(D)2.8.1 If using the IMA GUI interface, RESELLER must work with
USW to train RESELLER personnel on the IMA GUI functions
that RESELLER will be using. USW and RESELLER shall
concur on which IMA GUI functions should be included in
RESELLER's training. USW and RESELLER shall make
reasonable efforts to schedule training in a timely
fashion.
(D)2.8.2 An exchange protocol will be used to transport EDI
formatted content. RESELLER must perform certification
testing of exchange protocol prior to using EDI.
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(D)2.8.3 If RESELLER is using EDI, USW shall provide RESELLER
with a pre-allotted amount of time to complete
certification of its business scenarios. It is the sole
responsibility of RESELLER to schedule an appointment
with USW for certification of its business scenarios.
RESELLER must comply with the agreed upon dates and
times scheduled for the certification of its business
scenarios. If the certification of business scenarios
is delayed due to RESELLER, it is the sole
responsibility of RESELLER to schedule new appointments
for certification of its business scenarios. Conflicts
in the schedule could result in certification being
delayed. If a delay is due to USW, USW will honor
RESELLER's schedule through the use of alternative
hours.
(D)2.8.4 If RESELLER is using the EDI interface, RESELLER must
work with USW to certify the business scenarios that
RESELLER will be using in order to ensure successful
transaction processing. USW and RESELLER shall mutually
agree to the business scenarios for which RESELLER is
required to be certified. Certification is granted only
for a specific release of EDI. New releases of EDI may
require re-certification of some or all business
scenarios. A determination as to the need for
re-certification will be made by the USW Coordinator in
conjunction with the release manager of each EDI
release. Notice of the need for re-certification will be
provided to RESELLER three (3) weeks prior to the
release date.
(D)2.8.5 In the event of Electronic Interface trouble, RESELLER
shall use its best efforts to isolate and resolve the
trouble using the guidelines provided in the Production
Readiness Verification document. If RESELLER cannot
resolve the problem, then RESELLER should contact the
LSP Systems Help Desk. The LSP Systems Help Desk is
RESELLER's Single Point of Contact for electronic
interface trouble.
(D)2.9 Reseller Support
(D)2.9.1 USW shall provide adequate assistance to RESELLER for
RESELLER to understand how to implement and use the OSS
functions for which USW provides access. This assistance
will include training, documentation, and a LSP Help
Desk. The LSP Help Desk will provide a single point of
entry for RESELLER to gain assistance in areas involving
connectivity, system availability, and file outputs. The
LSP Systems Help Desk is available Monday through
Friday, 6:00 a.m. until 8:00 p.m. Mountain Time,
excluding USW holidays. The Help Desk areas are further
described below..
(D)2.9.1.1 Connectivity covers trouble with RESELLER's access
to the USW system for hardware configuration
requirements with relevance to EDI and IMA GUI;
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software configuration requirements with relevance
to EDI and IMA GUI; modem configuration
requirements; T1 configuration and dial in string
requirements; firewall access configuration;
Secure ID configuration; Profile Setup and
password verification.
(D)2.9.1.2 System availability covers system errors generated
during an attempt by RESELLER to place orders or
open trouble reports through EDI and IMA GUI.
These system errors are limited to: POTS; Design
Services and Repair.
(D)2.9.1.3 File Outputs covers RESELLER's output files and
reports produced from its usage and order
activity. File outputs system errors are limited
to: Daily Usage File; Loss / Completion File; IABS
Bill; CRIS Summary Bill; Category 11 Report and
SAG/FAM Reports.
(D)2.9.2 Additional assistance to Resellers is available through
various web sites. These web sites provide electronic
interface training information and user documentation
and technical specifications.
(D)2.10 Compensation / Cost Recovery
On-going and one-time startup charges, as applicable, will be
billed at rates to be specified by the Commission at the
completion of an appropriate cost docket hearing. USW shall
establish rates for any systems charges not included in
appropriate cost docket hearings.
(D)3. U S WEST DEX
USW and RESELLER agree that certain issues outside the provision of basic
white page directory listings, such as yellow pages advertising, yellow
pages listings, directory coverage, directory distribution, access to call
guide pages (phone service pages), applicable listings criteria, white
page enhancements and publication schedules will be the subject of
negotiations between RESELLER and directory publishers, including U S WEST
Dex. USW acknowledges that RESELLER may request USW to facilitate
discussions between RESELLER and U S WEST Dex.
(D)4. NOTICE OF CHANGES
Notice should be written and provide pertinent descriptive information of
such changes, within the limitations of confidentiality and disclosure,
such that the other Party can evaluate potential effects. Also included
with the written notice should be contact names and phone numbers for
subsequent discussions.
This represents good faith effort on the part of the Parties and will
evolve over time as required for the effective provision of resale
services and end user service delivery.
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(D)5. MAINTENANCE AND REPAIR
(D)5.1 Service Levels
(D)5.1.1 USW will provide repair and maintenance for all services
covered by this Agreement in a manner equal to that
which USW provides for itself.
(D)5.1.2 During the term of this Agreement, USW will provide
necessary maintenance business process support to allow
RESELLER to provide similar service quality to that
provided by USW to its end users.
(D)5.1.3 USW will perform repair service that is equal in
timeliness and quality to that which it provides to its
own end users.
(D)5.2 Branding
(D)5.2.1 Should USW need to use various forms for communication
with RESELLER end users (while out on premises dispatch
on behalf of RESELLER, for example), USW will use
unbranded forms.
(D)5.2.2 If required by RESELLER, USW will use branded forms
provided at RESELLER's full expense, covering training
costs, storage, printing, distribution and all other
branding-related costs.
(D)5.3 Service interruptions
(D)5.3.1 The characteristics and methods of operation of any
circuits, facilities or equipment of either Party
connected with the services, facilities or equipment of
the other Party pursuant to this Agreement shall not: 1)
interfere with or impair service over any facilities of
the other Party; its affiliated companies, or its
connecting and concurring carriers involved in providing
its services; 2) cause damage to their plant; 3) violate
any applicable law or regulation regarding the invasion
of privacy of any communications carried over the
Party's facilities; or 4) create hazards to the
employees of either Party or to the public. Each of
these requirements is hereinafter referred to as an
"Impairment of Service".
(D)5.3.2 If it is confirmed that either Party is causing an
Impairment of Service, as set forth in this Section, the
Party whose network or service is being impaired (the
"Impaired Party") shall promptly notify the Party
causing the Impairment of Service (the "Impairing
Party") of the nature and location of the problem. The
Impaired Party shall advise the Impairing Party that,
unless promptly rectified, a temporary discontinuance of
the use of any circuit, facility or equipment may be
required. The Impairing Party and the Impaired Party
agree to work together to attempt to promptly resolve
the Impairment of Service. If the Impairing Party is
unable to promptly remedy the Impairment of
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Service, the Impaired Party may temporarily discontinue
use of the affected circuit, facility or equipment.
(D)5.3.3 To facilitate trouble reporting and to coordinate the
repair of the service provided by each Party to the
other under this Agreement, each Party shall designate a
repair center for such service.
(D)5.3.4 Each Party shall furnish a trouble reporting telephone
number for the designated repair center. This number
shall give access to the location where records are
normally located and where current status reports on any
trouble reports are readily available. If necessary,
alternative out-of-hours procedures shall be established
to ensure access to a location that is staffed and has
the authority to initiate corrective action.
(D)5.3.5 Before either Party reports a trouble condition, it
shall use its best efforts to isolate the trouble to the
other's facilities
(D)5.3.5.1 In cases where a trouble condition affects a
significant portion of the other's service, the
Parties shall assign the same priority provided to
other Resellers and to itself.
(D)5.3.5.2 The Parties shall cooperate in isolating trouble
conditions.
(D)5.4 Trouble Isolation
(D)5.4.1 According to applicable state Tariffs, USW will bill
appropriate Trouble Isolation Charges for dispatched
work done by USW where the trouble is found to be on the
end user's side of the NID or trouble is found to be in
RESELLER's portion of the network.
(D)5.4.2 Other Trouble Isolation Charges may also be imposed by
USW on RESELLER for other internal repair work incurred
on behalf of RESELLER and later found to be in RESELLER
network components.
(D)5.5 Inside Wire Maintenance
Except where specifically required by state or federal
regulatory mandates, USW will not perform any maintenance of
inside wire (premises wiring beyond the end users NID) for
RESELLER or its end users.
(D)5.6 Testing/Test Requests/Coordinated Testing
(D)5.6.1 USW will make the decision to test an end users line or
circuit. The test systems used by USW are finite, and
their capacity has been designed according to USW's
operating standards.
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(D)5.6.2 Although some types of trouble reports typically will
not require a test, USW usually runs certain standard
tests on each line on which trouble has been reported.
(D)5.6.3 Prior to any test being conducted on a line, USW must
receive a trouble report from RESELLER.
(D)5.6.4 USW end users are not given test results. On
manually-reported trouble USW will not provide to
RESELLER the test results for its trouble reports. For
electronicaIly-reported trouble, RESELLER may see
various basic test results.
(D)5.7 Workcenter Interfaces
(D)5.7.1 USW and RESELLER shall work cooperatively to develop
positive, close working relationships among
corresponding work centers involved in the trouble
resolution processes..
(D)5.8 Misdirected Repair Calls
(D)5.8.1 RESELLER shall inform its own end users where to report
their trouble conditions. Persons placing a misdirected
repair call will be advised to call their own telephone
service provider and will be provided the correct
telephone number for that purpose (this referral may
occur within a voice response system or other
interactive systems).
(D)5.8.2 RESELLER and USW will employ the following procedures
for handling misdirected repair calls;
(D)5.8.2.1 RESELLER and USW will provide their respective end
users with the correct telephone numbers to call
for access to their respective repair bureaus.
(D)5.8.2.2 End users of RESELLER shall be instructed to
report all cases of trouble to RESELLER. End users
of USW shall be instructed to report all cases of
trouble to USW.
(D)5.8.2.3 To the extent the correct provider can be
determined, misdirected repair calls will be
referred to the proper provider of Basic Exchange
Telecommunications Service.
(D)5.8.2.4 RESELLER and USW will provide their respective
repair contact numbers to one another on a
reciprocal basis.
(D)5.8.2.5 In responding to repair calls, neither Party shall
make disparaging remarks about each other, nor
shall they use these repair calls as the basis for
internal referrals or to solicit end users to
market services.
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(D)5.8.2.6 Performance targets for speed of repair call
answering will be the same as USW's performance
targets for its own end users.
(D)5.9 Major Outages/Restoral/Notification
(D)5.9.1 USW will notify RESELLER of major network outages as
soon as is practical. This notification will be via
e-mail to RESELLER's identified contact. With the minor
exception of certain proprietary information, USW will
utilize the same thresholds and processes for external
notification as it does for internal purposes. This
major outage information will be sent via E-mail on the
same frequency schedule as is provided internally within
USW. Service restoration will be non-discriminatory, and
will be accomplished as quickly as possible according to
USW and/or industry standards.
(D)5.9.2 If desired, USW will meet with associated personnel from
RESELLER to share contact information and review USW's
outage restoral processes and notification processes.
(D)5.9.3 USW's emergency restoration process operates on a 7X24
basis.
(D)5.10 Proactive Maintenance
(D)5.10.1 USW will perform scheduled maintenance equal in quality
to what it provides to itself.
(D)5.10.2 USW will work cooperatively with RESELLER to develop
industry-wide processes to provide as much notice as
possible to RESELLER of pending maintenance activity.
Such process work will include establishment of
reasonable thresholds and notification standards.
(D)5.11 Hours of Coverage
(D)5.11.1 USW's repair operation is 7 days a week, 24 hours a day.
Not all functions or locations are covered with
scheduled employees on a 7X24 basis. Where such 7X24
coverage is not available USW's repair operations center
(always available 7X24) can call-out technicians or
other personnel required for the situation.
(D)5.12 Escalations
(D)5.12.1 USW will provide trouble escalation procedures to
RESELLER. Such procedures will be based on the processes
USW employs for its own end users. USW escalations are
manual processes.
(D)5.12.2 USW repair escalations begin with calls to the up-front
trouble reporting centers.
(D)5.13 Dispatch
(D)5.13.1 USW will provide maintenance dispatch personnel on the
same schedule provided for its end users.
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(D)5.13.2 Upon receipt of a trouble report from RESELLER, USW will
do all that is reasonable and practical, according to
internal and industry standards, to resolve the repair
condition. USW will dispatch repair personnel, if
necessary, to repair the condition. It will be USW's
decision whether it is necessary to send a technician on
a dispatch. USW will make this dispatch decision based
on the best information available in the trouble
resolution process. Since it is not always necessary to
dispatch to resolve trouble; should RESELLER require a
dispatch when USW believes the dispatch is not
necessary, appropriate charges may be billed to RESELLER
for dispatch-related costs.
(D)5.13.3 For non-designed resale services USW will not request
authorization from RESELLER prior to dispatch. For lines
supported by USW's designed services process, USW may
accept RESELLER authorization to dispatch. USW's
operational processes are regularly reviewed and may be
altered in the future. Should processes be changed,
RESELLER will be notified.
(D)5.13.4 USW expects that RESELLER will have performed
appropriate trouble isolation and screening prior to
handing the trouble report off to USW.
(D)5.14 Electronic Reporting
(D)5.14.1 USW will accept repair reports from RESELLER through a
mechanized system (IMA).
(D)5.14.2 USW will work cooperatively to develop repair reporting
via electronic bonding (other than IMA), based on
national standards.
(D)5.15 Intervals
(D)5.15.1 Similar trouble conditions, whether reported by USW end
users or on behalf of RESELLER end users, will receive
similar commitment intervals.
(D)5.16 Jeopardy Management
(D)5.16.1 Notification will be given as soon as USW is aware that
a trouble report interval is likely to be missed. This
process will be the same as that used by USW for its own
end users.
(D)5.17 Trouble Screening
(D)5.17.1 RESELLER shall screen and test its end user trouble
reports completely enough to insure that it sends USW
only trouble reports that involve USW facilities.
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(D)5.17.2 If desired, USW will cooperate with RESELLER to show
RESELLER how USW screens trouble conditions in its own
centers, so that RESELLER may employ similar techniques
in its centers.
(D)5.18 Maintenance Standards
(D)5.18.1 USW will cooperate with RESELLER to meet the maintenance
standards outlined in this Agreement.
(D)5.18.2 For manually-reported trouble, USW will inform RESELLER
of repair completion as soon as practical after
completion. On electronically reported trouble reports
the electronic system will automatically update status
information, including trouble completion, across the
joint electronic gateway.
(D)5.19 End User Interfaces
(D)5.19.1 RESELLER will be responsible for all interactions with
its end users including service call handling and
notifying end users of trouble status and resolution.
(D)5.19.2 All USW employees who perform repair service for
RESELLER end users will be trained in non-discriminatory
behavior.
(D)5.20 Repair Call Handling
(D)5.20.1 Manually-reported repair calls by RESELLER to USW will
be answered with the same quality and speed USW answers
calls from its own end users.
(D)5.21 Single Point of Contact
(D)5.21.1 USW will provide a single point of contact for RESELLER
to report maintenance issues and trouble reports via
electronic interfaces seven days a week, twenty-four
hours a day.
(D)5.21.2 For manually-reported trouble reports, a single 7X24
trouble reporting telephone number will be provided to
RESELLER for each category of trouble situation
encountered.
(D)5.22 Maintenance Windows
(D)5.22.1 Generally, USW performs major switch maintenance
activities during off-hours time periods, during certain
"maintenance windows" in the early morning hours and/or
on weekends.
(D)5.22.2 Generally, the maintenance window is from 10:00 PM to
6:00 AM Monday through Friday and from 10:00 PM Saturday
to 6:00 AM Monday.
(D)5.22.3 Although USW attempts to perform major switch
maintenance at these times, on some occasions this will
not be possible.
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Part D
Miscellaneous Provisions
(D)6. SERVICE PERFORMANCE
(D)6.1 General Provisions
(D)6.1.1 USW will provide reports of service indicators that will
assist in an evaluation of the service provided to
RESELLER.
(D)6.1.2 In no instance shall this Agreement be construed to
require USW to provide superior levels of service to
RESELLER in comparison to the level of service USW
provides to itself or its own end users.
(D)6.1.3 As further specified in this Section, USW will provide
results for the list of performance indicators
identified for the following Standard Service Groupings:
Resold Residential Plain Old Telephone Service (POTS);
Resold Business POTS; Resold ISDN; Resold Centrex
service; Resold PBX trunks, Resold Direct Inward Dialing
(DID) and Resold Digital Switched Service (DSS); Resold
DS-0, Resold DS-1, Resold DS-3.
(D)6.1.4 As specified in this Section, USW will provide results
for the following types of Orders:
C = Change in existing service or billing number
D = total disconnect of service
F = From the outward service associated with a transfer
(To or "T") of service from one address to another
N = New connection for service
R = Record order; record change only. (For Resale
services, service migrations without changes for
non-designed services are record orders.)
T = To or transfer of service from one address to
another
X = USW initiated internal work order
(D)6.2 Service Performance Indicators
The following Service Performance Indicators will be provided
to RESELLER when available and upon request, but no more
frequently than once per month subject to the provisions of
this Section. The requests for additional Service Performance
Indicators during the term of this Agreement shall be
considered by USW. However, USW is not required to provide
additional Service Performance Indicators during the term of
this Agreement. Service Performance Indicators characterized
as "Core" indicators measure most directly the service or
process outcome USW provides to RESELLER.
Performance Indicators characterized as "Diagnostic"
indicators are those that measure aspects of service quality
that support aspects measured by core indicators, that
represent sub-process outcomes, or that are otherwise
duplicative to some degree of aspects measured by "Core"
indicators.
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Part D
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(D)6.2.1 Core Performance Indicators
(D)6.2.1.1 Gateway Availability Indicator
GA-1 Gateway Availability - via Human-to-Computer
Interface (percent).
GA-2 Gateway Availability - via Computer-to-Computer
Interface (percent).
(D)6.2.1.2 Pre-Ordering Indicators
PO-1 Pre-Order/Order Response times
A. Appointment Scheduling (Due Date
Reservation, where appointment is required)
B. Feature Function and Service Availability
Information
C. Facility Availability
D. Street Address Validation
E. Customer Service Records
F. Telephone Number
(D)6.2.1.3 Ordering and Provisioning Indicators
OP-1 Speed of Answer - Interconnect Provisioning Center
(average)
OP-2 Calls Answered within 20 Seconds - Interconnect
Provisioning Center (percent)
OP-3 Installation Commitments Met (percent)
OP-4 Installation Interval (average)
OP-5 Installation Trouble Reports (percent)l
OP-6 Delayed Days (average)
(D)6.2.1.4 Maintenance and Repair Indicators
MR-1 Speed of Answer - Interconnect Repair Center
(average)
MR-2 Percent Calls Answered Within 20 Seconds -
Interconnect Repair Center (percent)
MR-3 Out of Service Cleared Within 24 hours -
Non-Designed Repair Process (percent)
MR-4 All Troubles Cleared Within 48 hours -
Non-Designed Repair Process (percent)
MR-5 All Troubles Cleared Within 4 hours - Designed
Repair Process (percent)
MR-6 Mean Time to Restore - Non-Designed Repair Process
(average)
MR-7 Repair Repeat Report Rate (percent)
MR-8 Trouble Rate (percent)
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(D)6.2.1.5 Billing Indicators
BI-1 Mean Time to Provide USW Recorded Usage Records
((average)
BI-2 Mean Time to Deliver Invoices (average)BI-3
Billing Accuracy
(D)6.2.1.6 Emergency Services
ES-1 ALI Database Updates Completed Within 24 hours
(percent)
ES-2 911/E911 Emergency Services Trunk Installation
Interval (average)
(D)6.2.1.7 Directory Assistance
DA-1 Speed of Answer - Directory Assistance (average)
DA-2 Calls Answered Within Ten Seconds - Directory
Assistance (percent)
(D)6.2.1.8 Operator Services
OS-1 Speed of Answer - Operator Services (average)
OS-2 Calls Answered Within Ten Seconds - Operator
Services (percent)
(D)6.2.2 Diagnostic Indicators
In addition to the performance indicators identified
above, USW will report the following indicators that do
not directly address nondiscrimination but may be useful
in diagnosing problems or improving service:
(D)6.2.2.1 Pre-Order/Ordering
DPO-1 Electronic Flow - Through of Local Service
Requests (LSRs) to the Service Order Processor
(percent)
DPO-2 LSR Rejection Notice Interval (average)
DPO-3 LSRs Rejection (percent)
DPO-4 Firm Order Confirmation (FOC) Interval (average)
DPO-5 Pre-Order/Order Response Times for USW Retail
Transactions (average)
DPO-6 Completion Notifications Transmitted Within 24
hours (percent)
DPO-7 Completion Notification Interval (average)
(D)6.2.2.2 Ordering and Provisioning
DOP-1 RESELLER or RESELLER's Customer - Caused
Installation Misses (percent)
DOP-2 Delayed Orders Completed equal to greater than 15
days past the Commitment Date (percent)
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Miscellaneous Provisions
DOP-3 Delayed Orders Completed equal to or greater than
90 days past the Commitment Date (percent)
DOP-4 RESELLER or RESELLER's Customer-Caused Coordinated
Cutover Misses (percent)
(D)6.2.2.3 Maintenance and Repair
DMR-1 RESELLER or RESELLER's Customer-Caused Trouble
Reports (percent)
(D)6.2.2.4 Access to OSS Functions:
(GA-1) Gateway Availability Human-to-Computer Interface
(percent)
(GA-2) Gateway Availability Computer-to-Computer
Interface (percent)
(PO-1) Per-Order/Order Response Times (average)
(OP-1 and MR-1)Speed of Answer - Provisioning and Repair
Centers (average)
(OP-2 and MR-2) Calls Answered Within 20 Seconds
Provisioning and Repair Centers (percent)
(BI-1) Mean Time to Provide USW - Recorded Usage Records
(BI-2) Mean Time to Deliver Invoices
(131-3) Billing Accuracy
(D)6.2.2.5 Access to Emergency Services
(ES-1) ALI Database Updates Within 24 Hours (percent)
(ES-1) 911/E911 ES Trunk Installation Intervals
(average)
(D)6.2.2.6 Access to Directory Assistance and Operator
Services:
(DA-1 and OP-1) Speed of Answer (average)
(DA-2 and OS-2) Calls Answered Within 10 Seconds
(percent)
(D)6.2.2.7 Resale Services Ordering and Provisioning:
(OP-3) Installation Commitments Met (percent)
(OP-4) Installation Interval (average)
(OP-5) Installation Trouble Reports (percent)
(OP-6) Delayed Days (average)
(D)6.2.2.8 Resale Services Maintenance and Repair:
(MR-3) Out of Service Cleared Within 24 Hours -
Non-Designed Repair Process (percent)
(MR-4) All Troubles Cleared Within 48 Hours -
Non-Designed Repair Process (percent)
(MR-5) All Troubles Cleared Within 4 Hours - Designed
Repair Process (percent)
(MR-6) Mean Time to Restore (average)
(MR-6) Repair Repeated Report Rate (percent)
(MR-6) Trouble Rate (percent)
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Miscellaneous Provisions
(D)6.3 Service Quality Performance Results Reports
(D)6.3.1 For Resale, USW will provide core service performance
results for the performance indicators listed above for
RESELLER, other Resellers in aggregate and USW end
users.
(D)6.4 Performance Results Provided to Reseller
The performance results provided to RESELLER by USW shall be
consistent with the current version of the USW Service
Performance Indicator Description (PID).
(D)6.5 The performance results provided under this Agreement are to
be used solely for the purposes set forth herein, and shall be
treated as "Proprietary Information" as provided in Section
(A)3.14 of this Agreement.
(D)6.6 Service Performance - Reported Events
(D)6.6.1 When applicable, USW will report service-related
performance results for all "events". An "event" is the
activity that generates the measurement.
(D)6.6.2 The Parties will report RESELLER results referenced
above provided that RESELLER has ordered and is
utilizing the services reported;
(D)6.6.3 USW will provide the reports on a calendar monthly
basis. These reports will be provided within forty-five
(45) calendar days of the close of the preceding month.
(D)6.7 Self Executing Remedies
The purpose and focus of remedies provisions under this Resale
Agreement shall be to resolve significant differences in
service quality that have been identified through appropriate
comparisons of the service performance results reported for
the core performance indicators defined above. Self-executing
remedies are those actions, defined herein, that USW will
undertake in good faith and in cooperation with RESELLER to
respond to such differences immediately, without waiting for
determination of whether actual discrimination may exist.
(D)6.7.1 For this purpose, significant differences shall be
considered to be those that are determined to be
statistically, operationally, and materially significant
in each of three (3) or more consecutive months and that
reflect a probability that inferior service was
apparently provided to RESELLER, based on the relevant
comparison of performance indicator results. Statistical
significance shall be determined as defined below.
Operational and material significance shall be
established by including for comparison only those
results that have (a) minimum sample sizes of 30 each,
and (b) a relevant comparison demonstrating a service
performance difference of a magnitude that can be
reasonably considered to have a perceptible effect on
end users or RESELLER operations.
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(D)6.7.2 Determination of the statistical significance of any
difference in appropriately comparable results shall be
based on statistical testing for (1) differences in
means (where performance indicator results are reported
as averages) or (2) difference in proportions (where
performance indicator results are reported as
percentages), as follows:
(D)6.7.2.1 Determination of the significance of a difference
in mean values of each monthly service performance
indicator results shall be based on a
"permutation" test using what is commonly referred
to as a "Z" statistic and a maximum of 1,000
randomly selected permutations of the samples.
Where sample sizes exceed 600, the "Z" test using
the "modified Z statistic" may be used instead of
the permutation test. Where used, the modified Z
statistic will be based on the statistical
variance associated with USWs retail performance
results, where applicable, or on the variance
associated with RESELLER aggregate performance
results, where there are no retail performance
results.
(D)6.7.2.2 The significance of a difference in proportional
measurements shall be based on direct calculation
of the probability of the observed difference
using the binomial distribution with a pooled p
value.
(D)6.7.2.3 A difference in results by either test type (i.e.,
differences in means or differences in
proportions) will be deemed statistically
significant if the appropriate one tailed test
indicates, with 99 percent confidence, that the
performance indicator results being compared
appear to be from different populations of
performance. In other words, that service being
provided to RESELLER appears to be inferior to
that represented by the comparable results (such
as, results representing service provided to
Resellers; in aggregate or to USW retail).
(D)6.7.3 For each case in which a significant difference as
defined above has occurred, USW shall:
(D)6.7.3.1 Immediately investigate to determine the cause(s)
of the difference and, where feasible, begin
good-faith efforts to resolve the difference;
(D)6.7.3.2 Within 45 days, provide to RESELLER a written
explanation of the result of the investigation as
to
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Part D
Miscellaneous Provisions
cause(s) and, as applicable, an action plan
describing (i) what has and will be done to
resolve the difference, (ii) what cooperative
actions and timelines on the part of RESELLER are
needed to facilitate or expedite resolution, and
(iii) listing key milestones for use by the
Parties in tracking progress;
(D)6.7.3.3 Offer and meet with designated RESELLER
representatives monthly to discuss progress on
resolving the difference(s);
(D)6.7.3.4 Escalate to vice president level any significant
difference that has or is not projected to be
resolved within three months of the difference
first being identified as significant as defined
above, with commitment at that level to direct due
diligence toward removing obstacles and expediting
resources where feasible and necessary to resolve
the difference as soon as possible.
(D)6.7.4 If a statistically and operationally significant
difference has occurred in the trend results for any
particular performance indicator, the Parties shall
allow three (3) months to correct the difference in the
trend results. If the statistically, and operationally
significant difference in trend results is corrected
within the three (3) month time, no action, formal or
informal, shall be taken by either Party with respect to
that difference.
(D)6.7.5 If the statistically and operationally significant
difference in trend results is not corrected within the
three (3) month time frame, the Dispute Resolution
provision of this Resale Agreement shall apply.
(D)6.8 Delaying Events
(D)6.8.1 A Party's failure to meet a requirement in this Section
of this Agreement shall not be included when that
failure is a result, directly or indirectly, of a
Delaying Event.
(D)6.8.2 A "Delaying Event" means:
(D)6.8.2.1 Failure by either Party to perform any of its
obligations set forth in this Agreement,
(D)6.8.2.2 Any delay, act or failure to act by an end user,
agent or subcontractor of the other Party, or
(D)6.8.2.3 Any Force Majeure Event.
(D)6.8.3 If a Delaying Event prevents either Party from
performing a measured activity, then such measured
activity shall be excluded from the performance
indicator(s).
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(D)6.9 Records Retention for Service Performance Indicators
USW shall maintain complete and accurate records, for the
specified review period of its performance under this
Agreement for each measured activity. USW shall provide such
records to RESELLER in a self-reporting format. Such records
shall be in the format kept in USW's ordinary course of
business. The Parties agree that such records shall be deemed
"Confidential Information."
(D)6.10 Joint Defense and Advocacy
The Parties shall jointly and separately advocate and defend
the sufficiency of this Agreement in addressing the
nondiscrimination requirements of the Act and wholesale
services performance measurements reporting rights, remedies
and related terms and conditions in any forum in which its
sufficiency might be challenged.
(D)6.11 Cost Recovery
Each Party reserves the right to recover the costs associated
with the creation of the above measures, indicators, and
reports through a future proceeding before a regulatory body.
Such a proceeding may address a wide range of implementation
costs not otherwise recovered through charges established
herein.
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Part E
Washington Rates
PART E - WASHINGTON RATES
LOCAL EXCHANGE SERVICES RESALE OF SERVICES
The Parties agree the following charges apply to the Resale of Local Services:
1. Nonrecurring Charges.
a. Customer Transfer Charge (CTC): The following nonrecurring charges
apply when converting a USW account to a RESELLER account or when
changing an end user from one reseller to another.
<TABLE>
<CAPTION>
CATEGORY OF SERVICE NONRECURRING CHARGE
- ------------------- -------------------
<S> <C>
Residence or Business Mechanized
First Line $14.56
Each Additional Line $ 6.57
Residence or Business Manual
First Line $27.52
Each Additional Line $ 7.12
Private Line Transport
First Circuit $45.08
Additional Circuits, Same CSR $31.19
Advanced Communications Services, Per circuit $50.48
</TABLE>
b. Product Specific Nonrecurring Charge: As set forth in USW tariffs,
the product specific nonrecurring charges, without discount, will
apply when additional, lines or trunks are added or when the end
user adds features or services to existing lines or trunks.
2. Except as qualified below, all USW telecommunications services, including
IntraLATA Toll, shall be available for resale at a 16% discount.
a. The following services are not available for resale:
- Customer Premises Equipment (separately or in a package)
- Deregulated Services (Inside Wire, including
installation, sale or maintenance)
- Promotions equal to or less than 90 days
- USW Calling Card
- Enhanced Services
- Concession Service
b. The following services are available only to the same class of
customer eligible to purchase that service from USW:
- Grandfathered
- Residence
- Lifeline/Link-up
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Washington Rates
c. The following services are available for resale under this Agreement
but are not included in the wholesale pricing reflected above:
- Private Line Used For Special Access
d. Telecommunications services offered by USW at a volume discount are
available at the lower of the 16% discount off the retail rate or at
the undiscounted volume discount.
3. Daily Usage Record File: Recurring Charge - $.0011 per record.
<PAGE>
Part F
Signature
PART F - SIGNATURE
ENTIRE AGREEMENT
This Agreement constitutes the entire agreement between the Parties and
supersedes all prior oral or written agreements, representations, statements,
negotiations, understandings, proposals and undertakings with respect to the
subject matter hereof.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed
by their respective duly authorized representatives.
essential.com, inc. U S WEST Communications, Inc.
/s/ Akhil Garland /s/Katherine L. Fleming
- ----------------------------------- -----------------------------------
Signature Signature
Akhil Garland Katherine L. Fleming
- ----------------------------------- -----------------------------------
Name Printed/Typed Name Printed/Typed
CEO Vice President - Interconnection
- ----------------------------------- -----------------------------------
Title Title
11-18-99 11-19-99
- ----------------------------------- -----------------------------------
Date Date
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<PAGE>
Exhibit 10.23
RESALE
AGREEMENT
BETWEEN
U S WEST COMMUNICATIONS, INC.
AND
essential.com, inc.
(d.b.a. essential.com, inc. - Your Energy & Communications Superstore)
FOR
ARIZONA
Page i
<PAGE>
TABLE OF CONTENTS
<TABLE>
<S> <C>
PART A - GENERAL TERMS........................................................................................1
(A)1. SCOPE OF AGREEMENT .................................................................................1
(A)2. DEFINITIONS.........................................................................................2
(A)3. TERMS AND CONDITIONS ...............................................................................4
(A)3.1 General Provisions .............................................................................4
(A)3.2 Term of Agreement...............................................................................4
(A)3.3 Proof of Authorization..........................................................................5
(A)3.4 Payment.........................................................................................5
(A)3.5 Taxes...........................................................................................7
(A)3.6 Force Majeure...................................................................................7
(A)3.7 Limitation of Liability.........................................................................7
(A)3.8 Indemnity.......................................................................................8
(A)3.9 Intellectual Property...........................................................................9
(A)3.10 Warranties...................................................................................12
(A)3.11 Assignment....................................................................................12
(A)3.12 Default.......................................................................................13
(A)3.13 Disclaimer of Agency..........................................................................13
(A)3.14 Nondisclosure.................................................................................13
(A)3.15 Survival......................................................................................15
(A)3.16 Dispute Resolution............................................................................15
(A)3.17 Controlling Law...............................................................................16
(A)3.18 Joint Work Product............................................................................16
(A)3.19 Responsibility for Environmental Contamination................................................17
(A)3.20 Notices.......................................................................................17
(A)3.21 Responsibility of Each Party .................................................................17
(A)3.22 No Third Party Beneficiaries .................................................................18
(A)3.23 Referenced Documents .........................................................................18
(A)3.24 Publicity ....................................................................................18
(A)3.25 Amendment ....................................................................................18
(A)3.26 Executed in Counterparts .....................................................................19
(A)3.27 Headings of No Force or Effect ...............................................................19
(A)3.28 Regulatory Approval ..........................................................................19
(A)3.29 Compliance ...................................................................................19
(A)3.30 Compliance with the Communications Assistance for Law Enforcement Act
of 1994 ("CALEA") ....................................................................................19
(A)3.31 Cooperation ..................................................................................19
(A)3.32 Availability of Other Agreements .............................................................20
PART B - RESALE .............................................................................................21
(B)1. Description .......................................................................................21
(B)2. Terms and Conditions ..............................................................................21
(B)3. Rates and Charges .................................................................................24
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<CAPTION>
TABLE OF CONTENTS
<S> <C>
(B)4. Ordering Process ..................................................................................26
(B)5. Billing ...........................................................................................27
(B)6. Maintenance and Repair ............................................................................27
PART C - WHITE PAGES DIRECTORY LISTINGS .....................................................................28
(C)1. Description .......................................................................................28
(C)2. Terms and Conditions ..............................................................................28
PART D- MISCELLANEOUS PROVISIONS.............................................................................31
(D)1. Network Security...................................................................................31
(D)2. Access To Operational Support Systems (OSS)........................................................31
(D)3. U S WEST...........................................................................................46
(D)4. Notice Of Changes..................................................................................46
(D)5. Maintenance and Repair.............................................................................47
(D)6. Service Performance................................................................................53
PART E - ARIZONA RATES ......................................................................................61
PART F - SIGNATURE...........................................................................................63
</TABLE>
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<PAGE>
Part A
General Terms
PART A - GENERAL TERMS
This Resale Agreement is between essential.com, inc. (d.b.a.
essential.com, inc. - Your Energy & Communications Superstore) ("RESELLER"), a
Delaware corporation, and U S WEST Communications, Inc. ("USW") a Colorado
corporation.
(A)1. SCOPE OF AGREEMENT
(A)1.1 Pursuant to this negotiated Resale Agreement ("Agreement"),
RESELLER and USW (collectively, "the Parties") will extend
certain arrangements to one another within the geographical
areas where USW is the incumbent Local Exchange Carrier
within the state of Arizona for purposes of providing the
resale of local Telecommunications Services. This Agreement
or the portions of this Agreement relative to a particular
state will be submitted to the Arizona Corporation
Commission ("Commission") for approval. Notwithstanding this
mutual commitment, however, the Parties enter into this
Agreement without prejudice to any positions they have taken
previously, or may take in the future in any legislative,
regulatory, or other public forum addressing any matters,
including matters related to the types of arrangements
prescribed by this Agreement.
(A)1.2 The provisions in this Agreement are based, in large part,
on the existing state of the law, rules, regulations and
interpretations thereof, as of the date hereof (the
"Existing Rules"). Among the Existing Rules are or could be
the results of arbitrated decisions by the Commission which
are currently being challenged by USW. Among the Existing
Rules are certain FCC rules and orders that are the subject
of, or affected by, the opinion issued by the Supreme Court
of the United States in AT&T CORP., ET AL. V. IOWA UTILITIES
BOARD, ET AL. on January 25, 1999. Nothing in this Agreement
shall preclude or stop USW from taking any position in any
forum concerning the proper interpretation or effect of the
Existing Rules or concerning whether the Existing Rules
should be changed, dismissed, stayed or modified. To the
extent that the Existing Rules are changed, vacated,
dismissed, stayed or modified, then the Parties shall amend
this Agreement and all contracts adopting all or part of
this Agreement pursuant to Section 252(i) of the Act, shall
be amended to reflect such modification or change of the
Existing Rules. Where the Parties fail to agree upon such an
amendment, it shall be resolved in accordance with the
Dispute Resolution provision of this Agreement. It is
expressly understood that this Agreement will be corrected
to reflect the outcome of generic pricing proceedings by the
Commission. This Section (A)1.2 shall be considered part of
the rates, terms and conditions of each service resale
arrangement contained in this Agreement, and this Section
(A)1.2 shall be considered legitimately related to the
purchase of each service for resale arrangement contained in
this Agreement.
(A)1.3 This Agreement sets forth the terms, conditions and prices
under which USW agrees to provide services for resale to
RESELLER, all for the sole purpose of providing
Telecommunications Services.
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Part A
General Terms
(A)1.4 In the performance of their obligations under this Agreement,
the Parties shall act in good faith and consistently with
the intent of the Act. Where notice, approval or similar
action by a Party is permitted or required by any provision
of this Agreement, (including, without limitation, the
obligation of the Parties to further negotiate the
resolution of new or open issues under this Agreement) such
action shall not be unreasonably delayed, withheld or
conditioned.
(A)1.5 USW may make services and features available to RESELLER for
resale under this Agreement consistent with the way they are
available to USW end users, without a formal amendment to
this Agreement. Nothing herein prevents either Party from
raising other issues through additional good faith
negotiations.
(A)1.6 This Agreement is structured in the following format:
Part A - General Terms
Part B - Resale
Part C - Directory Services
Part D - Miscellaneous Provisions
Part E - Rates
Part F - Signature
(A)1.7 Prior to placing any orders for services under this
Agreement, the Parties will jointly complete USW's "Reseller
Questionnaire". This questionnaire will then be used to:
Determine geographical requirements
Identify RESELLER Ids
Determine USW system requirements to support RESELLER
specific activity
Collect credit information
Obtain billing information
Create summary bills
Establish input and output requirements
Create and distribute USW and RESELLER contact lists
Identify client hours and holidays
(A)2. DEFINITIONS
(A)2.1 "Act" means the Communications Act of 1934 (47 U.S.C. 151
et. seq.), as amended by the Telecommunications Act of 1996,
and as from time to time interpreted in the duly authorized
rules and regulations of the FCC or a Commission within its
state of jurisdiction.
(A)2.2 "Basic Exchange Features" are optional end user switched
services that include, but are not necessarily limited to:
Automatic Call Back; Call Trace; Caller ID and Related
Blocking Features; Distinctive Ringing/Call Waiting;
Selective Call Forward; and Selective Call Rejection.
(A)2.3 "Basic Exchange Telecommunications Service" means a service
offered to end users which provides the end user with a
telephonic connection to, and a unique local telephone
number address on the public switched telecommunications
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Part A
General Terms
network, and which enables such end user to generally place
calls to, or receive calls from, other stations on the
public switched telecommunications network. Basic residence
and business line services are Basic Exchange
Telecommunications Services. As used solely in the context
of this statement and unless otherwise agreed, Basic
Exchange Telecommunications Service includes access to
ancillary services such as 911, directory assistance and
operator services.
(A)2.4 "Commission" means the Corporation Commission in the state
of Arizona.
(A)2.5 "Enhanced Services" means any service offered over common
carrier transmission facilities that employ computer
processing applications that act on format, content, code,
protocol or similar aspects of the subscriber's transmitted
information; that provide the subscriber with additional,
different or restructured information; or involve end user
interaction with stored information.
(A)2.6 "Interconnect & Resale Resource Guide" is a USW document
that provides essential information needed to request
services available under this Agreement. It is available on
USW's Web site.
(A)2.7 "Interexchange Carrier" or "IXC" means a carrier that
provides interLATA or IntraLATA Toll services.
(A)2.8 "IntraLATA Toll" is defined in accordance with USW's current
"intraLATA toll serving areas, as determined by the Federal
Communications Commission.
(A)2.9 "Local Exchange Carrier" or "LEC" means any person that is
engaged in the provision of telephone exchange service or
exchange access. Such term does not include a person insofar
as such person is engaged in the provision of a commercial
mobile service under Section 332(c) of the Act, except to
the extent that the FCC finds that such service should be
included in the definition of such term.
(A)2.10 "Party" means either USW or RESELLER and "Parties" means USW
and RESELLER.
(A)2.11 "Reseller" is a category of local exchange service provider
that obtains dial tone and associated Telecommunications
Services from another provider through the purchase of
finished services for resale to its end users.
(A)2.12 "Tariff" as used throughout this Agreement refers to USW
interstate Tariffs and state Tariffs, price lists, price
schedules and catalogs.
(A)2.13 "Telecommunications Carrier" means any provider of
Telecommunications Services, except that such term does not
include aggregators of Telecommunications Services (as
defined in Section 226 of the Act). A Telecommunications
Carrier shall be treated as a common carrier under the Act
only to the extent that it is engaged in providing
Telecommunications Services, except that the Federal
Communications Commission shall determine whether
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Part A
General Terms
the provision of fixed and mobile satellite service shall be
treated as common carriage.
(A)2.14 "Telecommunications Services" means the offering of
telecommunications for a fee directly to the public, or to
such classes of users as to be effectively available
directly to the public, regardless of the facilities used.
(A)2.15 Terms not otherwise defined here, but defined in the Act
shall have the meaning defined there. Where a term is
defined in the regulations implementing the Act but not in
this Agreement, the Parties do not necessarily intend to
adopt the definition as set forth in said regulations.
(A)3. TERMS AND CONDITIONS
(A)3.1 GENERAL PROVISIONS
(A)3.1.1 Each Party is solely responsible for the services
it provides to its end users and to other
Telecommunications Carriers.
(A)3.1.2 The Parties shall work cooperatively to minimize
fraud associated with intra-LATA toll,
third-number billed calls, and any other services
related to this Agreement.
(A)3.1.3 Nothing in this Agreement shall prevent either
Party from seeking to recover the costs and
expenses, if any, it may incur in (a) complying
with and implementing its obligations under this
Agreement, the Act, and the rules, regulations and
orders of the FCC and the Commission, and (b) the
development, modification, technical installation
and maintenance of any systems or other
infrastructure which it requires to comply with
and to continue complying with its
responsibilities and obligations under this
Agreement.
(A)3.2 TERM OF AGREEMENT
This Agreement shall become effective upon Commission
approval, pursuant to Sections 251 and 252 of the Act, shall
terminate on March 18, 2002, and shall be binding upon the
Parties during that term, notwithstanding Section 252(i) of
the Act. After the date specified above, this Agreement
shall continue in force and effect until terminated by
either Party providing one hundred sixty (160) days written
notice of termination to the other Party. The day the notice
is served will determine the starting point for a 160-day
negotiation period (in accordance with 252(b)1 of the Act.
In the event of such termination, existing or pending
service arrangements made available under this Agreement
shall continue in total without interruption under either a)
a new or adoption agreement executed by the Parties, or b)
tariff terms and conditions generally available to all
resellers.
(A)3.2.1 If the Parties are unable to negotiate a new
agreement during the negotiation period described
above, the window of opportunity to file for
arbitration to resolve outstanding contractual
issues in accordance with the Act will occur
between days 135 and 160 of the 160 day notice
period.
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Part A
General Terms
(A)3.2.2 If the Parties are able to reach agreement, this
Agreement shall continue for the brief period of
time needed to secure the Commission's approval of
an adoption agreement or a new resale agreement.
In the case of Section (A)3.2.1, this Agreement
will expire on the termination date specified in
the one hundred sixty (160) day notice referenced
above, unless a petition for arbitration has been
filed, but if such a petition has been filed then
this Agreement shall continue for the period
necessary for the Commission to act and resolve
the disputed issues so that the Parties will have
an effective resale agreement.
(A)3.3 PROOF OF AUTHORIZATION
Where so indicated in specific sections of this Agreement,
each party shall be responsible for obtaining and having in
its possession Proof of Authorization ("POA"). POA shall
consist of verification of the end user's selection and
authorization adequate to document the end user's
selection.. Such selection may be obtained in the following
ways:
(A)3.3.1 The end user's written Letter of Authorization.
(A)3.3.2 The end user's electronic authorization by use of
an 1-8XX number.
(A)3.3.3 The end user's oral authorization verified by an
independent third party (with third party
verification as POA).
The Parties shall make POAs available to each other upon
request, in accordance with the applicable laws and rules.
Unless prohibited by applicable laws or regulations, a
charge of $100.00 ("slamming charge") will be assessed if
the POA cannot be provided supporting the change in service
provider. If there is a conflict between the end user
designation and the other Party's written evidence of its
authority, the Parties shall honor the designation of the
end user and change the end user back to the previous
service provider.
(A)3.4 PAYMENT
(A)3.4.1 Amounts payable under this Agreement are due and
payable within thirty (30) calendar days after the
date of USW's invoice, or within twenty (20) days
after receipt of the invoice, whichever is later.
If the payment due date is not a Business Day, the
payment shall be made the next Business Day..
USW may discontinue processing orders for the
failure by RESELLER to make full payment for the
services provided under this Agreement within
thirty (30) days of the due date on RESELLER's
bill.
USW may disconnect for the failure by RESELLER to
make full payment for the services provided under
this Agreement within sixty (60) days of the due
date on RESELLER's bill. RESELLER
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Part A
General Terms
will pay the Tariff charge required to reconnect
each end user line disconnected pursuant to this
paragraph.
(A)3.4.2 Should RESELLER dispute, in good faith, any
portion of the monthly billing under this
Agreement, RESELLER will notify USW in writing
within thirty (30) calendar days of the receipt of
such billing, identifying the amount, reason and
rationale of such dispute. RESELLER shall pay all
amounts due. Both RESELLER and USW agree to
expedite the investigation of any disputed amounts
in an effort to resolve and settle the dispute
prior to initiating any other rights or remedies.
Should the dispute be resolved in RESELLER's favor
and the resolved amount did not appear as a credit
on RESELLER's next invoice from USW, USW will
reimburse RESELLER the resolved amount plus
interest from the date of payment. The amount of
interest will be calculated using the late payment
factor that would have applied to such amount had
it not been paid on time.
(A)3.4.3 USW will determine RESELLER's credit status based
on previous payment history with USW or credit
reports such as Dun and Bradstreet. If RESELLER
has not established satisfactory credit with USW
or if RESELLER is repeatedly delinquent in making
its payments, USW may require a deposit to be held
as security for the payment of charges.
"Repeatedly delinquent" means being thirty (30)
calendar days or more delinquent for three (3)
consecutive months. The deposit may not exceed the
estimated total monthly charges for a two (2)
month period. The deposit may be a surety bond, a
letter of credit with terms and conditions
acceptable to USW or some other form of mutually
acceptable security such as a cash deposit.
Required deposits are due and payable within ten
(10) calendar days after demand in accordance with
Commission requirements.
(A)3.4.4 Interest will be paid on cash deposits at the rate
applying to deposits under applicable Commission
rules, regulations, or Tariffs. Cash deposits and
accrued interest will be credited to RESELLER's
account or refunded, as appropriate, upon the
earlier of the termination of this Agreement or
the establishment of satisfactory credit with USW
which will generally be one (1) full year of
timely payments in full by RESELLER. The fact that
a deposit has been made does not relieve RESELLER
from any requirements of this Agreement.
(A)3.4.5 USW may review RESELLER's credit standing and
modify the amount of deposit required.
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Part A
General Terms
(A)3.4.6 The late payment charge for amounts that are billed
under this Agreement shall be in accordance with state
Tariffs/Commission Rules and Orders.
(A)3.5 TAXES
Each Party purchasing services hereunder shall pay or otherwise be
responsible for all federal, state, or local sales, use, excise,
gross receipts, transaction or similar taxes, fees or surcharges
levied against or upon such purchasing Party (or the providing
Party when such providing Party is permitted to pass along to the
purchasing Party such taxes, fees or surcharges), except for any
tax on either Party's corporate existence, status or income.
Whenever possible, these amounts shall be billed as a separate item
on the invoice. To the extent a sale is claimed to be for resale
tax exemption, the purchasing Party shall furnish the providing
Party a proper resale tax exemption certificate as authorized or
required by statute or regulation by the jurisdiction providing
said resale tax exemption. Until such time as a resale tax
exemption certificate is provided, no exemptions will be applied.
(A)3.6 FORCE MAJEURE
Neither Party shall be liable for any delay or failure in
performance of any part of this Agreement from any cause beyond its
control and without its fault or negligence including, without
limitation, acts of nature, acts of civil or military authority,
government regulations, embargoes, epidemics, terrorist acts,
riots, insurrections, fires, explosions, earthquakes, nuclear
accidents, floods, work stoppages, equipment failure, power
blackouts, volcanic action, other major environmental disturbances,
unusually severe weather conditions, inability to secure products
or services of other persons or transportation facilities or acts
or omissions of transportation carriers (collectively, a "Force
Majeure Event"). The Party affected by a Force Majeure Event shall
give prompt notice to the other Party, shall be excused from
performance of its obligations hereunder on a day to day basis to
the extent those obligations are prevented by the Force Majeure
Event, and shall use reasonable efforts to remove or mitigate the
Force Majeure Event. In the event of a labor dispute or strike the
Parties agree to provide service to each other at a level
equivalent to the level they provide themselves.
(A)3.7 LIMITATION OF LIABILITY
(A)3.7.1 Except for losses relating to or arising out of any act or
omission in its performance of services or functions
provided under this Agreement, each Party shall be liable
to the other for direct damages for any loss, defect or
equipment failure resulting from the causing Party's
conduct or the conduct of its agents or contractors in
performing the obligations contained in this Agreement.
(A)3.7.2 Neither Party shall be liable to the other for indirect,
incidental, consequential, or special damages, including
(without limitation) damages for lost profits, lost
revenues, lost savings suffered by the other Party
regardless of the form of action, whether in contract,
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Part A
General Terms
warranty, strict liability, tort, including (without
limitation) negligence of any kind and regardless of
whether the Parties know the possibility that such
damages could result.
(A)3.7.3 Except for indemnity obligations, each Party's
liability to the other Party for any loss relating to
or arising out of any act or omission in its
performance of services or functions provided under
this Agreement, whether in contract or in tort, shall
be limited to the total amount that is or would have
been charged to the other Party by such breaching Party
for the service(s) or function(s) not performed or
improperly performed.
(A)3.7.4 Nothing contained in this Section shall limit either
Party's liability to the other for intentional,
malicious misconduct.
(A)3.7.5 Nothing contained in this Section shall limit either
Party's obligations of indemnification as specified in
the Indemnity Section of this Agreement.
(A)3.7.6 Neither Party shall be liable to the other under any
theory including indemnity on account of such Party's
failure or neglect to have or maintain a system or
systems that are Year 2000 compliant. As the Parties
approach the Year 2000, date information associated
with any interfaces between the Parties is expected to
remain as it is.
(A)3.8 INDEMNITY
(A)3.8.1 With respect to third party claims, the Parties agree
to indemnify each other as follows:
(A)3.8.1.1 Except for claims made by end users of one
Party against the other Party, which
claims are based on defective or faulty
services provided by the other Party to
the one Party, each of the Parties agree
to release, indemnify, defend and hold
harmless the other Party and each of its
officers, directors, employees and agents
(each an "Indemnitee") from and against
and in respect of any loss, debt,
liability, damage, obligation, claim,
demand, judgment or settlement of any
nature or kind, known or unknown,
liquidated or unliquidated including, but
not limited to, costs and attorneys' fees,
whether suffered, made, instituted, or
asserted by any other party or person, for
invasion of privacy, personal injury to or
death of any person or persons, or for
loss, damage to, or destruction of
property, whether or not owned by others,
resulting from the indemnifying Party's
performance, breach of applicable law, or
status of its employees, agents and
subcontractors; or for failure to
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Part A
General Terms
perform under this Agreement, regardless
of the form of action.
(A)3.8.1.2 Where the third party claim is made by (or
through) an end user of one Party against
the other Party, which claim is based on
defective or faulty services provided by
the other Party to the one Party then
there shall be no obligation of indemnity
unless the act or omission giving rise to
the defective or faulty services is shown
to be intentional, malicious misconduct of
the other Party.
(A)3.8.1.3 If the claim is made by (or through) an
end user and where a claim is in the
nature of a claim for invasion of privacy,
libel, slander, or other claim based on
the content of a transmission, and it is
made against a Party who is not the
immediate provider of the
Telecommunications Service to the end user
(the indemnified provider), then in the
absence of fault or neglect on the part of
the indemnified provider, the Party who is
the immediate seller of such
Telecommunications Service shall
indemnify, defend and hold harmless the
indemnified provider from such claim.
(A)3.8.2 The indemnification provided herein shall be conditioned
upon:
(A)3.8.2.1 The indemnified Party shall promptly
notify the indemnifying Party of any
action taken against the indemnified Party
relating to the indemnification. Failure
to so notify the indemnifying Party shall
not relieve the indemnifying Party of any
liability that the indemnifying Party
might have, except to the extent that such
failure prejudices the indemnifying
Party's ability to defend such claim.
(A)3.8.2.2 The indemnifying Party shall have sole
authority to defend any such action,
including the selection of legal counsel,
and the indemnified Party may engage
separate legal counsel only at its sole
cost and expense.
(A)3.8.2.3 In no event shall the indemnifying Party
settle or consent to any judgment
pertaining to any such action without the
prior written consent of the indemnified
Party.
(A)3.9 INTELLECTUAL PROPERTY
(A)3.9.1 Each Party hereby grants to the other Party the
limited, personal and nonexclusive right and license to
use its patents, copyrights and trade secrets but only
to the extent necessary to implement this Agreement or
specifically required by the then applicable federal
and state rules and regulations relating to
Interconnection and access to
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Part A
General Terms
telecommunications facilities and services, and for no
other purposes. Nothing in this Agreement shall be
construed as the grant to the other Party of any rights
or licenses to trademarks.
(A)3.9.2 The rights and licenses above are granted "AS IS" and
the other Party's exercise of any such right and
license shall be at the sole and exclusive risk of the
other Party. Neither Party shall have any obligation to
defend, indemnify or hold harmless, or acquire any
license or right for the benefit of, or owe any other
obligation or have any liability to, the other based on
or arising from any claim, demand, or proceeding
(hereinafter "claim") by any third party alleging or
asserting that the use of any circuit, apparatus, or
system, or the use of any software, or the performance
of any service or method, or the provision of any
facilities by either Party under this Agreement
constitutes infringement, or misuse or misappropriation
of any patent, copyright, trade secret, or any other
proprietary or intellectual property right of any third
party.
(A)3.9.3 As a condition to the access or use of patents,
copyrights, trade secrets and other intellectual
property (including software) owned or controlled by a
third party to the extent necessary to implement this
Agreement or specifically required by the then
applicable federal and state rules and regulations
relating to Interconnection and access to
telecommunications facilities and services, the Party
providing access may require the other, upon written
notice, from time to time, to obtain a license or
permission for such access or use, make all payments in
connection with obtaining such license, and provide
evidence of such license.
(A)3.9.4 Except as expressly provided in this Intellectual
Property Section, nothing in this Agreement shall be
construed as the grant of a license, either express or
implied, with respect to any patent, copyright, logo,
trademark, trade name, trade secret or any other
intellectual property right now or hereafter owned,
controlled or licensable by either Party. Neither Party
may use any patent, copyright, logo, trademark, trade
name, trade secret or other intellectual property
rights of the other Party or its affiliates without
execution of a separate agreement between the Parties.
(A)3.9.5 Neither Party shall without the express written
permission of the other Party, state or imply that: 1)
it is connected, or in any way affiliated with the
other or its affiliates, 2) it is part of a joint
business association or any similar arrangement with
the other or its affiliates, 3) the other Party and its
affiliates are in any way sponsoring, endorsing or
certifying it and its goods and services, or 4) with
respect to its advertising or promotional activities or
materials, that the resold goods and services are in
any way associated with or
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General Terms
originated from the other or any of its affiliates.
Nothing in this paragraph shall prevent either Party
from truthfully describing the network elements it uses
to provide service to its end users, provided it does
not represent the network elements as originating from
the other Party or its affiliates.
(A)3.9.6 For purposes of resale only and notwithstanding the
above, unless otherwise prohibited by USW pursuant to
an applicable provision herein, RESELLER may use the
phrase "RESELLER is a reseller of U S WEST
Communications services" (the "Authorized Phrase") in
RESELLER's printed materials provided:
(A)3.9.6.1 The Authorized Phrase is not used in
connection with any goods or services
other than USW services resold by RESELLER.
(A)3.9.6.2 RESELLER's use of the Authorized Phrase
does not cause end users to believe that
RESELLER is USW.
(A)3.9.6.3 RESELLER may not use the U S WEST logo.
The Authorized Phrase, when displayed,
appears only in text form with all letters
being the same font and point size. The
point size of the Authorized Phrase shall
be no greater than one fourth the point
size of the smallest use of RESELLER's
name and in no event shall exceed 8 point
size.
(A)3.9.6.4 RESELLER shall provide all printed
materials using the Authorized Phrase to
USW for its prior written approval.
(A)3.9.6.5 If USW determines that RESELLER's use of
the Authorized Phrase causes end user
confusion, USW may immediately terminate
RESELLER's right to use the Authorized
Phrase.
(A)3.9.6.6 Upon termination of RESELLER's right to
use the Authorized Phrase or termination
of this Agreement, all permission or right
to use the Authorized Phrase shall
immediately cease to exist and RESELLER
shall immediately cease any and all such
use of the Authorized Phrase. RESELLER
shall either promptly return to USW or
destroy all materials in its possession or
control displaying the Authorized Phrase.
(A)3.9.7 RESELLER acknowledges the value of the marks "U S WEST"
and "U S WEST Communications" (the "Marks") and the
goodwill associated therewith and acknowledges that such
goodwill is a property right belonging to U S WEST, Inc.
and USW respectively (the "Owners"). RESELLER recognizes
that nothing contained in this Agreement is intended as
an assignment or grant to RESELLER of
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General Terms
any right, title or interest in or to the Marks and that
this Agreement does not confer any right or license to
grant sublicenses or permission to third parties to use
the Marks and is not assignable. RESELLER will do nothing
inconsistent with the Owner's ownership of the Marks, and
all rights, if any, that may be acquired by use of the
Marks shall inure to the benefit of the Owners. RESELLER
will not adopt, use (other than as authorized herein),
register or seek to register any mark anywhere in the
world which is identical or confusingly similar to the
Marks or which is so similar thereto as to constitute a
deceptive colorable imitation thereof or to suggest or
imply some association, sponsorship, or endorsement by
the Owners. The Owners make no warranties regarding
ownership of any rights in or the validity of the Marks.
(A)3.10 WARRANTIES
NOTWITHSTANDING ANY OTHER PROVISION OF THIS AGREEMENT, THE PARTIES
AGREE THAT NEITHER PARTY HAS MADE, AND THAT THERE DOES NOT EXIST,
ANY WARRANTY, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO
WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
(A)3.11 ASSIGNMENT
(A)3.11.1 Neither Party may assign or transfer (whether by
operation of law or otherwise) this Agreement (or any
rights or obligations hereunder) to a third party without
the prior written consent of the other Party.
Notwithstanding the foregoing, either Party may assign or
transfer this Agreement to a corporate affiliate or an
entity under its common control; however, if RESELLER's
assignee or transferee has an interconnection agreement
with USW, no assignment or transfer of this Agreement
shall be effective without the prior written consent of
USW. Such consent shall include appropriate resolutions
of conflicts and discrepancies between the assignee's or
transferee's interconnection agreement and this
Agreement. Any attempted assignment or transfer that is
not permitted is void AB INITIO. Without limiting the
generality of the foregoing, this Agreement shall be
binding upon and shall inure to the benefit of the
Parties' respective successors and assigns.
(A)3.11.2 Without limiting the generality of the foregoing
subsection, any merger, dissolution, consolidation or
other reorganization of RESELLER, or any sale, transfer,
pledge or other disposition by RESELLER of securities
representing more than 50% of the securities entitled to
vote in an election of RESELLER's board of directors or
other similar governing body, or any sale, transfer,
pledge or other disposition by RESELLER of substantially
all of its assets, shall be deemed a transfer of control.
If any entity, other than
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RESELLER, involved in such merger, dissolution,
consolidation, reorganization, sale, transfer,
pledge or other disposition of RESELLER has an
interconnection agreement with USW, the Parties
agree that only one agreement, either this
Agreement or the interconnection agreement of
the other entity, will remain valid. All other
interconnection agreements will be terminated.
The Parties agree to work together to determine
which interconnection agreement should remain
valid and which should terminate. In the event
the Parties cannot reach agreement on this
issue, the issue shall be resolved through the
Dispute Resolution process contained in this
Agreement.
(A)3.12 DEFAULT
If either Party defaults in the payment of any amount due
hereunder, or if either Party violates any other material
provision of this Agreement, and such default or violation
shall continue for thirty (30) calendar days after written
notice thereof, the other Party may seek relief in
accordance with the Dispute Resolution provision of this
Agreement. The failure of either Party to enforce any of
the provisions of this Agreement or the waiver thereof in
any instance shall not be construed as a general waiver or
relinquishment on its part of any such provision, but the
same shall, nevertheless, be and remain in full force and
effect.
(A)3.13 DISCLAIMER OF AGENCY
Except for provisions herein expressly authorizing a Party
to act for another, nothing in this Agreement shall
constitute a Party as a legal representative or agent of
the other Party, nor shall a Party have the right or
authority to assume, create or incur any liability or any
obligation of any kind, express or implied, against or in
the name or on behalf of the other Party unless otherwise
expressly permitted by such other Party. Except as
otherwise expressly provided in this Agreement, no Party
undertakes to perform any obligation of the other Party
whether regulatory or contractual, or to assume any
responsibility for the management of the other Party's
business.
(A)3.14 NONDISCLOSURE
(A)3.14.1 All information, including but not limited to
specifications, microfilm, photocopies,
magnetic disks, magnetic tapes, drawings,
sketches, models, samples, tools, technical
information, data, employee records, maps,
financial reports, and market data, (i)
furnished by one Party to the other Party
dealing with end user specific, facility
specific, or usage specific information, other
than end user information communicated for the
purpose of providing directory assistance or
publication of directory database, or (ii) in
written, graphic, electromagnetic, or -other
tangible form and marked at the time of
delivery as "Confidential" or "Proprietary", or
(iii) communicated and declared to the
receiving Party at the time of delivery, or by
written
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General Terms
notice given to the receiving Party within ten
(10) calendar days after delivery, to be
"Confidential" or "Proprietary" (collectively
referred to as "Proprietary Information"),
shall remain the property of the disclosing
Party. A Party who receives Proprietary
Information via an oral communication may
request written confirmation that the material
is Proprietary Information. A Party who
delivers Proprietary Information via an oral
communication may request written confirmation
that the Party receiving the information
understands that the material is Proprietary
Information.
(A)3.14.2 Upon request by the disclosing Party, the
receiving Party shall return all tangible
copies of Proprietary Information, whether
written, graphic or otherwise, except that the
receiving Party may retain one copy for
archival purposes.
(A)3.14.3 Each Party shall keep all of the other Party's
Proprietary Information confidential and shall
use the other Party's Proprietary Information
only in connection with this Agreement. Neither
Party shall use the other Party's Proprietary
Information for any other purpose except upon
such terms and conditions as may be agreed upon
between the Parties in writing.
(A)3.14.4 Unless otherwise agreed, the obligations of
confidentiality and non-use set forth in this
Agreement do not apply to such Proprietary
Information as:
(A)3.14.4.1 was at the time of receipt already
known to the receiving Party free of
any obligation to keep it
confidential evidenced by written
records prepared prior to delivery
by the disclosing Party; or
(A)3.14.4.2 is or becomes publicly known
through no wrongful act of the
receiving Party; or
(A)3.14.4.3 is rightfully received from a third
person having no direct or indirect
secrecy or confidentiality
obligation to the disclosing Party
with respect to such information; or
(A)3.14.4.4 is independently developed by an
employee, agent, or contractor of
the receiving Party which individual
is not involved in any manner with
the provision of services pursuant
to the Agreement and does not have
any direct or indirect access to the
Proprietary Information; or
(A)3.14.4.5 is disclosed to a third person by
the disclosing Party without similar
restrictions on such third person's
rights; or
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(A)3.14.4.6 is approved for release by written
authorization of the disclosing
Party; or
(A)3.14.4.7 is required to be made public by
the receiving Party pursuant to
applicable law or regulation
provided that the receiving Party
shall give sufficient notice of the
requirement to the disclosing Party
to enable the disclosing Party to
seek protective orders.
(A)3.14.5 Nothing herein is intended to prohibit a Party
from supplying factual information about its
network and Telecommunications Services on or
connected to its network to regulatory agencies
including the Federal Communications Commission
and the Commission so long as any confidential
obligation is protected.
(A)3.14.6 Effective Date Of This Section. Notwithstanding
any other provision of this Agreement, the
Proprietary Information provisions of this
Agreement shall apply to all information
furnished by either Party to the other in
furtherance of the purpose of this Agreement,
even if furnished before the date of this
Agreement.
(A)3.15 SURVIVAL
Any liabilities or obligations of a Party for acts or
omissions prior to the cancellation or termination of this
Agreement; any obligation of a Party under the provisions
regarding indemnification, Confidential or Proprietary
Information, limitations of liability, and any other
provisions of this Agreement which, by their terms, are
contemplated to survive (or to be performed after)
termination of this Agreement, shall survive cancellation
or termination hereof.
(A)3.16 DISPUTE RESOLUTION
(A)3.16.1 If any claim, controversy or dispute between
the Parties, their agents, employees, officers,
directors or affiliated agents should arise,
and the Parties do not resolve it in the
ordinary course of their dealings (the
"Dispute"), then it shall be resolved in
accordance with the dispute resolution process
set forth in this Section. Each notice of
default, unless cured within the applicable
cure period, shall be resolved in accordance
herewith.
(A)3.16.2 At the written request of either Party, and
prior to any other formal dispute resolution
proceedings, each Party shall designate an
officer-level employee, at no less than the
vice president level, to review, meet, and
negotiate, in good faith, to resolve the
Dispute. The Parties intend that these
negotiations be conducted by non-lawyer,
business representatives, and the locations,
format, frequency, duration, and conclusions of
these discussions shall be at the discretion of
the representatives. By mutual agreement, the
representatives may use other procedures, such
as mediation, to assist in these negotiations.
The discussions and correspondence
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General Terms
among the representatives for the purposes of
these negotiations shall be treated as
Confidential Information developed for purposes
of settlement, and shall be exempt from
discovery and production, and shall not be
admissible in any subsequent arbitration or
other proceedings without the concurrence of
both of the Parties.
(A)3.16.3 If the vice-presidential level representatives
have not reached a resolution of the Dispute
within thirty (30) calendar days after the
matter is referred to them, then either Party
may demand that the Dispute be settled by
arbitration. Such an arbitration proceeding
shall be conducted by a single arbitrator,
knowledgeable about the telecommunications
industry. The arbitration proceedings shall be
conducted under the then current rules of the
American Arbitration Association ("AAA"). The
Federal Arbitration Act, 9 U.S.C. Sections
1-16, not state law, shall govern the
arbitrability of the Dispute. The arbitrator
shall not have authority to award punitive
damages. All expedited procedures prescribed by
the AAA rules shall apply. The arbitrator's
award shall be final and binding and may be
entered in any court having jurisdiction
thereof. Each Party shall bear its own costs
and attorneys' fees, and shall share equally in
the fees and expenses of the arbitrator. The
arbitration proceedings shall occur in the
Denver, Colorado metropolitan area. It is
acknowledged that the Parties, by mutual,
written agreement, may change any of these
arbitration practices for a particular, some,
or all Dispute(s).
(A)3.16.4 Should it become necessary to resort to court
proceedings to enforce a Party's compliance
with the dispute resolution process set forth
herein, and the court directs or otherwise
requires compliance herewith, then all of the
costs and expenses, including its reasonable
attorney fees, incurred by the Party requesting
such enforcement shall be reimbursed by the
non-complying Party to the requesting Party.
(A)3.16.5 No Dispute, regardless of the form of action,
arising out of this Agreement, may be brought
by either Party more than two (2) years after
the cause of action accrues.
(A)3.17 CONTROLLING LAW
This Agreement was negotiated by the Parties in accordance
with the terms of the Act and the laws of the state where
service is provided hereunder. It shall be interpreted
solely in accordance with the terms of the Act and the
applicable state law in the state where the service is
provided.
(A)3.18 JOINT WORK PRODUCT
This Agreement is the joint work product of the Parties
and has been negotiated by the Parties and their
respective counsel and shall be fairly interpreted in
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General Terms
accordance with its terms and, in the event of any
ambiguities, no inferences shall be drawn against either
Party.
(A)3.19 RESPONSIBILITY FOR ENVIRONMENTAL CONTAMINATION
Neither Party shall be liable to the other for any costs
whatsoever resulting from the presence or release of any
environmental hazard that either Party did not introduce
to the affected work location. Both Parties shall defend
and hold harmless the other, its officers, directors and
employees from and against any losses, damages, claims,
demands, suits, liabilities, fines, penalties and expenses
(including reasonable attorneys' fees) that arise out of
or result from (i) any environmental hazard that the
indemnifying Party, its contractors or agents introduce to
the work locations or (ii) the presence or release of any
environmental hazard for which the indemnifying Party is
responsible under applicable law.
(A)3.20 NOTICES
Any notices required by or concerning this Agreement shall
be sent to the Parties at the addresses shown below:
USW
Director Interconnection Compliance
1801 California, Room 2410
Denver, CO 80202
With copy to:
U S WEST Law Department
Attention: General Counsel, Interconnection
1801 California Street, 51st Floor
Denver, CO 80202
RESELLER
John Duffy
Peter Mills
3 Burlington Woods Drive
4th Floor
Burlington, MA 01803
Phone: 781-229-9599, ext. 136
Fax: 781-229-9499
E-mail: [email protected]
Each Party shall inform the other of any changes in the
above addresses.
(A)3.21 RESPONSIBILITY OF EACH PARTY
Each Party is an independent contractor, and has and
hereby retains the right to exercise full control of and
supervision over its own performance of its obligations
under this Agreement and retains full control over the
employment, direction, compensation and discharge of all
employees assisting in the performance of such
obligations. Each Party will be solely responsible for all
matters relating to payment of such employees, including
compliance with social security taxes,
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General Terms
withholding taxes and all other regulations governing such
matters. Each Party will be solely responsible for proper
handling, storage, transport and disposal at its own
expense of all (i) substances or materials that it or its
contractors or agents bring to, create or assume control
over at work locations or, (ii) waste resulting therefrom
or otherwise generated in connection with its or its
contractors' or agents' activities at the work locations.
Subject to the limitations on liability and except as
otherwise provided in this Agreement, each Party shall be
responsible for (i) its own acts and performance of all
obligations imposed by applicable law in connection with
its activities, legal status and property, real or
personal and, (ii) the acts of its own affiliates,
employees, agents and contractors during the performance
of that Party's obligations hereunder.
(A)3.22 NO THIRD PARTY BENEFICIARIES
This Agreement does not provide and shall not be construed
to provide third parties with any remedy, claim,
liability, reimbursement, cause of action, or other
privilege.
(A)3.23 REFERENCED DOCUMENTS
All references to Sections shall be deemed to be
references to Sections of this Agreement unless the
context shall otherwise require. Whenever any provision of
this Agreement refers to a technical reference, technical
publication, RESELLER practice, USW practice, any
publication of telecommunications industry administrative
or technical standards, or any other document specifically
incorporated into this Agreement, it will be deemed to be
a reference to the most recent version or edition
(including any amendments, supplements, addenda, or
successors) of such document that is in effect, and will
include the most recent version or edition (including any
amendments, supplements, addenda, or successors) of each
document incorporated by reference in such a technical
reference, technical publication, RESELLER practice, USW
practice, or publication of industry standards. USW will
not implement changes in the most recent version or
edition in the documents described above when such changes
are optional. The existing configuration of either Party's
network may not be in immediate compliance with the latest
release of applicable referenced documents.
(A)3.24 PUBLICITY
Neither Party shall publish or use any publicity materials
with respect to the execution and delivery or existence of
this Agreement without the prior written approval of the
other Party.
(A)3.25 AMENDMENT
RESELLER and USW may mutually agree to amend this
Agreement in writing. Since it is possible that amendments
to this Agreement may be needed to fully satisfy the
purposes and objectives of this Agreement, the Parties
agree to work cooperatively, promptly and in good faith to
negotiate and implement any such additions, changes and
corrections to this Agreement.
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General Terms
(A)3.26 EXECUTED IN COUNTERPARTS
This Agreement may be executed in any number of
counterparts, each of which shall be deemed an original;
but such counterparts shall together constitute one and
the same instrument.
(A)3.27 HEADINGS OF NO FORCE OR EFFECT
The headings of Sections of this Agreement are for
convenience of reference only, and shall in no way define,
modify or restrict the meaning or interpretation of the
terms or provisions of this Agreement.
(A)3.28 REGULATORY APPROVAL
The Parties understand and agree that this Agreement will
be filed with the Commission for approval. In the event
the Commission rejects any portion of this Agreement,
renders it inoperable or creates an ambiguity that
requires further amendment, the Parties agree to meet and
negotiate in good faith to arrive at a mutually acceptable
modification.
(A)3.29 COMPLIANCE
Each Party shall comply with all federal, state, and local
laws, rules and regulations applicable to its performance
under this Agreement. Without limiting the foregoing, USW
and RESELLER agree to take all action necessary to keep
and maintain in full force and effect all permits,
licenses, certificates, insurance, and other authorities
needed to perform their respective obligations hereunder.
(A)3.30 COMPLIANCE WITH THE COMMUNICATIONS ASSISTANCE FOR LAW
ENFORCEMENT ACT OF 1994 ("CALEA")
Each Party represents and warrants that any equipment,
facilities or services provided to the other Party under
this Agreement comply with CALEA. Each Party shall
indemnify and hold the other Party harmless from any and
all penalties imposed upon the other Party for such
noncompliance and shall at the noncompliant Party's sole
cost and expense, modify or replace any equipment,
facilities or services provided to the other Party under
this Agreement to ensure that such equipment, facilities
and services fully comply with CALEA.
(A)3.31 COOPERATION
The Parties agree that this Agreement involves the
provision of USW services in ways such services were not
previously available and the introduction of new processes
and procedures to provide and bill such services.
Accordingly, the Parties agree to work jointly and
cooperatively in testing and implementing processes for
pre-ordering, ordering, maintenance, provisioning and
billing and in reasonably resolving issues which result
from such implementation on a timely basis. Electronic
processes and procedures are addressed in Part D of this
Agreement.
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General Terms
(A)3.32 AVAILABILITY OF OTHER AGREEMENTS
With regard to the availability of other agreements, the
Parties agree that the provisions of Section 252(i) of the
Act shall apply, including state and federal, Commission
and court interpretive regulations and decisions in effect
from time to time.
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Part B
Resale
PART B - RESALE
(B)1. DESCRIPTION
(B)1.1 Pursuant to the Act and this Part B, USW shall offer for
resale at wholesale rates any Telecommunications Services
it provides to end users who are not Telecommunications
Carriers including terms and conditions (except prices) in
the USW Tariffs, where applicable. RESELLER may obtain
intraLATA toll service from USW for resale or RESELLER has
the option to self-provision intraLATA toll or to obtain
intraLATA toll for resale from another provider.
(B)1.2 The Parties agree that certain USW services are not
available for resale under this Agreement and certain
other USW services are available for resale but not at a
discount, as identified in Part E or in individual state
Tariffs. The availability of services and applicable
discounts identified in Part E or in individual Tariffs
are subject to change pursuant to the Rates and Charges
sub-section of this Resale section.
(B)2. TERMS AND CONDITIONS
(B)2.1 Basic Exchange Telecommunications Service, Basic Exchange
Features, Private Line Service, Frame Relay Service and
intraLATA Toll may be resold only for their intended or
disclosed use and only to the same class of end user to
which USW sells such services (e.g., residence service may
not be resold to business end users). Service provided
directly to RESELLER for its own use, such as
administrative services, must be identified by RESELLER
and RESELLER must pay the full retail rates and prices for
such services.
(B)2.2 USW shall provide to RESELLER Telecommunications Services
for resale that are at least equal in quality, and in
substantially the same time and manner that USW provides
these services to others, including other Resellers and
end users, and in accordance with any applicable
Commission service quality standards, including standards
the Commission may impose pursuant to Section 252 (e)(3)
of the Act.
(B)2.3 In the event that there are existing agreements between
RESELLER and USW for resale under USW retail Tariff
discounts, RESELLER may elect to continue to obtain
services for resale under the existing agreements and
retail Tariff discounts or RESELLER may elect to terminate
such existing agreements and obtain such services under
this Agreement with the associated wholesale discount
specified in Part E of this Agreement.
(B)2.4 In accordance with the Act, RESELLER will provide the date
it will begin to offer Telecommunications Services to
residential and business end users. RESELLER will provide
a two (2) year forecast within ninety (90) calendar days
of signing this Agreement The forecast shall be updated
and provided to USW on a annual basis or as requested by
USW. Each forecast will provide:
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Part B
Resale
- The date service will be offered (by city and/or state)
- The type and quantity of service(s) which will be
offered
- RESELLER's anticipated number of service orders
- Name of RESELLER's key contact personnel
The information provided pursuant to this paragraph shall
be considered Proprietary Information under the
Nondisclosure Section of this Agreement.
(B)2.5 RESELLER may not reserve blocks of USW telephone numbers,
except as allowed by Tariffs.
(B)2.6 USW will accept at no charge one primary listing for each
main telephone number belonging to RESELLER's end user
based on end user information provided to USW by RESELLER.
USW will place RESELLER's listings in USW's directory
listing database for directory assistance purposes.
Additional terms and conditions with respect to directory
listings are described in Part C of this Agreement.
(B)2.7 USW shall provide to RESELLER, for RESELLER's end users,
E911/911 call routing to the appropriate Public Safety
Answering Point ("PSAP). USW shall not be responsible for
any failure of RESELLER to provide accurate end user
information for listings in any databases in which USW is
required to retain and/or maintain end user information.
USW shall provide and validate RESELLER's end user
information to the Automatic Location Identification/
Database Management System ("ALI/DMS"). USW shall use its
standard process to update and maintain, on the same
schedule that it uses for its end users, RESELLER's end
user service information in the ALI/DMS used to support
E911/911 services. USW assumes no liability for the
accuracy of information provided by RESELLER.
(B)2.8 If USW provides and RESELLER accepts operator services,
directory assistance, and intraLATA long distance as a
part of the resold line, it will be offered with standard
USW branding. RESELLER is not permitted to alter the
branding of these services in any manner when the services
are a part of the resold line without the prior written
approval of USW. However, at the request of RESELLER and
where technically feasible, USW will rebrand operator
services and directory assistance in RESELLER's name,
provided the charges associated with such rebranding are
paid by RESELLER.
(B)2.9 RESELLER shall designate the Primary Interexchange Carrier
(PIC) assignments on behalf of its end users for
interLATA services and intraLATA services.
(B)2.10 When end users switch from USW to RESELLER, or to RESELLER
from any other Reseller, and if they do not change their
service address to an address served by a different
Central Office, such end users shall be permitted to
retain their current telephone numbers if they so desire.
USW shall take no action to prevent RESELLER end users
from retaining their current telephone numbers.
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Resale
(B)2.11 RESELLER is liable for all fraud associated with service
to its end-users and accounts. USW takes no
responsibility, will not investigate, and will make no
adjustments to RESELLER's account in cases of fraud unless
such fraud is the result of any intentional act or gross
negligence of USW. Notwithstanding the above, if USW
becomes aware of potential fraud with respect to
RESELLER's accounts, USW will promptly inform RESELLER
and, at the direction of RESELLER, take reasonable action
to mitigate the fraud where such action is possible.
(B)2.12 Resold services are available only where facilities
currently exist and are capable of providing such services
without construction of additional facilities or
enhancement of existing facilities. However, if RESELLER
requests that facilities be constructed or enhanced to
provide resold services, USW will review such requests on
a case-by-case basis and determine if it is economically
feasible for USW to build or enhance facilities. If USW
decides to build or enhance the requested facilities, USW
will develop and provide to RESELLER a price quote for the
construction. Construction charges associated with resold
services will be applied in the same manner that
construction charges apply to USW's retail end users. If
the quote is accepted, RESELLER will be billed the quoted
price and construction will commence after receipt of
payment.
(B)2.13 In the event USW terminates the provisioning of any resold
services to RESELLER for any reason, including RESELLER's
non-payment of charges, RESELLER shall be responsible for
providing any and all necessary notice to its end users of
the termination. In no case shall USW be responsible for
providing such notice to RESELLER's end users. USW will
provide notice to RESELLER of USW's termination of a
resold service on a timely basis consistent with
Commission rules and notice requirements.
(B)2.14 The underlying network provider of a resold service shall
be entitled to receive, from the purchaser of Switched
Access, the appropriate access charges pursuant to its
then effective Switched Access Tariff.
(B)2.15 Centrex terms and conditions related to calculation of
charges for, and provisioning of common blocks, station
lines, and optional features will be based on the Centrex:
definition of a system and a Reseller's serving location.
(B)2.15.1 Where a common block is applicable, a Centrex
system is defined by a single common block or
multiple common blocks for a single RESELLER
within a single Central Office switching
system. A common block defines the dialing plan
for intercom calling, access to Public Switched
Network and/or private facilities, station line
and system restrictions and feature access
arrangements and functionality. RESELLER may
purchase multiple common blocks within a single
Central Office switching system when RESELLER
requires different dialing plans, feature
access arrangements and
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Resale
station line or system restrictions within a
single system operation. A Reseller with
multiple common blocks within the same Central
Office switch may have Network Access Register
and Private Facility trunk groups aggregated
across multiple common blocks. Centrex system
based optional features (i.e. Automatic Route
Selection) may not be aggregated across
multiple common blocks. A Centrex system must
provide station lines to at least one location
and may provide station lines to multiple
locations.
(B)2.15.2 Centrex station lines are provisioned and
charges are calculated based on serving
Reseller's location. A location is defined as
the site where USW facilities (cable plant from
the serving Central Office switch) meet
Reseller facilities (inside wire). In a multi-
tenant building, USW may bring facilities
directly to a single point of interconnection
with Reseller facilities, typically in a
basement equipment room, which would be
considered a single location for this
multi-tenant building. Should USW bring service
to multiple floors or offices within a
multi-tenant building each floor or office with
a separate Reseller facilities termination
point is considered a location. Multiple
buildings within contiguous property (campus)
will be provisioned and billed as a single
location. Contiguous property is defined as
property owned or leased by a single end user
and not separated by public thoroughfare, river
or railroad rights-of-way. Property will be
considered contiguous when connected via
connecting passageways or conduit acceptable to
USW for its facilities. A Reseller with Centrex
station lines from multiple Central Office
switching systems, within the same USW Wire
Center, and provisioned to the same location
will not be charged for service or provisioned
as if service was originating from a single
Centrex system. For example, station lines may
only be aggregated from a single Centrex
Reseller system to a single Reseller serving
location for rating purposes. RESELLER may not
specify a USW Central Office as a RESELLER
location for termination of Centrex station
lines.
(B)2.16 Private Line Service used for Special Access is available
for resale but not at a discount.
(B)2.17 DSL Service (such as Megabit Service) is available for
resale by RESELLER out of USW's Interstate Tariff, but at
no wholesale discount.
(B)3. RATES AND CHARGES
(B)3.1 The Telecommunications Services identified in Part E are
available for resale at the wholesale discount percentage
shown in Part E. Telecommunications
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Part B
Resale
Services available for resale but excluded from the
wholesale pricing arrangement in this Agreement are
available at the retail Tariff rates.
(B)3.2 The Customer Transfer Charges (CTC) as specified in Part E
apply when transferring services to RESELLER.
(B)3.3 A Subscriber Line Charge (SLC), or any subsequent
federally mandated charge to end users, will continue to
be paid by RESELLER without discount for each local
exchange line resold under this Agreement. All federal and
state rules and regulations associated with SLC as found
in the applicable Tariffs also apply.
(B)3.4 RESELLER will pay to USW the PIC change charge without
discount for RESELLER end user changes of interexchange or
intraLATA carriers. Any change in RESELLER's end users'
interexchange or intraLATA carrier must be requested by
RESELLER on behalf of its end user.
(B)3.5 RESELLER agrees to pay USW when its end user activates any
services or features that are billed on a per use or per
activation basis subject to the applicable discount in
Part E as such may be amended pursuant to this Section
(e.g., continuous redial, last call return, call back
calling, call trace, etc.).
(B)3.6 Product specific non-recurring charges, as set forth in
USW's applicable Tariffs will apply when additional lines,
trunks or circuits are added or when the end user adds
features or services to existing lines or trunks.
(B)3.7 Miscellaneous charges, if applicable, will be consistent
with charges for equivalent services ordered by USW end
users.
(B)3.8 The wholesale discount rates (the "Rates") in Part E were
established in Docket Nos. U-3021-96-448, et al., Opinion
and Order, Decision No. 60635, "In the Matter of the
Petition of MCIMetro Access Transmission Services, Inc.
for Arbitration of the Rates, Terms, and Conditions of
Interconnection with U S WEST Communications, Inc.
Pursuant to 47 U.S.C. Sec. 252(b) of the
Telecommunications Act of 1996." The Parties agree that
the Rates in this Agreement will remain in effect as
described below until the exhaustion of all appeals, if
any, of the final order in this docket.
(B)3.9 If the Rates or the applicability of the Rates to the
services in Part E are changed by a nonappealable
administrative or judicial order following a decision on
rehearing or appeal or other similar proceeding, such
changed rate(s) will be available to RESELLER, effective
as of the date of the order. No true-up of the Rates will
occur unless ordered as a part of the nonappealable
administrative or judicial order.
(B)3.10 USW shall have a reasonable time necessary to make the
system changes necessary to implement and bill the changed
rates.
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Part B
Resale
(B)3.11 If the resold services are purchased pursuant to Tariffs
and the Tariff rates change, charges billed to RESELLER
for such services will be based upon the new Tariff rates
less the applicable wholesale discount, if any, as agreed
to herein or as established by Commission order and/or
resale Tariff. The new rate will be effective upon the
Tariff effective date.
(B)4. ORDERING PROCESS
(B)4.1 RESELLER, or RESELLER's agent, shall act as the single
point of contact for its end users' service needs,
including without limitation, sales, service design, order
taking, provisioning, change orders, training,
maintenance, trouble reports, repair, post-sale servicing,
billing, collection and inquiry. RESELLER shall inform its
end users that they are end users of RESELLER for resold
services. RESELLER's end users contacting USW will be
instructed to contact RESELLER; however, nothing in this
Agreement, except as provided below, shall be deemed to
prohibit USW from discussing its Products and services
with RESELLER's end users who call USW.
(B)4.2 RESELLER shall transmit to USW all information necessary
for the ordering (billing, listing and other information),
installation, repair, maintenance and post-installation
servicing according to USW's standard procedures, as
described in the USW Interconnect & Resale Resource Guide
available on USW's Web site. Information shall be provided
using USW`s designated Local Service Request (LSR) format
which may include the LSR, end user and resale forms,
RESELLER must send USW complete and accurate end user
listing information for Directory Assistance, Directory
Listings, and 911 Emergency Services using USW's
designated resale directory listing order forms. When
USW`s end user or the end user's new service provider
orders the discontinuance of the end user's existing
service in anticipation of moving to another service
provider, USW will render its closing bill to the end user
effective with the disconnection. If another service
provider, RESELLER's end user or RESELLER requests that
service be discontinued from RESELLER and subsequently
USW`s service to RESELLER is discontinued USW will issue a
bill to RESELLER for that portion of the service provided
to RESELLER.. USW will notify RESELLER by FAX, OSS
interface or other agreed upon processes, in accordance
with the OSS section of this Agreement when an end user
moves to another service provider. USW will not provide
RESELLER with the name of the other service provider
selected by the end user.
(B)4.3 RESELLER shall provide USW and USW shall provide RESELLER
with points of contact for order entry, problem resolution
and repair of the resold services.
(B)4.4 Prior to placing orders on behalf of the end user,
RESELLER shall be responsible for obtaining and have in
its possession Proof of Authorization ("POA"), as set
forth in Part A of this Agreement.
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Part B
Resale
(B)4.5 Due date interval standards are addressed in the
Interconnect & Resale Resource Guide.
(B)4.6 Firm Order Confirmation (FOC) guidelines are addressed in
the Interconnect & Resale Resource Guide.
(B)4.7 USW will provide completion notification that is equal to
that provided to USW end users.
(B)4.8 USW will provide Design Layout Records when requested
under terms and conditions consistent with USW end users.
(B)4.9 USW will handle jeopardy orders based upon the same
performance standards and criteria that USW provides to
itself.
(B)5. BILLING
(B)5.1 USW shall bill RESELLER and RESELLER is responsible for
all applicable charges for the resold services as provided
herein. RESELLER shall also be responsible for all
Tariffed charges and charges separately identified in this
Agreement associated with services that RESELLER resells
to an end user under this Agreement.
(B)5.2 USW shall provide RESELLER, on a monthly basis, within
7-10 calendar days of the last day of the most recent
billing period, in an agreed upon standard electronic
billing format as detailed in Part D, billing information
including (1) a summary bill, and (2) individual end user
sub-account information consistent with the samples
available for RESELLER review.
(B)6. MAINTENANCE AND REPAIR
RESELLER and USW will employ the procedures for handling misdirected
repair calls as specified in the Maintenance and Repair Section of
this Agreement.
(B)6.1 USW will maintain facilities and equipment used to provide
RESELLER resold services. RESELLER or its end user may not
rearrange, move, disconnect, or attempt to repair USW
facilities or equipment, other than by connection or
disconnection to any interface between USW and the end
user, without written consent of USW.
(B)6.2 Maintenance and repair processes are detailed in the
Maintenance and Repair Section of this Agreement.
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Part C
Directory Listings
PART C - WHITE PAGES DIRECTORY LISTINGS
(C)1. DESCRIPTION
White Pages Listings Service (Listings) consists of USW placing the
names, addresses and telephone numbers of RESELLER's end users in
USW's listing database, based on end user information provided to USW
by RESELLER. USW is authorized to use Listings in Directory
Assistance (DA) and as noted below.
(C)2. TERMS AND CONDITIONS
(C)2.1 RESELLER will provide in standard, mechanized format, and
USW will accept at no charge, one primary listing for each
main telephone number belonging to RESELLER's end users.
Primary listings for RESELLER will include the end user
Listings for any resold services or wireless services and
are further defined in USW's general exchange Tariffs.
RESELLER will be charged for premium and privacy listings,
(e.g., additional, foreign, cross reference,
informational, etc.), at USW's general exchange listing
Tariff rates, less the wholesale discount. If RESELLER
utilizes Remote Call Forwarding for local number
portability, RESELLER can list only one number without
charge - either the end user's original telephone number
or RESELLER-assigned number. The standard discounted rate
for an additional listing applies to the other number.
(C)2.2 USW will furnish RESELLER the Listings format
specifications. All manual requests are considered a
project and require coordination between RESELLER and USW
to determine time frames.
(C)2.3 RESELLER grants USW a non-exclusive license to incorporate
Listings information into its Directory Assistance
database. With this license USW will incorporate Listings
in the DA database.
(C)2.4 No prior authorization is needed for USW to release
Listings to directory publishers or other third parties.
USW will incorporate Listings information in all existing
and future directory assistance applications developed by
USW. RESELLER authorizes USW to sell and otherwise make
Listings available to directory publishers. Listings shall
not be provided or sold in such a manner as to segregate
end users by carrier. USW will not charge for updating and
maintaining the Listings database. RESELLER will not
receive compensation from USW for any sale of Listings by
USW
(C)2.5 To the extent that state Tariffs limit USW's liability
with regard to Listings, the applicable state Tariff(s) is
incorporated herein and supersedes the Limitation of
Liability section of this Agreement with respect to
Listings only.
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Part C
Directory Listings
(C)2.6 USW is responsible for maintaining Listings, including
entering, changing, correcting, rearranging and removing
Listings in accordance with RESELLER orders. USW will take
reasonable steps in accordance with industry practices to
accommodate non-published and non-listed Listings provided
that RESELLER has supplied USW the necessary privacy
indicators on such Listings.
(C)2.7 USW will include RESELLER Listings in USW's Directory
Assistance service to ensure that callers to USW's
Directory Assistance service have non-discriminatory
access to RESELLER's Listings.
(C)2.8 USW will ensure RESELLER Listings provided to USW are
included in the white pages directory published on USW's
behalf.
(C)2.9 RESELLER agrees to provide to USW its end user names,
addresses and telephone numbers in a standard mechanized
format, as specified by USW.
(C)2.10 RESELLER will supply its ACNA/CIC or CLCC/OCN, as
appropriate, with each order to provide USW the means of
identifying Listings ownership.
(C)2.11 Upon request by USW, RESELLER shall submit proof to USW,
of authorization from each end user for which RESELLER
submits a change in end user's Listing.
(C)2.12 RESELLER represents and warrants the end user information
provided to USW is accurate and correct. RESELLER further
represents and warrants that it has reviewed all Listings
provided to USW, including end user requested restrictions
on use such as non-published and non-listed. RESELLER
shall be solely responsible for knowing and adhering to
state laws or rulings regarding Listings (e.g., no
solicitation requirements in the states of Arizona and
Oregon, privacy requirements in Colorado), and for
supplying USW with the applicable Listing information.
(C)2.13 RESELLER is responsible for all dealings with, and on
behalf of, RESELLER's end users, including:
(C)2.13.1 All end user account activity, (e.g. end user
queries and complaints).
(C)2.13.2 All account maintenance activity, (e.g.,
additions, changes, issuance of orders for
Listings to USW).
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Part C
Directory Listings
(C)2.13.3 Determining privacy requirements and accurately
coding the privacy indicators for RESELLER's
end user information. If end user information
provided by RESELLER to USW does not contain a
privacy indicator, no privacy restrictions will
apply.
(C)2.13.4 Any additional- services requested by
RESELLER's end users.
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Part D
Miscellaneous Provisions
PART D- MISCELLANEOUS PROVISIONS
(D)1. NETWORK SECURITY
(D)1.1 Protection of Service and Property - Each Party shall
exercise the same degree of care to prevent harm or damage
to the other Party and any third parties, its employees,
agents or end users, or their property as it employs to
protect its own personnel, end users and property, etc.
Each Party shall comply at all times with USW security and
safety procedures and requirements.
(D)1.2 Revenue Protection - USW shall make available to RESELLER
all present and future fraud prevention or revenue
protection features. These features include, but are not
limited to screening codes, and 900 numbers.
(D)1.3. Law Enforcement Interface - USW provides emergency
assistance to 911 centers and law enforcement agencies
seven (7) days a week/twenty-four (24) hours a day.
Assistance includes, but is not limited to release of 911
trace and subscriber information; in-progress trace
requests; establishing emergency trace equipment, release
of information from an emergency trap/trace or *57 trace;
requests for emergency subscriber information; assistance
to law enforcement agencies in hostage/barricade
situations, kidnappings, bomb threats, extortion/scams,
runaways and life threats.
(D)1.4 USW provides trap/trace, pen register and Title III
assistance directly to law enforcement, if such assistance
is directed by a court order. This service is provided
during normal business hours, Monday through Friday.
Exceptions are addressed in the above paragraph. The
charges for these services will be billed directly to the
law enforcement agency, without involvement of RESELLER,
for any lines served from USW Wire Centers or cross boxes.
(D)1.5 In all cases involving telephone lines served from USW
Wire Centers or cross boxes, USW will perform trap/trace
Title III and pen register assistance directly with law
enforcement. RESELLER will not be involved or notified of
such actions, due to non-disclosure court order
considerations, as well as timely response duties when law
enforcement agencies are involved. Exceptions to the above
will be those cases, as yet undetermined, where RESELLER
must participate due to technical reasons wherein its
circuitry must be accessed or modified to comply with law
enforcement, or for legal reasons that may evolve over
time. RESELLER will provide USW with a 24 hour a day, 7
days a week contact for processing such requests, should
they occur.
(D)2. ACCESS TO OPERATIONAL SUPPORT SYSTEMS (OSS)
(D)2.1 Description
(D)2.1.1 USW has developed and shall continue to provide
Operational Support Systems OSS interfaces
using electronic gateways. These gateways act
as a mediation or control point between
RESELLER's
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Miscellaneous Provisions
and USW's OSS. These gateways provide security
for the interfaces, protecting the integrity of
the USW OSS and its databases. USW's OSS
interfaces have been developed to support
Pre-ordering, Ordering and Provisioning,
Maintenance and Repair and Billing. Included
below is a description of the products and
functions supported by USW OSS interfaces and
the technology used by each. This section
describes the interfaces that USW has
developed and shall provide RESELLER.
Additional technical information and details
shall be provided by USW in training sessions
and documentation, such as the "Interconnect
Mediated Access User's Guide". USW will
continue to make improvements to the electronic
interfaces as technology evolves, providing
notification to RESELLER consistent with the
provisions of this Section.
(D)2.1.2 Through its electronic gateways, USW shall
provide RESELLER nondiscriminatory access to
USW's operational support systems for
pre-ordering, ordering and provisioning,
maintenance and repair, and billing for resale.
For the pre-ordering, ordering and provisioning
of resold services, USW shall provide RESELLER
access to its OSS in substantially the same
time and manner as it provides to itself.
(D)2.2 OSS Support for Pre-Ordering, Ordering and Provisioning
(D)2.2.1 LSR (Local Service Request) Ordering Process
(D)2.2.1.1 RESELLER shall use electronic
interfaces for orders placed using
the LSR Ordering Process for the
services it supports. The electronic
interface gateways include both the
Electronic Data Interchange (EDI)
interface and the Interconnect
Mediated Access (IMA) Graphical User
Interface (GUI).
(D)2.2.1.2 The EDI interface provides a single
interface for Pre-Order and Order
transactions from RESELLER to USW
and is transaction based rather than
batch based. The interface standards
for EDI are based upon the Order &
Billing Forum, (OBF) Local Service
Order Guidelines (LSOG), the
Telecommunication Industry Forum
(TCIF) Customer Service Guideline
and the American National Standards
Institute/Accredited Standards
Committee (ANSI ASC) X12 with
exceptions as specified in the IMA
and EDI disclosure documents which
are provided in conjunction with the
implementation responsibilities
contained in this Section.
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Part D
Miscellaneous Provisions
(D)2.2.1.3 The IMA GUI also provides a single
interface for Pre-Order and Order
transactions from RESELLER to USW
and is browser based The IMA GUI
interface is based on the LSOG and
utilizes a WEB standard technology,
Hyper Text Markup Language (HTML),
JAVA, and the Transmission Control
Protocol/Internet Protocol (TCP/IP)
to transmit messages.
(D)2.2.1.4 Functions
(D)2.2.1.4.1 Pre-ordering
Pre-Ordering refers to the
set of activities performed
in conjunction with placing
an order. Pre-order
consists of the following
functions: validate
address, service
availability, review
Customer Service Record
(CSR), check facility
availability, reserve
telephone numbers, and
schedule an appointment.
The electronic interface
gateways provide on-line
capabilities to perform
these functions. Not all
functions apply to all
products.
(D)2.2.1.4.1.1 Validate address will
verify the end user's address.
(D)2.2.1.1.4.1.2 Service
Availability will
return the list of (1)
POTS products and
services available in
the Central Office
switch serving a
particular end user
address, which will
indicate to RESELLER,
among other things,
which products and
services are
authorized for resale
in the Central Office
switch serving a
particular end user
address and (2)
nonswitched-based
products and services
that RESELLER is
authorized to provide
according to its
resale agreement with
USW.
(D)2.2.1.1.4.1.3 Review Customer
Service Record (CSR)
gives RESELLER the
ability to request a
display of local
exchange services and
features (CPNI) USW is
currently providing to
an end user.
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(D)2.2.1.4.1.4 Check Facility Availability will
provide an indication of whether
existing facilities are available or
if new facilities are required, and
if a technician must be dispatched
to provide the facilities requested
at the end user's address. This
transaction does not reserve
facilities and does not guarantee
that facilities will or will not be
available when the order is
submitted.
(D)2.2.1.4.1.5 Reserve Telephone Numbers
provides RESELLER with the ability
to select an end user's telephone
number. The reservation process is
further divided into telephone
number availability, selection,
exchange and return functionality.
Expiration period for selection and
submission of Telephone Number are:
- A period up to thirty
(30) minutes in which to
make a telephone number
selection. If this time
limit is exceeded, and no
attempt has been made to
select the telephone
numbers, the telephone
numbers are sent back to
the OSS and an error
message is displayed on
the LSR. A new query will
need to be performed for
available telephone
numbers.
- When a telephone number
has been reserved, there
is a twenty-four (24)
hour business period that
the telephone number may
be included on an LSR. If
the time limit is
exceeded, the telephone
number is returned to the
OSS.
(D)2.2.1.4.1.6 Schedule Appointment allows
RESELLER to retrieve a calendar of
available appointments and to
reserve an appointment date and time
so that a technician can be
dispatched for premises and/or
non-premises work.
(D)2.2.1.4.1.7 Expiration PERIOD for selection
and submission of Appointment
Reservation are:
- A selection must be made
within a thirty (30)
minute period. If an
appointment
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Miscellaneous Provisions
has been selected and the time limit
was exceeded, an error message will
display. If the error message
displays, an updated list of
available appointments will need to
be requested. If an appointment has
already been reserved for this
Purchase Order Number, the
Appointment Confirmation window will
be displayed and will be
prepopulated with confirmation
number, appointment date and time,
and after and before times.
- Appointments are reserved for a
24-hour business period. If the
appointment is not attached to a
submitted order within 24 business
hours, the appointment is returned.
When the appointment is successfully
reserved, confirmation of the
appointment will be displayed to
RESELLER.
(D)2.2.1.4.2 Ordering and Provisioning
Submitting an LSR will result in the
provisioning and installation, if
necessary, of an end user's service.
The functional set associated with
ordering is: Create New LSR, Open
LSR, Query LSR Status and FOC
Return.
(D)2.2.1.4.2.1 Create New LSR allows entry of
information specific to the LSR,
including required OBF forms,
validates information and submits
the LSR for processing.
(D)2.2.1.4.2.2 Open LSR allows RESELLER to save
LSRs it is not ready to submit for
processing as a pendihg status. When
an LSR is saved as pending, all the
data in all the forms associated
with the LSR is saved. This feature
permits RESELLER to access, edit,
submit, re-save, and purge pending
LSRs. In addition, for issued LSRs,
RESELLER can issue supplemental LSRs
and cancellations.
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Part D
Miscellaneous Provisions
(D)2.2.1.4.2.3 Query LSR Status allows RESELLER
to obtain the status of the LSR.
Status is provided to RESELLER upon
inquiry. Order status functions
include the following: Submitted, In
Review, Issued, Rejected, Erred,
Completed and Jeopardy.
(D)2.2.1.4.2.4 FOC Return returns a Firm Order
Confirmation to RESELLER. The FOC
confirms that USW has received a SR,
issued an order, and assigned an
order number for tracking.
(D)2.2.1.5 Forecast of Usage
(D)2.2.1.5.1 RESELLER shall supply USW with a forecast of
products and volumes they anticipate ordering
through the electronic interface gateways on a
quarterly basis.
(D)2.2.1.5.2 USW will use RESELLER's forecast to provide
RESELLER sufficient capacity to provide the
services and elements requested. If RESELLER
exceeds its capacity without notification, to
the extent that it causes degradation to other
users' response times, RESELLER's use of its
capacity on the IMA or EDI server may be
discontinued until a resolution can be mutually
agreed to by both Parties. USW will attempt to
notify RESELLER before discontinuing RESELLER's
use of the IMA or EDI server; however USW
reserves the right to discontinue use if it is
unable to contact RESELLER.
(D)2.2.1.5.3 When RESELLER requests more than twenty (20)
Secure IDs from USW RESELLER shall use a T1
line instead of dial-up capabilities.
(D)2.2.1.6. Access Service Request (ASR) Ordering Process
(D)2.2.1.6.1 The Exchange Access Control and Tracking
(EXACT) system may be used for orders placed
using the ASR process. EXACT is based upon the
OBF access Service Order Guidelines (ASOG). The
EXACT interface accepts a batch
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Part D
Miscellaneous Provisions
file that is transmitted via a Network Data
Mover (NDM) connection to USW from RESELLER. It
is RESELLER's responsibility to obtain the
appropriate software to interface with USW's
EXACT system.
(D)2.2.1.7 Facility Based EDI Listing Process
(D)2.2.1.7.1 The Facility Based EDI Listing Process is a
single interface from RESELLER to USW. This
interface is based upon the OBF LSOG and ANSI
ASC X12 standards, version 4010. This interface
enables RESELLER listing data to be translated
and passed into the USW listing database. After
USW's daily batch processing, a
Confirmation/Completion record (for every PON
provided on input) is returned to RESELLER via
an EDI 855 transaction.
(D)2.2.2 Maintenance and Repair
(D)2.2.2.1 Maintenance and Repair electronic interfaces
support the tracking and resolution of end
users' repair and maintenance needs as reported
to RESELLER. They facilitate the exchange of
updated information and progress reports between
USW and RESELLER while the Trouble Report (TR) is
open and a USW technician is working on the
resolution.
(D)2.2.2.2 RESELLER shall use the electronic interface
gateways for reporting trouble. The electronic
interface gateways are comprised of either the
Mediated Access System Electronic Bonding
(MEDIACC EB) interface or the IMA GUI interface.
(D)2.2.2.3 The MEDIACC Electronic Bonding (EB) interface
uses CMIP protocol over X.25 packet switching
network using ANS T1M1.5 227/228 standards.
(D)2.2.2.4 The IMA GUI also provides a single interface for
trouble reporting from RESELLER to USW and is
browser based. The IMA GUI interface uses a
Berkley Socket interface using ANSI T1M1.5
227/228 standards. The IMA GUI uses JAVA as the
standard. The IMA GUI Interface currently
supports trouble reporting for resale services.
(D)2.2.2.5 Functions
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(D)2.2.2.5.1 Maintenance and Repair - The functions,
processes and systems used in repair are based
on a Trouble Report (TR), which is an
electronic document maintained in one or more
OSS. A TR contains information about the end
user, the trouble, the status of the work on
the trouble and the results of the
investigation and resolution efforts. These
business processes will be made available to
RESELLER in the following functional set: open
a trouble report, modify a trouble report,
notification of status change, view trouble
report status, cancel a trouble report, receive
a trouble report history, resubmit/delete an
erred trouble report and close a trouble
report.
(D)2.2.2.5.1.1 Open Trouble Report is the mechanism that
captures information needed to resolve the
trouble. Once a TR has been opened, if RESELLER
is using MEDIACC EB, USW sends an electronic
transaction to RESELLER identifying information
about the TR (E.G., commitment date and
tracking number).
(D)2.2.2.5.1.2 In IMA for POTS, and in EBTA for POTS and
designed services, Modify Trouble Report allows
RESELLER to modify the trouble severity (for
example; change from "service affecting" to
"out of service") and trouble narrative on a TR
until it has been cleared.
(D)2.2.2.5.1.3 Status Change Notification provides
notification to RESELLER that the status of a
previously opened TR has changed. If RESELLER
is using MEDIACC EB, RESELLER will receive this
notification via an electronic transaction. If
RESELLER is using the IMA GUI Interface,
RESELLER will receive this notification via
email and/or fax.
(D)2.2.2.5.1.4 View Trouble Report Status/Trouble Report
Status Request allows RESELLER to view the
status of an opened Trouble Report. If RESELLER
is using MEDIACC EB, USW sends an electronic
transaction to RESELLER with the
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status of an opened TR after RESELLER sends an
electronic transaction to request the status.
(D)2.2.2.5.1.5 Cancel Trouble Report allows RESELLER to
request cancellation of a previously opened TR.
Once a request to cancel is received, an
orderly cessation of the trouble resolution
process begins. If USW has completed any work
before the trouble resolution process is
stopped, charges to RESELLER may apply.
(D)2.2.2.5.1.6 Trouble Report History provides RESELLER
with historical information on up to the last
three trouble reports. For POTS resale, the
disposition and trouble report date and time
are provided. For design services resale, the
trouble report date and time, a text
description of the disposition, the USW Trouble
Report Number, and the trouble type are
provided. IMA provides trouble report history.
(D)2.2.2.5.1.7 Resubmit/Delete allows trouble reports to
be resubmitted or deleted via IMA GUI if, prior
to entering USW's OSS, the transaction fails or
errors. This transaction is only valid if the
TR has not entered USW's OSS. This transaction
is currently only available via IMA GUI.
(D)2.2.5.1.8 Close a Trouble Report for resale, allows USW
to close the TR once work is complete. For
design resale services, USW sends RESELLER a
request for verification to close. RESELLER
then authorizes or denies the closure. RESELLER
has twenty-four (24) hours to respond. If a
response is not received within that time
frame, the TR will automatically be closed. USW
provides notification to RESELLER that a TR
has been closed because the trouble was
resolved. Additional information, (e.g.,
disposition, disposition description, outage
duration, maintenance of service, charge
indicator) is also included. If RESELLER is
using EB, RESELLER will receive this response
via an electronic
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transaction. If RESELLER is using the IMA GUI
Interface, RESELLER will receive this response
via email and/or fax.
(D)2.2.2.5.1.9 MLT test results give RESELLER the ability
to request a loop test for POTS service via
EBTA. When RESELLER submits a TR through IMA,
the technician handling the TR will order a
MLT test in appropriate situations.
(D)2.3 Hours of Operation
USW's, electronic interface gateways will be available to Resellers
according to the following schedule:
<TABLE>
<CAPTION>
---------------------------- -------------------- --------------------- -------------------
Function Monday - Friday Saturday Sunday
---------------------------- -------------------- --------------------- -------------------
<S> <C> <C> <C>
IMA Pre-Order & Order 06:00 - 20:00
---------------------------- -------------------- --------------------- -------------------
Exact Order 06:00 - 19:00 07:00 - 17:00
---------------------------- -------------------- --------------------- -------------------
Repair 02:15 - 23:15 07:00 - 21:00 13:00 - 17:00
---------------------------- -------------------- --------------------- -------------------
</TABLE>
USW shall notify Resellers regarding system downtime through mass
facsimile distribution and pop-up windows in the IMA GUI. All
referenced times are Mountain Time.
The preceding times represent the period when USW commits that its
OSS interfaces and downstream systems will be functioning (except for
unforeseen system crashes) and its personnel will be available to
assist RESELLER. USW's OSS interfaces are typically available 23
hours a day. RESELLER may call any maintenance and repair issues to
the applicable repair center 24 hours per day, seven days per week.
USW shall provide RESELLER current repair contact numbers.
(D)2.4 Billing
(D)2.4.1 For products billed out of the USW Interexchange Access
Billing System (IABS), USW will utilize the existing
CABS/BOS format and technology for the transmission of
bills.
(D)2.4.2 For products billed out of the USW Customer Record
Information System (CRIS), USW will utilize the existing
EDI standard for the transmission of monthly local billing
information. EDI is an established standard under the
auspices of the American National Standards
Institute/Accredited Standards Committee (ANSI/ASC) X12
Committee. A proper subset of this specification has been
adopted by the Telecommunications Industry Forum (TCIF) as
the "811 Guidelines" specifically for the purposes of
telecommunications billing.
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(D)2.5 Outputs
Output information will be provided to RESELLER in the
form of bills, files, and reports. Bills will capture all
regular monthly and incremental/usage charges and present
them in a summarized format. The files and reports
delivered to RESELLER provide more detailed information
than the bills. They come in the following categories:
<TABLE>
----------------------------------------------------------------------------
<S> <C>
Usage Record File Line Usage Information
----------------------------------------------------------------------------
Loss and Completion Order Information
----------------------------------------------------------------------------
Category 11 Facility Based Line Usage Information
----------------------------------------------------------------------------
SAG/FAM Street Address/Facility Availability Information
----------------------------------------------------------------------------
</TABLE>
(D)2.5.1 Bills
(D)2.5.1.1 CRIS Summary Bill - The CRIS
(Customer Record Information System)
Summary Bill represents a monthly
summary of charges for most
wholesale products sold by USW. This
bill includes a total of all charges
by entity plus a summary of current
charges and adjustments on each
sub-account. Individual sub-accounts
are provided as billing detail and
contain monthly, one time charges
and incremental/call detail
information. The Summary provides
one bill and one payment document
for RESELLER. These bills are
segmented by state and bill cycle.
The number of bills received by
RESELLER is dictated by the product
ordered and the USW region in which
RESELLER is operating.
(D)2.5.1.2 IABS Bill - The IABS (Interexchange
Access Billing System) Bill
represents a monthly summary of
charges. This bill includes monthly
and one time charges plus a summary
of any usage charges. These bills
are segmented by product, LATA,
billing account number (BAN) and
bill cycle.
(D)2.5.2 Files and Reports
(D)2.5.2.1 Daily Usage Record File provides the
accumulated set of call information
for a given day as captured, or
"recorded" by the network switches.
This file will be transmitted Monday
through Friday, excluding USW
holidays. This information is a file
of un-rated USW originated usage
messages and rated RESELLER
originated usage messages. It is
provided in Alliance for
Telecommunication Industry Solution
(ATIS) standard
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Electronic Message Interface (EMI) format. This
EMI format is outlined in the document SR-320;
which can be obtained directly from ATIS. The
Daily Usage Record File contains multi-state
data for the Data Processing Center generating
this information. Individual state
identification information is contained with
the message detail. USW will provide this data
to RESELLER with the same level of precision
and accuracy it provides itself. This file will
be provided for Resale services.
(D)2.5.2.2 The charge for this Daily Usage Record File is
contained in Part E of this Agreement.
(D)2.5.2.3 Routing of in-region IntraLATA Collect, Calling
Card, and Third Number Billed Messages - USW
will distribute in-region intraLATA collect,
calling card, and third number billed messages
to RESELLER and exchange with other
Co-Providers operating in region in a manner
consistent with existing inter-company
processing agreements. Whenever the daily usage
information is transmitted to a carrier, it
will contain these records for these types of
calls as well.
(D)2.5.2.4 Loss Report provides RESELLER with a daily
report that contains a list of accounts that
have had lines and/or services disconnected.
This may indicate that the end user has changed
Resellers, or removed services from an existing
account. This report also details the order
number, service name and address, and date this
change was made. Individual reports will be
provided for resale services.:
(D)2.5.2.5 Completion Report provides RESELLER with a
daily report. This report is used to advise
RESELLER that the order(s) for the service(s)
requested is complete. It details the order
number, service name and address and date this
change was completed. Individual reports will
be provided for resale services.:
This report media is described in Exhibit C.
(D)2.5.2.6 Category 11 Records are Exchange Message
Records (EMR) which provide mechanized record
formats that can be used to exchange access
usage information between USW and RESELLER.
Category 1101 series
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records are used to exchange detailed access
usage information.
(D)2.5.2.7 Category 1150 series records are used to
exchange summarized Meet Point Billed access
minutes-of-use.
These mechanized records are available from
USW in the following formats:
NDM (direct connect or dial-up)
Comet
Tape
Cartridge
(D)2.5.2.8 SAG/FAM Files - The SAG (Street Address Guide)/
FAM (Facility Availability Matrix) files
contain the following information:
SAG provides: - Address and Serving Central
Office Information.
FAM provides USOCs and descriptions by state -
(POTS services only). USOC availability by
NPA-NXX (with the exception of Centrex).
interLATA/intraLATA carriers by NPA-NXX.
These files are made available via a download
process. They can be retrieved by ftp (file
transfer protocol), NDM (Network Data Mover)
connectivity, or a Web browser.
(D)2.6 Modifications to OSS Interfaces
(D)2.6.1 RESELLER and USW agree to discuss the
modification of OSS interfaces based upon
evolving standards (e.g., data elements,
protocols, transport networks, etc.) and
guidelines issued by or referenced by relevant
Alliance for Telecommunication Industry
Solution (ATIS) committees. Establishment of
new, or changes to industry standards and
guidelines will be reviewed semi-annually. The
review will consider standards and guidelines
that have reached final closure as well as
those published in final form. Both Parties
agree to evaluate evolving standards and
determine the relevant modification to be
implemented based upon the latest approved
version adopted or the latest version
reflecting final closure by the relevant ATIS
committee or subcommittee. As a result of the
review, USW shall draft appropriate interface
specifications that shall be made available to
RESELLER through the electronic gateway
disclosure document. Changes shall be
implemented in the next release after the
distribution of the electronic gateway
disclosure document to the Resellers.
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(D)2.6.2 In the course of establishing operational ready
system interfaces between USW and RESELLER to
support local service delivery, RESELLER and
USW may need to define and implement system
interface specifications that are supplemental
to existing standards. RESELLER and USW will
submit such specifications to the appropriate
standards committee and will work towards their
acceptance as a standard.
(D)2.6.3 Release updates will be based on regulatory
obligations as dictated by the FCC or
Commissions and, as time permits, business
requirements. USW will provide to RESELLER the
features list for modifications to the
interface. Specifications for interface
modifications will be provided to RESELLER
three (3) weeks prior to the release date.
RESELLER is required to upgrade to the current
release within six (6) months of the
installation date.
(D)2.7 Reseller Responsibilities for Implementation of OSS
Interfaces
(D)2.7.1 Before any RESELLER implementation can
begin, RESELLER must completely and
accurately answer the New Customer
Questionnaire. This questionnaire is
provided by the USW account manager and
details information needed by USW in order
to establish service for RESELLER.
(D)2.7.2 Once USW receives a complete and accurate
New Customer Questionnaire, USW and
RESELLER will mutually agree upon time
frames for RESELLER implementation.
(D)2.7.3 If using the EDI interfaces, USW will
provide RESELLER with a copy of the
Production Readiness Verification
document. RESELLER is obligated to meet
the requirements specified in the
Production Readiness Verification document
regardless of whether RESELLER chooses to
participate in the Production Readiness
Verification Test.
(D)2.8 Reseller Responsibilities for On-going Support for OSS
Interfaces
(D)2.8.1 If using the IMA GUI interface, RESELLER
must work with USW to train RESELLER
personnel on the IMA GUI functions that
RESELLER will be using. USW and RESELLER
shall concur on which IMA GUI functions
should be included in RESELLER's training.
USW and RESELLER shall make reasonable
efforts to schedule training in a timely
fashion.
(D)2.8.2 An exchange protocol will be used to
transport EDI formatted content. RESELLER
must perform certification testing of
exchange protocol prior to using EDI.
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(D)2.8.3 If RESELLER is using EDI, USW shall
provide RESELLER with a pre-allotted
amount of time to complete certification
of its business scenarios. It is the sole
responsibility of RESELLER to schedule an
appointment with USW for certification of
its business scenarios. RESELLER must
comply with the agreed upon dates and
times scheduled for the certification of
its business scenarios. If the
certification of business scenarios is
delayed due to RESELLER, it is the sole
responsibility of RESELLER to schedule new
appointments for certification of its
business scenarios. Conflicts in the
schedule could result in certification
being delayed. If a delay is due to USW,
USW will honor RESELLER's schedule through
the use of alternative hours.
(D)2.8.4 If RESELLER is using the EDI interface,
RESELLER must work with USW to certify the
business scenarios that RESELLER will be
using in order to ensure successful
transaction processing. USW and RESELLER
shall mutually agree to the business
scenarios for which RESELLER is required
to be certified. Certification is granted
only for a specific release of EDI. New
releases of EDI may require re-
certification of some or all business
scenarios. A determination as to the need
for re-certification will be made by the
USW Coordinator in conjunction with the
release manager of each EDI release.
Notice of the need for re-certification
will be provided to RESELLER three (3)
weeks prior to the release date.
(D)2.8.5 In the event of Electronic Interface
trouble, RESELLER shall use its best
efforts to isolate and resolve the trouble
using the guidelines provided in the
Production Readiness Verification
document. If RESELLER cannot resolve the
problem, then RESELLER should contact the
LSP Systems Help Desk. The LSP Systems
Help Desk is RESELLER's Single Point of
Contact for electronic interface trouble.
(D)2.9 Reseller Support
(D)2.9.1 USW shall provide adequate assistance to
RESELLER for RESELLER to understand how to
implement and use the OSS functions for
which USW provides access. This assistance
will include training, documentation, and
a LSP Help Desk. The LSP Help Desk will
provide a single point of entry for
RESELLER to gain assistance in areas
involving connectivity, system
availability, and file outputs. The LSP
Systems Help Desk is available Monday
through Friday, 6:00 a.m. until 8:00 p.m.
Mountain Time, excluding USW holidays. The
Help Desk areas are further described
below.
(D)2.9.1.1 Connectivity covers trouble with
RESELLER's access to the USW system
for hardware configuration
requirements with relevance to EDI
and IMA GUI;
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software configuration requirements
with relevance to EDI and IMA GUI;
modem configuration requirements; T1
configuration and dial in string
requirements; firewall access
configuration; Secure ID
configuration; Profile Setup and
password verification.
(D)2.9.1.2 System availability covers system
errors generated during an attempt
by RESELLER to place orders or open
trouble reports through EDI and IMA
GUI. These system errors are limited
to: POTS; Design Services and
Repair.
(D)2.9.1.3 File Outputs covers RESELLER's
output files and reports produced
from its usage and order activity.
File outputs system errors are
limited to: Daily Usage File; Loss /
Completion File; IABS Bill; CRIS
Summary Bill; Category 11 Report and
SAG/FAM Reports.
(D)2.9.2 Additional assistance to Resellers is available
through various web sites. These web sites
provide electronic interface training
information and user documentation and
technical specifications.
(D)2.10 Compensation / Cost Recovery
On-going and one-time startup charges, as applicable, will
be billed at rates to be specified by the Commission at
the completion of an appropriate cost docket hearing. USW
shall establish rates for any systems charges not included
in appropriate cost docket hearings.
(D)3. U S WEST DEX
USW and RESELLER agree that certain issues outside the provision of
basic white page directory listings, such as yellow pages
advertising, yellow pages listings, directory coverage, directory
distribution, access to call guide pages (phone service pages),
applicable listings criteria, white page enhancements and publication
schedules will be the subject of negotiations between RESELLER and
directory publishers, including U S WEST Dex. USW acknowledges that
RESELLER may request USW to facilitate discussions between RESELLER
and U S WEST Dex.
(D)4. NOTICE OF CHANGES
Notice should be written and provide pertinent descriptive
information of such changes, within the limitations of
confidentiality and disclosure, such that the other Party can
evaluate potential effects. Also included with the written notice
should be contact names and phone numbers for subsequent discussions.
This represents good faith effort on the part of the Parties and will
evolve over time as required for the effective provision of resale
services and end user service delivery.
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(D)5. MAINTENANCE AND REPAIR
(D)5.1 Service Levels
(D)5.1.1 USW will provide repair and maintenance for all
services covered by this Agreement in a manner
equal to that which USW provides for itself.
(D)5.1.2 During the term of this Agreement, USW will
provide necessary maintenance business process
support to allow RESELLER to provide similar
service quality to that provided by USW to its
end users.
(D)5.1.3 USW will perform repair service that is equal
in timeliness and quality to that which it
provides to its own end users.
(D)5.2 Branding
(D)5.2.1 Should USW need to use various forms for
communication with RESELLER end users (while
out on premises dispatch on behalf of RESELLER,
for example), USW will use unbranded forms.
(D)5.2.2 If required by RESELLER, USW will use
branded forms provided at RESELLER's full
expense, covering training costs, storage,
printing, distribution and all other
branding-related costs.
(D)5.3 Service interruptions
(D)5.3.1 The characteristics and methods of operation of
any circuits, facilities or equipment of either
Party connected with the services, facilities
or equipment of the other Party pursuant to
this Agreement shall not: 1) interfere with or
impair service over any facilities of the other
Party; its affiliated companies, or its
connecting and concurring carriers involved in
providing its services; 2) cause damage to
their plant; 3) violate any applicable law or
regulation regarding the invasion of privacy of
any communications carried over the Party's
facilities; or 4) create hazards to the
employees of either Party or to the public.
Each of these requirements is hereinafter
referred to as an "Impairment of Service".
(D)5.3.2 If it is confirmed that either Party is
causing an Impairment of Service, as set forth
in this Section, the Party whose network or
service is being impaired (the "Impaired
Party") shall promptly notify the Party causing
the Impairment of Service (the "Impairing
Party") of the nature and location of the
problem. The Impaired Party shall advise the
Impairing Party that, unless promptly
rectified, a temporary discontinuance of the
use of any circuit, facility or equipment may
be required. The Impairing Party and the
Impaired Party agree to work together to
attempt to promptly resolve the Impairment of
Service. If the Impairing Party is unable to
promptly remedy the Impairment of
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Service, the Impaired Party may temporarily
discontinue use of the affected circuit,
facility or equipment.
(D)5.3.3 To facilitate trouble reporting and to
coordinate the repair of the service provided
by each Party to the other under this
Agreement, each Party shall designate a repair
center for such service.
(D)5.3.4 Each Party shall furnish a trouble reporting
telephone number for the designated repair
center. This number shall give access to the
location where records are normally located and
where current status reports on any trouble
reports are readily available. If necessary,
alternative out-of-hours procedures shall be
established to ensure access to a location that
is staffed and has the authority to initiate
corrective action.
(D)5.3.5 Before either Party reports a trouble
condition, it shall use its best efforts to
isolate the trouble to the other's facilities.
(D)5.3.5.1 In cases where a trouble
condition affects a significant
portion of the other's service, the
Parties shall assign the same
priority provided to other Resellers
and to itself.
(D)5.3.5.2 The Parties shall cooperate in
isolating trouble conditions.
(D)5.4 Trouble Isolation
(D)5.4.1 According to applicable state Tariffs, USW will
bill appropriate Trouble Isolation Charges for
dispatched work done by USW where the trouble
is found to be on the end user's side of the
NID or trouble is found to be in RESELLER's
portion of the network.
(D)5.4.2 Other Trouble Isolation Charges may also be
imposed by USW on RESELLER for other internal
repair work incurred on behalf of RESELLER and
later found to be in RESELLER network
components.
(D)5.5 Inside Wire Maintenance
Except where specifically required by state or federal
regulatory mandates, USW will not perform any
maintenance of inside wire (premises wiring beyond the
end user's NID) for RESELLER or its end users.
(D)5.6 Testing/Test Requests/Coordinated Testing
(D)5.6.1 USW will make the decision to test an end
user's line or circuit. The test systems used
by USW are finite, and their capacity has been
designed according to USW's operating
standards.
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(D)5.6.2 Although some types of trouble reports
typically will not require a test, USW usually
runs certain standard tests on each line on
which trouble has been reported.
(D)5.6.3 Prior to any test being conducted on a line,
USW must receive a trouble report from
RESELLER.
(D)5.6.4 USW end users are not given test results. On
manually-reported trouble USW will not provide
to RESELLER the test results for its trouble
reports. For electronically-reported trouble,
RESELLER may see various basic test results.
(D)5.7 Workcenter Interfaces
(D)5.7.1 USW and RESELLER shall work cooperatively to
develop positive, close working relationships
among corresponding work centers involved in
the trouble resolution processes.
(D)5.8 Misdirected Repair Calls
(D)5.8.1 RESELLER shall inform its own end users where
to report their trouble conditions. Persons
placing a misdirected repair call will be
advised to call their own telephone service
provider and will be provided the correct
telephone number for that purpose (this
referral may occur within a voice response
system or other interactive systems).
(D)5.8.2 RESELLER and USW will employ the following
procedures for handling misdirected repair
calls;
(D)5.8.2.1 RESELLER and USW will provide their
respective end users with the
correct telephone numbers to call
for access to their respective
repair bureaus.
(D)5.8.2.2 End users of RESELLER shall be
instructed to report all cases of
trouble to RESELLER. End users of
USW shall be instructed to report
all cases of trouble to USW.
(D)5.8.2.3 To the extent the correct provider
can be determined, misdirected
repair calls will be referred to the
proper provider of Basic Exchange
Telecommunications Service.
(D)5.8.2.4 RESELLER and USW will provide their
respective repair contact numbers to
one another on a reciprocal basis.
(D)5.8.2.5 In responding to repair calls,
neither Party shall make disparaging
remarks about each other, nor shall
they use these repair calls as the
basis for internal referrals or to
solicit end users to market
services.
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(D)5.8.2.6 Performance targets for speed of
repair call answering will be the
same as USW's performance targets
for its own end users.
(D)5.9 Major Outages/Restoral/Notification
(D)5.9.1 USW will notify RESELLER of major network
outages as soon as is practical. This
notification will be via e-mail to RESELLER's
identified contact. With the minor exception of
certain proprietary information, USW will
utilize the same thresholds and processes for
external notification as it does for internal
purposes. This major outage information will be
sent via E-mail on the same frequency schedule
as is provided internally within USW. Service
restoration will be non-discriminatory, and
will be accomplished as quickly as possible
according to USW and/or industry standards.
(D)5.9.2 If desired, USW will meet with associated
personnel from RESELLER to share contact
information and review USW's outage restoral
processes and notification processes.
(D)5.9.3 USW's emergency restoration process operates on
a 7X24 basis.
(D)5.10 Proactive Maintenance
(D)5.10.1 USW will perform scheduled maintenance equal in
quality to what it provides to itself.
(D)5.10.2 USW will work cooperatively with RESELLER to
develop industry-wide processes to provide as
much notice as possible to RESELLER of pending
maintenance activity. Such process work will
include establishment of reasonable thresholds
and notification standards.
(D)5.11 Hours of Coverage
(D)5.11.1 USW's repair operation is 7 days a week, 24
hours a day. Not all functions or locations are
covered with scheduled employees on a 7X24
basis. Where such 7X24 coverage is not
available USW's repair operations center
(always available 7X24) can call-out
technicians or other personnel required for the
situation.
(D)5.12 Escalations
(D)5.12.1 USW will provide trouble escalation procedures
to RESELLER. Such procedures will be based on
the processes USW employs for its own end
users. USW escalations are manual processes.
(D)5.12.2 USW repair escalations begin with calls to the
up-front trouble reporting centers.
(D)5.13 Dispatch
(D)5.13.1 USW will provide maintenance dispatch personnel
on the same schedule provided for its end
users.
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(D)5.13.2 Upon receipt of a trouble report from RESELLER,
USW will do all that is reasonable and
practical, according to internal and industry
standards, to resolve the repair condition. USW
will dispatch repair personnel, if necessary,
to repair the condition. It will be USW's
decision whether it is necessary to send a
technician on a dispatch. USW will make this
dispatch decision based on the best information
available in the trouble resolution process.
Since it is not always necessary to dispatch to
resolve trouble; should RESELLER require a
dispatch when USW believes the dispatch is not
necessary, appropriate charges may be billed to
RESELLER for dispatch-related costs.
(D)5.13.3 For non-designed resale services USW will not
request authorization from RESELLER prior to
dispatch. For lines supported by USW's designed
services process, USW may accept RESELLER
authorization to dispatch. USW's operational
processes are regularly reviewed and may be
altered in the future. Should processes be
changed, RESELLER will be notified.
(D)5.13.4 USW expects that RESELLER will have performed
appropriate trouble isolation and screening
prior to handing the trouble report off to USW.
(D)5.14 Electronic Reporting
(D)5.14.1 USW will accept repair reports from RESELLER
through a mechanized system (IMA).
(D)5.14.2 USW will work cooperatively to develop repair
reporting via electronic bonding (other than
IMA), based on national standards.
(D)5.15 Intervals
(D)5.15.1 Similar trouble conditions, whether reported by
USW end users or on behalf of RESELLER end
users, will receive similar commitment
intervals.
(D)5.16 Jeopardy Management
(D)5.16.1 Notification will be given as soon as USW is
aware that a trouble report interval is likely
to be missed. This process will be the same as
that used by USW for its own end users.
(D)5.17 Trouble Screening
(D)5.17.1 RESELLER shall screen and test its end user
trouble reports completely enough to insure
that it sends USW only trouble reports that
involve USW facilities.
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Part D
Miscellaneous Provisions
(D)5.17.2 If desired, USW will cooperate with RESELLER to
show RESELLER how USW screens trouble
conditions in its own centers, so that RESELLER
may employ similar techniques in its centers.
(D)5.18 Maintenance Standards
(D)5.18.1 USW will cooperate with RESELLER to meet the
maintenance standards outlined in this
Agreement.
(D)5.18.2 For manually-reported trouble, USW will inform
RESELLER of repair completion as soon as
practical after completion. On electronically
reported trouble reports the electronic system
will automatically update status information,
including trouble completion, across the joint
electronic gateway.
(D)5.19 End User Interfaces
(D)5.19.1 RESELLER will be responsible for all
interactions with its end users including
service call handling and notifying end users
of trouble status and resolution.
(D)5.19.2 All USW employees who perform repair service
for RESELLER end users will be trained in
non-discriminatory behavior.
(D)5.20 Repair Call Handling
(D)5.20.1 Manually-reported repair calls by RESELLER to
USW will be answered with the same quality and
speed USW answers calls from its own end users.
(D)5.21 Single Point of Contact
(D)5.21.1 USW will provide a single point of contact for
RESELLER to report maintenance issues and
trouble reports via electronic interfaces seven
days a week, twenty-four hours a day.
(D)5.21.2 For manually-reported trouble reports, a single
7X24 trouble reporting telephone number will be
provided to RESELLER for each category of
trouble situation encountered.
(D)5.22 Maintenance Windows
(D)5.22.1 Generally, USW performs major switch
maintenance activities during off-hours time
periods, during certain "maintenance windows"
in the early morning hours and/or on weekends.
(D)5.22.2 Generally, the maintenance window is from 10:00
PM to 6:00 AM Monday through Friday and from
10:00 PM Saturday to 6:00 AM Monday.
(D)5.22.3 Although USW attempts to perform major switch
maintenance at these times, on some occasions
this will not be possible.
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Part D
Miscellaneous Provisions
(D)6. SERVICE PERFORMANCE
(D)6.1 General Provisions
(D)6.1.1 USW will provide reports of service indicators
that will assist in an evaluation of the
service provided to RESELLER.
(D)6.1.2 In no instance shall this Agreement be
construed to require USW to provide superior
levels of service to RESELLER in comparison to
the level of service USW provides to itself or
its own end users.
(D)6.1.3 As further specified in this Section, USW will
provide results for the list of performance
indicators identified for the following
Standard Service Groupings: Resold Residential
Plain Old Telephone Service (POTS); Resold
Business POTS; Resold ISDN; Resold Centrex
service; Resold PBX trunks, Resold Direct
Inward Dialing (DID) and Resold Digital
Switched Service (DSS); Resold DS-0, Resold
DS-1, Resold DS-3.
(D)6.1.4 As specified in this Section, USW will provide
results for the following types of Orders:
C = Change in existing service or billing
number
D = total disconnect of service
F = From the outward service associated with a
transfer (To or "T") of service from one
address to another
N = New connection for service
R = Record order; record change only.
(For Resale services, service migrations
without changes for non-designed services are
record orders.)
T = To or transfer of service from one address
to another
X = USW initiated internal work order
(D)6.2 Service Performance Indicators
The following Service Performance Indicators will be
provided to RESELLER when available and upon request, but
no more frequently than once per month subject to the
provisions of this Section. The requests for additional
Service Performance Indicators during the term of this
Agreement shall be considered by USW. However, USW is not
required to provide additional Service Performance
Indicators during the term of this Agreement. Service
Performance Indicators characterized as "Core" indicators
measure most directly the service or process outcome USW
provides to RESELLER.
Performance Indicators characterized as "Diagnostic"
indicators are those that measure aspects of service
quality that support aspects measured by core indicators,
that represent sub-process outcomes, or that are otherwise
duplicative to some degree of aspects measured by "Core"
indicators.
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Part D
Miscellaneous Provisions
(D)6.2.1 Core Performance Indicators
(D)6.2.1.1 Gateway Availability Indicator
GA-1 Gateway Availability - via Human-to-Computer
Interface (percent).
GA-2 Gateway Availability - via Computer-to-Computer
Interface (percent).
(D)6.2.1.2 Pre-Ordering Indicators
PO-1 Pre-Order/Order Response times
A. Appointment Scheduling (Due Date
Reservation, where appointment is
required)
B. Feature Function and Service
Availability Information
C. Facility Availability
D. Street Address Validation
E. Customer Service Records
F. Telephone Number
(D)6.2.1.3 Ordering and Provisioning Indicators
OP-1 Speed of Answer - Interconnect Provisioning
Center (average)
OP-2 Calls Answered within 20 Seconds -
Interconnect Provisioning Center (percent)
OP-3 Installation Commitments Met (percent)
OP-4 Installation Interval (average)
OP-5 Installation Trouble Reports (percent)|
OP-6 Delayed Days (average)
(D)6.2.1.4 Maintenance and Repair Indicators
MR-1 Speed of Answer - Interconnect Repair Center
(average)
MR-2 Percent Calls Answered Within 20 Seconds -
Interconnect Repair Center (percent)
MR-3 Out of Service Cleared Within 24 hours -
Non-Designed Repair Process (percent)
MR-4 All Troubles Cleared Within 48 hours -
Non-Designed Repair Process (percent)
MR-5 All Troubles Cleared Within 4 hours - Designed
Repair Process (percent)
MR-6 Mean Time to Restore - Non-Designed Repair
Process (average)
MR-7 Repair Repeat Report Rate (percent)
MR-8 Trouble Rate (percent)
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Part D
Miscellaneous Provisions
(D)6.2.1.5 Billing Indicators
BI-1 Mean Time to Provide USW Recorded Usage Records
((average)
BI-2 Mean Time to Deliver Invoices (average)
BI-3 Billing Accuracy
(D)6.2.1.6 Emergency Services
ES-1 ALI Database Updates Completed Within 24 hours
(percent)
ES-2 911/E911 Emergency Services Trunk Installation
Interval (average)
(D)6.2.1.7 Directory Assistance
DA-1 Speed of Answer - Directory Assistance
(average)
DA-2 Calls Answered Within Ten Seconds - Directory
Assistance (percent)
(D)6.2.1.8 Operator Services
OS-1 Speed of Answer - Operator Services (average)
OS-2 Calls Answered Within Ten Seconds - Operator
Services (percent)
(D)6.2.2 Diagnostic Indicators
In addition to the performance indicators
identified above, USW will report the following
indicators that do not directly address
nondiscrimination but may be useful in
diagnosing problems or improving service:
(D)6.2.2.1 Pre-Order/Ordering
DPO-1 Electronic Flow - Through of Local Service
Requests (LSRs) to the Service Order Processor
(percent)
DPO-2 LSR Rejection Notice Interval (average)
DPO-3 LSRs Rejection (percent)
DPO-4 Firm Order Confirmation (FOC) Interval
(average)
DPO-5 Pre-Order/Order Response Times for USW Retail
Transactions (average)
DPO-6 Completion Notifications Transmitted Within 24
hours (percent)
DPO-7 Completion Notification Interval (average)
(D)6.2.2.2 Ordering and Provisioning
DOP-1 RESELLER or RESELLER's Customer - Caused
Installation Misses (percent)
DOP-2 Delayed Orders Completed equal to greater than
15 days past the Commitment Date (percent)
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Part D
Miscellaneous Provisions
DOP-3 Delayed Orders Completed equal to or greater
than 90 days past the Commitment Date (percent)
DOP-4 RESELLER or RESELLER's Customer-Caused
Coordinated Cutover Misses (percent)
(D)6.2.2.3 Maintenance and Repair
DMR-1 RESELLER or RESELLER's Customer-Caused Trouble
Reports (percent)
D)6.2.2.4 Access to OSS Functions:
(GA-1) Gateway Availability - Human-to-Computer
Interface (percent)
(GA-2) Gateway Availability - Computer-to-Computer
Interface (percent)
(PO-1) Per-Order/Order Response Times (average)
(OP-1 and MR-1) Speed of Answer - Provisioning and
Repair Centers (average)
(OP-2 and MR-2) Calls Answered Within 20 Seconds
Provisioning and Repair Centers (percent)
(BI-1) Mean Time to Provide USW - Recorded Usage
Records
(BI-2) Mean Time to Deliver Invoices
(B1-3) Billing Accuracy
(D)6.2.2.5 Access to Emergency Services
(ES-1) ALI Database Updates Within 24 Hours (percent)
(ES-1) 911/E911 ES Trunk Installation Intervals (average)
(D)6.2.2.6 Access to Directory Assistance and Operator
Services:
(DA-1 and OP-1) Speed of Answer (average)
(DA-2 and OS-2) Calls Answered Within 10 Seconds (percent)
(D)6.2.2.7 Resale Services Ordering and Provisioning:
(OP-3) Installation Commitments Met (percent)
(OP-4) Installation Interval (average)
(OP-5) Installation Trouble Reports (percent)
(OP-6) Delayed Days (average)
(D)6.2.2.8 Resale Services Maintenance and Repair:
(MR-3) Out of Service Cleared Within 24 Hours -
Non-Designed Repair Process (percent)
(MR-4) All Troubles Cleared Within 48 Hours -
Non-Designed Repair Process (percent)
(MR-5) All Troubles Cleared Within 4 Hours - Designed
Repair Process (percent)
(MR-6) Mean Time to Restore (average)
(MR-6) Repair Repeated Report Rate (percent)
(MR-6) Trouble Rate (percent)
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Part D
Miscellaneous Provisions
(D)6.3 Service Quality Performance Results Reports
(D)6.3.1 For Resale, USW will provide core service
performance results for the performance
indicators listed above for RESELLER, other
Resellers in aggregate and USW end users.
(D)6.4 Performance Results Provided to Reseller
The performance results provided to RESELLER by USW shall
be consistent with the current version of the USW Service
Performance Indicator Description (PID).
(D)6.5 The performance results provided under this Agreement are
to be used solely for the purposes set forth herein, and
shall be treated as "Proprietary Information" as provided
in Section (A)3.14 of this Agreement.
(D)6.6 Service Performance - Reported Events
(D)6.6.1 When applicable, USW will report
service-related performance results for all
"events". An "event" is the activity that
generates the measurement.
(D)6.6.2 The Parties will report RESELLER results
referenced above provided that RESELLER has
ordered and is utilizing the services reported;
(D)6.6.3 USW will provide the reports on a calendar
monthly basis. These reports will be provided
within forty-five (45) calendar days of the
close of the preceding month.
(D)6.7 Self Executing Remedies
The purpose and focus of remedies provisions under this
Resale Agreement shall be to resolve significant
differences in service quality that have been identified
through appropriate comparisons of the service performance
results reported for the core performance indicators
defined above. Self-executing remedies are those actions,
defined herein, that USW will undertake in good faith and
in cooperation with RESELLER to respond to such
differences immediately, without waiting for determination
of whether actual discrimination may exist.
(D)6.7.1 For this purpose, significant differences shall
be considered to be those that are determined
to be statistically, operationally, and
materially significant in each of three (3) or
more consecutive months and that reflect a
probability that inferior service was
apparently provided to RESELLER, based on the
relevant comparison of performance indicator
results. Statistical significance shall be
determined as defined below. Operational and
material significance shall be established by
including for comparison only those results
that have (a) minimum sample sizes of 30 each,
and (b) a relevant comparison demonstrating a
service performance difference of a magnitude
that can be reasonably considered to have a
perceptible effect on end users or RESELLER
operations.
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Miscellaneous Provisions
(D)6.7.2 Determination of the statistical significance
of any difference in appropriately comparable
results shall be based on statistical testing
for (1) differences in means (where performance
indicator results are reported as averages) or
(2) difference in proportions (where
performance indicator results are reported as
percentages), as follows:
(D)6.7.2.1 Determination of the significance of a
difference in mean values of each monthly
service performance indicator results shall be
based on a "permutation" test using what is
commonly referred to as a "Z" statistic and a
maximum of 1,000 randomly selected permutations
of the samples. Where sample sizes exceed 600,
the "Z" test using the "modified Z statistic"
may be used instead of the permutation test.
Where used, the modified Z statistic will be
based on the statistical variance associated
with USW's retail performance results, where
applicable, or on the variance associated with
RESELLER aggregate performance results, where
there are no retail performance results.
(D)6.7.2.2 The significance of a difference in
proportional measurements shall be based on
direct calculation of the probability of the
observed difference using the binomial
distribution with a pooled value.
(D)6.7.2.3 A difference in results by either test type
(i.e., differences in means or differences in
proportions) will be deemed statistically
significant if the appropriate one tailed test
indicates, with 99 percent confidence, that the
performance indicator results being compared
appear to be from different populations of
performance. In other words, that service being
provided to RESELLER appears to be inferior to
that represented by the comparable results
(such as, results representing service provided
to Resellers in aggregate or to USW retail).
(D)6.7.3 For each case in which a significant
difference as defined above has occurred, USW
shall:
(D)6.7.3.1 Immediately investigate to determine
the cause(s) of the difference and,
where feasible, begin good-faith
efforts to resolve the difference;
(D)6.7.3.2 Within 45 days, provide to RESELLER
a written explanation of the result
of the investigation as to
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Part D
Miscellaneous Provisions
cause(s) and, as applicable, an
action plan describing (i) what has
and will be done to resolve the
difference, (ii) what cooperative
actions and timelines on the part of
RESELLER are needed to facilitate or
expedite resolution, and (iii)
listing key milestones for use by
the Parties in tracking progress;
(D)6.7.3.3 Offer and meet with designated
RESELLER representatives monthly to
discuss progress on resolving the
difference(s);
(D)6.7.3.4 Escalate to vice president level any
significant difference that has or
is not projected to be resolved
within three months of the
difference first being identified as
significant as defined above, with
commitment at that level to direct
due diligence toward removing
obstacles and expediting resources
where feasible and necessary to
resolve the difference as soon as
possible.
(D)6.7.4 If a statistically and operationally
significant difference has occurred in the
trend results for any particular performance
indicator, the Parties shall allow three (3)
months to correct the difference in the trend
results. If the statistically, and
operationally significant difference in trend
results is corrected within the three (3) month
time, no action, formal or informal, shall be
taken by either Party with respect to that
difference.
(D)6.7.5 If the statistically and operationally
significant difference in trend results is not
corrected within the three (3) month time
frame, the Dispute Resolution provision of this
Resale Agreement shall apply.
(D)6.8 Delaying Events
(D)6.8.1 A Party's failure to meet a requirement in this
Section of this Agreement shall not be included
when that failure is a result, directly or
indirectly, of a Delaying Event.
(D)6.8.2 A "Delaying Event" means:
(D)6.8.2.1 Failure by either Party to perform
any of its obligations set forth in
this Agreement,
(D)6.8.2.2 Any delay, act or failure to act by
an end user, agent or subcontractor
of the other Party, or
(D)6.8.2.3 Any Force Majeure Event.
(D)6.8.3 If a Delaying Event prevents either Party from performing
a measured activity, then such measured activity shall be
excluded from the performance indicator(s).
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Part D
Miscellaneous Provisions
(D)6.9 Records Retention for Service Performance Indicators
USW shall maintain complete and accurate records, for the
specified review period of its performance under this
Agreement for each measured activity. USW shall provide
such records to RESELLER in a self-reporting format. Such
records shall be in the format kept in USW's ordinary
course of business. The Parties agree that such records
shall be deemed "Confidential Information."
(D)6.10 Joint Defense and Advocacy
The Parties shall jointly and separately advocate and
defend the sufficiency of this Agreement in addressing the
nondiscrimination requirements of the Act and wholesale
services performance measurements reporting rights,
remedies and related terms and conditions in any forum in
which its sufficiency might be challenged.
(D)6.11 Cost Recovery
Each Party reserves the right to recover the costs
associated with the creation of the above measures,
indicators, and reports through a future proceeding before
a regulatory body. Such a proceeding may address a wide
range of implementation costs not otherwise recovered
through charges established herein.
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Part E
Arizona Rates
PART E - ARIZONA RATES
LOCAL EXCHANGE SERVICES RESALE OF SERVICES
The Parties agree the following charges apply to the Resale of Local Services:
1. Nonrecurring Charges.
a. Customer Transfer Charge (CTC): The following nonrecurring
charges apply when converting a USW account to a RESELLER
account or when changing an end user from one reseller to
another.
<TABLE>
<CAPTION>
CATEGORY OF SERVICE PER LINE NONRECURRING CHARGE
- ------------------- ----------------------------
<S> <C>
- RESIDENCE $ 5.00
- BUSINESS $ 5.00
- ISDN $ 5.00
- PRIVATE LINE TRANSPORT
First Circuit $45.08
Additional Circuit, Same CSR $31.19
- ADVANCED COMM. SVC., PER CIRCUIT $50.48
</TABLE>
b. Product Specific Nonrecurring Charge: As set forth in USW
tariffs, the product specific nonrecurring charges,
discounted by 18%, will apply when additional lines or
trunks are added or when the end user adds features or
services to existing lines or trunks.
2. Basic Residential Line service 12%, Basic Business Line Service 18%. Except
as qualified below, all other USW telecommunications services shall be available
for resale at an 18% discount.
a. The following services are not available for resale:
- Customer Premises Equipment (separately or in a package)
- Enhanced Services
- Inside Wire (including installation, sale or
maintenance)
- USW Calling Card
- Concession Service
- Promotions of less than 90 days
b. The following services are available only to the same
class of customer eligible to purchase that service from
USW:
- Grandfathered
- Residence
- Lifeline/Link-up
c. The following services are available for resale under this
Agreement but are not included in the wholesale pricing
reflected above:
- Private Line Used For Special Access
- Public Access Lines
- DSL Services such as Megabit Services
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Part E
Arizona Rates
d. IntraLATA Toll Charges: RESELLER shall have their choice
of obtaining USW provided intraLATA toll for resale at an
18% discount or, in Arizona, providing their own IntraLATA
toll, or obtaining their IntraLATA toll from a third
party.
3. Daily Usage Record File: Recurring Charge - $.0011 per record.
Page 62
<PAGE>
Part F
Signature
PART F - SIGNATURE
ENTIRE AGREEMENT
This Agreement constitutes the entire agreement between the Parties and
supersedes all prior oral or written agreements, representations, statements,
negotiations, understandings, proposals and undertakings with respect to the
subject matter hereof.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed
by their respective duly authorized representatives.
ESSENTIAL.COM, INC. US WEST COMMUNICATIONS, INC.
(D.B.A. ESSENTIAL.COM, INC. - YOUR
ENERGY & COMMUNICATIONS SUPERSTORE)
/s/ Akhil Garland /s/ E. J. Stamp for
- ------------------------------------ ------------------------------------
Signature Signature
Akhil Garland Katherine L. Fleming
- ------------------------------------ ------------------------------------
Name Printed/Typed Name Printed/Typed
CEO Vice President - Interconnection
- ------------------------------------ ------------------------------------
Title Title
25 Jan 2000 01-28-00
- ------------------------------------ ------------------------------------
Date Date
Page 63
<PAGE>
Exhibit 10.24
RESALE
AGREEMENT
BETWEEN
U S WEST COMMUNICATIONS, INC.
AND
ESSENTIAL.COM
FOR
NEW MEXICO
Page i
<PAGE>
TABLE OF CONTENTS
<TABLE>
<S> <C>
PART A - GENERAL TERMS .....................................................1
(A)1. SCOPE OF AGREEMENT ...................................................1
(A)2. DEFINITIONS ..........................................................2
(A)3. TERMS AND CONDITIONS..................................................4
(A)3.1 General Provisions ..................................................4
(A)3.2 Term of Agreement ...................................................4
(A)3.3 Proof of Authorization ..............................................5
(A)3.4 Payment .............................................................5
(A)3.5 Taxes ...............................................................7
(A)3.6 Force Majeure .......................................................7
(A)3.7 Limitation of Liability .............................................7
(A)3.8 Indemnity ...........................................................8
(A)3.9 Intellectual Property ...............................................9
(A)3.10 Warranties.........................................................12
(A)3.11 Assignment ........................................................12
(A)3.12 Default ...........................................................13
(A)3.13 Disclaimer of Agency ..............................................13
(A)3.14 Nondisclosure .....................................................13
(A)3.15 Survival ..........................................................15
(A)3.16 Dispute Resolution ................................................15
(A)3.17 Controlling Law ...................................................16
(A)3.18 Joint Work Product ................................................16
(A)3.19 Responsibility for Environmental Contamination ....................17
(A)3.20 Notices ...........................................................17
(A)3.21 Responsibility of Each Party ......................................17
(A)3.22 No Third Party Beneficiaries ......................................18
(A)3.23 Referenced Documents ..............................................18
(A)3.24 Publicity .........................................................18
(A)3.25 Amendment .........................................................18
(A)3.26 Executed in Counterparts ..........................................19
(A)3.27 Headings of No Force or Effect ....................................19
(A)3.28 Regulatory Approval ...............................................19
(A)3.29 Compliance ........................................................19
(A)3.30 Compliance with the Communications Assistance for Law
Enforcement Act of 1994 ("CALEA") .................................19
(A)3.31 Cooperation .......................................................19
(A)3.32 Availability of Other Agreements ..................................20
PART B - RESALE............................................................21
(B)1. Description..........................................................21
(B)2. Terms and Conditions ................................................21
(B)3. Rates and Charges ...................................................24
</TABLE>
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<PAGE>
<TABLE>
TABLE OF CONTENTS
<S> <C>
(B)4. Ordering Process ......................................................26
(B)5. Billing ...............................................................27
(B)6. Maintenance and Repair ................................................27
PART C - WHITE PAGES DIRECTORY LISTINGS .....................................28
(C)1. Description ...........................................................28
(C)2. Terms and Conditions...................................................28
PART D- MISCELLANEOUS PROVISIONS ............................................31
(D)1. Network Security ......................................................31
(D)2. Access To Operational Support Systems (OSS)............................31
(D)3. U S WEST Dex ..........................................................46
(D)4. Notice Of Changes .....................................................46
(D)5. Maintenance and Repair ................................................47
(D)6. Service Performance ...................................................53
PART E - NEW MEXICO RATES ...................................................61
PART F - SIGNATURE ..........................................................63
</TABLE>
Page iii
<PAGE>
Part A
General Terms
PART A - GENERAL TERMS
This Resale Agreement is between essential.com ("RESELLER"), a
Delaware corporation, and U S WEST Communications, Inc. ("USW"), a Colorado
corporation.
(A)1. SCOPE OF AGREEMENT
(A)1.1 Pursuant to this negotiated Resale Agreement ("Agreement"),
RESELLER and USW (collectively, "the Parties") will extend
certain arrangements to one another within the geographical
areas where USW is the incumbent Local Exchange Carrier within
the state of New Mexico for purposes of providing the resale
of local Telecommunications Services. This Agreement or the
portions of this Agreement relative to a particular state will
be submitted to the New Mexico State Corporation Commission
("Commission") for approval. Notwithstanding this mutual
commitment, however, the Parties enter into this Agreement
without prejudice to any positions they have taken previously,
or may take in the future in any legislative, regulatory, or
other public forum addressing any matters, including matters
related to the types of arrangements prescribed by this
Agreement.
(A)1.2 The provisions in this Agreement are based, in large part, on
the existing state of the law, rules, regulations and
interpretations thereof, as of the date hereof (the "Existing
Rules"). Among the Existing Rules are or could be the results
of arbitrated decisions by the Commission which are currently
being challenged by USW. Among the Existing Rules are certain
FCC rules and orders that are the subject of, or affected by,
the opinion issued by the Supreme Court of the United States
in AT&T CORP., ET AL. V. IOWA UTILITIES BOARD, ET AL. on
January 25, 1999. Nothing in this Agreement shall preclude or
stop USW from taking any position in any forum concerning the
proper interpretation or effect of the Existing Rules or
concerning whether the Existing Rules should be changed,
dismissed, stayed or modified. To the extent that the Existing
Rules are changed, vacated, dismissed, stayed or modified,
then the Parties shall amend this Agreement and all contracts
adopting all or part of this Agreement pursuant to Section
252(i) of the Act, shall be amended to reflect such
modification or change of the Existing Rules. Where the
Parties fail to agree upon such an amendment, it shall be
resolved in accordance with the Dispute Resolution provision
of this Agreement. It is expressly understood that this
Agreement will be corrected to reflect the outcome of generic
pricing proceedings by the Commission. This Section (A)1.2
shall be considered part of the rates, terms and conditions of
each service resale arrangement contained in this Agreement,
and this Section (A)1.2 shall be considered legitimately
related to the purchase of each service for resale arrangement
contained in this Agreement.
(A)1.3 This Agreement sets forth the terms, conditions and prices
under which USW agrees to provide services for resale to
RESELLER, all for the sole purpose of providing
Telecommunications Services.
(A)1.4 In the performance of their obligations under this Agreement,
the Parties shall act in good faith and consistently with the
intent of the Act. Where notice, approval or
Page 1
<PAGE>
Part A
General Terms
similar action by a Party is permitted or required by any
provision of this Agreement, (including, without limitation,
the obligation of the Parties to further negotiate the
resolution of new or open issues under this Agreement) such
action shall not be unreasonably delayed, withheld or
conditioned.
(A)1.5 USW may make services and features available to RESELLER for
resale under this Agreement consistent with the way they are
available to USW end users, without a formal amendment to this
Agreement. Nothing herein prevents either Party from raising
other issues through additional good faith negotiations.
(A)1.6 This Agreement is structured in the following format:
Part A - General Terms
Part B - Resale
Part C - Directory Services
Part D - Miscellaneous Provisions
Part E - Rates
Part F - Signature
(A)1.7 Prior to placing any orders for services under this Agreement,
the Parties will jointly complete USW's "Reseller
Questionnaire". This questionnaire will then be used to:
Determine geographical requirements
Identify RESELLER Ids
Determine USW system requirements to support RESELLER specific
activity
Collect credit information
Obtain billing information
Create summary bills
Establish input and output requirements
Create and distribute USW and RESELLER contact lists
Identify client hours and holidays
(A)2. DEFINITIONS
(A)2.1 "Act" means the Communications Act of 1934 (47 U.S.C. 151 et.
seq.), as amended by the Telecommunications Act of 1996, and
as from time to time interpreted in the duly authorized rules
and regulations of the FCC or a Commission within its state of
jurisdiction.
(A)2.2 "Basic Exchange Features" are optional end user switched
services that include, but are not necessarily limited to:
Automatic Call Back; Call Trace; Caller ID and Related
Blocking Features; Distinctive Ringing/Call Waiting; Selective
Call Forward; and Selective Call Rejection.
(A)2.3 "Basic Exchange Telecommunications Service" means a service
offered to end users which provides the end user with a
telephonic connection to, and a unique local telephone number
address on the public switched telecommunications network, and
which enables such end user to generally place calls to, or
receive calls from, other stations on the public switched
telecommunications network.
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Basic residence and business line services are Basic Exchange
Telecommunications Services. As used solely in the context of
this statement and unless otherwise agreed, Basic Exchange
Telecommunications Service includes access to ancillary
services such as 911, directory assistance and operator
services.
(A)2.4 "Commission" means the State Corporation Commission in the
state of New Mexico.
(A)2.5 "Enhanced Services" means any service offered over common
carrier transmission facilities that employ computer
processing applications that act on format, content, code,
protocol or similar aspects of the subscriber's transmitted
information; that provide the subscriber with additional,
different or restructured information; or involve end user
interaction with stored information.
(A)2.6 "Interconnect & Resale Resource Guide" is a USW document that
provides essential information needed to request services
available under this Agreement. It is available on USW's Web
site.
(A)2.7 "Interexchange Carrier" or "IXC" means a carrier that provides
IntraLATA or IntraLATA Toll services.
(A)2.8 "IntraLATA Toll" is defined in accordance with USW's current
intraLATA toll serving areas, as determined by the Federal
Communications Commission.
(A)2.9 "Local Exchange Carrier" or "LEC" means any person that is
engaged in the provision of telephone exchange service or
exchange access. Such term does not include a person insofar
as such person is engaged in the provision of a commercial
mobile service under Section 332(c) of the Act, except to the
extent that the FCC finds that such service should be included
in the definition of such term.
(A)2.10 "Party" means either USW or RESELLER and "Parties" means USW
and RESELLER.
(A)2.11 "Reseller" is a category of local exchange service provider
that obtains dial tone and associated Telecommunications
Services from another provider through the purchase of
finished services for resale to its end users.
(A)2.12 "Tariff" as used throughout this Agreement refers to USW
interstate Tariffs and state Tariffs, price lists, price
schedules and catalogs.
(A)2.13 "Telecommunications Carrier" means any provider of
Telecommunications Services, except that such term does not
include aggregators of Telecommunications Services (as defined
in Section 226 of the Act). A Telecommunications Carrier shall
be treated as a common carrier under the Act only to the
extent that it is engaged in providing Telecommunications
Services, except that the Federal Communications Commission
shall determine whether the provision of fixed and mobile
satellite service shall be treated as common carriage.
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(A)2.14 "Telecommunications Services" means the offering of
telecommunications for a fee directly to the public, or to
such classes of users as to be effectively available directly
to the public, regardless of the facilities used.
(A)2.15 Terms not otherwise defined here, but defined in the Act shall
have the meaning defined there. Where a term is defined in the
regulations implementing the Act but not in this Agreement,
the Parties do not necessarily intend to adopt the definition
as set forth in said regulations.
(A)3. TERMS AND CONDITIONS
(A)3.1 GENERAL PROVISIONS
(A)3.1.1 Each Party is solely responsible for the services
it provides to its end users and to other
Telecommunications Carriers.
(A)3.1.2 The Parties shall work cooperatively to minimize
fraud associated with intra-LATA toll,
third-number billed calls, and any other services
related to this Agreement.
(A)3.1.3 Nothing in this Agreement shall prevent either
Party from seeking to recover the costs and
expenses, if any, it may incur in (a) complying
with and implementing its obligations under this
Agreement, the Act, and the rules, regulations and
orders of the FCC and the Commission, and (b) the
development, modification, technical installation
and maintenance of any systems or other
infrastructure which it requires to comply with
and to continue complying with its
responsibilities and obligations under this
Agreement.
(A)3.2 TERM OF AGREEMENT
This Agreement shall become effective upon Commission
approval, pursuant to Sections 251 and 252 of the Act, shall
terminate on April 8, 2002, and shall be binding upon the
Parties during that term, notwithstanding Section 252(i) of
the Act. After the date specified above, this Agreement shall
continue in force and effect until terminated by either Party
providing one hundred sixty (160) days written notice of
termination to the other Party. The day the notice is served
will determine the starting point for a 160-day negotiation
period (in accordance with 252(b)l of the Act. In the event of
such termination, existing or pending service arrangements
made available under this Agreement shall continue in total
without interruption under either a) a new or adoption
agreement executed by the Parties, or b) tariff terms and
conditions generally available to all resellers.
(A)3.2.1 If the Parties are unable to negotiate a new
agreement during negotiation period described
above, the window of opportunity to file for
arbitration to resolve outstanding contractual
issues in accordance with the Act will occur
between days 135 and 160 of the 160 day notice
period.
(A)3.2.2 If the Parties are able to reach agreement, this
Agreement shall continue for the brief period of
time needed to secure the
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Commission's approval of an adoption agreement or
a new resale agreement. In the case of Section
(A)3.2.1, this Agreement will expire on the
termination date specified in the one hundred
sixty (160) day notice referenced above, unless a
petition for arbitration has been filed, but if
such a petition has been filed then this Agreement
shall continue for the period necessary for the
Commission to act and resolve the disputed issues
so that the Parties will have an effective resale
agreement.
(A)3.3 PROOF OF AUTHORIZATION
Where so indicated in specific sections of this Agreement,
each party shall be responsible for obtaining and having in
its possession Proof of Authorization ("POA"). POA shall
consist of verification of the end user's selection and
authorization adequate to document the end user's selection..
Such selection may be obtained in the following ways:
(A)3.3.1 The end user's written Letter of Authorization.
(A)3.3.2 The end user's electronic authorization by use of
an 1-8XX number.
(A)3.3.3 The end user's oral authorization verified by an
independent third party (with third party
verification as POA),
The Parties shall make POAs available to each other upon
request, in accordance with the applicable laws and rules.
Unless prohibited by applicable laws or regulations, a. charge
of $100.00 ("slamming charge") will be assessed if the POA
cannot be provided supporting the change in service provider.
If there is a conflict between the end user designation and
the other Party's written evidence of its authority, the
Parties shall honor the designation of the end user and change
the end user back to the previous service provider.
(A)3.4 PAYMENT
(A)3.4.1 Amounts payable under this Agreement are due and
payable within thirty (30) calendar days after the
date of USW`s invoice, or within twenty (20) days
after receipt of the invoice, whichever is later.
If the payment due date is not a Business Day, the
payment shall be made the next Business Day..
USW may discontinue processing orders for the
failure by RESELLER to make full payment for the
services provided under this Agreement within
thirty (30) days of the due date on RESELLER's
bill.
USW may disconnect for the failure by RESELLER to
make full payment for the services provided under
this Agreement within sixty (60) days of the due
date on RESELLER's bill. RESELLER will pay the
Tariff charge required to reconnect each end user
line disconnected pursuant to this paragraph.
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(A)3.4.2 Should RESELLER dispute, in good faith, any
portion of the monthly billing under this
Agreement, RESELLER will notify USW in writing
within thirty (30) calendar days of the receipt of
such billing, identifying the amount, reason and
rationale of such dispute. RESELLER shall pay all
amounts due. Both RESELLER and USW agree to
expedite the investigation of any disputed amounts
in an effort to resolve and settle the dispute
prior to initiating any other rights or remedies.
Should the dispute be resolved in RESELLER's favor
and the resolved amount did not appear as a credit
on RESELLER's next invoice from USW, USW will
reimburse RESELLER the resolved amount plus
interest from the date of payment. The amount of
interest will be calculated using the late payment
factor that would have applied to such amount had
it not been paid on time.
(A)3.4.3 USW will determine RESELLER's credit status based
on previous payment history with USW or credit
reports such as Dun and Bradstreet. If RESELLER
has not established satisfactory credit with USW
or if RESELLER is repeatedly delinquent in making
its payments, USW may require a deposit to be held
as security for the payment of charges.
"Repeatedly delinquent" means being thirty (30)
calendar days or more delinquent for three (3)
consecutive months. The deposit may not exceed the
estimated total monthly charges for a two (2)
month period. The deposit may be a surety bond, a
letter of credit with terms and conditions
acceptable to USW or some other form of mutually
acceptable security such as a cash deposit.
Required deposits are due and payable within ten
(10) calendar days after demand in accordance with
Commission requirements.
(A)3.4.4 Interest will be paid on cash deposits at the rate
applying to deposits under applicable Commission
rules, regulations, or Tariffs. Cash deposits and
accrued interest will be credited to RESELLER's
account or refunded, as appropriate, upon the
earlier of the termination of this Agreement or
the establishment of satisfactory credit with USW
which will generally be one (1) full year of
timely payments in full by RESELLER. The fact that
a deposit has been made does not relieve RESELLER
from any requirements of this Agreement.
(A)3.4.5 USW may review RESELLER'S credit standing and
modify the amount of deposit required.
(A)3.4.6 The late payment charge for amounts that are
billed under this Agreement shall be in accordance
with state Tariffs/Commission Rules and Orders.
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(A)3.5 TAXES
Each Party purchasing services hereunder shall pay or
otherwise be responsible for all federal, state, or local
sales, use, excise, gross receipts, transaction or similar
taxes, fees or surcharges levied against or upon such
purchasing Party (or the providing Party when such providing
Party is permitted to pass along to the purchasing Party such
taxes, fees or surcharges), except for any tax on either
Party's corporate existence, status or income. Whenever
possible, these amounts shall be billed as a separate item on
the invoice. To the extent a sale is claimed to be for resale
tax exemption, the purchasing Party shall furnish the
providing Party a proper resale tax exemption certificate as
authorized or required by statute or regulation by the
jurisdiction providing said resale tax exemption. Until such
time as a resale tax exemption certificate is provided, no
exemptions will be applied.
(A)3.6 FORCE MAJEURE
Neither Party shall be liable for any delay or failure in
performance of any part of this Agreement from any cause
beyond its control and without its fault or negligence
including, without limitation, acts of nature, acts of civil
or military authority, government regulations, embargoes,
epidemics, terrorist acts, riots, insurrections, fires,
explosions, earthquakes, nuclear accidents, floods, work
stoppages, equipment failure, power blackouts, volcanic
action, other major environmental disturbances, unusually
severe weather conditions, inability to secure products or
services of other persons or transportation facilities or acts
or omissions of transportation carriers (collectively, a
"Force Majeure Event"). The Party affected by a Force Majeure
Event shall give prompt notice to the other Party, shall be
excused from performance of its obligations hereunder on a day
to day basis to the extent those obligations are prevented by
the Force Majeure Event, and shall use reasonable efforts to
remove or mitigate the Force Majeure Event. In the event of a
labor dispute or strike the Parties agree to provide service
to each other at a level equivalent to the level they provide
themselves.
(A)3.7 LIMITATION OF LIABILITY
(A)3.7.1 Except for losses relating to or arising out of
any act or omission in its performance of services
or functions provided under this Agreement, each
Party shall be liable to the other for direct
damages for any loss, defect or equipment failure
resulting from the causing Party's conduct or the
conduct of its agents or contractors in performing
the obligations contained in this Agreement.
(A)3.7.2 Neither Party shall be liable to the other for
indirect, incidental, consequential, or special
damages, including (without limitation) damages
for lost profits, lost revenues, lost savings
suffered by the other Party regardless of the form
of action, whether in contract, warranty, strict
liability, tort, including (without limitation)
negligence of any kind and regardless of whether
the Parties know the possibility that such damages
could result.
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(A)3.7.3 Except for indemnity obligations, each Party's
liability to the other Party for any loss relating
to or arising out of any act or omission in its
performance of services or functions provided
under this Agreement, whether in contract or in
tort, shall be limited to the total amount that is
or would have been charged to the other Party by
such breaching Party for the service(s) or
function(s) not performed or improperly performed.
(A)3.7.4 Nothing contained in this Section shall limit
either Party's liability to the other for
intentional, malicious misconduct.
(A)3.7.5 Nothing contained in this Section shall limit
either Party's obligations of indemnification as
specified in the Indemnity Section of this
Agreement.
(A)3.7.6 Neither Party shall be liable to the other under
any theory including indemnity on account of such
Party's failure or neglect to have or maintain a
system or systems that are Year 2000 compliant. As
the Parties approach the Year 2000, date
information associated with any interfaces between
the Parties is expected to remain as it is.
(A)3.8 INDEMNITY
(A)3.8.1 With respect to third party claims, the Parties
agree to indemnify each other as follows:
(A)3.8.1.1 Except for claims made by end users of
one Party against the other Party,
which claims are based on defective or
faulty services provided by the other
Party to the one Party, each of the
Parties agree to release, indemnify,
defend and hold harmless the other
Party and each of its officers,
directors, employees and agents (each
an "Indemnitee") from and against and
in respect of any loss, debt,
liability, damage, obligation, claim,
demand, judgment or settlement of any
nature or kind, known or unknown,
liquidated or unliquidated including,
but not limited to, costs and
attorneys' fees, whether suffered,
made, instituted, or asserted by any
other party or person, for invasion of
privacy, personal injury to or death
of any person or persons, or for loss,
damage to, or destruction of
property, whether or not owned by
others, resulting from the
indemnifying Party's performance,
breach of applicable law, or status of
its employees, agents and
subcontractors; or for failure to
perform under this Agreement,
regardless of the form of action.
(A)3.8.1.2 Where the third party claim is made by
(or through) an end user of one Party
against the other Party, which
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General Terms
claim is based on defective or faulty
services provided by the other Party
to the one Party then there shall be
no obligation of indemnity unless the
act or omission giving rise to the
defective or faulty services is shown
to be intentional, malicious
misconduct of the other Party.
(A)3.8.1.3 If the claim is made by (or through)
an end user and where a claim is in
the nature of a claim for invasion of
privacy, libel, slander, or other
claim based on the content of a
transmission, and it is made against a
Party who is not the immediate
provider of the Telecommunications
Service to the end user (the
indemnified provider), then in the
absence of fault or neglect on the
part of the indemnified provider, the
Party who is the immediate seller of
such Telecommunications Service shall
indemnify, defend and hold harmless
the indemnified provider from such
claim.
(A)3.8.2 The indemnification provided herein shall be
conditioned upon:
(A)3.8.2.1 The indemnified Party shall promptly
notify the indemnifying Party of any
action taken against the indemnified
Party relating to the indemnification.
Failure to so notify the indemnifying
Party shall not relieve the
indemnifying Party of any liability
that the indemnifying Party might
have, except to the extent that such
failure prejudices the indemnifying
Party's ability to defend such claim.
(A)3.8.2.2 The indemnifying Party shall have sole
authority to defend any such action,
including the selection of legal
counsel, and the indemnified Party may
engage separate legal counsel only at
its sole cost and expense.
(A)3.8.2.3 In no event shall the indemnifying
Party settle or consent to any
judgment pertaining to any such action
without the prior written consent of
the indemnified Party.
(A)3.9 INTELLECTUAL PROPERTY
(A)3.9.1 Each Party hereby grants to the other Party the
limited, personal and nonexclusive right and
license to use its patents, copyrights and trade
secrets but only to the extent necessary to
implement this Agreement or specifically required
by the then applicable federal and state rules and
regulations relating to Interconnection and access
to telecommunications facilities and services, and
for no other purposes. Nothing in this Agreement
shall be construed as the grant to the other Party
of any rights or licenses to trademarks.
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(A)3.9.2 The rights and licenses above are granted "AS IS"
and the other Party's exercise of any such right
and license shall be at the sole and exclusive
risk of the other Party. Neither Party shall have
any obligation to defend, indemnify or hold
harmless, or acquire any license or right for the
benefit of, or owe any other obligation or have
any liability to, the other based on or arising
from any claim, demand, or proceeding (hereinafter
"claim") by any third party alleging or asserting
that the use of any circuit, apparatus, or system,
or the use of any software, or the performance of
any service or method, or the provision of any
facilities by either Party under this Agreement
constitutes infringement, or misuse or
misappropriation of any patent, copyright, trade
secret, or any other proprietary or intellectual
property right of any third party.
(A)3.9.3 As a condition to the access or use of patents,
copyrights, trade secrets and other intellectual
property (including software) owned or controlled
by a third party to the extent necessary to
implement this Agreement or specifically required
by the then applicable federal and state rules and
regulations relating to Interconnection and access
to telecommunications facilities and services, the
Party providing access may require the other, upon
written notice, from time to time, to obtain a
license or permission for such access or use, make
all payments in connection with obtaining such
license, and provide evidence of such license.
(A)3.9.4 Except as expressly provided in this Intellectual
Property Section, nothing in this Agreement shall
be construed as the grant of a license, either
express or implied, with respect to any patent,
copyright, logo, trademark, trade name, trade
secret or any other intellectual property right
now or hereafter owned, controlled or licensable
by either Party. Neither Party may use any patent,
copyright, logo, trademark, trade name, trade
secret or other intellectual property rights of
the other Party or its affiliates without
execution of a separate agreement between the
Parties.
(A)3.9.5 Neither Party shall without the express written
permission of the other Party, state or imply
that: 1) it is connected, or in any way affiliated
with the other or its affiliates, 2) it is part of
a joint business association or any similar
arrangement with the other or its affiliates, 3)
the other Party and its affiliates are in any way
sponsoring, endorsing or certifying it and its
goods and services, or 4) with respect to its
advertising or promotional activities or
materials, that the resold goods and services are
in any way associated with or originated from the
other or any of its affiliates. Nothing in this
paragraph shall prevent either Party from
truthfully describing the network elements it uses
to provide service to its end users, provided
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it does not represent the network elements as
originating from the other Party or its
affiliates.
(A)3.9.6 For purposes of resale only and notwithstanding
the above, unless otherwise prohibited by USW
pursuant to an applicable provision herein,
RESELLER may use the phrase "RESELLER is a
reseller of U S WEST Communications, services"
(the "Authorized Phrase") in RESELLER's printed
materials provided:
(A)3.9.6.1 The Authorized Phrase is not used in
connection with any goods or services
other than USW services resold by
RESELLER.
(A)3.9.6.2 RESELLER's use of the Authorized
Phrase does not cause end users to
believe that RESELLER is USW.
(A)3.9.6.3 RESELLER may not use the U S WEST
logo. The Authorized Phrase, when
displayed, appears only in text form
with all letters being the same font
and point size. The point size of the
Authorized Phrase shall be no greater
than one fourth the point size of the
smallest use of RESELLER's name and in
no event shall exceed 8 point size.
(A)3.9.6.4 RESELLER shall provide all printed
materials using the Authorized Phrase
to USW for its prior written approval.
(A)3.9.6.5 If USW determines that RESELLER's use
of the Authorized Phrase causes end
user confusion, USW may immediately
terminate RESELLER's right to use the
Authorized Phrase.
(A)3.9.6.6 Upon termination of RESELLER's right
to use the Authorized Phrase or
termination of this Agreement, all
permission or right to use the
Authorized Phrase shall immediately
cease to exist and RESELLER shall
immediately cease any and all such use
of the Authorized Phrase. RESELLER
shall either promptly return to USW or
destroy all materials in its
possession or control displaying the
Authorized Phrase.
(A)3.9.7 RESELLER acknowledges the value of the marks "U S
WEST" and "U S WEST Communications" (the "Marks")
and the goodwill associated therewith and
acknowledges that such goodwill is a property
right belonging to U S WEST, Inc. and USW
respectively (the "Owners"). RESELLER recognizes
that nothing contained in this Agreement is
intended as an assignment or grant to RESELLER of
any right, title or interest in or to the Marks
and that this Agreement does not confer any right
or license to grant sublicenses or permission to
third parties to use the Marks and is not
assignable.
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RESELLER will do nothing inconsistent with the
Owner's ownership of the Marks, and all rights, if
any, that may be acquired by use of the Marks
shall inure to the benefit of the Owners. RESELLER
will not adopt, use (other than as authorized
herein), register or seek to register any mark
anywhere in the world which is identical or
confusingly similar to the Marks or which is so
similar thereto as to constitute a deceptive
colorable imitation thereof or to suggest or imply
some association, sponsorship, or endorsement by
the Owners. The Owners make no warranties
regarding ownership of any rights in or the
validity of the Marks.
(A)3.10 WARRANTIES
NOTWITHSTANDING ANY OTHER PROVISION OF THIS AGREEMENT, THE
PARTIES AGREE THAT NEITHER PARTY HAS MADE, AND THAT THERE DOES
NOT EXIST, ANY WARRANTY, EXPRESS OR IMPLIED, INCLUDING BUT NOT
LIMITED TO WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A
PARTICULAR PURPOSE.
(A)3.11 ASSIGNMENT
(A)3.11.1 Neither Party may assign or transfer (whether by
operation of law or otherwise) this Agreement (or
any rights or obligations hereunder) to a third
party without the prior written consent of the
other Party. Notwithstanding the foregoing, either
Party may assign or transfer this Agreement to a
corporate affiliate or an entity under its common
control; however, if RESELLER's assignee or
transferee has an interconnection agreement with
USW, no assignment or transfer of this Agreement
shall be effective without the prior written
consent of USW. Such consent shall include
appropriate resolutions of conflicts and
discrepancies between the assignee's or
transferee's interconnection agreement and this
Agreement. Any attempted assignment or transfer
that is not permitted is void AB INITIO. Without
limiting the generality of the foregoing, this
Agreement shall be binding upon and shall inure
to the benefit of the Parties' respective
successors and assigns.
(A)3.11.2 Without limiting the generality of the foregoing
subsection, any merger, dissolution, consolidation
or other reorganization of RESELLER, or any sale,
transfer, pledge or other disposition by RESELLER
of securities representing more than 50% of the
securities entitled to vote in an election of
RESELLER's board of directors or other similar
governing body, or any sale, transfer, pledge or
other disposition by RESELLER of substantially all
of its assets, shall be deemed a transfer of
control. If any entity, other than RESELLER,
involved in such merger, dissolution,
consolidation, reorganization, sale, transfer,
pledge or other disposition of RESELLER has an
interconnection agreement with USW, the Parties
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agree that only one agreement, either this
Agreement or the interconnection agreement of the
other entity, will remain valid. All other
interconnection agreements will be terminated. The
Parties agree to work together to determine which
interconnection agreement should remain valid and
which should terminate. In the event the Parties
cannot reach agreement on this issue, the issue
shall be resolved through the Dispute Resolution
process contained in this Agreement.
(A)3.12 DEFAULT
If either Party defaults in the payment of any amount due
hereunder, or if either Party violates any other material
provision of this Agreement, and such default or violation
shall continue for thirty (30) calendar days after written
notice thereof, the other Party may seek relief in accordance
with the Dispute Resolution provision of this Agreement. The
failure of either Party to enforce any of the provisions of
this Agreement or the waiver thereof in any instance shall not
be construed as a general waiver or relinquishment on its part
of any such provision, but the same shall, nevertheless, be
and remain in full force and effect.
(A)3.13 DISCLAIMER OF AGENCY
Except for provisions herein expressly authorizing a Party to
act for another, nothing in this Agreement shall constitute a
Party as a legal representative or agent of the other Party,
nor shall a Party have the right or authority to assume,
create or incur any liability or any obligation of any kind,
express or implied, against or in the name or on behalf of the
other Party unless otherwise expressly permitted by such other
Party. Except as otherwise expressly provided in this
Agreement, no Party undertakes to perform any obligation of
the other Party whether regulatory or contractual, or to
assume any responsibility for the management of the other
Party's business.
(A)3.14 NONDISCLOSURE
(A)3.14.1 All information, including but not limited to
specifications, microfilm, photocopies, magnetic
disks, magnetic tapes, drawings, sketches, models,
samples, tools, technical information, data,
employee records, maps, financial reports, and
market data, (i) furnished by one Party to the
other Party dealing with end user specific,
facility specific, or usage specific information,
other than end user information communicated for
the purpose of providing directory assistance or
publication of directory database, or (ii) in
written, graphic, electromagnetic, or other
tangible form and marked at the time of delivery
as "Confidential" or "Proprietary", or (iii)
communicated and declared to the receiving Party
at the time of delivery, or by written notice
given to the receiving Party within ten (10)
calendar days after delivery, to be "Confidential"
or "Proprietary" (collectively referred to as
"Proprietary Information"), shall remain the
property of the
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disclosing Party. A Party who receives Proprietary
Information via an oral communication may request
written confirmation that the material is
Proprietary Information. A Party who delivers
Proprietary Information via an oral communication
may request written confirmation that the Party
receiving the information understands that the
material is Proprietary information.
(A)3.14.2 Upon request by the disclosing Party, the
receiving Party shall return all tangible copies
of Proprietary Information, whether written,
graphic or otherwise, except that the receiving
Party may retain one copy for archival purposes.
(A)3.14.3 Each Party shall keep all of the other Party's
Proprietary Information confidential and shall use
the other Party's Proprietary Information only in
connection with this Agreement. Neither Party
shall use the other Party's Proprietary
Information for any other purpose except upon such
terms and conditions as may be agreed upon between
the Parties in writing.
(A)3.14.4 Unless otherwise agreed, the obligations of
confidentiality and nonuse set forth in this
Agreement do not apply to such Proprietary
Information as:
(A)3.14.4.1 was at the time of receipt already
known to the receiving Party free of
any obligation to keep it confidential
evidenced by written records prepared
prior to delivery by the disclosing
Party; or
(A)3.14.4.2 is or becomes publicly known through
no wrongful act of the receiving
Party; or
(A)3.14.4.3 is rightfully received from a third
person having no direct or indirect
secrecy or confidentiality obligation
to the disclosing Party with respect
to such information; or
(A)3.14.4.4 is independently developed by an
employee, agent, or contractor of the
receiving Party which individual is
not involved in any manner with the
provision of services pursuant to the
Agreement and does not have any direct
or indirect access to the Proprietary
Information; or
(A)3.14.4.5 is disclosed to a third person by the
disclosing Party without similar
restrictions on such third person's
rights; or
(A)3.14.4.6 is approved for release by written
authorization of the disclosing Party;
or
(A)3.14.4.7 is required to be made public by the
receiving Party pursuant to applicable
law or regulation provided that
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Part A
General Terms
the receiving Party shall give
sufficient notice of the requirement
to the disclosing Party to enable the
disclosing Party to seek protective
orders.
(A)3.14.5 Nothing herein is intended to prohibit a Party
from supplying factual information about its
network and Telecommunications Services on or
connected to its network to regulatory agencies
including the Federal Communications Commission
and the Commission so long as any confidential
obligation is protected.
(A)3.14.6 Effective Date Of This Section. Notwithstanding
any other provision of this Agreement, the
Proprietary Information provisions of this
Agreement shall apply to all information furnished
by either Party to the other in furtherance of the
purpose of this Agreement, even if furnished
before the date of this Agreement.
(A)3.15 SURVIVAL
Any liabilities or obligations of a Party for acts or
omissions prior to the cancellation or termination of this
Agreement; any obligation of a Party under the provisions
regarding indemnification, Confidential or Proprietary
Information, limitations of liability, and any other
provisions of this Agreement which, by their terms, are
contemplated to survive (or to be performed after) termination
of this Agreement, shall survive cancellation or termination
hereof.
(A)3.16 DISPUTE RESOLUTION
(A)3.16.1 If any claim, controversy or dispute between the
Parties, their agents, employees, officers,
directors or affiliated agents should arise, and
the Parties do not resolve it in the ordinary
course of their dealings (the "Dispute"), then it
shall be resolved in accordance with the dispute
resolution process set forth in this Section. Each
notice of default, unless cured within the
applicable cure period, shall be resolved in
accordance herewith.
(A)3.16.2 At the written request of either Party, and prior
to any other formal dispute resolution
proceedings, each Party shall designate an officer
level employee, at no less than the vice president
level, to review, meet, and negotiate, in good
faith, to resolve the Dispute. The Parties intend
that these negotiations be conducted by
non-lawyer, business representatives, and the
locations, format, frequency, duration, and
conclusions of these discussions shall be at the
discretion of the representatives. By mutual
agreement, the representatives may use other
procedures, such as mediation, to assist in these
negotiations. The discussions and correspondence
among the representatives for the purposes of
these negotiations shall be treated as
Confidential Information developed for purposes of
settlement, and shall be exempt from discovery and
production, and
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Part A
General Terms
shall not be admissible in any subsequent
arbitration or other proceedings without the
concurrence of both of the Parties.
(A)3.16.3 If the vice-presidential level representatives
have not reached a resolution of the Dispute
within thirty (30) calendar days after the matter
is referred to them, then either Party may demand
that the Dispute be settled by arbitration. Such
an arbitration proceeding shall be conducted by a
single arbitrator, knowledgeable about the
telecommunications industry. The arbitration
proceedings shall be conducted under the then
current rules of the American Arbitration
Association ("AAA"). The Federal Arbitration Act,
9 U.S.C. Sections 1-16, not state law, shall
govern the arbitrability of the Dispute. The
arbitrator shall not have authority to award
punitive damages. All expedited procedures
prescribed by the AAA rules shall apply. The
arbitrator's award shall be final and binding and
may be entered in any court having jurisdiction
thereof. Each Party shall bear its own costs and
attorneys' fees, and shall share equally in the
fees and expenses of the arbitrator. The
arbitration proceedings shall occur in the Denver,
Colorado metropolitan area. It is acknowledged
that the Parties, by mutual, written agreement,
may change any of these arbitration practices for
a particular, some, or all Dispute(s).
(A)3.16.4 Should it become necessary to resort to court
proceedings to enforce a Party's compliance with
the dispute resolution process set forth herein,
and the court directs or otherwise requires
compliance herewith, then all of the costs and
expenses, including its reasonable attorney fees,
incurred by the Party requesting such enforcement
shall be reimbursed by the non-complying Party to
the requesting Party.
(A)3.16.5 No Dispute, regardless of the form of action,
arising out of this Agreement, may be brought by
either Party more than two (2) years after the
cause of action accrues.
(A)3.17 CONTROLLING LAW
This Agreement was negotiated by the Parties in accordance
with the terms of the Act and the laws of the state where
service is provided hereunder. It shall be interpreted solely
in accordance with the terms of the Act and the applicable
state law in the state where the service is provided.
(A)3.18 JOINT WORK PRODUCT
This Agreement is the joint work product of the Parties and
has been negotiated by the Parties and their respective
counsel and shall be fairly interpreted in accordance with its
terms and, in the event of any ambiguities, no inferences
shall be drawn against either Party.
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General Terms
(A)3.19 RESPONSIBILITY FOR ENVIRONMENTAL CONTAMINATION
Neither Party shall be liable to the other for any costs
whatsoever resulting from the presence or release of any
environmental hazard that either Party did not introduce to
the affected work location. Both Parties shall defend and hold
harmless the other, its officers, directors and employees from
and against any losses, damages, claims, demands, suits,
liabilities, fines, penalties and expenses (including
reasonable attorneys' fees) that arise out of or result from
(i) any environmental hazard that the indemnifying Party, its
contractors or agents introduce to the work locations or (ii)
the presence or release of any environmental hazard for which
the indemnifying Party is responsible under applicable law.
(A)3.20 NOTICES
Any notices required by or concerning this Agreement shall be
sent to the Parties at the addresses shown below:
USW
Director Interconnection Compliance
1801 California, Room 2410
Denver, CO 80202
With copy to:
U S WEST Law Department
Attention: General Counsel, Interconnection
1801 California Street, 51st Floor
Denver, CO 80202
RESELLER
John Duffy
Peter Mills
3 Burlington Woods Drive
4th Floor
Burlington, MA 01803
Phone: 781-229-9599, ext. 136
Fax: 781-229-9499
E-mail: [email protected]
Each Party shall inform the other of any changes in the above
addresses.
(A)3.21 RESPONSIBILITY OF EACH PARTY
Each Party is an independent contractor, and has and hereby
retains the right to exercise full control of and supervision
over its own performance of its obligations under this
Agreement and retains full control over the employment,
direction, compensation and discharge of all employees
assisting in the performance of such obligations. Each Party
will be solely responsible for all matters relating to payment
of such employees, including compliance with social security
taxes, withholding taxes and all other regulations governing
such matters. Each Party will be solely responsible for proper
handling, storage, transport and disposal at its
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Part A
General Terms
own expense of all (i) substances or materials that it or its
contractors or agents bring to, create or assume control over
at work locations or, (ii) waste resulting therefrom or
otherwise generated in connection with its or its contractors'
or agents' activities at the work locations. Subject to the
limitations on liability and except as otherwise provided in
this Agreement, each Party shall be responsible for (i) its
own acts and performance of all obligations imposed by
applicable law in connection with its activities, legal
status and property, real or personal and, (ii) the acts of
its own affiliates, employees, agents and contractors during
the performance of that Party's obligations hereunder.
(A)3.22 NO THIRD PARTY BENEFICIARIES
This Agreement does not provide and shall not be construed to
provide third parties with any remedy, claim, liability,
reimbursement, cause of action, or other privilege.
(A)3.23 REFERENCED DOCUMENTS
All references to Sections shall be deemed to be references to
Sections of this Agreement unless the context shall otherwise
require. Whenever any provision of this Agreement refers to a
technical reference, technical publication, RESELLER practice,
USW practice, any publication of telecommunications industry
administrative or technical standards, or any other document
specifically incorporated into this Agreement, it will be
deemed to be a reference to the most recent version or edition
(including any amendments, supplements, addenda, or
successors) of such document that is in effect, and will
include the most recent version or edition (including any
amendments, supplements, addenda, or successors) of each
document incorporated by reference in such a technical
reference, technical publication, RESELLER practice, USW
practice, or publication of industry standards. USW will not
implement changes in the most recent version or edition in the
documents described above when such changes are optional. The
existing configuration of either Party's network may not be in
immediate compliance with the latest release of applicable
referenced documents.
(A)3.24 PUBLICITY
Neither Party shall publish or use any publicity materials
with respect to the execution and delivery or existence of
this Agreement without the prior written approval of the other
Party.
(A)3.25 AMENDMENT
RESELLER and USW may mutually agree to amend this Agreement in
writing. Since it is possible that amendments to this
Agreement may be needed to fully satisfy the purposes and
objectives of this Agreement, the Parties agree to work
cooperatively, promptly and in good faith to negotiate and
implement any such additions, changes and corrections to this
Agreement.
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Part A
General Terms
(A)3.26 EXECUTED IN COUNTERPARTS
This Agreement may be executed in any number of counterparts,
each of which shall be deemed an original; but such
counterparts shall together constitute one and the same
instrument.
(A)3.27 HEADINGS OF NO FORCE OR EFFECT
The headings of Sections of this Agreement are for convenience
of reference only, and shall in no way define, modify or
restrict the meaning or interpretation of the terms or
provisions of this Agreement.
(A)3.28 REGULATORY APPROVAL
The Parties understand and agree that this Agreement will be
filed with the Commission for approval. In the event the
Commission rejects any portion of this Agreement, renders it
inoperable or creates an ambiguity that requires further
amendment, the Parties agree to meet and negotiate in good
faith to arrive at a mutually acceptable modification.
(A)3.29 COMPLIANCE
Each Party shall comply with all federal, state, and local
laws, rules and regulations applicable to its performance
under this Agreement. Without limiting the foregoing, USW and
RESELLER agree to take all action necessary to keep and
maintain in full force and effect all permits, licenses,
certificates, insurance, and other authorities needed to
perform their respective obligations hereunder.
(A)3.30 COMPLIANCE WITH THE COMMUNICATIONS ASSISTANCE FOR LAW
ENFORCEMENT ACT OF 1994 ("CALEA")
Each Party represents and warrants that any equipment,
facilities or services provided to the other Party under this
Agreement comply with CALEA. Each Party shall indemnify and
hold the other Party harmless from any and all penalties
imposed upon the other Party for such noncompliance and shall
at the non-compliant Party's sole cost and expense, modify or
replace any equipment, facilities or services provided to the
other Party under this Agreement to ensure that such
equipment, facilities and services fully comply with CALEA.
(A)3.31 COOPERATION
The Parties agree that this Agreement involves the provision
of USW services in ways such services were not previously
available and the introduction of new processes and procedures
to provide and bill such services. Accordingly, the Parties
agree to work jointly and cooperatively in testing and
implementing processes for pre-ordering, ordering,
maintenance, provisioning and billing and in reasonably
resolving issues which result from such implementation on a
timely basis. Electronic processes and procedures are
addressed in Part D of this Agreement.
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Part A
General Terms
(A)3.32 AVAILABILITY OF OTHER AGREEMENTS
With regard to the availability of other agreements, the Parties agree
that the provisions of Section 252(i) of the Act shall apply, including
state and federal, Commission and court interpretive regulations and
decisions in effect from time to time.
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Part
B Resale
PART B - RESALE
(B)1. DESCRIPTION
(B)1.1 Pursuant to the Act and this Part B, USW shall offer
for resale at wholesale rates any Telecommunications
Services it provides to end users who are not
Telecommunications Carriers including terms and
conditions (except prices) in the USW Tariffs, where
applicable. RESELLER may obtain intraLATA toll
service from USW for resale or RESELLER has the
option to self-provision intraLATA toll or to obtain
intraLATA toll for resale from another provider.
(B)1.2 The Parties agree that certain USW services are not
available for resale under this Agreement and certain
other USW services are available for resale but not
at a discount, as identified in Part E or in
individual state Tariffs. The availability of
services and applicable discounts identified in
Part E or in individual Tariffs are subject to change
pursuant to the Rates and Charges sub-section of this
Resale section.
(B)2. TERMS AND CONDITIONS
(B)2.1 Basic Exchange Telecommunications Service, Basic
Exchange Features, Private Line Service, Frame Relay
Service and intraLATA Toll may be resold only for
their intended or disclosed use and only to the same
class of end user to which USW sells such services
(e.g., residence service may not be resold to
business end users). Service provided directly to
RESELLER for its own use, such as administrative
services, must be identified by RESELLER and RESELLER
must pay the full retail rates and prices for such
services.
(B)2.2 USW shall provide to RESELLER Telecommunications
Services for resale that are at least equal in
quality, and in substantially the same time and
manner that USW provides these services to others,
including other Resellers and end users, and in
accordance with any applicable Commission service
quality standards, including standards the Commission
may impose pursuant to Section 252 (e)(3) of the Act.
(B)2.3 In the event that there are existing agreements
between RESELLER and USW for resale under USW retail
Tariff discounts, RESELLER may elect to continue to
obtain services for resale under the existing
agreements and retail Tariff discounts or RESELLER
may elect to terminate such existing agreements and
obtain such services under this Agreement with the
associated wholesale discount specified in Part E of
this Agreement.
(B)2.4 In accordance with the Act, RESELLER will provide the
date it will begin to offer Telecommunications
Services to residential and business end users.
RESELLER will provide a two (2) year forecast within
ninety (90) calendar days of signing this Agreement
The forecast shall be updated and provided to USW on
a annual basis or as requested by USW. Each forecast
will provide:
- The date service will be offered (by city and/or
state)
- The type and quantity of service(s) which will be
offered
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Part B
Resale
- RESELLER's anticipated number of service orders
- Name of RESELLER's key contact personnel
The information provided pursuant to this paragraph shall be
considered Proprietary Information under the Nondisclosure
Section of this Agreement.
(B)2.5 RESELLER may not reserve blocks of USW telephone numbers,
except as allowed by Tariffs.
(B)2.6 USW will accept at no charge one primary listing for each main
telephone number belonging to RESELLER's end user based on end
user information provided to USW by RESELLER. USW will place
RESELLER's listings in USW's directory listing database for
directory assistance purposes. Additional terms and conditions
with respect to directory listings are described in Part C of
this Agreement.
(B)2.7 USW shall provide to RESELLER, for RESELLER's end users,
E911/911 call routing to the appropriate Public Safety
Answering Point ("PSAP"). USW shall not be responsible for any
failure of RESELLER to provide accurate end user information
for listings in any databases in which USW is required to
retain and/or maintain end user information. USW shall
provide and validate RESELLER's end user information to the
Automatic Location Identification/Database Management System
("ALI/DMS"). USW shall use its standard process to update and
maintain, on the same schedule that it uses for its end users,
RESELLER's end user service information in the ALI/DMS used
to support E911/911 services. USW assumes no liability for the
accuracy of information provided by RESELLER.
(B)2.8 If USW provides and RESELLER accepts operator services,
directory assistance, and intraLATA long distance as a part of
the resold line, it will be offered with standard USW
branding. RESELLER is not permitted to alter the branding of
these services in any manner when the services are a part of
the resold line without the prior written approval of USW
However, at the request of RESELLER and where technically
feasible, USW will rebrand operator services and directory
assistance in RESELLER's name, provided the charges associated
with such rebranding are paid by RESELLER.
(B)2.9 RESELLER shall designate the Primary Interexchange Carrier
(PIC) assignments on behalf of its end users for interLATA
services and intraLATA services.
(B)2.10 When end users switch from USW to RESELLER, or to RESELLER
from any other Reseller, and if they do not change their
service address to an address served by a different Central
Office, such end users shall be permitted to retain their
current telephone numbers if they so desire. USW shall take no
action to prevent RESELLER end users from retaining their
current telephone numbers.
(B)2.11 RESELLER is liable for all fraud associated with service to
its end-users and accounts. USW takes no responsibility, will
not investigate, and will make no adjustments to RESELLER's
account in cases of fraud unless such fraud is the
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Part B
Resale
result of any intentional act or gross negligence of USW.
Notwithstanding the above, if USW becomes aware of potential
fraud with respect to RESELLER's accounts, USW will promptly
inform RESELLER and, at the direction of RESELLER, take
reasonable action to mitigate the fraud where such action is
possible.
(B)2.12 Resold services are available only where facilities currently
exist and are capable of providing such services without
construction of additional facilities or enhancement of
existing facilities. However, if RESELLER requests that
facilities be constructed or enhanced to provide resold
services, USW will review such requests on a case-by-case
basis and determine if it is economically feasible for USW to
build or enhance facilities. If USW decides to build or
enhance the requested facilities, USW will develop and provide
to RESELLER a price quote for the construction. Construction
charges associated with resold services will be applied in the
same manner that construction charges apply to USW's retail
end users. If the quote is accepted, RESELLER will be billed
the quoted price and construction will commence after receipt
of payment.
(B)2.13 In the event USW terminates the provisioning of any resold
services to RESELLER for any reason, including RESELLER's
non-payment of charges, RESELLER shall be responsible for
providing any and all necessary notice to its end users of the
termination. In no case shall USW be responsible for providing
such notice to RESELLER's end users. USW will provide notice
to RESELLER of USW's termination of a resold service on a
timely basis consistent with Commission rules and notice
requirements.
(B)2.14 The underlying network provider of a resold service shall be
entitled to receive, from the purchaser of Switched Access,
the appropriate access charges pursuant to its then effective
Switched Access Tariff.
(B)2.15 Centrex terms and conditions related to calculation of charges
for, and provisioning of common blocks, station lines, and
optional features will be based on the Centrex definition of a
system and a Reseller's serving location.
(B) 2.15.1 Where a common block is applicable, a
Centrex system is defined by a single common block
or multiple common blocks for a single RESELLER
within a single Central Office switching system. A
common block defines the dialing plan for intercom
calling, access to Public Switched Network and/or
private facilities, station line and system
restrictions and feature access arrangements and
functionality. RESELLER may purchase multiple
common blocks within a single Central Office
switching system when RESELLER requires different
dialing plans, feature access arrangements and
station line or system restrictions within a
single system operation. A Reseller with multiple
common blocks within the same Central Office
switch may have Network Access Register and
Private
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Part B
Resale
Facility trunk groups aggregated across multiple
common blocks. Centrex system based optional
features (i.e. Automatic Route Selection) may not
be aggregated across multiple common blocks. A
Centrex system must provide station lines to at
least one location and may provide station lines
to multiple locations.
(B)2.15.2 Centrex station lines are provisioned and charges
are calculated based on serving Reseller's
location. A location is defined as the site where
USW facilities (cable plant from the serving
Central Office switch) meet Reseller facilities
(inside wire). In a multi-tenant building, USW may
bring facilities directly to a single point of
interconnection with Reseller facilities,
typically in a basement equipment room, which
would be considered a single location for this
multi-tenant building. Should USW bring service to
multiple floors or offices within a multi-tenant
building each floor or office with a separate
Reseller facilities termination point is
considered a location. Multiple buildings within
contiguous property (campus) will be provisioned
and billed as a single location. Contiguous
property is defined as property owned or leased by
a single end user and not separated by public
thoroughfare, river or railroad rights-of-way.
Property will be considered contiguous when
connected via connecting passageways or conduit
acceptable to USW for its facilities. A Reseller
with Centrex station lines from multiple Central
Office switching systems, within the same USW Wire
Center, and provisioned to the same location will
not be charged for service or provisioned as if
service was originating from a single Centrex
system. For example, station lines may only be
aggregated from a single Centrex Reseller system
to a single Reseller serving location for rating
purposes. RESELLER may not specify a USW Central
Office as a RESELLER location for termination of
Centrex station lines.
(B)2.16 Private Line Service used for Special Access is available for
resale but not at a discount.
(B)2.17 DSL Service (such as Megabit Service) is available for resale
by RESELLER out of USW's Interstate Tariff, but at no
wholesale discount.
(B)3. RATES AND CHARGES
(B)3.1 The Telecommunications Services identified in Part E are
available for resale at the wholesale discount percentage
shown in Part E. Telecommunications Services available for
resale but excluded from the wholesale pricing arrangement in
this Agreement are available at the retail Tariff rates.
(B)3.2 The Customer Transfer Charges (CTC) as specified in Part E
apply when transferring services to RESELLER.
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Part B
Resale
(B)3.3 A Subscriber Line Charge (SLC), or any subsequent federally
mandated charge to end users, will continue to be paid by
RESELLER without discount for each local exchange line resold
under this Agreement. All federal and state rules and
regulations associated with SLC as found in the applicable
Tariffs also apply.
(B)3.4 RESELLER will pay to USW the PIC change charge without
discount for RESELLER end user changes of interexchange or
intraLATA carriers. Any change in RESELLER's end users'
interexchange or intraLATA carrier must be requested by
RESELLER on behalf of its end user.
(B)3.5 RESELLER agrees to pay USW when its end user activates any
services or features that are billed on a per use or per
activation basis subject to the applicable discount in Part E
as such may be amended pursuant to this Section (e.g.,
continuous redial, last call return, call back calling, call
trace, etc.).
(B)3.6 Product specific non-recurring charges, as set forth in USW's
applicable Tariffs will apply when additional lines, trunks or
circuits are added or when the end user adds features or
services to existing lines or trunks.
(B)3.7 Miscellaneous charges, if applicable, will be consistent with
charges for equivalent services ordered by USW end users.
(B)3.8 The wholesale discount rates (the "Rates") in Part E were
established in the Docket Nos. 96-310-TC/97-334-TC, "In the
Matter of the Consideration of the adoption of a rule
concerning costing methodologies" and "In the Matter of the
Implementation of new rules related to the Rural, High Cost,
and Low Income components of the New Mexico Universal Service
Fund."
(B)3.9 If the Rates or the applicability of the Rates to the services
in Part E are changed by a nonappealable administrative or
judicial order following a decision on rehearing or appeal or
other similar proceeding, such changed rate(s) will be
available to RESELLER effective as of the date of the order.
No true-up of the Rates will occur unless ordered as a part of
the nonappealable administrative or judicial order.
(B)3.10 USW shall have a reasonable time necessary to make the
system changes necessary to implement and bill the changed
rates.
(B)3.11 If the resold services are purchased pursuant to Tariffs and
the Tariff rates change, charges billed to RESELLER for such
services will be based upon the new Tariff rates less the
applicable wholesale discount, if any, as agreed to herein or
as established by Commission order and/or resale Tariff. The
new rate will be effective upon the Tariff effective date.
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Part B
Resale
(B)4. ORDERING PROCESS
(B)4.1 RESELLER, or RESELLER's agent, shall act as the single point
of contact for its end users' service needs, including without
limitation, sales, service design, order taking, provisioning,
change orders, training, maintenance, trouble reports, repair,
post-sale servicing, billing, collection and inquiry. RESELLER
shall inform its end users that they are end users of
RESELLER for resold services. RESELLER's end users contacting
USW will be instructed to contact RESELLER; however, nothing
in this Agreement, except as provided below, shall be deemed
to prohibit USW from discussing its products and services with
RESELLER's end users who call USW
(B)4.2 RESELLER shall transmit to USW all information necessary for
the ordering (billing, listing and other information),
installation, repair, maintenance and post-installation
servicing according to USW's standard procedures, as
described in the USW Interconnect & Resale Resource Guide
available on USW's Web site. Information shall be provided
using USW's; designated Local Service Request (LSR) format
which may include the LSR, end user and resale forms. RESELLER
must send USW complete and accurate end user listing
information for Directory Assistance, Directory Listings, and
911 Emergency Services using USW's designated resale directory
listing order forms. When USW's end user or the end user's new
service provider orders the discontinuance of the end user's
existing service in anticipation of moving to another service
provider, USW will render its closing bill to the end user
effective with the disconnection. If another service provider,
RESELLER's end user or RESELLER requests that service be
discontinued from RESELLER and subsequently USW's service to
RESELLER is discontinued USW will issue a bill to RESELLER for
that portion of the service provided to RESELLER.. USW will
notify RESELLER by FAX, OSS interface or other agreed upon
processes, in accordance with the OSS section of this
Agreement when an end user moves to another service provider.
USW will not provide RESELLER with the name of the other
service provider selected by the end user.
(B)4.3 RESELLER shall provide USW and USW shall provide RESELLER with
points of contact for order entry, problem resolution and
repair of the resold services.
(B)4.4 Prior to placing orders on behalf of the end user, RESELLER
shall be responsible for obtaining and have in its possession
Proof of Authorization ("POA"), as set forth in Part A of this
Agreement.
(B)4.5 Due date interval standards are addressed in the interconnect
& Resale Resource Guide.
(B)4.6 Firm Order Confirmation (FOC) guidelines are addressed in the
Interconnect & Resale Resource Guide.
(B)4.7 USW will provide completion notification that is equal to that
provided to USW end users.
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<PAGE>
Part B
Resale
(B)4.8 USW will provide Design Layout Records when requested under
terms and conditions consistent with USW end users.
(B)4.9 USW will handle jeopardy orders based upon the same
performance standards and criteria that USW provides to
itself.
(B)5. BILLING
(B)5.1 USW shall bill RESELLER and RESELLER is responsible for all
applicable charges for the resold services as provided herein.
RESELLER shall also be responsible for all Tariffed charges
and charges separately identified in this Agreement associated
with services that RESELLER resells to an end user under this
Agreement.
(B)5.2 USW shall provide RESELLER, on a monthly basis, within 7-10
calendar days of the last day of the most recent billing
period, in an agreed upon standard electronic billing format
as detailed in Part D, billing information including (1) a
summary bill, and (2) individual end user sub-account
information consistent with the samples available for RESELLER
review.
(B)6. MAINTENANCE AND REPAIR
RESELLER and USW will employ the procedures for handling misdirected
repair calls as specified in the Maintenance and Repair Section of this
Agreement.
(B)6.1 USW will maintain facilities and equipment used to provide
RESELLER resold services. RESELLER or its end user may not
rearrange, move, disconnect, or attempt to repair USW
facilities or equipment, other than by connection or
disconnection to any interface between USW and the end user,
without written consent of USW.
(B)6.2 Maintenance and repair processes are detailed in the
Maintenance and Repair Section of this Agreement.
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<PAGE>
Part C
Directory Listings
PART C - WHITE PAGES DIRECTORY LISTINGS
(C)1. DESCRIPTION
White Pages Listings Service (Listings) consists of USW placing the names,
addresses and telephone numbers of RESELLER's end users in USW's listing
database, based on end user information provided to USW by RESELLER. USW
is authorized to use Listings in Directory Assistance (DA) and as noted
below.
(C)2. TERMS AND CONDITIONS
(C)2.1 RESELLER will provide in standard, mechanized format, and USW
will accept at no charge, one primary listing for each main
telephone number belonging to RESELLER's end users. Primary
listings for RESELLER will include the end user Listings for
any resold services or wireless services and are further
defined in USW's general exchange Tariffs. RESELLER will be
charged for premium and privacy listings, (e.g., additional,
foreign, cross reference, informational, etc.), at USW's
general exchange listing Tariff rates, less the wholesale
discount. If RESELLER utilizes Remote Call Forwarding for
local number portability, RESELLER can list only one number
without charge - either the end user's original telephone
number or RESELLER-assigned number. The standard discounted
rate for an additional listing applies to the other number.
(C)2.2 USW will furnish RESELLER the Listings format specifications.
All manual requests are considered a project and require
coordination between RESELLER and USW to determine time
frames.
(C)2.3 RESELLER grants USW a non-exclusive license to incorporate
Listings information into its Directory Assistance database.
With this license USW will incorporate Listings in the DA
database.
(C)2.4 No prior authorization is needed for USW to release Listings
to directory publishers or other third parties. USW will
incorporate Listings information in all existing and future
directory assistance applications developed by USW. RESELLER
authorizes USW to sell and otherwise make Listings available
to directory publishers. Listings shall not be provided or
sold in such a manner as to segregate end users by carrier.
USW will not charge for updating and maintaining the Listings
database. RESELLER will not receive compensation from USW for
any sale of Listings by USW.
(C)2.5 To the extent that state Tariffs limit USW's liability with
regard to Listings, the applicable state Tariff(s) is
incorporated herein and supersedes the Limitation of Liability
section of this Agreement with respect to Listings only.
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Part C
Directory Listings
(C)2.6 USW is responsible for maintaining Listings, including
entering, changing, correcting, rearranging and removing
Listings in accordance with RESELLER orders. USW will take
reasonable steps in accordance with industry practices to
accommodate non-published and non-listed Listings provided
that RESELLER has supplied USW the necessary privacy
indicators on such Listings.
(C)2.7 USW will include RESELLER Listings in USW's Directory
Assistance service to ensure that callers to USW's Directory
Assistance service have non-discriminatory access to
RESELLER's Listings.
(C)2.8 USW will ensure RESELLER Listings provided to USW are included
in the white pages directory published on USW's behalf.
(C)2.9 RESELLER agrees to provide to USW its end user names,
addresses and telephone numbers in a standard mechanized
format, as specified by USW.
(C)2.10 RESELLER will supply its ACNA/CIC or CLCC/OCN, as
appropriate, with each order to provide USW the means of
identifying Listings ownership.
(C)2.11 Upon request by USW, RESELLER shall submit proof to USW, of
authorization from each end user for which RESELLER submits a
change in end user's Listing.
(C)2.12 RESELLER represents and warrants the end user information
provided to USW is accurate and correct. RESELLER further
represents and warrants that it has reviewed all Listings
provided to USW, including end user requested restrictions on
use such as non-published and non-listed. RESELLER shall be
solely responsible for knowing and adhering to state laws or
rulings regarding Listings (e.g., no solicitation requirements
in the states of Arizona and Oregon, privacy requirements in
Colorado), and for supplying USW with the applicable Listing
information.
(C)2.13 RESELLER is responsible for all dealings with, and on behalf
of, RESELLER's end users, including:
(C)2.13.1 All end user account activity, (e.g. end user
queries and complaints).
(C)2.13.2 All account maintenance activity, (e.g.,
additions, changes, issuance of orders for
Listings to USW).
(C)2.13.3 Determining privacy requirements and accurately
coding the privacy indicators for RESELLER's end
user information. If end user information provided
by RESELLER to USW does not contain a privacy
indicator, no privacy restrictions will apply.
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Part C
Directory Listings
(C)2.13.4 Any additional services requested by RESELLER's
end users.
Page 30
<PAGE>
Part D
Miscellaneous Provisions
PART D- MISCELLANEOUS PROVISIONS
(D)1. NETWORK SECURITY
(D)1.1 Protection of Service and Property - Each Party shall exercise
the same degree of care to prevent harm or damage to the other
Party and any third parties, its employees, agents or end
users, or their property as it employs to protect its own
personnel, end users and property, etc. Each Party shall
comply at all times with USW security and safety procedures
and requirements.
(D)1.2 Revenue Protection - USW shall make available to RESELLER all
present and future fraud prevention or revenue protection
features. These features include, but are not limited to
screening codes, and 900 numbers.
(D)1.3. Law Enforcement Interface - USW provides emergency assistance
to 911 centers and law enforcement agencies seven (7) days a
week/twenty-four (24) hours a day. Assistance includes, but is
not limited to release of 911 trace and subscriber
information; in-progress trace requests; establishing
emergency trace equipment, release of information from an
emergency trap/trace or *57 trace; requests for emergency
subscriber information; assistance to law enforcement agencies
in hostage/barricade situations, kidnappings, bomb threats,
extortion/scams, runaways and life threats.
(D)1.4 USW provides trap/trace, pen register and Title III
assistance directly to law enforcement, if such assistance is
directed by a court order. This service is provided during
normal business hours, Monday through Friday. Exceptions are
addressed in the above paragraph. The charges for these
services will be billed directly to the law enforcement
agency, without involvement of RESELLER, for any lines served
from USW Wire Centers or cross boxes.
(D)1.5 In all cases involving telephone lines served from USW Wire
Centers or cross boxes, USW will perform trap/trace Title III
and pen register assistance directly with law enforcement.
RESELLER will not be involved or notified of such actions, due
to non-disclosure court order considerations, as well as
timely response duties when law enforcement agencies are
involved. Exceptions to the above will be those cases, as yet
undetermined, where RESELLER must participate due to technical
reasons wherein its circuitry must be accessed or modified to
comply with law enforcement, or for legal reasons that may
evolve over time. RESELLER will provide USW with a 24 hour a
day, 7 days a week contact for processing such requests,
should they occur.
(D)2. ACCESS TO OPERATIONAL SUPPORT SYSTEMS (OSS)
(D)2.1 Description
(D)2.1.1 USW has developed and shall continue to provide
Operational Support Systems OSS interfaces using
electronic gateways. These gateways act as a
mediation or control point between RESELLER's
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Part D
Miscellaneous Provisions
and USW's OSS. These gateways provide security for
the interfaces, protecting the integrity of the
USW OSS and its databases. USW's OSS interfaces
have been developed to support Pre-ordering,
Ordering and Provisioning, Maintenance and Repair
and Billing. Included below is a description of
the products and functions supported by USW OSS
interfaces and the technology used by each. This
section describes the interfaces that USW has
developed and shall provide RESELLER. Additional
technical information and details shall be
provided by USW in training sessions and
documentation, such as the "Interconnect Mediated
Access User's Guide". USW will continue to make
improvements to the electronic interfaces as
technology evolves, providing notification to
RESELLER consistent with the provisions of this
Section.
(D)2.1.2 Through its electronic gateways, USW shall provide
RESELLER nondiscriminatory access to USW's
operational support systems for pre-ordering,
ordering and provisioning, maintenance and repair,
and billing for resale. For the pre-ordering,
ordering and provisioning of resold services, USW
shall provide RESELLER access to its OSS in
substantially the same time and manner as it
provides to itself.
(D)2.2 OSS Support for Pre-Ordering, Ordering and Provisioning
(D)2.2.1 LSR (Local Service Request) Ordering Process
(D)2.2.1.1 RESELLER shall use electronic
interfaces for orders placed using the
LSR Ordering Process for the services
it supports. The electronic interface
gateways include both the Electronic
Data Interchange (EDI) interface and
the Interconnect Mediated Access (IMA)
Graphical User Interface (GUI).
(D)2.2.1.2 The EDI interface provides a single
interface for Pre Order and Order
transactions from RESELLER to USW and
is transaction based rather than batch
based. The interface standards for EDI
are based upon the Order & Billing
Forum (OBF) Local Service Order
Guidelines (LSOG), the
Telecommunication Industry Forum
(TCIF) Customer Service Guideline and
the American National Standards
Institute/Accredited Standards
Committee (ANSI ASC) X12 with
exceptions as specified in the IMA and
EDI disclosure documents which are
provided in conjunction with the
implementation responsibilities
contained in this Section.
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(D)2.2.1.3 The IMA GUI also provides a single
interface for Pre Order and Order
transactions from RESELLER to USW and
is browser based The IMA GUI interface
is based on the LSOG and utilizes a
WEB standard technology, Hyper Text
Markup Language (HTML), JAVA, and the
Transmission Control Protocol/Internet
Protocol (TCP/IP) to transmit
messages.
(D)2.2.1.4 Functions
(D)2.2.1.4.1 Pre-ordering
Pre-Ordering refers to the set
of activities performed in
conjunction with placing an
order. Pre-order consists of the
following functions: validate
address, service availability,
review Customer Service Record
(CSR), check facility
availability, reserve telephone
numbers, and schedule an
appointment. The electronic
interface gateways provide
on-line capabilities to perform
these functions. Not all
functions apply to all products.
(D)2.2.1.4.1.1 Validate address will
verify the end user's address.
(D)2.2.1.1.4.1.2 Service
Availability will return
the list of (1) POTS
products and services
available in the Central
Office switch serving a
particular end user
address, which will
indicate to RESELLER,
among other things, which
products and services are
authorized for resale in
the Central Office switch
serving a particular end
user address and (2)
non switched-based
products and services that
RESELLER is authorized to
provide according to its
resale agreement with USW.
(D)2.2.1.1.4.1.3 Review Customer
Service Record (CSR) gives
RESELLER the ability to
request a display of local
exchange services and
features (CPNI) USW is
currently providing to an
end user.
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(D)2.2.1.4.1.4 Check Facility
Availability will provide
an indication of whether
existing facilities are
available or if new
facilities are required,
and if a technician must
be dispatched to provide
the facilities requested
at the end user's address.
This transaction does not
reserve facilities and
does not guarantee that
facilities will or will
not be available when the
order is submitted.
(D)2.2.1.4.1.5 Reserve Telephone
Numbers provides RESELLER
with the ability to select
an end user's telephone
number. The reservation
process is further divided
into telephone number
availability, selection,
exchange and return
functionality. Expiration
period for selection and
submission of Telephone
Number are:
- A period up to
thirty (30) minutes
in which to make a
telephone number
selection. If this
time limit is
exceeded, and no
attempt has been
made to select the
telephone numbers,
the telephone
numbers are sent
back to the OSS and
an error message is
displayed on the
LSR. A new query
will need to be
performed for
available telephone
numbers.
- When a telephone
number has been
reserved, there is a
twenty-four (24)
hour business period
that the telephone
number may be
included on an LSR.
If the time limit is
exceeded, the
telephone number is
returned to the OSS.
(D)2.2.1.4.1.6 Schedule
Appointment allows
RESELLER to retrieve a
calendar of available
appointments and to
reserve an appointment
date and time so that a
technician can be
dispatched for premises
and/or non-premises work.
(D)2.2.1.4.1.7 Expiration period
for selection and
submission of Appointment
Reservation are:
- A selection must be
made within a thirty
(30) minute period.
If an appointment
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Part D
Miscellaneous Provisions
has been selected
and the time limit
was exceeded, an
error message will
display. If the
error message
displays, an updated
list of available
appointments will
need to be
requested. If an
appointment has
already been
reserved for this
Purchase Order
Number, the
Appointment
Confirmation window
will be displayed
and will be
prepopulated with
confirmation number,
appointment date and
time, and after and
before times.
- Appointments are
reserved for a 24-
hour business
period. If the
appointment is not
attached to a
submitted order
within 24 business
hours, the
appointment is
returned. When the
appointment is
successfully
reserved,
confirmation of the
appointment will be
displayed to
RESELLER.
(D)2.2.1.4.2 Ordering and Provisioning
Submitting an LSR will
result in the provisioning
and installation, if
necessary, of an end
user's service. The
functional set associated
with ordering is: Create
New LSR, Open LSR, Query
LSR Status and FOC Return.
(D)2.2.1.4.2.1 Create New LSR
allows entry of
information specific to
the LSR, including
required OBF forms,
validates information and
submits the LSR for
processing.
(D)2.2.1.4.2.2 Open LSR allows
RESELLER to save LSRs it
is not ready to submit for
processing as a pending
status. When an LSR is
saved as pending, all the
data in all the forms
associated with the LSR is
saved. This feature
permits RESELLER to
access, edit, submit,
re-save, and purge pending
LSRs. In addition, for
issued LSRs, RESELLER can
issue supplemental LSRs
and cancellations.
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Part D
Miscellaneous Provisions
(D)2.2.1.4.2.3 Query LSR Status
allows RESELLER to obtain
the status of the LSR.
Status is provided to
RESELLER upon inquiry.
Order status functions
include the following:
Submitted, In Review,
Issued, Rejected, Erred,
Completed and Jeopardy.
(D)2.2.1.4.2.4 FOC Return
returns a Firm Order
Confirmation to RESELLER.
The FOC confirms that USW
has received a SR, issued
an order, and assigned an
order number for tracking.
(D)2.2.1.5 Forecast of Usage
(D)2.2.1.5.1 RESELLER shall supply USW
with a forecast of products and
volumes they anticipate ordering
through the electronic interface
gateways on a quarterly basis.
(D)2.2.1.5.2 USW will use RESELLER's
forecast to provide RESELLER
sufficient capacity to provide
the services and elements
requested. If RESELLER exceeds
its capacity without
notification, to the extent that
it causes degradation to other
users' response times,
RESELLER's use of its capacity
on the IMA or EDI server may be
discontinued until a resolution
can be mutually agreed to by
both Parties. USW will attempt
to notify RESELLER before
discontinuing RESELLER's use of
the IMA or EDI server; however
USW reserves the right to
discontinue use if it is unable
to contact RESELLER.
(D)2.2.1.5.3 When RESELLER requests
more than twenty (20) Secure IDs
from USW RESELLER shall use a T1
line instead of dial-up
capabilities.
(D)2.2.1.6. Access Service Request (ASR) Ordering
Process
(D)2.2.1.6.1 The Exchange Access
Control and Tracking (EXACT)
system may be used for orders
placed using the ASR process.
EXACT is based upon the OBF
Access Service Order Guidelines
(ASOG). The EXACT interface
accepts a batch
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Part D
Miscellaneous Provisions
file that is transmitted via a
Network Data Mover (NDM)
connection to USW from RESELLER.
It is RESELLER's responsibility
to obtain the appropriate
software to interface with USW's
EXACT system.
(D)2.2.1.7 Facility Based EDI Listing Process
(D)2.2.1.7.1 The Facility Based EDI
Listing Process is a single
interface from RESELLER to USW.
This interface is based upon the
OBF LSOG and ANSI ASC X12
standards, version 4010. This
interface enables RESELLER
listing data to be translated
and passed into the USW listing
database. After USW's daily
batch processing, a
Confirmation/Completion record
(for every PON provided on
input) is returned to RESELLER
via an EDI 855 transaction.
(D)2.2.2 Maintenance and Repair
(D)2.2.2.1 Maintenance and Repair electronic
interfaces support the tracking and
resolution of end users' repair and
maintenance needs as reported to
RESELLER. They facilitate the exchange
of updated information and progress
reports between USW and RESELLER while
the Trouble Report (TR) is open and a
USW technician is working on the
resolution.
(D)2.2.2.2 RESELLER shall use the electronic
interface gateways for reporting
trouble. The electronic interface
gateways are comprised of either the
Mediated Access System Electronic
Bonding (MEDIACC EB) interface or the
IMA GUI interface.
(D)2.2.2.3 The MEDIACC Electronic Bonding (EB)
interface uses CMIP protocol over X.25
packet switching network using
ANS T1M1.5 227/228 standards.
(D)2.2.2.4 The IMA GUI also provides a single
interface for trouble reporting from
RESELLER to USW and is browser based.
The IMA GUI interface uses a Berkley
Socket interface using ANSI T1M1.5
227/228 standards. The IMA GUI uses
JAVA as the standard. The IMA GUI
Interface currently supports trouble
reporting for resale services.
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Part D
Miscellaneous Provisions
(D)2.2.2.5 Functions
(D)2.2.2.5.1 Maintenance and Repair -
The functions, processes and
systems used in repair are based
on a Trouble Report (TR), which
is an electronic document
maintained in one or more OSS. A
TR contains information about
the end user, the trouble, the
status of the work on the
trouble and the results of the
investigation and resolution
efforts. These business
processes will be made available
to RESELLER in the following
functional set: open a trouble
report, modify a trouble report,
notification of status change,
view trouble report status,
cancel a trouble report, receive
a trouble report history,
resubmit/delete an erred trouble
report and close a trouble
report.
(D)2.2.2.5.1.1 Open Trouble Report
is the mechanism that
captures information needed
to resolve the trouble. Once
a TR has been opened, if
RESELLER is using MEDIACC EB,
USW sends an electronic
transaction to RESELLER
identifying information about
the TR (E.G., commitment date
and tracking number).
(D)2.2.2.5.1.2 In IMA for POTS, and
in EBTA for POTS and designed
services, Modify Trouble
Report allows RESELLER to
modify the trouble severity
(for example; change from
"service affecting" to "out
of service") and trouble
narrative on a TR until it
has been cleared.
(D)2.2.2.5.1.3 Status Change
Notification provides
notification to RESELLER that
the status of a previously
opened TR has changed. If
RESELLER is using MEDIACC EB,
RESELLER will receive this
notification via an
electronic transaction. If
RESELLER is using the IMA GUI
Interface, RESELLER will
receive this notification via
email and/or fax.
(D)2.2.2.5.1.4 View Trouble Report
Status/Trouble Report Status
Request allows RESELLER to
view the status of an opened
Trouble Report. If RESELLER
is using MEDIACC EB, USW
sends an electronic
transaction to RESELLER with
the
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Part D
Miscellaneous Provisions
status of an opened TR after
RESELLER sends an electronic
transaction to request the
status.
(D)2.2.2.5.1.5 Cancel Trouble
Report allows RESELLER to
request cancellation of a
previously opened TR. Once a
request to cancel is
received, an orderly
cessation of the trouble
resolution process begins. If
USW has completed any work
before the trouble resolution
process is stopped, charges
to RESELLER may apply.
(D)2.2.2.5.1.6 Trouble Report
History provides RESELLER
with historical information
on up to the last three
trouble reports. For POTS
resale, the disposition and
trouble report date and time
are provided. For design
services resale, the trouble
report date and time, a text
description of the
disposition, the USW Trouble
Report Number, and the
trouble type are provided.
IMA provides trouble report
history.
(D)2.2.2.5.1.7 Resubmit/Delete
allows trouble reports to be
resubmitted or deleted via
IMA GUI if, prior to entering
USW's OSS, the transaction
fails or errors. This
transaction is only valid if
the TR has not entered USW's
OSS. This transaction is
currently only available via
IMA GUI.
(D)2.2.5.1.8 Close a Trouble Report for
resale, allows USW to close
the TR once work is complete.
For design resale services,
USW sends RESELLER a request
for verification to close.
RESELLER then authorizes or
denies the closure. RESELLER
has twenty-four (24) hours to
respond. If a response is not
received within that time
frame, the TR will
automatically be closed. USW
provides notification to
RESELLER that a TR has been
closed because the trouble
was resolved. Additional
information, (e.g.,
disposition, disposition
description, outage duration,
maintenance of service,
charge indicator) is also
included. If RESELLER is
using EB, RESELLER will
receive this response via an
electronic
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transaction. If RESELLER is
using the IMA GUI Interface,
RESELLER will receive this
response via email and/or fax.
(D)2.2.2.5.1.9 MLT test results give
RESELLER the ability to request
a loop test for POTS service
via EBTA. When RESELLER submits
a TR through IMA, the technician
handling the TR will order a MLT
test in appropriate situations.
(D)2.3 Hours of Operation
USW's electronic interface gateways will be available to
Resellers according to the following schedule:
<TABLE>
<CAPTION>
- --------------------------------------- ------------------------ --------------------- -----------------------
Function Monday - Friday Saturday Sunday
- --------------------------------------- ------------------------ --------------------- -----------------------
<S> <C> <C> <C>
IMA Pre-Order & Order 06:00 - 20:00
- --------------------------------------- ------------------------ --------------------- -----------------------
Exact Order 06:00 - 19:00 07:00 - 17:00
- --------------------------------------- ------------------------ --------------------- -----------------------
Repair 02:15 - 23:15 07:00 - 21:00 13:00 - 17:00
- --------------------------------------- ------------------------ --------------------- -----------------------
</TABLE>
USW shall notify Resellers regarding system downtime through
mass facsimile distribution and pop-up windows in the IMA GUI.
All referenced times are Mountain Time.
The preceding times represent the period when USW commits that
its OSS interfaces and downstream systems will be functioning
(except for unforeseen system crashes) and its personnel will
be available to assist RESELLER. USW's OSS interfaces are
typically available 23 hours a day. RESELLER may call any
maintenance and repair issues to the applicable repair center
24 hours per day, seven days per week. USW shall provide
RESELLER current repair contact numbers.
(D)2.4 Billing
(D)2.4.1 For products billed out of the USW Interexchange
Access Billing System (IABS), USW will utilize
the existing CABS/BOS format and technology for
the transmission of bills.
(D)2.4.2 For products billed out of the USW Customer
Record Information System (CRIS), USW will
utilize the existing EDI standard for the
transmission of monthly local billing
information. EDI is an established standard under
the auspices of the American National Standards
Institute/Accredited Standards Committee
(ANSI/ASC) X12 Committee. A proper subset of
this specification has been adopted by the
Telecommunications Industry Forum (TCIF) as
the "811 Guidelines" specifically for the
purposes of telecommunications billing.
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(D)2.5 Outputs
Output information will be provided to RESELLER in the form of
bills, files, and reports. Bills will capture all regular
monthly and incremental/usage charges and present them in a
summarized format. The files and reports delivered to RESELLER
provide more detailed information than the bills. They come in
the following categories:
<TABLE>
- ----------------------------------- ---------------------------------------------------------------
<S> <C>
Usage Record File Line Usage Information
- ----------------------------------- ---------------------------------------------------------------
Loss and Completion Order Information
- ----------------------------------- ---------------------------------------------------------------
Category 11 Facility Based Line Usage Information
- ----------------------------------- ---------------------------------------------------------------
SAG/FAM Street Address/Facility Availability Information
- ----------------------------------- ---------------------------------------------------------------
</TABLE>
(D)2.5.1 Bills
(D)2.5.1.1 CRIS Summary Bill - The CRIS
(Customer Record Information
System) Summary Bill represents a
monthly summary of charges for
most wholesale products sold by
USW. This bill includes a total of
all charges by entity plus a
summary of current charges and
adjustments on each sub-account.
Individual sub-accounts are
provided as billing detail and
contain monthly, one time charges
and incremental/call detail
information. The Summary provides
one bill and one payment document
for RESELLER. These bills are
segmented by state and bill cycle.
The number of bills received by
RESELLER is dictated by the
product ordered and the USW region
in which RESELLER is operating.
(D)2.5.1.2 IABS Bill - The IABS
(Interexchange Access Billing
System) Bill represents a monthly
summary of charges. This bill
includes monthly and one time
charges plus a summary of any
usage charges. These bills are
segmented by product, LATA,
billing account number (BAN)
and bill cycle.
(D)2.5.2 Files and Reports
(D)2.5.2.1 Daily Usage Record File provides
the accumulated set of call
information for a given day as
captured, or "recorded" by the
network switches. This file will
be transmitted Monday through
Friday, excluding USW holidays.
This information is a file of
un-rated USW originated usage
messages and rated RESELLER
originated usage messages. It is
provided in Alliance for
Telecommunication Industry
Solution (ATIS) standard
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Electronic Message Interface (EMI)
format. This EMI format is
outlined in the document SR-320;
which can be obtained directly
from ATIS. The Daily Usage Record
File contains multi-state data for
the Data Processing Center
generating this information.
Individual state identification
information is contained with the
message detail. USW will provide
this data to RESELLER with the
same level of precision and
accuracy it provides itself.
This file will be provided for
Resale services.
(D)2.5.2.2 The charge for this Daily Usage
Record File is contained in Part E
of this Agreement.
(D)2.5.2.3 Routing of in-region IntraLATA
Collect, Calling Card, and Third
Number Billed Messages - USW will
distribute in-region intraLATA
collect, calling card, and third
number billed messages to RESELLER
and exchange with other
Co-Providers operating in region
in a manner consistent with
existing inter-company processing
agreements. Whenever the daily
usage information is transmitted
to a carrier, it will contain
these records for these types of
calls as well.
(D)2.5.2.4 Loss Report provides RESELLER with
a daily report that contains a
list of accounts that have had
lines and/or services
disconnected. This may indicate
that the end user has changed
Resellers or removed services from
an existing account. This report
also details the order number,
service name and address, and date
this change was made. Individual
reports will be provided for
resale services.:
(D)2.5.2.5 Completion Report provides
RESELLER with a daily report. This
report is used to advise RESELLER
that the order(s) for the
service(s) requested is complete.
It details the order number,
service name and address and
date this change was completed.
Individual reports will be
provided for resale services.:
This report media is described
in Exhibit C.
(D)2.5.2.6 Category 11 Records are Exchange
Message Records (EMR) which
provide mechanized record
formats that can be used to
exchange access usage
information between USW and
RESELLER. Category 1101 series
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records are used to exchange detailed
access usage information.
(D)2.5.2.7 Category 1150 series records are used
to exchange summarized Meet Point
Billed access minutes-of-use.
These mechanized records are available
from USW in the following formats:
NDM (direct connect or dial-up)
Comet
Tape
Cartridge
(D)2.5.2.8 SAG/FAM Files - The SAG (Street
Address Guide)/ FAM (Facility
Availability Matrix) files contain the
following information:
SAG provides: Address and Serving
Central Office Information.
FAM provides USOCs and descriptions by
state - (POTS services only). USOC
availability by NPA-NXX (with the
exception of Centrex).
interLATA/intraLATA carriers by
NPA-NXX.
These files are made available via a
download process. They can be
retrieved by ftp (file transfer
protocol), NDM (Network Data Mover)
connectivity, or a Web browser.
(D)2.6 Modifications to OSS Interfaces
(D)2.6.1 RESELLER and USW agree to discuss the modification
of OSS interfaces based upon evolving standards
(e.g., data elements, protocols, transport
networks, etc.) and guidelines issued by or
referenced by relevant Alliance for
Telecommunication Industry Solution (ATIS)
committees. Establishment of new, or changes to
industry standards and guidelines will be reviewed
semi-annually. The review will consider standards
and guidelines that have reached final closure as
well as those published in final form. Both
Parties agree to evaluate evolving standards and
determine the relevant modification to be
implemented based upon the latest approved version
adopted or the latest version reflecting final
closure by the relevant ATIS committee or
subcommittee. As a result of the review, USW shall
draft appropriate interface specifications that
shall be made available to RESELLER through the
electronic gateway disclosure document. Changes
shall be implemented in the next release after the
distribution of the electronic gateway disclosure
document to the Resellers.
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(D)2.6.2 In the course of establishing operational ready
system interfaces between USW and RESELLER to
support local service delivery, RESELLER and USW
may need to define and implement system interface
specifications that are supplemental to existing
standards. RESELLER and USW will submit such
specifications to the appropriate standards
committee and will work towards their acceptance
as a standard.
(D)2.6.3 Release updates will be based on regulatory
obligations as dictated by the FCC or Commissions
and, as time permits, business requirements. USW
will provide to RESELLER the features list for
modifications to the interface. Specifications for
interface modifications will be provided to
RESELLER three (3) weeks prior to the release
date. RESELLER is required to upgrade to the
current release within six (6) months of the
installation date.
(D)2.7 Reseller Responsibilities for Implementation of OSS Interfaces
(D)2.7.1 Before any RESELLER implementation can begin,
RESELLER must completely and accurately answer the
New Customer Questionnaire. This questionnaire is
provided by the USW account manager and details
information needed by USW in order to establish
service for RESELLER.
(D)2.7.2 Once USW receives a complete and accurate New
Customer Questionnaire, USW and RESELLER will
mutually agree upon time frames for RESELLER
implementation.
(D)2.7.3 If using the EDI interfaces, USW will provide
RESELLER with a copy of the Production Readiness
Verification document. RESELLER is obligated to
meet the requirements specified in the Production
Readiness Verification document regardless of
whether RESELLER chooses to participate in the
Production Readiness Verification Test.
(D)2.8 Reseller Responsibilities for On-going Support for OSS
Interfaces
(D)2.8.1 If using the IMA GUI interface, RESELLER must work
with USW to train RESELLER personnel on the IMA
GUI functions that RESELLER will be using. USW and
RESELLER shall concur on which IMA GUI functions
should be included in RESELLER's training. USW AND
RESELLER shall make reasonable efforts to schedule
training in a timely fashion.
(D)2.8.2 An exchange protocol will be used to transport EDI
formatted content. RESELLER must perform
certification testing of exchange protocol prior
to using EDI.
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(D)2.8.3 If RESELLER is using EDI, USW shall provide
RESELLER with a pre-allotted amount of time to
complete certification of its business scenarios.
It is the sole responsibility of RESELLER to
schedule an appointment with USW for certification
of its business scenarios. RESELLER must comply
with the agreed upon dates and times scheduled for
the certification of its business scenarios. If
the certification of business scenarios is delayed
due to RESELLER, it is the sole responsibility of
RESELLER to schedule new appointments for
certification of its business scenarios. Conflicts
in the schedule could result in certification
being delayed. If a delay is due to USW, USW will
honor RESELLER's schedule through the use of
alternative hours.
(D)2.8.4 If RESELLER is using the EDI interface, RESELLER
must work with USW to certify the business
scenarios that RESELLER will be using in order to
ensure successful transaction processing. USW and
RESELLER shall mutually agree to the business
scenarios for which RESELLER is required to be
certified. Certification is granted only for a
specific release of EDI. New releases of EDI may
require recertification of some or all business
scenarios. A determination as to the need for
re-certification will be made by the USW
Coordinator in conjunction with the release
manager of each EDI release. Notice of the need
for re-certification will be provided to RESELLER
three (3) weeks prior to the release date.
(D)2.8.5 In the event of Electronic Interface trouble,
RESELLER shall use its best efforts to isolate and
resolve the trouble using the guidelines provided
in the Production Readiness Verification document.
If RESELLER cannot resolve the problem, then
RESELLER should contact the LSP Systems Help Desk.
The LSP Systems Help Desk is RESELLER's Single
Point of Contact for electronic interface trouble.
(D)2.9 Reseller Support
(D)2.9.1 USW shall provide adequate assistance to RESELLER
for RESELLER to understand how to implement and
use the OSS functions for which USW provides
access. This assistance will include training,
documentation, and a LSP Help Desk. The LSP Help
Desk will provide a single point of entry for
RESELLER to gain assistance in areas involving
connectivity, system availability, and file
outputs. The LSP Systems Help Desk is available
Monday through Friday, 6:00 a.m. until 8:00 p.m.
Mountain Time, excluding USW holidays. The Help
Desk areas are further described below..
(D)2.9.1.1 Connectivity covers trouble with
RESELLER'S access to the USW System
for hardware configuration
requirements with relevance to EDI
and IMA GUI;
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software configuration requirements
with relevance to EDI and IMA GUI;
modem configuration requirements; T1
configuration and dial in string
requirements; firewall access
configuration; Secure ID
configuration; Profile Setup and
password verification.
(D)2.9.1.2 System availability covers system
errors generated during an attempt by
RESELLER to place orders or open
trouble reports through EDI and IMA
GUI. These system errors are limited
to: POTS; Design Services and Repair.
(D)2.9.1.3 File Outputs covers RESELLER's output
files and reports produced from its
usage and order activity. File outputs
system errors are limited to: Daily
Usage File; Loss / Completion File;
IABS Bill; CRIS Summary Bill; Category
11 Report and SAG/FAM Reports.
(D)2.9.2 Additional assistance to Resellers is available
through various web sites. These web sites provide
electronic interface training information and user
documentation and technical specifications.
(D)2.10 Compensation / Cost Recovery
On-going and one-time startup charges, as applicable, will be
billed at rates to be specified by the Commission at the
completion of an appropriate cost docket hearing. USW shall
establish rates for any systems charges not included in
appropriate cost docket hearings.
(D)3. U S WEST DEX
USW and RESELLER agree that certain issues outside the provision of basic
white page directory listings, such as yellow pages advertising, yellow
pages listings, directory coverage, directory distribution, access to call
guide pages (phone service pages), applicable listings criteria, white
page enhancements and publication schedules will be the subject of
negotiations between RESELLER and directory publishers, including U S WEST
Dex. USW acknowledges that RESELLER may request USW to facilitate
discussions between RESELLER and U S WEST Dex.
(D)4. NOTICE OF CHANGES
Notice should be written and provide pertinent descriptive information of
such changes, within the limitations of confidentiality and disclosure,
such that the other Party can evaluate potential effects. Also included
with the written notice should be contact names and phone numbers for
subsequent discussions.
This represents good faith effort on the part of the Parties and will
evolve over time as required for the effective provision of resale
services and end user service delivery.
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(D)5. MAINTENANCE AND REPAIR
(D)5.1 Service Levels
(D)5.1.1 USW will provide repair and maintenance for all
services covered by this Agreement in a manner
equal to that which USW provides for itself.
(D)5.1.2 During the term of this Agreement, USW will
provide necessary maintenance business process
support to allow RESELLER to provide similar
service quality to that provided by USW to its end
users.
(D)5.1.3 USW will perform repair service that is equal in
timeliness and quality to that which it provides
to its own end users.
(D)5.2 Branding
(D)5.2.1 Should USW need to use various forms for
communication with RESELLER end users (while out
on premises dispatch on behalf of RESELLER, for
example), USW will use unbranded forms.
(D)5.2.2 If required by RESELLER, USW will use branded
forms provided at RESELLER's full expense,
covering training costs, storage, printing,
distribution and all other branding-related costs.
(D)5.3 Service interruptions
(D)5.3.1 The characteristics and methods of operation of
any circuits, facilities or equipment of either
Party connected with the services, facilities or
equipment of the other Party pursuant to this
Agreement shall not: 1) interfere with or impair
service over any facilities of the other Party;
its affiliated companies, or its connecting and
concurring carriers involved in providing its
services; 2) cause damage to their plant; 3)
violate any applicable law or regulation regarding
the invasion of privacy of any communications
carried over the Party's facilities; or 4) create
hazards to the employees of either Party or to the
public. Each of these requirements is hereinafter
referred to as an "Impairment of Service".
(D)5.3.2 If it is confirmed that either Party is
causing an Impairment of Service, as set forth in
this Section, the Party whose network or service
is being impaired (the "Impaired Party") shall
promptly notify the Party causing the Impairment
of Service (the "Impairing Party") of the nature
and location of the problem. The Impaired Party
shall advise the Impairing Party that, unless
promptly rectified, a temporary discontinuance of
the use of any circuit, facility or equipment may
be required. The Impairing Party and the Impaired
Party agree to work together to attempt to
promptly resolve the Impairment of Service. If the
Impairing Party is unable to promptly remedy the
Impairment of
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Service, the Impaired Party may temporarily
discontinue use of the affected circuit, facility
or equipment.
(D)5.3.3 To facilitate trouble reporting and to coordinate
the repair of the service provided by each Party
to the other under this Agreement, each Party
shall designate a repair center for such service.
(D)5.3.4 Each Party shall furnish a trouble reporting
telephone number for the designated repair center.
This number shall give access to the location
where records are normally located and where
current status reports on any trouble reports are
readily available. If necessary, alternative
out-of-hours procedures shall be established to
ensure access to a location that is staffed and
has the authority to initiate corrective action.
(D)5.3.5 Before either Party reports a trouble condition,
it shall use its best efforts to isolate the
trouble to the other's facilities
(D)5.3.5.1 In cases where a trouble condition
affects a significant portion of the
other's service, the Parties shall
assign the same priority provided to
other Resellers and to itself.
(D)5.3.5.2 The Parties shall cooperate in
isolating trouble conditions.
(D)5.4 Trouble Isolation
(D)5.4.1 According to applicable state Tariffs, USW will
bill appropriate Trouble Isolation Charges for
dispatched work done by USW where the trouble is
found to be on the end user's side of the NID or
trouble is found to be in RESELLER's portion of
the network.
(D)5.4.2 Other Trouble Isolation Charges may also be
imposed by USW on RESELLER for other internal
repair work incurred on behalf of RESELLER and
later found to be in RESELLER network components.
(D)5.5 Inside Wire Maintenance
Except where specifically required by state or federal
regulatory mandates, USW will not perform any maintenance of
inside wire (premises wiring beyond the end user's NID) for
RESELLER or its end users.
(D)5.6 Testing/Test Requests/Coordinated Testing
(D)5.6.1 USW will make the decision to test an end user's
line or circuit. The test systems used by USW are
finite, and their capacity has been designed
according to USW's operating standards.
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(D)5.6.2 Although some types of trouble reports typically
will not require a test, USW usually runs certain
standard tests on each line on which trouble has
been reported.
(D)5.6.3 Prior to any test being conducted on a line, USW
must receive a trouble report from RESELLER.
(D)5.6.4 USW end users are not given test results. On
manually-reported trouble USW will not provide to
RESELLER the test results for its trouble reports.
For electronically-reported trouble, RESELLER may
see various basic test results.
(D)5.7 Workcenter Interfaces
(D)5.7.1 USW and RESELLER shall work cooperatively to
develop positive, close working relationships
among corresponding work centers involved in the
trouble resolution processes.
(D)5.8 Misdirected Repair Calls
(D)5.8.1 RESELLER shall inform its own end users where to
report their trouble conditions. Persons placing a
misdirected repair call will be advised to call
their own telephone service provider and will be
provided the correct telephone number for that
purpose (this referral may occur within a voice
response system or other interactive systems).
(D)5.8.2 RESELLER and USW will employ the following
procedures for handling misdirected repair calls;
(D)5.8.2.1 RESELLER and USW will provide their
respective end users with the correct
telephone numbers to call for access
to their respective repair bureaus.
(D)5.8.2.2 End users of RESELLER shall be
instructed to report all cases of
trouble to RESELLER. End users of USW
shall be instructed to report all
cases of trouble to USW.
(D)5.8.2.3 To the extent the correct provider can
be determined, misdirected repair
calls will be referred to the proper
provider of Basic Exchange
Telecommunications Service.
(D)5.8.2.4 RESELLER and USW will provide their
respective repair contact numbers to
one another on a reciprocal basis.
(D)5.8.2.5 In responding to repair calls, neither
Party shall make disparaging remarks
about each other, nor shall they use
these repair calls as the basis for
internal referrals or to solicit end
users to market services.
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(D)5.8.2.6 Performance targets for speed of
repair call answering will be the same
as USW's performance targets for its
own end users.
(D)5.9 Major Outages/Restoral/Notification
(D)5.9.1 USW will notify RESELLER of major network outages
as soon as is practical. This notification will be
via e-mail to RESELLER's identified contact. With
the minor exception of certain proprietary
information, USW will utilize the same thresholds
and processes for external notification as it does
for internal purposes. This major outage
information will be sent via E-mail on the same
frequency schedule as is provided internally
within USW. Service restoration will be non-
discriminatory, and will be accomplished as
quickly as possible according to USW and/or
industry standards.
(D)5.9.2 If desired, USW will meet with associated
personnel from RESELLER to share contact
information and review USW's outage restoral
processes and notification processes.
(D)5.9.3 USW's emergency restoration process operates on a
7X24 basis.
(D)5.10 Proactive Maintenance
(D)5.10.1 USW will perform scheduled maintenance equal in
quality to what it provides to itself.
(D)5.10.2 USW will work cooperatively with RESELLER to
develop industry-wide processes to provide as much
notice as possible to RESELLER of pending
maintenance activity. Such process work will
include establishment of reasonable thresholds and
notification standards.
(D)5.11 Hours of Coverage
(D)5.11.1 USW's repair operation is 7 days a week, 24 hours
a day. Not all functions or locations are covered
with scheduled employees on a 7X24 basis. Where
such 7X24 coverage is not available USW's repair
operations center (always available 7X24) can
call-out technicians or other personnel required
for the situation.
(D)5.12 Escalations
(D)5.12.1 USW will provide trouble escalation procedures to
RESELLER. Such procedures will be based an the
processes USW employs for its own end users. USW
escalations are manual processes.
(D)5.12.2 USW repair escalations begin with calls to the
up-front trouble reporting centers.
(D)5.13 Dispatch
(D)5.13.1 USW will provide maintenance dispatch personnel on
the same schedule provided for its end users.
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(D)5.13.2 Upon receipt of a trouble report from RESELLER,
USW will do all that is reasonable and practical,
according to internal and industry standards, to
resolve the repair condition. USW will dispatch
repair personnel, if necessary, to repair the
condition. It will be USW's decision whether it is
necessary to send a technician on a dispatch. USW
will make this dispatch decision based on the best
information available in the trouble resolution
process. Since it is not always necessary to
dispatch to resolve trouble; should RESELLER
require a dispatch when USW believes the dispatch
is not necessary, appropriate charges may be
billed to RESELLER for dispatch-related costs.
(D)5.13.3 For non-designed resale services USW will not
request authorization from RESELLER prior to
dispatch. For lines supported by USW's designed
services process, USW may accept RESELLER
authorization to dispatch. USW's operational
processes are regularly reviewed and may be
altered in the future. Should processes be
changed, RESELLER will be notified.
(D)5.13.4 USW expects that RESELLER will have performed
appropriate trouble isolation and screening prior
to handing the trouble report off to USW.
(D)5.14 Electronic Reporting
(D)5.14.1 USW will accept repair reports from RESELLER
through a mechanized system (IMA).
(D)5.14.2 USW will work cooperatively to develop repair
reporting via electronic bonding (other than IMA),
based on national standards.
(D)5.15 Intervals
(D)5.15.1 Similar trouble conditions, whether reported by
USW end users or on behalf of RESELLER end users,
will receive similar commitment intervals.
(D)5.16 Jeopardy Management
(D)5.16.1 Notification will be given as soon as USW is aware
that a trouble report interval is likely to be
missed. This process will be the same as that used
by USW for its own end users.
(D)5.17 Trouble Screening
(D)5.17.1 RESELLER shall screen and test its end user
trouble reports completely enough to insure that
it sends USW only trouble reports that involve USW
facilities.
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(D)5.17.2 If desired, USW will cooperate with RESELLER to
show RESELLER how USW screens trouble conditions
in its own centers, so that RESELLER may employ
similar techniques in its centers.
(D)5.18 Maintenance Standards
(D)5.18.1 USW will cooperate with RESELLER to meet the
maintenance standards outlined in this Agreement.
(D)5.18.2 For manually-reported trouble, USW will inform
RESELLER of repair completion as soon as practical
after completion. On electronically reported
trouble reports the electronic system will
automatically update status information, including
trouble completion, across the joint electronic
gateway.
(D)5.19 End User Interfaces
(D)5.19.1 RESELLER will be responsible for all interactions
with its end users including service call handling
and notifying end users of trouble status and
resolution.
(D)5.19.2 All USW employees who perform repair service for
RESELLER end users will be trained in
non-discriminatory behavior.
(D)5.20 Repair Call Handling
(D)5.20.1 Manually-reported repair calls by RESELLER to USW
will be answered with the same quality and speed
USW answers calls from its own end users.
(D)5.21 Single Point of Contact
(D)5.21.1 USW will provide a single point of contact for
RESELLER to report maintenance issues and trouble
reports via electronic interfaces seven days a
week, twenty-four hours a day.
(D)5.21.2 For manually-reported trouble reports, a single
7X24 trouble reporting telephone number will be
provided to RESELLER for each category of trouble
situation encountered.
(D)5.22 Maintenance Windows
(D)5.22.1 Generally, USW performs major switch maintenance
activities during off-hours time periods, during
certain "maintenance windows" in the early morning
hours and/or on weekends.
(D)5.22.2 Generally, the maintenance window is from 10:00 PM
to 6:00 AM Monday through Friday and from 10:00 PM
Saturday to 6:00 AM Monday.
(D)5.22.3 Although USW attempts to perform major switch
maintenance at these times, on some occasions this
will not be possible.
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(D)6. SERVICE PERFORMANCE
(D)6.1 General Provisions
(D)6.1.1 USW will provide reports of service indicators
that will assist in an evaluation of the service
provided to RESELLER.
(D)6.1.2 In no instance shall this Agreement be construed
to require USW to provide superior levels of
service to RESELLER in comparison to the level of
service USW provides to itself or its own end
users.
(D)6.1.3 As further specified in this Section, USW will
provide results for the list of performance
indicators identified for the following Standard
Service Groupings: Resold Residential Plain Old
Telephone Service (POTS); Resold Business POTS;
Resold ISDN; Resold Centrex service; Resold PBX
trunks, Resold Direct Inward Dialing (DID) and
Resold Digital Switched Service (DSS); Resold
DS-0, Resold DS-1, Resold DS-3.
(D)6.1.4 As specified in this Section, USW will provide
results for the following types of Orders:
C = Change in existing service or billing number
D = total disconnect of service
F = From the outward service associated with a
transfer (To or "T") of service from one address
to another
N = New connection for service
R = Record order; record change only. (For
Resale services, service migrations without
changes for non-designed services are record
orders.)
T = To or transfer of service from one address
to another
X = USW initiated internal work order
(D)6.2 Service Performance Indicators
The following Service Performance Indicators will be provided
to RESELLER when available and upon request, but no more
frequently than once per month subject to the provisions of
this Section. The requests for additional Service Performance
Indicators during the term of this Agreement shall be
considered by USW. However, USW is not required to provide
additional Service Performance Indicators during the term of
this Agreement. Service Performance Indicators characterized
as "Core" indicators measure most directly the service or
process outcome USW provides to RESELLER.
Performance Indicators characterized as "Diagnostic"
indicators are those that measure aspects of service quality
that support aspects measured by core indicators, that
represent sub-process outcomes, or that are otherwise
duplicative to some degree of aspects measured by "Core"
indicators.
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(D)6.2.1 Core Performance Indicators
(D)6.2.1.1 Gateway Availability Indicator
GA-1 Gateway Availability - via
Human-to-Computer Interface (percent).
GA-2 Gateway Availability - via
Computer-to-Computer Interface
(percent).
(D)6.2.1.2 Pre-Ordering Indicators
PO-1 Pre-Order/Order Response times
A. Appointment Scheduling (Due Date
Reservation, where appointment
is required)
B. Feature Function and Service
Availability Information
C. Facility Availability
D. Street Address Validation
E. Customer Service Records
F. Telephone Number
(D)6.2.1.3 Ordering and Provisioning Indicators
OP-1 Speed of Answer - Interconnect
Provisioning Center (average)
OP-2 Calls Answered within 20 Seconds -
Interconnect Provisioning Center
(percent)
OP-3 Installation Commitments Met (percent)
OP-4 Installation Interval (average)
OP-5 Installation Trouble Reports
(percent)l
OP-6 Delayed Days (average)
(D)6.2.1.4 Maintenance and Repair Indicators
MR-1 Speed of Answer - Interconnect Repair
Center (average)
MR-2 Percent Calls Answered Within 20
Seconds - Interconnect Repair Center
(percent)
MR-3 Out of Service Cleared Within 24 hours
- Non-Designed Repair Process
(percent)
MR-4 All Troubles Cleared Within 48 hours -
Non-Designed Repair Process (percent)
MR-5 All Troubles Cleared Within 4 hours -
Designed Repair Process (percent)
MR-6 Mean Time to Restore - Non-Designed
Repair Process (average)
MR-7 Repair Repeat Report Rate (percent)
MR-8 Trouble Rate (percent)
Page 54
<PAGE>
Part D
Miscellaneous Provisions
(D)6.2.1.5 Billing Indicators
BI-1 Mean Time to Provide USW Recorded
Usage Records ((average)
BI-2 Mean Time to Deliver Invoices
(average)BI-3 Billing Accuracy
(D)6.2.1.6 Emergency Services
ES-1 ALI Database Updates Completed Within
24 hours (percent)
ES-2 911/E911 Emergency Services Trunk
Installation Interval (average)
(D)6.2.1.7 Directory Assistance
DA-1 Speed of Answer - Directory Assistance
(average)
DA-2 Calls Answered Within Ten Seconds -
Directory Assistance (percent)
(D)6.2.1.8 Operator Services
OS-1 Speed of Answer - Operator Services
(average)
OS-2 Calls Answered Within Ten Seconds -
Operator Services (percent)
(D)6.2.2 Diagnostic Indicators
In addition to the performance indicators
identified above, USW will report the following
indicators that do not directly address
nondiscrimination but may be useful in diagnosing
problems or improving service:
(D)6.2.2.1 Pre-Order/Ordering
DPO-1 Electronic Flow - Through of Local
Service Requests (LSRs) to the Service
Order Processor (percent)
DPO-2 LSR Rejection Notice Interval
(average)
DPO-3 LSRs Rejection (percent)
DPO-4 Firm Order Confirmation (FOC) Interval
(average)
DPO-5 Pre-Order/Order Response Times for USW
Retail Transactions (average)
DPO-6 Completion Notifications Transmitted
Within 24 hours (percent)
DPO-7 Completion Notification Interval
(average)
(D)6.2.2.2 Ordering and Provisioning
DOP-1 RESELLER or RESELLER's Customer -
Caused Installation Misses (percent)
DOP-2 Delayed Orders Completed equal to
greater than 15 days past the
Commitment Date (percent)
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<PAGE>
Part D
Miscellaneous Provisions
DOP-3 Delayed Orders Completed equal to or
greater than 90 days past the
Commitment Date (percent)
DOP-4 RESELLER or RESELLER's Customer-Caused
Coordinated Cutover Misses (percent)
(D)6.2.2.3 Maintenance and Repair
DMR-1 RESELLER- or RESELLER's
Customer-Caused Trouble Reports
(percent)
(D)6.2.2.4 Access to OSS Functions:
(GA-1) Gateway Availability-
Human-to-Computer Interface (percent)
(GA-2) Gateway Availability-
Computer-to-Computer Interface
(percent)
(PO-1) Per-Order/Order Response Times
(average)
(OP-1 and MR-1)Speed of Answer -
Provisioning and Repair Centers
(average)
(OP-2 and MR-2) Calls Answered Within 20
Seconds-Provisioning and Repair
Centers (percent)
(BI-1) Mean Time to Provide USW - Recorded
Usage Records
(BI-2) Mean Time to Deliver Invoices
(B1-3) Billing Accuracy
(D)6.2.2.5 Access to Emergency Services
(ES-1) ALI Database Updates Within 24 Hours
(percent)
(ES-1) 911/E911 ES Trunk Installation
Intervals (average)
(D)6.2.2.6 Access to Directory Assistance and
Operator Services:
(DA-1 and OP-1) Speed of Answer (average)
(DA-2 and OS-2) Calls Answered Within 10
Seconds (percent)
(D)6.2.2.7 Resale Services Ordering and
Provisioning:
(OP-3) Installation Commitments Met
(percent)
(OP-4) Installation Interval (average)
(OP-5) Installation Trouble Reports
(percent)
(OP-6) Delayed Days (average)
(D)6.2.2.8 Resale Services Maintenance and
Repair:
(MR-3) Out of Service Cleared Within 24
Hours - Non-Designed Repair Process
(percent)
(MR-4) All Troubles Cleared Within 48 Hours
Non-Designed Repair Process
(percent)
(MR-5) All Troubles Cleared Within 4 Hours
Designed Repair Process (percent)
(MR-6) Mean Time to Restore (average)
(MR-6) Repair Repeated Report Rate (percent)
(MR-6) Trouble Rate (percent)
Page 56
<PAGE>
Part D
Miscellaneous Provisions
(D)6.3 Service Quality Performance Results Reports
(D)6.3.1 For Resale, USW will provide core service
performance results for the performance indicators
listed above for RESELLER, other Resellers in
aggregate and USW end users.
(D)6.4 Performance Results Provided to Reseller
The performance results provided to RESELLER by USW shall be
consistent with the current version of the USW Service
Performance Indicator Description (PID).
(D)6.5 The performance results provided under this Agreement are to
be used solely for the purposes set forth herein, and shall be
treated as "Proprietary Information" as provided in Section
(A)3.14 of this Agreement.
(D)6.6 Service Performance - Reported Events
(D)6.6.1 When applicable, USW will report service-related
performance results for all "events". An "event"
is the activity that generates the measurement.
(D)6.6.2 The Parties will report RESELLER results
referenced above provided that RESELLER has
ordered and is utilizing the services reported;
(D)6.6.3 USW will provide the reports on a calendar monthly
basis. These reports will be provided within
forty-five (45) calendar days of the close of the
preceding month.
(D)6.7 Self Executing Remedies
The purpose and focus of remedies provisions under this Resale
Agreement shall be to resolve significant differences in
service quality that have been identified through appropriate
comparisons of the service performance results reported for
the core performance indicators defined above. Self-executing
remedies are those actions, defined herein, that USW will
undertake in good faith and in cooperation with RESELLER to
respond to such differences immediately, without waiting for
determination of whether actual discrimination may exist.
(D)6.7.1 For this purpose, significant differences shall be
considered to be those that are determined to be
statistically, operationally, and, materially
significant in each of three (3) or more
consecutive months and that reflect a probability
that inferior service was apparently provided to
RESELLER, based on the relevant comparison of
performance indicator results. Statistical
significance shall be determined as defined below.
Operational and material significance shall be
established by including for comparison only those
results that have (a) minimum sample sizes of 30
each, and (b) a relevant comparison demonstrating
a service performance difference of a magnitude
that can be reasonably considered to have a
perceptible effect on end users or RESELLER
operations.
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<PAGE>
Part D
Miscellaneous Provisions
(D)6.7.2 Determination of the statistical significance of
any difference in appropriately comparable results
shall be based on statistical testing for (1)
differences in means (where performance indicator
results are reported as averages) or (2)
difference in proportions (where performance
indicator results are reported as percentages), as
follows:
(D)6.7.2.1 Determination of the significance
of a difference in mean values of
each monthly service performance
indicator results shall be based on
a "permutation" test using what is
commonly referred to as a "Z"
statistic and a maximum of 1,000
randomly selected permutations of
the samples. Where sample sizes
exceed 600, the "Z" test using the
"modified Z statistic" may be used
instead of the permutation test.
Where used, the modified Z
statistic will be based on the
statistical variance associated
with USW's retail performance
results, where applicable, or on
the variance associated with
RESELLER aggregate performance
results, where there are no retail
performance results.
(D)6.7.2.2 The significance of a difference in
proportional measurements shall be
based on direct calculation of the
probability of the observed difference
using the binomial distribution with a
pooled P value.
(D)6.7.2.3 A difference in results by either test
type (i.e., differences in means or
differences in proportions) will be
deemed statistically significant if
the appropriate one tailed test
indicates, with 99 percent confidence,
that the performance indicator results
being compared appear to be from
different populations of performance.
In other words, that service being
provided to RESELLER appears to be
inferior to that represented by the
comparable results (such as, results
representing service provided to
Resellers in aggregate or to USW
retail).
(D)6.7.3 For each case in which a significant difference as
defined above has occurred, USW shall:
(D)6.7.3.1 Immediately investigate to determine
the cause(s) of the difference and,
where feasible, begin good-faith
efforts to resolve the difference;
(D)6.7.3.2 Within 45 days, provide to RESELLER a
written explanation of the result of
the investigation as to
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<PAGE>
Part D
Miscellaneous Provisions
cause(s) and, as applicable, an action
plan describing (i) what has and will
be done to resolve the difference,
(ii) what cooperative actions and
timelines on the part of RESELLER are
needed to facilitate or expedite
resolution, and (iii) listing key
milestones for use by the Parties in
tracking progress;
(D)6.7.3.3 Offer and meet with designated
RESELLER representatives monthly to
discuss progress on resolving the
difference(s);
(D)6.7.3.4 Escalate to vice president level any
significant difference that has or is
not projected to be resolved within
three months of the difference first
being identified as significant as
defined above, with commitment at that
level to direct due diligence toward
removing obstacles and expediting
resources where feasible and necessary
to resolve the difference as soon as
possible.
(D)6.7.4 If a statistically and operationally significant
difference has occurred in the trend results for
any particular performance indicator, the Parties
shall allow three (3) months to correct the
difference in the trend results. If the
statistically, and operationally significant
difference in trend results is corrected within
the three (3) month time, no action, formal or
informal, shall be taken by either Party with
respect to that difference.
(D)6.7.5 If the statistically and operationally significant
difference in trend results is not corrected
within the three (3) month time frame, the Dispute
Resolution provision of this Resale Agreement
shall apply.
(D)6.8 Delaying Events
(D)6.8.1 A Party's failure to meet a requirement in this
Section of this Agreement shall not be included
when that failure is a result, directly or
indirectly, of a Delaying Event.
(D)6.8.2 A "Delaying Event" means:
(D)6.8.2.1 Failure by either Party to perform any
of its obligations set forth in this
Agreement,
(D)6.8.2.2 Any delay, act or failure to act by an
end user, agent or subcontractor of
the other Party, or
(D)6.8.2.3 Any Force Majeure Event.
(D)6.8.3 If a Delaying Event prevents either Party from
performing a measured activity, then such measured
activity shall be excluded from the performance
indicator(s).
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<PAGE>
Part D
Miscellaneous Provisions
(D)6.9 Records Retention for Service Performance Indicators
USW shall maintain complete and accurate records, for the
specified review period of its performance under this
Agreement for each measured activity. USW shall provide such
records to RESELLER in a self-reporting format. Such records
shall be in the format kept in USW's ordinary course of
business. The Parties agree that such records shall be deemed
"Confidential Information."
(D)6.10 Joint Defense and Advocacy
The Parties shall jointly and separately advocate and defend
the sufficiency of this Agreement in addressing the
nondiscrimination requirements of the Act and wholesale
services performance measurements reporting rights, remedies
and related terms and conditions in any forum in which its
sufficiency might be challenged.
(D)6.11 Cost Recovery
Each Party reserves the right to recover the costs associated
with the creation of the above measures, indicators, and
reports through a future proceeding before a regulatory body.
Such a proceeding may address a wide range of implementation
costs not otherwise recovered through charges established
herein.
Page 60
<PAGE>
Part E
New Mexico Rates
PART E - NEW MEXICO RATES
LOCAL EXCHANGE SERVICES RESALE OF SERVICES
The Parties agree the following charges apply to the Resale of Local Services:
1. Non-Recurring Charges:
(a) Customer Transfer Charge (CTC):
The following nonrecurring charges apply when converting a USW
account to a Reseller account or when changing an end user from one
Reseller to another.
<TABLE>
<CAPTION>
CATEGORY OF SERVICE NONRECURRING CHARGE
------------------- --------------------
<S> <C>
RESIDENCE OR BUSINESS MECHANIZED
First Line $14.07
Each Additional Line $ 6.35
RESIDENCE OR BUSINESS MANUAL
First Line $26.58
Each Additional Line $ 6.87
PRIVATE LINE TRANSPORT
First Circuit $43.54
Additional Circuits, per circuit, same CSR $30.13
ADVANCED COMMUNICATIONS SERVICES, PER CIRCUIT $48.76
</TABLE>
(b) Product Specific Nonrecurring Charge: As set forth in USW tariffs,
the product specific nonrecurring charges, with a 15.05% discount,
will apply when additional lines or trunks are added or when the end
user adds features or services to existing lines or trunks.
2. Except as qualified below, all USW telecommunications services shall be
available for resale at a 15.05% discount.
a. The following services are not available for resale:
- Customer Premises Equipment (separately or when included
in packages)
- USW Calling Cards
- Inside Wiring Installation and Maintenance (including
maintenance plans)
- Promotions equal to or less than 90 days in length
- Enhanced Services (e.g., Voice Messaging)
- Concession Service
b. The following services are available only to the same class of
customer eligible to purchase that service from USW:
- Grandfathered
- Residence
- Lifeline/Link-up
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<PAGE>
Part E
New Mexico Rates
c. The following services are available for resale under this Agreement
but are not included in the wholesale pricing reflected above:
- Public Access Lines (PAL)
- Private Line Used For Special Access
- DSL Services such as Megabit Services
3. IntraLATA, Toll Charges: RESELLER shall have their choice of obtaining USW
provided intraLATA toll for resale at a 15.05% discount, providing their
own IntraLATA toll or obtaining their intraLATA toll from a third party.
4. Daily Usage Record File: Recurring Charge - $0.0011 per record.
Page 62
<PAGE>
Part F
Signature
PART F - SIGNATURE
ENTIRE AGREEMENT
This Agreement constitutes the entire agreement between the Parties and
supersedes all prior oral or written agreements, representations, statements,
negotiations, understandings, proposals and undertakings with respect to the
subject matter hereof.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed
by their respective duly authorized representatives.
essential.com U S WEST COMMUNICATIONS, INC.
/s/ Akhil Garland /s/ E.J. Stamp for
- ----------------------------------- ----------------------------------
Signature Signature
Akhil Garland Katherine L. Fleming
- ----------------------------------- ----------------------------------
Name Printed/Typed Name Printed/Typed
CEO Vice President - Interconnection
- ----------------------------------- ----------------------------------
Title Title
2-16-00 2-25-00
- ----------------------------------- ----------------------------------
Date Date
Page 63
<PAGE>
RESALE
AGREEMENT
BETWEEN
U S WEST COMMUNICATIONS, INC.
AND
ESSENTIAL.COM
FOR
WYOMING
Page i
<PAGE>
TABLE OF CONTENTS
<TABLE>
<S> <C>
PART A - GENERAL TERMS ......................................................................................1
(A)1. SCOPE OF AGREEMENT ...................................................................................1
(A)2. DEFINITIONS ..........................................................................................2
(A)3. TERMS AND CONDITIONS .................................................................................4
(A)3.1 GENERAL PROVISIONS ................................................................................4
(A)3.2 TERM OF AGREEMENT .................................................................................4
(A)3.3 PROOF OF AUTHORIZATION. ...........................................................................5
(A)3.4 PAYMENT ...........................................................................................5
(A)3.5 TAXES .............................................................................................7
(A)3.6 FORCE MAJEURE .....................................................................................7
(A)3.7 LIMITATION OF LIABILITY............................................................................7
(A)3.8 INDEMNITY .........................................................................................8
(A)3.9 INTELLECTUAL PROPERTY .............................................................................9
(A)3.10 WARRANTIES ......................................................................................12
(A)3.11 ASSIGNMENT ......................................................................................12
(A)3.12 DEFAULT .........................................................................................13
(A)3.13 DISCLAIMER OF AGENCY ............................................................................13
(A)3.14 NONDISCLOSURE ...................................................................................13
(A)3.15 SURVIVAL ........................................................................................15
(A)3.16 DISPUTE RESOLUTION ..............................................................................15
(A)3.17 CONTROLLING LAW .................................................................................16
(A)3.18 JOINT WORK PRODUCT ..............................................................................16
(A)3.19 RESPONSIBILITY FOR ENVIRONMENTAL CONTAMINATION ..................................................17
(A)3.20 NOTICES .........................................................................................17
(A)3.21 RESPONSIBILITY OF EACH PARTY ....................................................................17
(A)3.22 NO THIRD PARTY BENEFICIARIES ....................................................................18
(A)3.23 REFERENCED DOCUMENTS ............................................................................18
(A)3.24 PUBLICITY........................................................................................18
(A)3.25 AMENDMENT........................................................................................18
(A)3.26 EXECUTED IN COUNTERPARTS ........................................................................19
(A)3.27 HEADINGS OF NO FORCE OR EFFECT ..................................................................19
(A)3.28 REGULATORY APPROVAL .............................................................................19
(A)3.29 COMPLIANCE ......................................................................................19
(A)3.30 COMPLIANCE WITH THE COMMUNICATIONS ASSISTANCE FOR LAW ENFORCEMENT ACT
OF 1994 ("CALEA") .......................................................................................19
(A)3.31 COOPERATION .....................................................................................19
(A)3.32 AVAILABILITY OF OTHER AGREEMENTS ................................................................20
PART B - RESALE ............................................................................................21
(B)1. DESCRIPTION ......................................................................................21
(B)2. TERMS AND CONDITIONS .............................................................................21
(B)3. RATES AND CHARGES ................................................................................24
Page ii
<PAGE>
TABLE OF CONTENTS
(B)4. ORDERING PROCESS .................................................................................26
(B)5. BILLING ..........................................................................................27
(B)6. MAINTENANCE AND REPAIR ...........................................................................27
PART C - WHITE PAGES DIRECTORY LISTINGS ...................................................................28
(C)1. DESCRIPTION .........................................................................................28
(C)2. TERMS AND CONDITIONS ................................................................................28
PART D- MISCELLANEOUS PROVISIONS ..........................................................................31
(D)1. NETWORK SECURITY ....................................................................................31
(D)2. ACCESS TO OPERATIONAL SUPPORT SYSTEMS (OSS) .........................................................31
(D)3. U S WEST DEX.........................................................................................46
(D)4. NOTICE OF CHANGES....................................................................................46
(D)5. MAINTENANCE AND REPAIR ..............................................................................47
(D)6. SERVICE PERFORMANCE .................................................................................53
PART E - WYOMING RATES .....................................................................................61
PART F - SIGNATURE .........................................................................................63
</TABLE>
Page iii
<PAGE>
Part A
General Terms
PART A - GENERAL TERMS
This Resale Agreement is between essential.com ("RESELLER"), a
Delaware corporation, and U S WEST Communications, Inc. ("USW"), a Colorado
corporation.
(A)1. SCOPE OF AGREEMENT
(A)1.1 Pursuant to this negotiated Resale Agreement
("Agreement"), RESELLER and USW (collectively, "the
Parties") will extend certain arrangements to one another
within the geographical areas where USW is the incumbent
Local Exchange Carrier within the state of Wyoming for
purposes of providing the resale of local
Telecommunications Services. This Agreement or the
portions of this Agreement relative to a particular state
will be submitted to the Wyoming Public Service Commission
("Commission") for approval. Notwithstanding this mutual
commitment, however, the Parties enter into this Agreement
without prejudice to any positions they have taken
previously, or may take in the future in any legislative,
regulatory, or other public forum addressing any matters,
including matters related to the types of arrangements
prescribed by this Agreement.
(A)1.2 The provisions in this Agreement are based, in large part,
on the existing state of the law, rules, regulations and
interpretations thereof, as of the date hereof (the
"Existing Rules"). Among the Existing Rules are or could
be the results of arbitrated decisions by the Commission
which are currently being challenged by USW. Among the
Existing Rules are certain FCC rules and orders that are
the subject of, or affected by, the opinion issued by the
Supreme Court of the United States in AT&T CORP., ET AL.
V. IOWA UTILITIES BOARD, ET AL. on January 25, 1999.
Nothing in this Agreement shall preclude or stop USW from
taking any position in any forum concerning the proper
interpretation or effect of the Existing Rules or
concerning whether the Existing Rules should be changed,
dismissed, stayed or modified. To the extent that the
Existing Rules are changed, vacated, dismissed, stayed or
modified, then the Parties shall amend this Agreement and
all contracts adopting all or part of this Agreement
pursuant to Section 252(i) of the Act, shall be amended to
reflect such modification or change of the Existing Rules.
Where the Parties fail to agree upon such an amendment, it
shall be resolved in accordance with the Dispute
Resolution provision of this Agreement. It is expressly
understood that this Agreement will be corrected to
reflect the outcome of generic pricing proceedings by the
Commission. This Section (A)1.2 shall be considered part
of the rates, terms and conditions of each service resale
arrangement contained in this Agreement, and this Section
(A)1.2 shall be considered legitimately related to the
purchase of each service for resale arrangement contained
in this Agreement.
(A)1.3 This Agreement sets forth the terms, conditions and prices
under which USW agrees to provide services for resale to
RESELLER, all for the sole purpose of providing
Telecommunications Services.
(A)1.4 In the performance of their obligations under this
Agreement, the Parties shall act in good faith and
consistently with the intent of the Act. Where notice,
approval or
Page 1
<PAGE>
Part A
General Terms
similar action by a Party is permitted or required by any
provision of this Agreement, (including, without
limitation, the obligation of the Parties to further
negotiate the resolution of new or open issues under this
Agreement) such action shall not be unreasonably delayed,
withheld or conditioned.
(A)1.5 USW may make services and features available to RESELLER
for resale under this Agreement consistent with the way
they are available to USW end users, without a formal
amendment to this Agreement. Nothing herein prevents
either Party from raising other issues through additional
good faith negotiations.
(A)1.6 This Agreement is structured in the following format:
Part A - General Terms
Part B - Resale
Part C - Directory Services
Part D - Miscellaneous Provisions
Part E - Rates
Part F - Signature
(A)1.7 Prior to placing any orders for services under this
Agreement, the Parties will jointly complete USW's
"Reseller Questionnaire". This questionnaire will then be
used to:
Determine geographical requirements
Identify RESELLER Ids
Determine USW system requirements to support RESELLER
specific activity
Collect credit information
Obtain billing information
Create summary bills
Establish input and output requirements
Create and distribute USW and RESELLER contact lists
Identify client hours and holidays
(A)2. DEFINITIONS
(A)2.1 "Act" means the Communications Act of 1934 (47 U.S.C. 151
et. seq.), as amended by the Telecommunications Act of
1996, and as from time to time interpreted in the duly
authorized rules and regulations of the FCC or a
Commission within its state of jurisdiction.
(A)2.2 "Basic Exchange Features" are optional end user switched
services that include, but are not necessarily limited to:
Automatic Call Back; Call Trace; Caller ID and Related
Blocking Features; Distinctive Ringing/Call Waiting;
Selective Call Forward; and Selective Call Rejection.
(A)2.3 "Basic Exchange Telecommunications Service" means a
service offered to end users which provides the end user
with a telephonic connection to, and a unique local
telephone number address on the public switched
telecommunications network, and which enables such end
user to generally place calls to, or receive calls from,
other stations on the public switched telecommunications
network.
Page 2
<PAGE>
Part A
General Terms
Basic residence and business line services are Basic
Exchange Telecommunications Services. As used solely in
the context of this statement and unless otherwise agreed,
Basic Exchange Telecommunications Service includes access
to ancillary services such as 911, directory assistance
and operator services.
(A)2.4 "Commission" means the Public Service Commission in the
state of Wyoming.
(A)2.5 "Enhanced Services" means any service offered over common
carrier transmission facilities that employ computer
processing applications that act on format, content, code,
protocol or similar aspects of the subscriber's
transmitted information; that provide the subscriber with
additional, different or restructured information; or
involve end user interaction with stored information.
(A)2.6 "Interconnect & Resale Resource Guide" is a USW document
that provides essential information needed to request
services available under this Agreement. It is available
on USW's Web site.
(A)2.7 "Interexchange Carrier" or "IXC" means a carrier that
provides interLATA or IntraLATA Toll services.
(A)2.8 "IntraLATA Toll" is defined in accordance with USW's
current intraLATA toll serving areas, as determined by
the Federal Communications Commission.
(A)2.9 "Local Exchange Carrier" or "LEC" means any person that is
engaged in the provision of telephone exchange service or
exchange access. Such term does not include a person
insofar as such person is engaged in the provision of a
commercial mobile service under Section 332(c) of the Act,
except to the extent that the FCC finds that such service
should be included in the definition of such term.
(A)2.10 "Party" means either USW or RESELLER and "Parties" means
USW and RESELLER.
(A)2.11 "Reseller" is a category of local exchange service
provider that obtains dial tone and associated
Telecommunications Services from another provider through
the purchase of finished services for resale to its end
users.
(A)2.12 "Tariff" as used throughout this Agreement refers to USW
interstate Tariffs and state Tariffs, price lists, price
schedules and catalogs.
(A)2.13 "Telecommunications Carrier" means any provider of
Telecommunications Services, except that such term does
not include aggregators of Telecommunications Services (as
defined in Section 226 of the Act). A Telecommunications
Carrier shall be treated as a common carrier under the Act
only to the extent that it is engaged in providing
Telecommunications Services, except that the Federal
Communications Commission shall determine whether the
provision of fixed and mobile satellite service shall be
treated as common carriage.
Page 3
<PAGE>
Part A
General Terms
(A)2.14 "Telecommunications Services" means the offering of
telecommunications for a fee directly to the public, or to
such classes of users as to be effectively available
directly to the public, regardless of the facilities used.
(A)2.15 Terms not otherwise defined here, but defined in the Act
shall have the meaning defined there. Where a term is
defined in the regulations implementing the Act but not in
this Agreement, the Parties do not necessarily intend to
adopt the definition as set forth in said regulations.
(A)3. TERMS AND CONDITIONS
(A)3.1 GENERAL PROVISIONS
(A)3.1.1 Each Party is solely responsible for the
services it provides to its end users and to
other Telecommunications Carriers.
(A)3.1.2 The Parties shall work cooperatively to
minimize fraud associated with intra-LATA toll,
third-number billed calls, and any other
services related to this Agreement.
(A)3.1.3 Nothing in this Agreement shall prevent either
Party from seeking to recover the costs and
expenses, if any, it may incur in (a) complying
with and implementing its obligations under
this Agreement, the Act, and the rules,
regulations and orders of the FCC and the
Commission, and (b) the development,
modification, technical installation and
maintenance of any systems or other
infrastructure which it requires to comply with
and to continue complying with its
responsibilities and obligations under this
Agreement.
(A)3.2 TERM OF AGREEMENT
This Agreement shall become effective upon Commission
approval, pursuant to Sections 251 and 252 of the Act,
shall terminate on April 10, 2002, and shall be binding
upon the Parties during that term, notwithstanding Section
252(i) of the Act. After the date specified above, this
Agreement shall continue in force and effect until
terminated by either Party providing one hundred sixty
(160) days written notice of termination to the other
Party. The day the notice is served will determine the
starting point for a 160-day negotiation period (in
accordance with 252(b)1 of the Act. In the event of such
termination, existing or pending service arrangements made
available under this Agreement shall continue in total
without interruption under either a) a new or adoption
agreement executed by the Parties, or b) tariff terms and
conditions generally available to all resellers.
(A)3.2.1 If the Parties are unable to negotiate a new
agreement during the negotiation period
described above, the window of opportunity to
file for arbitration to resolve outstanding
contractual issues in accordance with the Act
will occur between days 135 and 160 of the 160
day notice period.
(A)3.2.2 If the Parties are able to reach agreement,
this Agreement shall continue for the brief
period of time needed to secure the
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Commission's approval of an adoption agreement
or a new resale agreement. In the case of
Section (A)3.2.1, this Agreement will expire on
the termination date specified in the one
hundred sixty (160) day notice referenced
above, unless a petition for arbitration has
been filed, but if such a petition has been
filed then this Agreement shall continue for
the period necessary for the Commission to act
and resolve the disputed issues so that the
Parties will have an effective resale
agreement.
(A)3.3 PROOF OF AUTHORIZATION
Where so indicated in specific sections of this Agreement,
each party shall be responsible for obtaining and having
in its possession Proof of Authorization ("POA"). POA
shall consist of verification of the end user's selection
and authorization adequate to document the end user's
selection.. Such selection may be obtained in the
following ways:
(A)3.3.1 The end user's written Letter of Authorization.
(A)3.3.2 The end user's electronic authorization by use
of an 1-8XX number.
(A)3.3.3 The end user's oral authorization verified by
an independent third party (with third party
verification as POA).
The Parties shall make POAs available to each other upon
request, in accordance with the applicable laws and rules.
Unless prohibited by applicable laws or regulations, a
charge of $100.00 ("slamming charge") will be assessed if
the POA cannot be provided supporting the change in
service provider. If there is a conflict between the end
user designation and the other Party's written evidence of
its authority, the Parties shall honor the designation of
the end user and change the end user back to the previous
service provider.
(A)3.4 PAYMENT
(A)3.4.1 Amounts payable under this Agreement are due
and payable within thirty (30) calendar days
after the date of USW`s invoice, or within
twenty (20) days after receipt of the invoice,
whichever is later. If the payment due date is
not a Business Day, the payment shall be made
the next Business Day..
USW may discontinue processing orders for the
failure by RESELLER to make full payment for
the services provided under this Agreement
within thirty (30) days of the due date on
RESELLER's bill.
USW may disconnect for the failure by RESELLER
to make full payment for the services provided
under this Agreement within sixty (60) days of
the due date on RESELLER's bill. RESELLER will
pay the Tariff charge required to reconnect
each end user line disconnected pursuant to
this paragraph.
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(A)3.4.2 Should RESELLER dispute, in good faith, any
portion of the monthly billing under this
Agreement, RESELLER will notify USW in writing
within thirty (30) calendar days of the receipt
of such billing, identifying the amount, reason
and rationale of such dispute. RESELLER shall
pay all amounts due. Both RESELLER and USW
agree to expedite the investigation of any
disputed amounts in an effort to resolve and
settle the dispute prior to initiating any
other rights or remedies. Should the dispute be
resolved in RESELLER's favor and the resolved
amount did not appear as a credit on RESELLER's
next invoice from USW, USW will reimburse
RESELLER the resolved amount plus interest from
the date of payment. The amount of interest
will be calculated using the late payment
factor that would have applied to such amount
had it not been paid on time.
(A)3.4.3 USW will determine RESELLER's credit status
based on previous payment history with USW or
credit reports such as Dun and Bradstreet. If
RESELLER has not established satisfactory
credit with USW or if RESELLER is repeatedly
delinquent in making its payments, USW may
require a deposit to be held as security for
the payment of charges. "Repeatedly delinquent"
means being thirty (30) calendar days or more
delinquent for three (3) consecutive months.
The deposit may not exceed the estimated total
monthly charges for a two (2) month period. The
deposit may be a surety bond, a letter of
credit with terms and conditions acceptable to
USW or some other form of mutually acceptable
security such as a cash deposit. Required
deposits are due and payable within ten (10)
calendar days after demand in accordance with
Commission requirements.
(A)3.4.4 Interest will be paid on cash deposits at the
rate applying to deposits under applicable
Commission rules, regulations, or Tariffs. Cash
deposits and accrued interest will be credited
to RESELLER's account or refunded, as
appropriate, upon the earlier of the
termination of this Agreement or the
establishment of satisfactory credit with USW,
which will generally be one (1) full year of
timely payments in full by RESELLER. The fact
that a deposit has been made does not relieve
RESELLER from any requirements of this
Agreement.
(A)3.4.5 USW may review RESELLER's credit standing and
modify the amount of deposit required.
(A)3.4.6 The late payment charge for amounts that are
billed under this Agreement shall be in
accordance with state Tariffs/Commission Rules
and Orders.
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(A)3.5 TAXES
Each Party purchasing services hereunder shall pay or
otherwise be responsible for all federal, state, or local
sales, use, excise, gross receipts, transaction or similar
taxes, fees or surcharges levied against or upon such
purchasing Party (or the providing Party when such
providing Party is permitted to pass along to the
purchasing Party such taxes, fees or surcharges), except
for any tax on either Party's corporate existence, status
or income. Whenever possible, these amounts shall be
billed as a separate item on the invoice. To the extent a
sale is claimed to be for resale tax exemption, the
purchasing Party shall furnish the providing Party a
proper resale tax exemption certificate as authorized or
required by statute or regulation by the jurisdiction
providing said resale tax exemption. Until such time as a
resale tax exemption certificate is provided, no
exemptions will be applied.
(A)3.6 FORCE MAJEURE
Neither Party shall be liable for any delay or failure in
performance of any part of this Agreement from any cause
beyond its control and without its fault or negligence
including, without limitation, acts of nature, acts of
civil or military authority, government regulations,
embargoes, epidemics, terrorist acts, riots,
insurrections, fires, explosions, earthquakes, nuclear
accidents, floods, work stoppages, equipment failure,
power blackouts, volcanic action, other major
environmental disturbances, unusually severe weather
conditions, inability to secure products or services of
other persons or transportation facilities or acts or
omissions of transportation carriers (collectively, a
"Force Majeure Event"). The Party affected by a Force
Majeure Event shall give prompt notice to the other Party,
shall be excused from performance of its obligations
hereunder on a day to day basis to the extent those
obligations are prevented by the Force Majeure Event, and
shall use reasonable efforts to remove or mitigate the
Force Majeure Event. In the event of a labor dispute or
strike the Parties agree to provide service to each other
at a level equivalent to the level they provide
themselves.
(A)3.7 LIMITATION OF LIABILITY
(A)3.7.1 Except for losses relating to or arising out of
any act or omission in its performance of
services or functions provided under this
Agreement, each Party shall be liable to the
other for direct damages for any loss, defect
or equipment failure resulting from the causing
Party's conduct or the conduct of its agents or
contractors in performing the obligations
contained in this Agreement.
(A)3.7.2 Neither Party shall be liable to the other for
indirect, incidental, consequential, or special
damages, including (without limitation) damages
for lost profits, lost revenues, lost savings
suffered by the other Party regardless of the
form of action, whether in contract, warranty,
strict liability, tort, including (without
limitation) negligence of any kind and
regardless of whether the Parties know the
possibility that such damages could result.
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(A)3.7.3 Except for indemnity obligations, each Party's
liability to the other Party for any loss
relating to or arising out of any act or
omission in its performance of services or
functions provided under this Agreement,
whether in contract or in tort, shall be
limited to the total amount that is or would
have been charged to the other Party by such
breaching Party for the service(s) or
function(s) not performed or improperly
performed.
(A)3.7.4 Nothing contained in this Section shall limit
either Party's liability to the other for
intentional, malicious misconduct.
(A)3.7.5 Nothing contained in this Section shall limit
either Party's obligations of indemnification
as specified in the Indemnity Section of this
Agreement.
(A)3.7.6 Neither Party shall be liable to the other
under any theory including indemnity on account
of such Party's failure or neglect to have or
maintain a system or systems that are Year 2000
compliant. As the Parties approach the Year
2000, date information associated with any
interfaces between the Parties is expected to
remain as it is.
(A)3.8 INDEMNITY
(A)3.8.1 With respect to third party claims, the Parties
agree to indemnify each other as follows:
(A)3.8.1.1 Except for claims made by end users
of one Party against the other
Party, which claims are based on
defective or faulty services
provided by the other Party to the
one Party, each of the Parties agree
to release, indemnify, defend and
hold harmless the other Party and
each of its officers, directors,
employees and agents (each an
"Indemnitee") from and against and
in respect of any loss, debt,
liability, damage, obligation,
claim, demand, judgment or
settlement of any nature or kind,
known or unknown, liquidated or
unliquidated including, but not
limited to, costs and attorneys'
fees, whether suffered, made,
instituted, or asserted by any other
party or person, for invasion of
privacy, personal injury to or death
of any person or persons, or for
loss, damage to, or destruction of
property, whether or not owned by
others, resulting from the
indemnifying Party's performance,
breach of applicable law, or status
of its employees, agents and
subcontractors; or for failure to
perform under this Agreement,
regardless of the form of action.
(A)3.8.1.2 Where the third party claim is made
by (or through) an end user of one
Party against the other Party, which
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claim is based on defective or
faulty services provided by the
other Party to the one Party then
there shall be no obligation of
indemnity unless the act or omission
giving rise to the defective or
faulty services is shown to be
intentional, malicious misconduct of
the other Party.
(A)3.8.1.3 If the claim is made by (or through)
an end user and where a claim is in
the nature of a claim for invasion
of privacy, libel, slander, or other
claim based on the content of a
transmission, and it is made against
a Party who is not the immediate
provider of the Telecommunications
Service to the end user (the
indemnified provider), then in the
absence of fault or neglect on the
part of the indemnified provider,
the Party who is the immediate
seller of such Telecommunications
Service shall indemnify, defend and
hold harmless the indemnified
provider from such claim.
(A)3.8.2 The indemnification provided herein shall be
conditioned upon:
(A)3.8.2.1 The indemnified Party shall promptly
notify the indemnifying Party of any
action taken against the indemnified
Party relating to the
indemnification. Failure to so
notify the indemnifying Party shall
not relieve the indemnifying Party
of any liability that the
indemnifying Party might have,
except to the extent that such
failure prejudices the indemnifying
Party's ability to defend such
claim.
(A)3.8.2.2 The indemnifying Party shall have
sole authority to defend any such
action, including the selection of
legal counsel, and the indemnified
Party may engage separate legal
counsel only at its sole cost and
expense.
(A)3.8.2.3 In no event shall the indemnifying
Party settle or consent to any
judgment pertaining to any such
action without the prior written
consent of the indemnified Party.
(A)3.9 INTELLECTUAL PROPERTY
(A)3.9.1 Each Party hereby grants to the other Party the
limited, personal and nonexclusive right and
license to use its patents, copyrights and
trade secrets but only to the extent necessary
to implement this Agreement or specifically
required by the then applicable federal and
state rules and regulations relating to
Interconnection and access to
telecommunications facilities and services, and
for no other purposes. Nothing in this
Agreement shall be construed as the grant to
the other Party of any rights or licenses to
trademarks.
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(A)3.9.2 The rights and licenses above are granted "AS
IS" and the other Party's exercise of any such
right and license shall be at the sole and
exclusive risk of the other Party. Neither
Party shall have any obligation to defend,
indemnify or hold harmless, or acquire any
license or right for the benefit of, or owe any
other obligation or have any liability to, the
other based on or arising from any claim,
demand, or proceeding (hereinafter "claim") by
any third party alleging or asserting that the
use of any circuit, apparatus, or system, or
the use of any software, or the performance of
any service or method, or the provision of any
facilities by either Party under this Agreement
constitutes infringement, or misuse or
misappropriation of any patent, copyright,
trade secret, or any other proprietary or
intellectual property right of any third party.
(A)3.9.3 As a condition to the access or use of patents,
copyrights, trade secrets and other
intellectual property (including software)
owned or controlled by a third party to the
extent necessary to implement this Agreement or
specifically required by the then applicable
federal and state rules and regulations
relating to Interconnection and access to
telecommunications facilities and services, the
Party providing access may require the other,
upon written notice, from time to time, to
obtain a license or permission for such access
or use, make all payments in connection with
obtaining such license, and provide evidence of
such license.
(A)3.9.4 Except as expressly provided in this
Intellectual Property Section, nothing in this
Agreement shall be construed as the grant of a
license, either express or implied, with
respect to any patent, copyright, logo,
trademark, trade name, trade secret or any
other intellectual property right now or
hereafter owned, controlled or licensable by
either Party. Neither Party may use any patent,
copyright, logo, trademark, trade name, trade
secret or other intellectual property rights of
the other Party or its affiliates without
execution of a separate agreement between the
Parties.
(A)3.9.5 Neither Party shall without the express written
permission of the other Party, state or imply
that: 1) it is connected, or in any way
affiliated with the other or its affiliates, 2)
it is part of a joint business association or
any similar arrangement with the other or its
affiliates, 3) the other Party and its
affiliates are in any way sponsoring, endorsing
or certifying it and its goods and services, or
4) With respect to its advertising or
promotional activities or materials, that the
resold goods and services are in any way
associated with or originated from the other or
any of its affiliates. Nothing in this
paragraph shall prevent either Party from
truthfully describing the network elements it
uses to provide service to its end users,
provided
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it does not represent the network elements as
originating from the other Party or its
affiliates.
(A)3.9.6 For purposes of resale only and notwithstanding
the above, unless otherwise prohibited by USW
pursuant to an applicable provision herein,
RESELLER may use the phrase "RESELLER is a
reseller of U S WEST Communication & services"
(the "Authorized Phrase") in RESELLER's printed
materials provided:
(A)3.9.6.1 The Authorized Phrase is not used in
connection with any goods or
services other than USW services
resold by RESELLER.
(A)3.9.6.2 RESELLER's use of the Authorized
Phrase does not cause end users to
believe that RESELLER is USW.
(A)3.9.6.3 RESELLER may not use the U S WEST
logo. The Authorized Phrase, when
displayed, appears only in text form
with all letters being the same font
and point size. The point size of
the Authorized Phrase shall be no
greater than one fourth the point
size of the smallest use of
RESELLER's name and in no event
shall exceed 8 point size.
(A)3.9.6.4 RESELLER shall provide all printed
materials using the Authorized
Phrase to USW for its prior written
approval.
(A)3.9.6.5 If USW determines that RESELLER's
use of the Authorized Phrase causes
end user confusion, USW may
immediately terminate RESELLER's
right to use the Authorized Phrase.
(A)3.9.6.6 Upon termination of RESELLER's right
to use the Authorized Phrase or
termination of this Agreement, all
permission or right to use the
Authorized Phrase shall immediately
cease to exist and RESELLER shall
immediately cease any and all such
use of the Authorized Phrase.
RESELLER shall either promptly
return to USW or destroy all
materials in its possession or
control displaying the Authorized
Phrase.
(A)3.9.7 RESELLER acknowledges the value of the marks
"U S WEST" and "U S WEST Communications" (the
"Marks") and the goodwill associated therewith
and acknowledges that such goodwill is a
property right belonging to U S WEST, Inc. and
USW respectively (the "Owners"). RESELLER
recognizes that nothing contained in this
Agreement is intended as an assignment or grant
to RESELLER of any right, title or interest in
or to the Marks and that this Agreement does
not confer any right or license to grant
sublicenses or permission to third parties to
use the Marks and is not assignable.
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RESELLER will do nothing inconsistent with the
Owner's ownership of the Marks, and all rights,
if any, that may be acquired by use of the
Marks shall inure to the benefit of the Owners.
RESELLER will not adopt, use (other than as
authorized herein), register or seek to
register any mark anywhere in the world which
is identical or confusingly similar to the
Marks or which is so similar thereto as to
constitute a deceptive colorable imitation
thereof or to suggest or imply some
association, sponsorship, or endorsement by the
Owners. The Owners make no warranties regarding
ownership of any rights in or the validity of
the Marks.
(A)3.10 WARRANTIES
NOTWITHSTANDING ANY OTHER PROVISION OF THIS AGREEMENT, THE
PARTIES AGREE THAT NEITHER PARTY HAS MADE, AND THAT THERE
DOES NOT EXIST, ANY WARRANTY, EXPRESS OR IMPLIED,
INCLUDING BUT NOT LIMITED TO WARRANTIES OF MERCHANTABILITY
AND FITNESS FOR A PARTICULAR PURPOSE.
(A)3.11 ASSIGNMENT
(A)3.11.1 Neither Party may assign or transfer (whether
by operation of law or otherwise) this
Agreement (or any rights or obligations
hereunder) to a third party without the prior
written consent of the other Party.
Notwithstanding the foregoing, either Party may
assign or transfer this Agreement to a
corporate affiliate or an entity under its
common control; however, if RESELLER's assignee
or transferee has an interconnection agreement
with USW, no assignment or transfer of this
Agreement shall be effective without the prior
written consent of USW. Such consent shall
include appropriate resolutions of conflicts
and discrepancies between the assignee's or
transferee's interconnection agreement and this
Agreement. Any attempted assignment or transfer
that is not permitted is void AB INITIO.
Without limiting the generality of the
foregoing, this Agreement shall be binding upon
and shall inure to the benefit of the Parties'
respective successors and assigns.
(A)3.11.2 Without limiting the generality of the
foregoing subsection, any merger, dissolution,
consolidation or other reorganization of
RESELLER, or any sale, transfer, pledge or
other disposition by RESELLER of securities
representing more than 50% of the securities
entitled to vote in an election of RESELLER's
board of directors or other similar governing
body, or any sale, transfer, pledge or other
disposition by RESELLER of substantially all of
its assets, shall be deemed a transfer of
control. If any entity, other than RESELLER,
involved in such merger, dissolution,
consolidation, reorganization, sale, transfer,
pledge or other disposition of RESELLER has an
interconnection agreement with USW. the Parties
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agree that only one agreement, either this
Agreement or the interconnection agreement of
the other entity, will remain valid. All other
interconnection agreements will be terminated.
The Parties agree to work together to determine
which interconnection agreement should remain
valid and which should terminate. In the event
the Parties cannot reach agreement on this
issue, the issue shall be resolved through the
Dispute Resolution process contained in this
Agreement.
(A)3.12 DEFAULT
If either Party defaults in the payment of any amount due
hereunder, or if either Party violates any other material
provision of this Agreement, and such default or violation
shall continue for thirty (30) calendar days after written
notice thereof, the other Party may seek relief in
accordance with the Dispute Resolution provision of this
Agreement. The failure of either Party to enforce any of
the provisions of this Agreement or the waiver thereof in
any instance shall not be construed as a general waiver or
relinquishment on its part of any such provision, but the
same shall, nevertheless, be and remain in full force and
effect.
(A)3.13 DISCLAIMER OF AGENCY
Except for provisions herein expressly authorizing a Party
to act for another, nothing in this Agreement shall
constitute a Party as a legal representative or agent of
the other Party, nor shall a Party have the right or
authority to assume, create or incur any liability or any
obligation of any kind, express or implied, against or in
the name or on behalf of the other Party unless otherwise
expressly permitted by such other Party. Except as
otherwise expressly provided in this Agreement, no Party
undertakes to perform any obligation of the other Party
whether regulatory or contractual, or to assume any
responsibility for the management of the other Party's
business.
(A)3.14 NONDISCLOSURE
(A)3.14.1 All information, including but not limited to
specifications, microfilm, photocopies,
magnetic disks, magnetic tapes, drawings,
sketches, models, samples, tools, technical
information, data, employee records, maps,
financial reports, and market data, (i)
furnished by one Party to the other Party
dealing with end user specific, facility
specific, or usage specific information, other
than end user information communicated for the
purpose of providing directory assistance or
publication of directory database, or (ii) in
written, graphic, electromagnetic, or other
tangible form and marked at the time of
delivery as "Confidential" or "Proprietary", or
(iii) communicated and declared to the
receiving Party at the time of delivery, or by
written notice given to the receiving Party
within ten (10) calendar days after delivery,
to be "Confidential" or "Proprietary"
(collectively referred to as "Proprietary
Information"), shall remain the property of the
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disclosing Party. A Party who receives
Proprietary Information via an oral
communication may request written confirmation
that the material is Proprietary Information. A
Party who delivers Proprietary Information via
an oral communication may request written
confirmation that the Party receiving the
information understands that the material is
Proprietary Information.
(A)3.14.2 Upon request by the disclosing Party, the
receiving Party shall return all tangible
copies of Proprietary Information, whether
written, graphic or otherwise, except that the
receiving Party may retain one copy for
archival purposes.
(A)3.14.3 Each Party shall keep all of the other Party's
Proprietary Information confidential and shall
use the other Party's Proprietary Information
only in connection with this Agreement. Neither
Party shall use the other Party's Proprietary
Information for any other purpose except upon
such terms and conditions as may be agreed upon
between the Parties in writing.
(A)3.14.4 Unless otherwise agreed, the obligations of
confidentiality and non-use set forth in this
Agreement do not apply to such Proprietary
Information as:
(A)3.14.4.1 was at the time of receipt already
known to the receiving Party free
of any obligation to keep it
confidential evidenced by written
records prepared prior to delivery
by the disclosing Party; or
(A)3.14.4.2 is or becomes publicly known
through no wrongful act of the
receiving Party; or
(A)3.14.4.3 is rightfully received from a third
person having no direct or indirect
secrecy or confidentiality
obligation to the disclosing Party
with respect to such information;
or
(A)3.14.4.4 is independently developed by an
employee, agent, or contractor of
the receiving Party which
individual is not involved in any
manner with the provision of
services pursuant to the Agreement
and does not have any direct or
indirect access to the Proprietary
Information; or
(A)3.14.4.5 is disclosed to a third person by
the disclosing Party without
similar restrictions on such third
person's rights; or
(A)3.14.4.6 is approved for release by written
authorization of the disclosing
Party; or
(A)3.14.4.7 is required to be made public by
the receiving Party pursuant to
applicable law or regulation
provided that
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the receiving Party shall give
sufficient notice of the requirement
to the disclosing Party to enable
the disclosing Party to seek
protective orders.
(A)3.14.5 Nothing herein is intended to prohibit a Party
from supplying factual information about its
network and Telecommunications Services on or
connected to its network to regulatory agencies
including the Federal Communications Commission
and the Commission so long as any confidential
obligation is protected.
(A)3.14.6 Effective Date Of This Section. Notwithstanding
any other provision of this Agreement, the
Proprietary Information provisions of this
Agreement shall apply to all information
furnished by either Party to the other in
furtherance of the purpose of this Agreement,
even if furnished before the date of this
Agreement.
(A)3.15 SURVIVAL
Any liabilities or obligations of a Party for acts or
omissions prior to the cancellation or termination of this
Agreement; any obligation of a Party under the provisions
regarding indemnification, Confidential or Proprietary
Information, limitations of liability, and any other
provisions of this Agreement which, by their terms, are
contemplated to survive (or to be performed after)
termination of this Agreement, shall survive cancellation
or termination hereof.
(A)3.16 DISPUTE RESOLUTION
(A)3.16.1 If any claim, controversy or dispute between
the Parties, their agents, employees, officers,
directors or affiliated agents should arise,
and the Parties do not resolve it in the
ordinary course of their dealings (the
"Dispute"), then it shall be resolved in
accordance with the dispute resolution process
set forth in this Section. Each notice of
default, unless cured within the applicable
cure period, shall be resolved in accordance
herewith.
(A)3.16.2 At the written request of either Party, and
prior to any other formal dispute resolution
proceedings, each Party shall designate an
officer-level employee, at no less than the
vice president level, to review, meet, and
negotiate, in good faith, to resolve the
Dispute. The Parties intend that these
negotiations be conducted by non-lawyer,
business representatives, and the locations,
format, frequency, duration, and conclusions of
these discussions shall be at the discretion of
the representatives. By mutual agreement, the
representatives may use other procedures, such
as mediation, to assist in these negotiations.
The discussions and correspondence among the
representatives for the purposes of these
negotiations shall be treated as Confidential
Information developed for purposes of
settlement, and shall be exempt from discovery
and production, and
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shall not be admissible in any subsequent
arbitration or other proceedings without the
concurrence of both of the Parties.
(A)3.16.3 If the vice-presidential level representatives
have not reached a resolution of the Dispute
within thirty (30) calendar days after the
matter is referred to them, then either Party
may demand that the Dispute be settled by
Arbitration. Such an arbitration proceeding
shall be conducted by a single arbitrator,
knowledgeable about the telecommunications
industry. The arbitration proceedings shall be
conducted under the then current rules of the
American Arbitration Association ("AAA"). The
Federal Arbitration Act, 9 U.S.C. Sections
1-16, not state law, shall govern the
arbitrability of the Dispute. The arbitrator
shall not have authority to award punitive
damages. All expedited procedures prescribed by
the AAA rules shall apply. The arbitrator's
award shall be final and binding and may be
entered in any court having jurisdiction
thereof. Each Party shall bear its own costs
and attorneys' fees, and shall share equally in
the fees and expenses of the arbitrator. The
arbitration proceedings shall occur in the
Denver, Colorado metropolitan area. It is
acknowledged that the Parties, by mutual,
written agreement, may change any of these
arbitration practices for a particular, some,
or all Dispute(s).
(A)3.16.4 Should it become necessary to resort to court
proceedings to enforce a Party's compliance
with the dispute resolution process set forth
herein, and the court directs or otherwise
requires compliance herewith, then all of the
costs and expenses, including its reasonable
attorney fees, incurred by the Party requesting
such enforcement shall be reimbursed by the
non-complying Party to the requesting Party.
(A)3.16.5 No Dispute, regardless of the form of action,
arising out of this Agreement, may be brought
by either Party more than two (2) years after
the cause of action accrues.
(A)3.17 CONTROLLING LAW
This Agreement was negotiated by the Parties in accordance
with the terms of the Act and the laws of the state where
service is provided hereunder. It shall be interpreted
solely in accordance with the terms of the Act and the
applicable state law in the state where the service is
provided.
(A)3.18 JOINT WORK PRODUCT
This Agreement is the joint work product of the Parties
and has been negotiated by the Parties and their
respective counsel and shall be fairly interpreted in
accordance with its terms and, in the event of any
ambiguities, no inferences shall be drawn against either
Party.
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Part A
General Terms
(A)3.19 RESPONSIBILITY FOR ENVIRONMENTAL CONTAMINATION
Neither Party shall be liable to the other for any costs
whatsoever resulting from the presence or release of any
environmental hazard that either Party did not introduce
to the affected work location. Both Parties shall defend
and hold harmless the other, its officers, directors and
employees from and against any losses, damages, claims,
demands, suits, liabilities, fines, penalties and
expenses (including reasonable attorneys' fees) that arise
out of or result from (i) any environmental hazard that
the indemnifying Party, its contractors or agents
introduce to the work locations or (ii) the presence or
release of any environmental hazard for which the
indemnifying Party is responsible under applicable law.
(A)3.20 NOTICES
Any notices required by or concerning this Agreement shall
be sent to the Parties at the addresses shown below:
USW
Director Interconnection Compliance
1801 California, Room 2410
Denver, CO 80202
With copy to:
U S WEST Law Department
Attention: General Counsel, Interconnection
1801 California Street, 51st Floor
Denver, CO 80202
RESELLER
John Duffy
Peter Mills
3 Burlington Woods Drive
4th Floor
Burlington, MA 01803
Phone: 781-229-9599, ext. 136
Fax: 781-229-9499
E-mail: [email protected]
Each Party shall inform the other of any changes in the
above addresses.
(A)3.21 RESPONSIBILITY OF EACH PARTY
Each Party is an independent contractor, and has and
hereby retains the right to exercise full control of and
supervision over its own performance of its obligations
under this Agreement and retains full control over the
employment, direction, compensation and discharge of all
employees assisting in the performance of such
obligations. Each Party will be solely responsible for all
matters relating to payment of such employees, including
compliance with social security taxes, withholding taxes
and all other regulations governing such matters. Each
Party will be solely responsible for proper handling,
storage, transport and disposal at its
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Part A
General Terms
own expense of all (i) substances or materials that it or
its contractors or agents bring to, create or assume
control over at work locations or, (ii) waste resulting
therefrom or otherwise generated in connection with its or
its contractors' or agents' activities at the work
locations. Subject to the limitations on liability and
except as otherwise provided in this Agreement, each Party
shall be responsible for (i) its own acts and performance
of all obligations imposed by applicable law in connection
with its activities, legal status and property, real or
personal and, (ii) the acts of its own affiliates,
employees, agents and contractors during the performance
of that Party's obligations hereunder.
(A)3.22 NO THIRD PARTY BENEFICIARIES
This Agreement does not provide and shall not be construed
to provide third parties with any remedy, claim,
liability, reimbursement, cause of action, or other
privilege.
(A)3.23 REFERENCED DOCUMENTS
All references to Sections shall be deemed to be
references to Sections of this Agreement unless the
context shall otherwise require. Whenever any provision of
this Agreement refers to a technical reference, technical
publication, RESELLER practice, USW practice, any
publication of telecommunications industry administrative
or technical standards, or any other document specifically
incorporated into this Agreement, it will be deemed to be
a reference to the most recent version or edition
(including any amendments, supplements, addenda, or
successors) of such document that is in effect, and will
include the most recent version or edition (including any
amendments, supplements, addenda, or successors) of each
document incorporated by reference in such a technical
reference, technical publication, RESELLER practice, USW
practice, or publication of industry standards. USW will
not implement changes in the most recent version or
edition in the documents described above when such changes
are optional. The existing configuration of either Party's
network may not be in immediate compliance with the latest
release of applicable referenced documents.
(A)3.24 PUBLICITY
Neither Party shall publish or use any publicity materials
with respect to the execution and delivery or existence of
this Agreement without the prior written approval of the
other Party.
(A)3.25 AMENDMENT
RESELLER and USW may mutually agree to amend this
Agreement in writing. Since it is possible that amendments
to this Agreement may be needed to fully satisfy the
purposes and objectives of this Agreement, the Parties
agree to work cooperatively, promptly and in good faith to
negotiate and implement any such additions, changes and
corrections to this Agreement.
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Part A
General Terms
(A)3.26 EXECUTED IN COUNTERPARTS
This Agreement may be executed in any number of
counterparts, each of which shall be deemed an original;
but such counterparts shall together constitute one and
the same instrument.
(A)3.27 HEADINGS OF NO FORCE OR EFFECT
The headings of Sections of this Agreement are for
convenience of reference only, and shall in no way define,
modify or restrict the meaning or interpretation of the
terms or provisions of this Agreement.
(A)3.28 REGULATORY APPROVAL
The Parties understand and agree that this Agreement will
be filed with the Commission for approval. In the event
the Commission rejects any portion of this Agreement,
renders it inoperable or creates an ambiguity that
requires further amendment, the Parties agree to meet and
negotiate in good faith to arrive at a mutually acceptable
modification.
(A)3.29 COMPLIANCE
Each Party shall comply with all federal, state, and local
laws, rules and regulations applicable to its performance
under this Agreement. Without limiting the foregoing, USW
and RESELLER agree to take all action necessary to keep
and maintain in full force and effect all permits,
licenses, certificates, insurance, and other authorities
needed to perform their respective obligations hereunder.
(A)3.30 COMPLIANCE WITH THE COMMUNICATIONS ASSISTANCE FOR LAW
ENFORCEMENT ACT OF 1994 ("CALEA")
Each Party represents and warrants that any equipment,
facilities or services provided to the other Party under
this Agreement comply with CALEA. Each Party shall
indemnify and hold the other Party harmless from any and
all penalties imposed upon the other Party for such
noncompliance and shall at the noncompliant Party's sole
cost and expense, modify or replace any equipment,
facilities or services provided to the other Party under
this Agreement to ensure that such equipment, facilities
and services fully comply with CALEA.
(A)3.31 COOPERATION
The Parties agree that this Agreement involves the
provision of USW services in ways such services were not
previously available and the introduction of new processes
and procedures to provide and bill such services.
Accordingly, the Parties agree to work jointly and
cooperatively in testing and implementing processes for
pre-ordering, ordering, maintenance, provisioning and
billing and in reasonably resolving issues which result
from such implementation on a timely basis. Electronic
processes and procedures are addressed in Part D of this
Agreement.
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Part A
General Terms
(A)3.32 AVAILABILITY OF OTHER AGREEMENTS
With regard to the availability of other agreements, the
Parties agree that the provisions of Section 252(i) of the
Act shall apply, including state and federal, Commission
and court interpretive regulations and decisions in effect
from time to time.
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Part B
Resale
PART B - RESALE
(B)1. DESCRIPTION
(B)1.1 Pursuant to the Act and this Part B, USW shall offer for
resale at wholesale rates any Telecommunications Services
it provides to end users who are not Telecommunications
Carriers including terms and conditions (except prices) in
the USW Tariffs, where applicable. RESELLER may obtain
intraLATA toll service from USW for resale or RESELLER
has the option to self-provision intraLATA toll or to
obtain intraLATA toll for resale from another provider.
(B)1.2 The Parties agree that certain USW services are not
available for resale under this Agreement and certain
other USW services are available for resale but not at a
discount, as identified in Part E or in individual state
Tariffs. The availability of services and applicable
discounts identified in Part E or in individual Tariffs
are subject to change pursuant to the Rates and Charges
sub-section of this Resale section.
(B)2. TERMS AND CONDITIONS
(B)2.1 Basic Exchange Telecommunications Service, Basic Exchange
Features, Private Line Service, Frame Relay Service and
intraLATA Toll may be resold only for their intended or
disclosed use and only to the same class of end user to
which USW sells such services (e.g., residence service may
not be resold to business end users). Service provided
directly to RESELLER for its own use, such as
administrative services, must be identified by RESELLER
and RESELLER must pay the full retail rates and prices for
such services.
(B)2.2 USW shall provide to RESELLER Telecommunications Services
for resale that are at least equal in quality, and in
substantially the same time and manner that USW provides
these services to others, including other Resellers and
end users, and in accordance with any applicable
Commission service quality standards, including standards
the Commission may impose pursuant to Section 252 (e)(3)
of the Act.
(B)2.3 In the event that there are existing agreements between
RESELLER and USW for resale under USW retail Tariff
discounts, RESELLER may elect to continue to obtain
services for resale under the existing agreements and
retail Tariff discounts or RESELLER may elect to terminate
such existing agreements and obtain such services under
this Agreement with the associated wholesale discount
specified in Part E of this Agreement.
(B)2.4 In accordance with the Act, RESELLER will provide the date
it will begin to offer Telecommunications Services to
residential and business end users. RESELLER will provide
a two (2) year forecast within ninety (90) calendar days
of signing this Agreement The forecast shall be updated
and provided to USW on a annual basis or as requested by
USW. Each forecast will provide:
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Part B
Resale
- The date service will be offered (by city and/or state)
- The type and quantity of service(s) which will be
offered
- RESELLER's anticipated number of service orders
- Name of RESELLER's key contact personnel
The information provided pursuant to this paragraph shall
be considered Proprietary Information under the
Nondisclosure Section of this Agreement.
(B)2.5 RESELLER may not reserve blocks of USW telephone numbers,
except as allowed by Tariffs.
(B)2.6 USW will accept at no charge one primary listing for each
main telephone number belonging to RESELLER's end user
based on end user information provided to USW by RESELLER.
USW will place RESELLER's listings in USW's directory
listing database for directory assistance purposes.
Additional terms and conditions with respect to directory
listings are described in Part C of this Agreement.
(B)2.7 USW shall provide to RESELLER, for RESELLER's end users,
E911/911 call routing to the appropriate Public Safety
Answering Point ("PSAP"). USW shall not be responsible
for any failure of RESELLER to provide accurate end user
information for listings in any databases in which USW is
required to retain and/or maintain end user information.
USW shall provide and validate RESELLER's end user
information to the Automatic Location Identification/
Database Management System ("ALI/DMS"). USW shall use its
standard process to update and maintain, on the same
schedule that it uses for its end users, RESELLER's end
user service information in the ALI/DMS used to support
E911/911 services. USW assumes no liability for the
accuracy of information provided by RESELLER.
(B)2.8 If USW provides and RESELLER accepts operator services,
directory assistance, and intraLATA long distance as a
part of the resold line, it will be offered with standard
USW branding. RESELLER is not permitted to alter the
branding of these services in any manner when the services
are a part of the resold line without the prior written
approval of USW. However, at the request of RESELLER and
where technically feasible, USW will rebrand operator
services and directory assistance in RESELLER's name,
provided the charges associated with such rebranding are
paid by RESELLER.
(B)2.9 RESELLER shall designate the Primary Interexchange Carrier
(PIC) assignments on behalf of its end users for interLATA
services and intraLATA services.
(B)2.10 When end users switch from USW to RESELLER, or to
RESELLER from any other Reseller, and if they do not
change their service address to an address served by a
different Central Office, such end users shall be
permitted to retain their current telephone numbers if
they so desire. USW shall take no action to prevent
RESELLER end users from retaining their current telephone
numbers.
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Part B
Resale
(B)2.11 RESELLER is liable for all fraud associated with service
to its end-users and accounts. USW takes no
responsibility, will not investigate, and will make no
adjustments to RESELLER's account in cases of fraud unless
such fraud is the result of any intentional act or gross
negligence of USW. Notwithstanding the above, if USW
becomes aware of potential fraud with respect to
RESELLER's accounts, USW will promptly inform RESELLER
and, at the direction of RESELLER, take reasonable action
to mitigate the fraud where such action is possible.
(B)2.12 Resold services are available only where facilities
currently exist and are capable of providing such services
without construction of additional facilities or
enhancement of existing facilities. However, if RESELLER
requests that facilities be constructed or enhanced to
provide resold services, USW will review such requests on
a case-by-case basis and determine if it is economically
feasible for USW to build or enhance facilities. If USW
decides to build or enhance the requested facilities, USW
will develop and provide to RESELLER a price quote for the
construction. Construction charges associated with resold
services will be applied in the same manner that
construction charges apply to USW's retail end users. If
the quote is accepted, RESELLER will be billed the quoted
price and construction will commence after receipt of
payment.
(B)2.13 In the event USW terminates the provisioning of any
resold services to RESELLER for any reason, including
RESELLER's non-payment of charges, RESELLER shall be
responsible for providing any and all necessary notice to
its end users of the termination. In no case shall USW be
responsible for providing such notice to RESELLER's end
users. USW will provide notice to RESELLER of USW's
termination of a resold service on a timely basis
consistent with Commission rules and notice requirements.
(B)2.14 The underlying network provider of a resold service shall
be entitled to receive, from the purchaser of Switched
Access, the appropriate access charges pursuant to its
then effective Switched Access Tariff.
(B)2.15 Centrex terms and conditions related to calculation of
charges for, and provisioning of common blocks, station
lines, and optional features will be based on the Centrex
definition of a system and a Reseller's serving location.
(B)2.15.1 Where a common block is applicable, a Centrex
system is defined by a single common block or
multiple common blocks for a single RESELLER
within a single Central Office switching
system. A common block defines the dialing plan
for intercom calling, access to Public Switched
Network and/or private facilities, station line
and system restrictions and feature access
arrangements and functionality. RESELLER may
purchase multiple common blocks within a single
Central Office switching system when RESELLER
requires different dialing plans, feature
access arrangements and
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Part B
Resale
station line or system restrictions within a
single system operation. A Reseller with
multiple common blocks within the same Central
Office switch may have Network Access Register
and Private Facility trunk groups aggregated
across multiple common blocks. Centrex system
based optional features (i.e. Automatic Route
Selection) may not be aggregated across
multiple common blocks. A Centrex system must
provide station lines to at least one location
and may provide station lines to multiple
locations.
(B)2.15.2 Centrex station lines are provisioned and
charges are calculated based on serving
Reseller's location. A location is defined as
the site where USW facilities (cable plant from
the serving Central Office switch) meet
Reseller facilities (inside wire). In a multi-
tenant building, USW may bring facilities
directly to a single point of interconnection
with Reseller facilities, typically in a
basement equipment room, which would be
considered a single location for this
multi-tenant building. Should USW bring service
to multiple floors or offices within a
multi-tenant building each floor or office with
a separate Reseller facilities termination
point is considered a location. Multiple
buildings within contiguous property (campus)
will be provisioned and billed as a single
location. Contiguous property is defined as
property owned or leased by a single end user
and not separated by public thoroughfare, river
or railroad rights-of-way. Property will be
considered contiguous when connected via
connecting passageways or conduit acceptable to
USW for its facilities. A Reseller with Centrex
station lines from multiple Central Office
switching systems, within the same USW Wire
Center, and provisioned to the same location
will not be charged for service or provisioned
as if service was originating from a single
Centrex system. For example, station lines may
only be aggregated from a single Centrex
Reseller system to a single Reseller serving
location for rating purposes. RESELLER may not
specify a USW Central Office as a RESELLER
location for termination of Centrex station
lines.
(B)2.16 Private Line Service used for Special Access is available
for resale but not at a discount.
(B)2.17 DSL Service (such as Megabit Service) is available for
resale by RESELLER out of USW's Interstate Tariff, but at
no wholesale discount.
(B)3. RATES AND CHARGES
(B)3.1 The Telecommunications Services identified in Part E are
available for resale at the wholesale discount percentage
shown in Part E. Telecommunications
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Part B
Resale
Services available for resale but excluded from the
wholesale pricing arrangement in this Agreement are
available at the retail Tariff rates.
(B)3.2 The Customer Transfer Charges (CTC) as specified in Part E
apply when transferring services to RESELLER.
(B)3.3 A Subscriber Line Charge (SLC), or any subsequent
federally mandated charge to end users, will continue
to be paid by RESELLER without discount for each local
exchange line resold under this Agreement. All federal and
state rules and regulations associated with SLC as found
in the applicable Tariffs also apply.
(B)3.4 RESELLER will pay to USW the PIC change charge without
discount for RESELLER end user changes of interexchange or
intraLATA carriers. Any change in RESELLER's end users'
interexchange or intraLATA carrier must be requested by
RESELLER on behalf of its end user.
(B)3.5 RESELLER agrees to pay USW when its end user activates any
services or features that are billed on a per use or per
activation basis subject to the applicable discount in
Part E as such may be amended pursuant to this Section
(e.g., continuous redial, last call return, call back
calling, call trace, etc.).
(B)3.6 Product specific non-recurring charges, as set forth in
USW's applicable Tariffs will apply when additional lines,
trunks or circuits are added or when the end user adds
features or services to existing lines or trunks.
(B)3.7 Miscellaneous charges, if applicable, will be consistent
with charges for equivalent services ordered by USW end
users.
(B)3.8 If the Commission orders additional services to be
available for resale, or removes the resale requirement
for a service, the Parties agree that they will revise
Part E to incorporate the changes required by such order
into this Agreement, effective on the date ordered by the
Commission. If the Commission indicates those additional
services must be available for resale at wholesale
discount rates, those additional services will be added to
this Agreement at the original Agreement wholesale
discount rate. If the Commission, through a cost
proceeding, establishes wholesale discount rates and other
resale charges to be made generally available to Resellers
or establishes a resale Tariff, the Parties agree that
they will revise Part E to incorporate the Commission
ordered wholesale discount rates and/or other resale
charges into this Agreement effective on the date ordered
by the Commission.
(B)3.9 USW shall have a reasonable time to implement system or
other changes necessary to bill the Commission ordered
rates or charges.
(B)3.10 If the resold services are purchased pursuant to Tariffs
and the Tariff rates change, charges billed to RESELLER
for such services will be based on the new Tariff rates
less the applicable wholesale discount, if any, as agreed
to
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<PAGE>
Part B
Resale
herein or as established by Commission order and/or resale
Tariff. The new rate will be effective upon the Tariff
effective date.
(B)4. ORDERING PROCESS
(B)4.1 RESELLER, or RESELLER's agent, shall act as the single
point of contact for its end users' service needs,
including without limitation, sales, service design, order
taking, provisioning, change orders, training,
maintenance, trouble reports, repair, post-sale servicing,
billing, collection and inquiry. RESELLER shall inform its
end users that they are end users of RESELLER for resold
services. RESELLER's end users contacting USW will be
instructed to contact RESELLER; however, nothing in this
Agreement, except as provided below, shall be deemed to
prohibit USW from discussing its products and services
with RESELLER's end users who call USW.
(B)4.2 RESELLER shall transmit to USW all information necessary
for the ordering (billing, listing and other information),
installation, repair, maintenance and post-installation
servicing according to USW's standard procedures, as
described in the USW Interconnect & Resale Resource Guide
available on USW's Web site. Information shall be provided
using USW`s designated Local Service Request (LSR) format
which may include the LSR, end user and resale forms.
RESELLER must send USW complete and accurate end user
listing information for Directory Assistance, Directory
Listings, and 911 Emergency Services using USW's
designated resale directory listing order forms. When
USW's end user or the end user's new service provider
orders the discontinuance of the end user's existing
service in anticipation of moving to another service
provider, USW will render its closing bill to the end user
effective with the disconnection. If another service
provider, RESELLER's end user or RESELLER requests that
service be discontinued from RESELLER and subsequently
USW's service to RESELLER is discontinued USW will issue a
bill to RESELLER for that portion of the service provided
to RESELLER.. USW will notify RESELLER by FAX, OSS
interface or other agreed upon processes, in accordance
with the OSS section of this Agreement when an end user
moves to another service provider. USW will not provide
RESELLER with the name of the other service provider
selected by the end user.
(B)4.3 RESELLER shall provide USW and USW shall provide RESELLER
with points of contact for order entry, problem resolution
and repair of the resold services.
(B)4.4 Prior to placing orders on behalf of the end user,
RESELLER shall be responsible for obtaining and have in
its possession Proof of Authorization ("POA"), as set
forth in Part A of this Agreement.
(B)4.5 Due date interval standards are addressed in the
Interconnect & Resale Resource Guide.
(B)4.6 Firm Order Confirmation (FOC) guidelines are addressed in
the Interconnect & Resale Resource Guide.
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Part B
Resale
(B)4.7 USW will provide completion notification that is equal to
that provided to USW end users.
(B)4.8 USW will provide Design Layout Records when requested
under terms and conditions consistent with USW end users.
(B)4.9 USW will handle jeopardy orders based upon the same
performance standards and criteria that USW provides to
itself.
(B)5. BILLING
(B)5.1 USW shall bill RESELLER and RESELLER is responsible for
all applicable charges for the resold services as provided
herein. RESELLER shall also be responsible for all
Tariffed charges and charges separately identified in this
Agreement associated with services that RESELLER resells
to an end user under this Agreement.
(B)5.2 USW shall provide RESELLER, on a monthly basis, within
7-10 calendar days of the last day of the most recent
billing period, in an agreed upon standard electronic
billing format as detailed in Part D, billing information
including (1) a summary bill, and (2) individual end user
sub-account information consistent with the samples
available for RESELLER review.
(B)6. MAINTENANCE AND REPAIR
RESELLER and USW will employ the procedures for handling misdirected
repair calls as specified in the Maintenance and Repair Section of
this Agreement.
(B)6.1 USW will maintain facilities and equipment used to provide
RESELLER resold services. RESELLER or its end user may not
rearrange, move, disconnect, or attempt to repair USW
facilities or equipment, other than by connection or
disconnection to any interface between USW and the end
user, without written consent of USW.
(B)6.2 Maintenance and repair processes are detailed in the
Maintenance and Repair Section of this Agreement.
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<PAGE>
Part C
Directory Listings
PART C - WHITE PAGES DIRECTORY LISTINGS
(C)1. DESCRIPTION
White Pages Listings Service (Listings) consists of USW placing the
names, addresses and telephone numbers of RESELLER's end users in
USW's listing database, based on end user information provided to USW
by RESELLER. USW is authorized to use Listings in Directory
Assistance (DA) and as noted below.
(C)2. TERMS AND CONDITIONS
(C)2.1 RESELLER will provide in standard, mechanized format, and
USW will accept at no charge, one primary listing for each
main telephone number belonging to RESELLER's end users.
Primary listings for RESELLER will include the end user
Listings for any resold services or wireless services and
are further defined in USW's general exchange Tariffs.
RESELLER will be charged for premium and privacy listings,
(e.g., additional, foreign, cross reference,
informational, etc.), at USW's general exchange listing
Tariff rates, less the wholesale discount. If RESELLER
utilizes Remote Call Forwarding for local number
portability, RESELLER can list only one number without
charge - either the end user's original telephone number
or RESELLER-assigned number. The standard discounted rate
for an additional listing applies to the other number.
(C)2.2 USW will furnish RESELLER the Listings format
specifications. All manual requests are considered a
project and require coordination between RESELLER and USW
to determine time frames.
(C)2.3 RESELLER grants USW a non-exclusive license to incorporate
Listings information into its Directory Assistance
database. With this license USW will incorporate Listings
in the DA database.
(C)2.4 No prior authorization is needed for USW to release
Listings to directory publishers or other third parties.
USW will incorporate Listings information in all existing
and future directory assistance applications developed by
USW. RESELLER authorizes USW to sell and otherwise make
Listings available to directory publishers. Listings shall
not be provided or sold in such a manner as to segregate
end users by carrier. USW will not charge for updating and
maintaining the Listings database. RESELLER will not
receive compensation from USW for any sale of Listings by
USW.
(C)2.5 To the extent that state Tariffs limit USW's liability
with regard to Listings, the applicable state Tariff(s) is
incorporated herein and supersedes the Limitation of
Liability section of this Agreement with respect to
Listings only.
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Part C
Directory Listings
(C)2.6 USW is responsible for maintaining Listings, including
entering, changing, correcting, rearranging and removing
Listings in accordance with RESELLER orders. USW will take
reasonable steps in accordance with industry practices to
accommodate non-published and non-listed Listings provided
that RESELLER has supplied USW the necessary privacy
indicators on such Listings.
(C)2.7 USW will include RESELLER Listings in USW's Directory
Assistance service to ensure that callers to USW's
Directory Assistance service have non-discriminatory
access to RESELLER's Listings.
(C)2.8 USW will ensure RESELLER Listings provided to USW are
included in the white pages directory published on USW`s
behalf.
(C)2.9 RESELLER agrees to provide to USW its end user names,
addresses and telephone numbers in a standard mechanized
format, as specified by USW.
(C)2.10 RESELLER will supply its ACNA/CIC or CLCC/OCN, as
appropriate, with each order to provide USW the means of
identifying Listings ownership.
(C)2.11 Upon request by USW, RESELLER shall submit proof to USW,
of authorization from each end user for which RESELLER
submits a change in end user's Listing.
(C)2.12 RESELLER represents and warrants the end user
information provided to USW is accurate and correct.
RESELLER further represents and warrants that it has
reviewed all Listings provided to USW, including end
user requested restrictions on use such as
non-published and non-listed. RESELLER shall be solely
responsible for knowing and adhering to state laws or
rulings regarding Listings (e.g., no solicitation
requirements in the states of Arizona and Oregon,
privacy requirements in Colorado), and for supplying
USW with the applicable Listing information.
(C)2.13 RESELLER is responsible for all dealings with, and on
behalf of, RESELLER's end users, including:
(C)2.13.1 All end user account activity, (e.g. end user
queries and complaints).
(C)2.13.2 All account maintenance activity, (e.g.,
additions, changes, issuance of orders for
Listings to USW).
(C)2.13.3 Determining privacy requirements and accurately
coding the privacy indicators for RESELLER's
end user information. If end user information
provided by RESELLER to USW does not contain a
privacy indicator, no privacy restrictions will
apply.
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Directory Listings
(C)2.13.4 Any additional services requested by RESELLER's
end users.
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PART D- MISCELLANEOUS PROVISIONS
(D)1. NETWORK SECURITY
(D)1.1 Protection of Service and Property - Each Party shall
exercise the same degree of care to prevent harm or
damage to the other Party and any third parties, its
employees, agents or end users, or their property as it
employs to protect its own personnel, end users and
property, etc. Each Party shall comply at all times with
USW security and safety procedures and requirements.
(D)1.2 Revenue Protection - USW shall make available to RESELLER
all present and future fraud prevention or revenue
protection features. These features include, but are not
limited to screening codes, and 900 numbers.
(D)1.3. Law Enforcement Interface - USW provides emergency
assistance to 911 centers and law enforcement agencies
seven (7) days a week/twenty-four (24) hours a day.
Assistance includes, but is not limited to release of 911
trace and subscriber information; in-progress trace
requests; establishing emergency trace equipment, release
of information from an emergency trap/trace or *57 trace;
requests for emergency subscriber information; assistance
to law enforcement agencies in hostage/barricade
situations, kidnappings, bomb threats, extortion/scams,
runaways and life threats.
(D)1.4 USW provides trap/trace, pen register and Title III
assistance directly to law enforcement, if such assistance
is directed by a court order. This service is provided
during normal business hours, Monday through Friday.
Exceptions are addressed in the above paragraph. The
charges for these services will be billed directly to the
law enforcement agency, without involvement of RESELLER,
for any lines served from USW Wire Centers or cross boxes.
(D)1.5 In all cases involving telephone lines served from USW
Wire Centers or cross boxes, USW will perform
trap/trace Title III and pen register assistance
directly with law enforcement. RESELLER will not be
involved or notified of such actions, due to
non-disclosure court order considerations, as well as
timely response duties when law enforcement agencies
are involved. Exceptions to the above will be those
cases, as yet undetermined, where RESELLER must
participate due to technical reasons wherein its
circuitry must be accessed or modified to comply with
law enforcement, or for legal reasons that may evolve
over time. RESELLER will provide USW with a 24 hour a
day, 7 days a week contact for processing such
requests, should they occur.
(D)2. ACCESS TO OPERATIONAL SUPPORT SYSTEMS (OSS)
(D)2.1 Description
(D)2.1.1 USW has developed and shall continue to provide
Operational Support Systems OSS interfaces
using electronic gateways. These gateways act
as a mediation or control point between
RESELLER'S
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and USW's OSS. These gateways provide security
for the interfaces, protecting the integrity of
the USW OSS and its databases. USW's OSS
interfaces have been developed to support
Pre-ordering, Ordering and Provisioning,
Maintenance and Repair and Billing. Included
below is a description of the products and
functions supported by USW OSS interfaces and
the technology used by each. This section
describes the interfaces that USW has developed
and shall provide RESELLER. Additional
technical information and details shall be
provided by USW in training sessions and
documentation, such as the "Interconnect
Mediated Access User's Guide". USW will
continue to make improvements to the electronic
interfaces as technology evolves, providing
notification to RESELLER consistent with the
provisions of this Section.
(D)2.1.2 Through its electronic gateways, USW shall
provide RESELLER nondiscriminatory access to
USW's operational support systems for
pre-ordering, ordering and provisioning,
maintenance and repair, and billing for resale.
For the pre-ordering, ordering and provisioning
of resold services, USW shall provide RESELLER
access to its OSS in substantially the same
time and manner as it provides to itself.
(D)2.2 OSS Support for Pre-Ordering, Ordering and Provisioning
(D)2.2.1 LSR (Local Service Request) Ordering Process
(D)2.2.1.1 RESELLER shall use electronic
interfaces for orders placed using
the LSR Ordering Process for the
services it supports. The electronic
interface gateways include both the
Electronic Data Interchange (EDI)
interface and the Interconnect
Mediated Access (IMA) Graphical User
Interface (GUI).
(D)2.2.1.2 The EDI interface provides a single
interface for Pre-Order and Order
transactions from RESELLER to USW
and is transaction based rather than
batch based. The interface standards
for EDI are based upon the Order &
Billing Forum (OBF) Local Service
Order Guidelines (LSOG), the
Telecommunication Industry Forum
TCIF) Customer Service Guideline and
the American National Standards
Institute/Accredited Standards
Committee (ANSI ASC) X12 with
exceptions as specified in the IMA
and EDI disclosure documents which
are provided in conjunction with the
implementation responsibilities
contained in this Section.
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(D)2.2.1.3 The IMA GUI also provides a single
interface for Pre-Order and Order
transactions from RESELLER to USW
and is browser based The IMA GUI
interface is based on the LSOG and
utilizes a WEB standard technology,
Hyper Text Markup Language (HTML),
JAVA, and the Transmission Control
Protocol/Internet Protocol (TCP/IP)
to transmit messages.
(D)2.2.1.4 Functions
(D)2.2.1.4.1 Pre-ordering
Pre-Ordering refers to the set of
activities performed in conjunction
with placing an order. Pre-order
consists of the following functions:
validate address, service
availability, review Customer
Service Record (CSR), check facility
availability, reserve telephone
numbers, and schedule an
appointment. The electronic
interface gateways provide on-line
capabilities to perform these
functions. Not all functions apply
to all products.
(D)2.2.1.4.1.1 Validate address will
verify the end user's
address.
(D)2.2.1.1.4.1.2 Service
Availability will return
the list of (1) POTS
products and services
available in the Central
Office switch serving a
particular end user
address, which will
indicate to RESELLER,
among other things, which
products and services are
authorized for resale in
the Central Office switch
serving a particular end
user address and (2)
non-switched-based
products and services
that RESELLER is
authorized to provide
according to its resale
agreement with USW.
(D)2.2.1.1.4.1.3 Review Customer
Service Record (CSR)
gives RESELLER the
ability to request a
display of local exchange
services and features
(CPNI) USW is currently
providing to an end user.
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(D)2.2.1.4.1.4 Check Facility Availability will
provide an indication of whether existing
facilities are available or if new
facilities are required, and if a
technician must be dispatched to provide
the facilities requested at the end user's
address. This transaction does not reserve
facilities and does not guarantee that
facilities will or will not be available
when the order is submitted.
(D)2.2.1.4.1.5 Reserve Telephone Numbers provides
RESELLER with the ability to select an
end user's telephone number. The
reservation process is further divided
into telephone number availability,
selection, exchange and return
functionality. Expiration period for
selection and submission of Telephone
Number are:
- A period up to thirty (30) minutes
in which to make a telephone number
selection. If this time limit is
exceeded, and no attempt has been
made to select the telephone numbers,
the telephone numbers are sent back to
the OSS and an error message is
displayed on the LSR. A new query will
need to be performed for available
telephone numbers.
- When a telephone number has been
reserved, there is a twenty-four (24)
hour business period that the telephone
number may be included on an LSR. If
the time limit is exceeded, the
telephone number is returned to the
OSS.
(D)2.2.1.4.1.6 Schedule Appointment allows RESELLER
to retrieve a calendar of available
appointments and to reserve an appointment
date and time so that a technician can be
dispatched for premises and/or non-premises
work.
(D)2.2.1.4.1.7 Expiration period for selection and
submission of Appointment Reservation are:
- A selection must be made within a
thirty (30) minute period. If an
appointment
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D Miscellaneous Provisions
has been selected and the time limit
was exceeded, an error message will
display. If the error message
displays, an updated list of
available appointments will need to
be requested. If an appointment has
already been reserved for this
Purchase Order Number, the
Appointment Confirmation window will
be displayed and will be
pre-populated with confirmation
number, appointment date and time,
and after and before times.
- Appointments are reserved for a
24-hour business period. If the
appointment is not attached to a
submitted order within 24 business
hours, the appointment is returned.
When the appointment is successfully
reserved, confirmation of the
appointment will be displayed to
RESELLER.
(D)2.2.1.4.2 Ordering and Provisioning
Submitting an LSR will result in the
provisioning and installation, if
necessary, of an end user's service.
The functional set associated with
ordering is: Create New LSR, Open
LSR, Query LSR Status and FOC Return.
(D)2.2.1.4.2.1 Create New LSR allows entry of
information specific to the LSR,
including required OBF forms,
validates information and submits
the LSR for processing.
(D)2.2.1.4.2.2 Open LSR allows RESELLER to save
LSRs it is not ready to submit for
processing as a pending status. When
an LSR is saved as pending, all the
data in all the forms associated with
the LSR is saved. This feature permits
RESELLER to access, edit, submit,
re-save, and purge pending LSRs. In
addition, for issued LSRs, RESELLER
can issue supplemental LSRs and
cancellations.
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(D)2.2.1.4.2.3 Query LSR Status allows RESELLER
to obtain the status of the LSR. Status
is provided to RESELLER upon inquiry.
Order status functions include the
following: Submitted, In Review,
Issued, Rejected, Erred, Completed and
Jeopardy.
(D)2.2.1.4.2.4 FOC Return returns a Firm Order
Confirmation to RESELLER. The FOC
confirms that USW has received a SR,
issued an order, and assigned an
order number for tracking.
(D)2.2.1.5 Forecast of Usage
(D)2.2.1.5.1 RESELLER shall supply USW with a
forecast of products and volumes they
anticipate ordering through the
electronic interface gateways on a
quarterly basis.
(D)2.2.1.5.2 USW will use RESELLER's forecast
to provide RESELLER sufficient
capacity to provide the services and
elements requested. If RESELLER
exceeds its capacity without
notification, to the extent that it
causes degradation to other users'
response times, RESELLER's use of
its capacity on the IMA or EDI
server may be discontinued until a
resolution can be mutually agreed to
by both Parties. USW will attempt to
notify RESELLER before discontinuing
RESELLER's use of the IMA or EDI
server; however USW reserves the
right to discontinue use if it is
unable to contact RESELLER.
(D)2.2.1.5.3 When RESELLER requests more than
twenty (20) Secure IDs from USW
RESELLER shall use a T1 line instead
of dial-up capabilities.
(D)2.2.1.6. Access Service Request (ASR) Ordering Process
(D)2.2.1.6.1 The Exchange Access Control and
Tracking (EXACT) system may be used
for orders placed using the ASR
process. EXACT is based upon the OBF
Access Service Order Guidelines
(ASOG). The EXACT interface accepts
a batch
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file that is transmitted via a
Network Data Mover (NDM) connection
to USW from RESELLER. It is
RESELLER's responsibility to obtain
the appropriate software to
interface with USW's EXACT system.
(D)2.2.1.7 Facility Based EDI Listing Process
(D)2.2.1.7.1 The Facility Based EDI Listing
Process is a single interface from
RESELLER to USW. This interface is
based upon the OBF LSOG and ANSI ASC
X12 standards, version 4010. This
interface enables RESELLER listing
data to be translated and passed
into the USW listing database. After
USW's daily batch processing, a
Confirmation/Completion record
(for every PON provided on input) is
returned to RESELLER via an EDI 855
transaction.
(D)2.2.2 Maintenance and Repair
(D)2.2.2.1 Maintenance and Repair electronic
interfaces support the tracking and
resolution of end users' repair and
maintenance needs as reported to
RESELLER. They facilitate the
exchange of updated information and
progress reports between USW and
RESELLER while the Trouble Report
(TR) is open and a USW technician is
working on the resolution.
(D)2.2.2.2 RESELLER shall use the electronic
interface gateways for reporting
trouble. The electronic interface
gateways are comprised of either the
Mediated Access System Electronic
Bonding (MEDIACC EB) interface or
the IMA GUI interface.
(D)2.2.2.3 The MEDIACC Electronic Bonding (EB)
interface uses CMIP protocol over
X.25 packet switching network using
ANS T1M1.5 227/228 standards.
(D)2.2.2.4 The IMA GUI also provides a single
interface for trouble reporting from
RESELLER to USW and is browser
based. The IMA GUI interface uses a
Berkley Socket interface using ANSI
T1M1.5 227/228 standards. The IMA
GUI uses JAVA as the standard. The
IMA GUI Interface currently supports
trouble reporting for resale
services.
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(D)2.2.2.5 Functions
(D)2.2.2.5.1 Maintenance and Repair - The
functions, processes and systems
used in repair are based on a
Trouble Report (TR), which is an
electronic document maintained in
one or more OSS. A TR contains
information about the end user, the
trouble, the status of the work on
the trouble and the results of the
investigation and resolution
efforts. These business processes
will be made available to RESELLER
in the following functional set:
open a trouble report, modify a
trouble report, notification of
status change, view trouble report
status, cancel a trouble report,
receive a trouble report history,
resubmit/delete an erred trouble
report and close a trouble report.
(D)2.2.2.5.1.1 Open Trouble Report is the
mechanism that captures information
needed to resolve the trouble. Once
a TR has been opened, if RESELLER is
using MEDIACC EB, USW sends an
electronic transaction to RESELLER
identifying information about the TR
(E.G., commitment date and tracking
number).
(D)2.2.2.5.1.2 In IMA for POTS, and in EBTA for
POTS and designed services, Modify
Trouble Report allows RESELLER to
modify the trouble severity (for
example; change from "service
affecting" to "out of service") and
trouble narrative on a TR until it
has been cleared.
(D)2.2.2.5.1.3 Status Change Notification
provides notification to RESELLER
that the status of a previously
opened TR has changed. If RESELLER
is using MEDIACC EB, RESELLER will
receive this notification via an
electronic transaction. If RESELLER
is using the IMA GUI Interface,
RESELLER will receive this
notification via email and/or fax.
(D)2.2.2.5.1.4 View Trouble Report
Status/Trouble Report Status Request
allows RESELLER to view the status
of an opened Trouble Report. If
RESELLER is using MEDIACC EB, USW
sends an electronic transaction to
RESELLER with the
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status of an opened TR after
RESELLER sends an electronic
transaction to request the status.
(D)2.2.2.5.1.5 Cancel Trouble Report allows
RESELLER to request cancellation of
a previously opened TR. Once a
request to cancel is received, an
orderly cessation of the trouble
resolution process begins. If USW
has completed any work before the
trouble resolution process is
stopped, charges to RESELLER may
apply.
(D)2.2.2.5.1.6 Trouble Report History provides
RESELLER with historical information
on up to the last three trouble
reports. For POTS resale, the
disposition and trouble report date
and time are provided. For design
services resale, the trouble report
date and time, a text description of
the disposition, the USW Trouble
Report Number, and the trouble type
are provided. IMA provides trouble
report history.
(D)2.2.2.5.1.7 Resubmit/Delete allows trouble
reports to be resubmitted or deleted
via IMA GUI if, prior to entering
USWs OSS, the transaction fails or
errors. This transaction is only
valid if the TR has not entered
USW's OSS. This transaction is
currently only available via IMA
GUI.
(D)2.2.5.1.8 Close a Trouble Report for resale,
allows USW to close the TR once work
is complete. For design resale
services, USW sends RESELLER a
request for verification to close.
RESELLER then authorizes or denies
the closure. RESELLER has
twenty-four (24) hours to respond.
If a response is not received within
that time frame, the TR will
automatically be closed. USW
provides notification to RESELLER
that a TR has been closed because
the trouble was resolved. Additional
information, (e.g., disposition,
disposition description, outage
duration, maintenance of service,
charge indicator) is also included.
If RESELLER is using EB, RESELLER
will receive this response via
an electronic
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transaction. If RESELLER is using
the IMA GUI Interface, RESELLER will
receive this response via email
and/or fax.
(D)2.2.2.5.1.9 MLT test results give RESELLER
the ability to request a loop test
for POTS service via EBTA. When
RESELLER submits a TR through IMA,
the technician handling the TR will
order a MLT test in appropriate
situations.
(D)2.3 Hours of Operation
USW's electronic interface gateways will be available to Resellers
according to the following schedule:
<TABLE>
<CAPTION>
- --------------------------------------- ------------------------ --------------------- -----------------------
Function Monday - Friday Saturday Sunday
- --------------------------------------- ------------------------ --------------------- -----------------------
<S> <C> <C> <C>
IMA Pre-Order & Order 06:00 - 20:00
- --------------------------------------- ------------------------ --------------------- -----------------------
Exact Order 06:00 - 19:00 07:00 - 17:00
- --------------------------------------- ------------------------ --------------------- -----------------------
Repair 02:15 - 23:15 07:00 - 21:00 13:00 - 17:00
- --------------------------------------- ------------------------ --------------------- -----------------------
</TABLE>
USW shall notify Resellers regarding system downtime through mass
facsimile distribution and pop-up windows in the IMA GUI. All
referenced times are Mountain Time.
The preceding times represent the period when USW commits that its
OSS interfaces and downstream systems will be functioning (except for
unforeseen system crashes) and its personnel will be available to
assist RESELLER. USW's OSS interfaces are typically available 23
hours a day. RESELLER may call any maintenance and repair issues to
the applicable repair center 24 hours per day, seven days per week.
USW shall provide RESELLER current repair contact numbers.
(D)2.4 Billing
(D)2.4.1 For products billed out of the USW Interexchange Access
Billing System (IABS), USW will utilize the existing
CABS/BOS format and technology for the transmission of
bills.
(D)2.4.2 For products billed out of the USW Customer Record
Information System (CRIS), USW will utilize the existing
EDI standard for the transmission of monthly local billing
information. EDI is an established standard under the
auspices of the American National Standards
Institute/Accredited Standards Committee (ANSI/ASC) X12
Committee. A proper subset of this specification has been
adopted by the Telecommunications Industry Forum (TCIF) as
the "811 Guidelines" specifically for the purposes of
telecommunications billing.
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(D)2.5 Outputs
Output information will be provided to RESELLER in the form of bills,
files, and reports. Bills will capture all regular monthly and
incremental/usage charges and present them in a summarized format.
The files and reports delivered to RESELLER provide more
detailed information than the bills. They come in the following
categories:
<TABLE>
<S> <C>
- --------------------------------------------------------------------------------------------------
Usage Record File Line Usage Information
- ----------------------------------------------------------------------------------------------------
Loss and Completion Order Information
- ----------------------------------------------------------------------------------------------------
Category 11 Facility Based Line Usage Information
- ----------------------------------------------------------------------------------------------------
SAG/FAM Street Address/Facility Availability Information
- --------------------------------------------------------------------------------------------------
</TABLE>
(D)2.5.1 Bills
(D)2.5.1.1 CRIS Summary Bill - The CRIS (Customer Record
Information System) Summary Bill represents a
monthly summary of charges for most wholesale
products sold by USW. This bill includes a
total of all charges by entity plus a summary
of current charges and adjustments on each
sub-account. Individual sub-accounts are
provided as billing detail and contain monthly,
one time charges and incremental/call detail
information. The Summary provides one bill and
one payment document for RESELLER. These bills
are segmented by state and bill cycle. The
number of bills received by RESELLER is
dictated by the product ordered and the USW
region in which RESELLER is operating.
(D)2.5.1.2 IABS Bill - The IABS (Interexchange Access
Billing System) Bill represents a monthly
summary of charges. This bill includes monthly
and one time charges plus a summary of any
usage charges. These bills are segmented by
product, LATA, billing account number (BAN) and
bill cycle.
(D)2.5.2 Files and Reports
(D)2.5.2.1 Daily Usage Record File provides the
accumulated set of call information for a given
day as captured, or "recorded" by the network
switches. This file will be transmitted Monday
through Friday, excluding USW holidays. This
information is a file of un-rated USW
originated usage messages and rated RESELLER
originated usage messages. It is provided in
Alliance for Telecommunication Industry
Solution (ATIS) standard
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Electronic Message Interface (EMI) format. This
EMI format is outlined in the document SR-320;
which can be obtained directly from ATIS. The
Daily Usage Record File contains multi-state
data for the Data Processing Center generating
this information. Individual state
identification information is contained with
the message detail. USW will provide this data
to RESELLER with the same level of precision
and accuracy it provides itself. This file will
be provided for Resale services.
(D)2.5.2.2 The charge for this Daily Usage Record File is
contained in Part E of this Agreement.
(D)2.5.2.3 Routing of in-region IntraLATA Collect, Calling
Card, and Third Number Billed Messages - USW
will distribute inregion intraLATA collect,
calling card, and third number billed messages
to RESELLER and exchange with other
Co-Providers operating in region in a manner
consistent with existing inter-company
processing agreements. Whenever the daily usage
information is transmitted to a carrier, it
will contain these records for these types of
calls as well.
(D)2.5.2.4 Loss Report provides RESELLER with a daily
report that contains a list of accounts that
have had lines and/or services disconnected.
This may indicate that the end user has changed
Resellers or removed services from an existing
account. This report also details the order
number, service name and address, and date this
change was made. Individual reports will be
provided for resale services.:
(D)2.5.2.5 Completion Report provides RESELLER with a
daily report. This report is used to advise
RESELLER that the order(s) for the service(s)
requested is complete. It details the order
number, service name and address and date this
change was completed. Individual reports will
be provided for resale services.:
This report media is described in Exhibit C.
(D)2.5.2.6 Category 11 Records are Exchange Message
Records (EMR) which provide mechanized record
formats that can be used to exchange access
usage information between USW and RESELLER.
Category 1101 series
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records are used to exchange detailed access
usage information.
(D)2.5.2.7 Category 1150 series records are used to
exchange summarized Meet Point Billed access
minutes-of-use.
These mechanized records are available from USW
in the following formats:
NDM (direct connect or dial-up)
Comet
Tape
Cartridge
(D)2.5.2.8 SAG/FAM Files - The SAG (Street Address Guide)/
FAM (Facility Availability Matrix) files
contain the following information:
SAG provides: - Address and Serving Central
Office Information.
FAM provides USOCs and descriptions by state -
(POTS services only). USOC availability by
NPA-NXX (with the exception of Centrex).
interLATA/intraLATA carriers by NPA-NXX.
These files are made available via a download
process. They can be retrieved by ftp (file
transfer protocol), NDM (Network Data Mover)
connectivity, or a Web browser.
(D)2.6 Modifications to OSS Interfaces
(D)2.6.1 RESELLER and USW agree to discuss the modification of OSS
interfaces based upon evolving standards (e.g., data
elements, protocols, transport networks, etc.) and
guidelines issued by or referenced by relevant Alliance
for Telecommunication Industry Solution (ATIS) committees.
Establishment of new, or changes to industry standards and
guidelines will be reviewed semi-annually. The review will
consider standards and guidelines that have reached final
closure as well as those published in final form. Both
Parties agree to evaluate evolving standards and determine
the relevant modification to be implemented based upon the
latest approved version adopted or the latest version
reflecting final closure by the relevant ATIS committee or
subcommittee. As a result of the review, USW shall draft
appropriate interface specifications that shall be made
available to RESELLER through the electronic gateway
disclosure document. Changes shall be implemented in the
next release after the distribution of the electronic
gateway disclosure document to the Resellers.
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(D)2.6.2 In the course of establishing operational ready
system interfaces between USW and RESELLER to
support local service delivery, RESELLER and
USW may need to define and implement system
interface specifications that are supplemental
to existing standards. RESELLER and USW will
submit such specifications to the appropriate
standards committee and will work towards
their acceptance as a standard.
(D)2.6.3 Release updates will be based on regulatory
obligations as dictated by the FCC or
Commissions and, as time permits, business
requirements. USW will provide to RESELLER the
features list for modifications to the
interface. Specifications for interface
modifications will be provided to RESELLER
three (3) weeks prior to the release date.
RESELLER is required to upgrade to the current
release within six (6) months of the
installation date.
(D)2.7 Reseller Responsibilities for Implementation of OSS
Interfaces
(D)2.7.1 Before any RESELLER implementation can begin,
RESELLER must completely and accurately answer
the New Customer Questionnaire. This
questionnaire is provided by the USW account
manager and details information needed by USW
in order to establish service for RESELLER.
(D)2.7.2 Once USW receives a complete and accurate New
Customer Questionnaire, USW and RESELLER will
mutually agree upon time frames for RESELLER
implementation.
(D)2.7.3 If using the EDI interfaces, USW will provide
RESELLER with a copy of the Production
Readiness Verification document. RESELLER is
obligated to meet the requirements specified in
the Production Readiness Verification document
regardless of whether RESELLER chooses to
participate in the Production Readiness
Verification Test.
(D)2.8 Reseller Responsibilities for On-going Support for OSS
Interfaces
(D)2.8.1 If using the IMA GUI interface, RESELLER must
work with USW to train RESELLER personnel on
the IMA GUI functions that RESELLER will be
using. USW and RESELLER shall concur on which
IMA GUI functions should be included in
RESELLER's training. USW and RESELLER shall
make reasonable efforts to schedule training in
a timely fashion.
(D)2.8.2 An exchange protocol will be used to transport
EDI formatted content. RESELLER must perform
certification testing of exchange protocol
prior to using EDI.
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(D)2.8.3 If RESELLER is using EDI, USW shall provide
RESELLER with a pre-allotted amount of time to
complete certification of its business
scenarios. It is the sole responsibility of
RESELLER to schedule an appointment with USW
for certification of its business scenarios.
RESELLER must comply with the agreed upon dates
and times scheduled for the certification of
its business scenarios. If the certification of
business scenarios is delayed due to RESELLER,
it is the sole responsibility of RESELLER to
schedule new appointments for certification of
its business scenarios. Conflicts in the
schedule could result in certification being
delayed. If a delay is due to USW, USW will
honor RESELLER's schedule through the use of
alternative hours.
(D)2.8.4 If RESELLER is using the EDI interface,
RESELLER must work with USW to certify the
business scenarios that RESELLER will be using
in order to ensure successful transaction
processing. USW and RESELLER shall mutually
agree to the business scenarios for which
RESELLER is required to be certified.
Certification is granted only for a specific
release of EDI. New releases of EDI may require
re-certification of some or all business
scenarios. A determination as to the need for
re-certification will be made by the USW
Coordinator in conjunction with the release
manager of each EDI release. Notice of the need
for re-certification will be provided to
RESELLER three (3) weeks prior to the release
date.
(D)2.8.5 In the event of Electronic Interface trouble,
RESELLER shall use its best efforts to isolate
and resolve the trouble using the guidelines
provided in the Production Readiness
Verification document. If RESELLER cannot
resolve the problem, then RESELLER should
contact the LSP Systems Help Desk. The LSP
Systems Help Desk is RESELLER's Single Point of
Contact for electronic interface trouble.
(D)2.9 Reseller Support
(D)2.9.1 USW shall provide adequate assistance to
RESELLER for RESELLER to understand how to
implement and use the OSS functions for which
USW provides access. This assistance will
include training, documentation, and a LSP Help
Desk. The LSP Help Desk will provide a single
point of entry for RESELLER to gain assistance
in areas involving connectivity, system
availability, and file outputs. The LSP Systems
Help Desk is available Monday through Friday,
6:00 a.m. until 8:00 p.m. Mountain Time,
excluding USW holidays. The Help Desk areas are
further described below..
(D)2.9.1.1 Connectivity covers trouble with
RESELLER's access to the USW system
for hardware configuration
requirements with relevance to EDI
and IMA GUI;
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software configuration requirements
with relevance to EDI and IMA GUI;
modem configuration requirements; T1
configuration and dial in string
requirements; firewall access
configuration; Secure ID
configuration; Profile Setup and
password verification.
(D)2.9.1.2 System availability covers system
errors generated during an attempt
by RESELLER to place orders or open
trouble reports through EDI and IMA
GUI. These system errors are limited
to: POTS; Design Services and
Repair.
(D)2.9.1.3 File Outputs covers RESELLER's
output files and reports produced
from its usage and order activity.
File outputs system errors are
limited to: Daily Usage File; Loss /
Completion File; IABS Bill; CRIS
Summary Bill; Category 11 Report and
SAG/FAM Reports.
(D)2.9.2 Additional assistance to Resellers is available
through various web sites. These web sites
provide electronic interface training
information and user documentation and
technical specifications.
(D)2.10 Compensation / Cost Recovery
On-going and one-time startup charges, as applicable, will
be billed at rates to be specified by the Commission at
the completion of an appropriate cost docket hearing. USW
shall establish rates for any systems charges not included
in appropriate cost docket hearings.
(D)3. U S WEST DEX
USW and RESELLER agree that certain issues outside the provision of
basic white page directory listings, such as yellow pages
advertising, yellow pages listings, directory coverage, directory
distribution, access to call guide pages (phone service pages),
applicable listings criteria, white page enhancements and publication
schedules will be the subject of negotiations between RESELLER and
directory publishers, including U S WEST Dex. USW acknowledges that
RESELLER may request USW to facilitate discussions between RESELLER
and U S WEST Dex.
(D)4. NOTICE OF CHANGES
Notice should be written and provide pertinent descriptive
information of such changes, within the limitations of
confidentiality and disclosure, such that the other Party can
evaluate potential effects. Also included with the written notice
should be contact names and phone numbers for subsequent discussions.
This represents good faith effort on the part of the Parties and will
evolve over time as required for the effective provision of resale
services and end user service delivery.
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(D)5. MAINTENANCE AND REPAIR
(D)5.1 Service Levels
(D)5.1.1 USW will provide repair and maintenance for all
services covered by this Agreement in a manner
equal to that which USW provides for itself.
(D)5.1.2 During the term of this Agreement, USW will
provide necessary maintenance business process
support to allow RESELLER to provide similar
service quality to that provided by USW to its
end users.
(D)5.1.3 USW will perform repair service that is equal
in timeliness and quality to that which it
provides to its own end users.
(D)5.2 Branding
(D)5.2.1 Should USW need to use various forms for
communication with RESELLER end users (while
out on premises dispatch on behalf of RESELLER,
for example), USW will use unbranded forms.
(D)5.2.2 If required by RESELLER, USW will use branded
forms provided at RESELLER's full expense,
covering training costs, storage, printing,
distribution and all other branding-related
costs.
(D)5.3 Service interruptions
(D)5.3.1 The characteristics and methods of operation of
any circuits, facilities or equipment of either
Party connected with the services, facilities
or equipment of the other Party pursuant to
this Agreement shall not: 1) interfere with or
impair service over any facilities of the other
Party; its affiliated companies, or its
connecting and concurring carriers involved in
providing its services; 2) cause damage to
their plant; 3) violate any applicable law or
regulation regarding the invasion of privacy of
any communications carried over the Party's
facilities; or 4) create hazards to the
employees of either Party or to the public.
Each of these requirements is hereinafter
referred to as an "Impairment of Service".
(D)5.3.2 If it is confirmed that either Party is causing
an Impairment of Service, as set forth in this
Section, the Party whose network or service is
being impaired (the "Impaired Party") shall
promptly notify the Party causing the
Impairment of Service (the "Impairing Party")
of the nature and location of the problem. The
Impaired Party shall advise the Impaidng Party
that, unless promptly rectified, a temporary
discontinuance of the use of any circuit,
facility or equipment may be required. The
Impairing Party and the Impaired Party agree to
work together to attempt to promptly resolve
the Impairment of Service. If the Impairing
Party is unable to promptly remedy the
Impairment of
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Service, the Impaired Party may temporarily
discontinue use of the affected circuit,
facility or equipment.
(D)5.3.3 To facilitate trouble reporting and to
coordinate the repair of the service provided
by each Party to the other under this
Agreement, each Party shall designate a repair
center for such service.
(D)5.3.4 Each Party shall furnish a trouble reporting
telephone number for the designated repair
center. This number shall give access to the
location where records are normally located and
where current status reports on any trouble
reports are readily available. If necessary,
alternative out-of-hours procedures shall be
established to ensure access to a location that
is staffed and has the authority to initiate
corrective action.
(D)5.3.5 Before either Party reports a trouble
condition, it shall use its best efforts to
isolate the trouble to the other's facilities
(D)5.3.5.1 In cases where a trouble condition
affects a significant portion of the
other's service, the Parties shall
assign the same priority provided to
other Resellers and to itself.
(D)5.3.5.2 The Parties shall cooperate in
isolating trouble conditions.
(D)5.4 Trouble Isolation
(D)5.4.1 According to applicable state Tariffs, USW will
bill appropriate Trouble Isolation Charges for
dispatched work done by USW where the trouble
is found to be on the end user's side of the
NID or trouble is found to be in RESELLER's
portion of the network.
(D)5.4.2 Other Trouble Isolation Charges may also be
imposed by USW on RESELLER for other internal
repair work incurred on behalf of RESELLER and
later found to be in RESELLER network
components.
(D)5.5 Inside Wire Maintenance
Except where specifically required by state or federal
regulatory mandates, USW will not perform any maintenance
of inside wire (premises wiring beyond the end user's NID)
for RESELLER or its end users.
(D)5.6 Testing/Test Requests/Coordinated Testing
(D)5.6.1 USW will make the decision to test an end
user's line or circuit. The test systems used
by USW are finite, and their capacity has been
designed according to USVVs operating
standards.
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(D)5.6.2 Although some types of trouble reports
typically will not require a test, USW usually
runs certain standard tests on each line on
which trouble has been reported.
(D)5.6.3 Prior to any test being conducted on a line,
USW must receive a trouble report from
RESELLER.
(D)5.6.4 USW end users are not given test results. On
manually-reported trouble USW will not provide
to RESELLER the test results for its trouble
reports. For electronically-reported trouble,
RESELLER may see various basic test results.
(D)5.7 Workcenter Interfaces
(D)5.7.1 USW and RESELLER shall work cooperatively to
develop positive, close working relationships
among corresponding work centers involved in
the trouble resolution processes..
(D)5.8 Misdirected Repair Calls
(D)5.8.1 RESELLER shall inform its own end users where
to report their trouble conditions. Persons
placing a misdirected repair call will be
advised to call their own telephone service
provider and will be provided the correct
telephone number for that purpose (this
referral may occur within a voice response
system or other interactive systems).
(D)5.8.2 RESELLER and USW will employ the following
procedures for handling misdirected repair
calls;
(D)5.8.2.1 RESELLER and USW will provide their
respective end users with the
correct telephone numbers to call
for access to their respective
repair bureaus.
(D)5.8.2.2 End users of RESELLER shall be
instructed to report all cases of
trouble to RESELLER. End users of
USW shall be instructed to report
all cases of trouble to USW.
(D)5.8.2.3 To the extent the correct provider
can be determined, misdirected
repair calls will be referred to the
proper provider of Basic Exchange
Telecommunications Service.
(D)5.8.2.4 RESELLER and USW will provide their
respective repair contact numbers to
one another on a reciprocal basis.
(D)5.8.2.5 In responding to repair calls,
neither Party shall make disparaging
remarks about each other, nor shall
they use these repair calls as the
basis for internal referrals or to
solicit end users to market
services.
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(D)5.8.2.6 Performance targets for speed of
repair call answering will be the
same as USW's performance targets
for its own end users.
(D)5.9 Major Outages/Restoral/Notification
(D)5.9.1 USW will notify RESELLER of major network
outages as soon as is practical. This
notification will be via e-mail to RESELLER's
identified contact. With the minor exception of
certain proprietary information, USW will
utilize the same thresholds and processes for
external notification as it does for internal
purposes. This major outage information will be
sent via E-mail on the same frequency schedule
as is provided internally within USW. Service
restoration will be nondiscriminatory, and will
be accomplished as quickly as possible
according to USW and/or industry standards.
(D)5.9.2 If desired, USW will meet with associated
personnel from RESELLER to share contact
information and review USW's outage restoral
processes and notification processes.
(D)5.9.3 USW's emergency restoration process operates on
a 7X24 basis.
(D)5.10 Proactive Maintenance
(D)5.10.1 USW will perform scheduled maintenance equal in
quality to what it provides to itself.
(D)5.10.2 USW will work cooperatively with RESELLER to
develop industry-wide processes to provide as
much notice as possible to RESELLER of pending
maintenance activity. Such process work will
include establishment of reasonable thresholds
and notification standards.
(D)5.11 Hours of Coverage
(D)5.11.1 USW's repair operation is 7 days a week, 24
hours a day. Not all functions or locations are
covered with scheduled employees on a 7X24
basis. Where such 7X24 coverage is not
available USW's repair operations center
(always available 7X24) can call-out
technicians orother personnel required for the
situation.
(D)5.12 Escalations
(D)5.12.1 USW will provide trouble escalation procedures
to RESELLER. Such procedures will be based on
the processes USW employs for its own end
users. USW escalations are manual processes.
(D)5.12.2 USW repair escalations begin with calls to the
up-front trouble reporting centers.
(D)5.13 Dispatch
(D)5.13.1 USW will provide maintenance dispatch personnel
on the same schedule provided for its end
users.
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(D)5.13.2 Upon receipt of a trouble report from RESELLER,
USW will do all that is reasonable and
practical, according to internal and industry
standards, to resolve the repair condition. USW
will dispatch repair personnel, if necessary,
to repair the condition. It will be USW's
decision whether it is necessary to send a
technician on a dispatch. USW will make this
dispatch decision based on the best information
available in the trouble resolution process.
Since it is not always necessary to dispatch to
resolve trouble; should RESELLER require a
dispatch when USW believes the dispatch is not
necessary, appropriate charges may be billed to
RESELLER for dispatch-related costs.
(D)5.13.3 For non-designed resale services USW will not
request authorization from RESELLER prior to
dispatch. For lines supported by USW's
designed services process, USW may accept
RESELLER authorization to dispatch. USW's
operational processes are regularly reviewed
and may be altered in the future. Should
processes be changed, RESELLER will be
notified.
(D)5.13.4 USW expects that RESELLER will have performed
appropriate trouble isolation and screening
prior to handing the trouble report off to USW.
(D)5.14 Electronic Reporting
(D)5.14.1 USW will accept repair reports from RESELLER
through a mechanized system (IMA).
(D)5.14.2 USW will work cooperatively to develop repair
reporting via electronic bonding (other than
IMA), based on national standards.
(D)5.15 Intervals
(D)5.15.1 Similar trouble conditions, whether reported by
USW end users or on behalf of RESELLER end
users, will receive similar commitment
intervals.
(D)5.16 Jeopardy Management
(D)5.16.1 Notification will be given as soon as USW is
aware that a trouble report interval is likely
to be missed. This process will be the same as
that used by USW for its own end users.
(D)5.17 Trouble Screening
(D)5.17.1 RESELLER shall screen and test its end user
trouble reports completely enough to insure
that it sends USW only trouble reports that
involve USW facilities.
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(D)5.17.2 If desired, USW will cooperate with RESELLER to
show RESELLER how USW screens trouble
conditions in its own centers, so that RESELLER
may employ similar techniques in its centers.
(D)5.18 Maintenance Standards
(D)5.18.1 USW will cooperate with RESELLER to meet the
maintenance standards outlined in this
Agreement.
(D)5.18.2 For manually-reported trouble, USW will inform
RESELLER of repair completion as soon as
practical after completion. On electronically
reported trouble reports the electronic system
will automatically update status information,
including trouble completion, across the joint
electronic gateway.
(D)5.19 End User Interfaces
(D)5.19.1 RESELLER will be responsible for all
interactions with its end users including
service call handling and notifying end users
of trouble status and resolution.
(D)5.19.2 All USW employees who perform repair service
for RESELLER end users will be trained in
non-discriminatory behavior.
(D)5.20 Repair Call Handling
(D)5.20.1 Manually-reported repair calls by RESELLER to
USW will be answered with the same quality and
speed USW answers calls from its own end users.
(D)5.21 Single Point of Contact
(D)5.21.1 USW will provide a single point of contact for
RESELLER to report maintenance issues and
trouble reports via electronic interfaces seven
days a week, twenty-four hours a day.
(D)5.21.2 For manually-reported trouble reports, a single
7X24 trouble reporting telephone number will be
provided to RESELLER for each category of
trouble situation encountered.
(D)5.22 Maintenance Windows
(D)5.22.1 Generally, USW performs major switch
maintenance activities during off-hours time
periods, during certain "maintenance windows"
in the early morning hours and/or on weekends.
(D)5.22.2 Generally, the maintenance window is from 10:00
PM to 6:00 AM Monday through Friday and from
10:00 PM Saturday to 6:00 AM Monday.
(D)5.22.3 Although USW attempts to perform major switch
maintenance at these times, on some occasions
this will not be possible.
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(D)6. SERVICE PERFORMANCE
(D)6.1 General Provisions
(D)6.1.1 USW will provide reports of service
indicators that will assist in an evaluation of
the service provided to RESELLER.
(D)6.1.2 In no instance shall this Agreement be
construed to require USW to provide superior
levels of service to RESELLER in comparison to
the level of service USW provides to itself or
its own end users.
(D)6.1.3 As further specified in this Section, USW will
provide results for the list of performance
indicators identified for the following
Standard Service Groupings: Resold Residential
Plain Old Telephone Service (POTS); Resold
Business POTS; Resold ISDN; Resold Centrex
service; Resold PBX trunks, Resold Direct
Inward Dialing (DID) and Resold Digital
Switched Service (DSS); Resold DS-0, Resold
DS-1, Resold DS-3.
(D)6.1.4 As specified in this Section, USW will provide
results for the following types of Orders:
C = Change in existing service or billing
number
D = total disconnect of service
F = From the outward service associated with a
transfer (To or "T") of service from one
address to another
N = New connection for service
R = Record order; record change only. (For
Resale services, service migrations without
changes for non-designed services are record
orders.)
T = To or transfer of service from one address
to another
X = USW initiated internal work order
(D)6.2 Service Performance Indicators
The following Service Performance Indicators will be
provided to RESELLER when available and upon request, but
no more frequently than once per month subject to the
provisions of this Section. The requests for additional
Service Performance Indicators during the term of this
Agreement shall be considered by USW. However, USW is not
required to provide additional Service Performance
Indicators during the term of this Agreement. Service
Performance Indicators characterized as "Core" indicators
measure most directly the service or process outcome USW
provides to RESELLER.
Performance Indicators characterized as "Diagnostic"
indicators are those that measure aspects of service
quality that support aspects measured by core indicators,
that represent sub-process outcomes, or that are otherwise
duplicative to some degree of aspects measured by "Core"
indicators.
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(D)6.2.1 Core Performance Indicators
(D)6.2.1.1 Gateway Availability Indicator
GA-1 Gateway Availability - via
Human-to-Computer Interface
(percent).
GA-2 Gateway Availability - via
Computer-to-Computer Interface
(percent).
(D)6.2.1.2 Pre-Ordering Indicators
PO-1 Pre-Order/Order Response times
A. Appointment Scheduling
(Due Date Reservation,
where appointment is
required)
B. Feature Function and
Service Availability
Information
C. Facility Availability
D. Street Address Validation
E. Customer Service Records
F. Telephone Number
(D)6.2.1.3 Ordering and Provisioning
Indicators
OP-1 Speed of Answer -
Interconnect Provisioning
Center (average)
OP-2 Calls Answered within 20
Seconds - Interconnect
Provisioning Center
(percent)
OP-3 Installation Commitments
Met (percent)
OP-4 Installation Interval
(average)
OP-5 Installation Trouble
Reports (percent)I
OP-6 Delayed Days (average)
(D)6.2.1.4 Maintenance and Repair
Indicators
MR-1 Speed of Answer -
Interconnect Repair
Center (average)
MR-2 Percent Calls Answered
Within 20 Seconds -
Interconnect Repair
Center (percent)
MR-3 Out of Service Cleared
Within 24 hours -
Non-Designed Repair
Process (percent)
MR-4 All Troubles Cleared
Within 48 hours -
Non-Designed Repair
Process (percent)
MR-5 All Troubles Cleared
Within 4 hours - Designed
Repair Process (percent)
MR-6 Mean Time to Restore -
Non-Designed Repair
Process (average)
MR-7 Repair Repeat Report Rate
(percent)
MR-8 Trouble Rate (percent)
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(D)6.2.1.5 Billing Indicators
BI-1 Mean Time to Provide USW Recorded
Usage Records ((average)
BI-2 Mean Time to Deliver Invoices
(average)BI-3 Billing Accuracy
(D)6.2.1.6 Emergency Services
ES-1 ALI Database Updates Completed
Within 24 hours (percent)
ES-2 911/E911 Emergency Services Trunk
Installation Interval (average)
(D)6.2.1.7 Directory Assistance
DA-1 Speed of Answer - Directory
Assistance (average)
DA-2 Calls Answered Within Ten Seconds -
Directory Assistance (percent)
(D)6.2.1.8 Operator Services
OS-1 Speed of Answer - Operator Services
(average)
OS-2 Calls Answered Within Ten Seconds -
Operator Services (percent)
(D)6.2.2 Diagnostic Indicators
In addition to the performance indicators
identified above, USW will report the following
indicators that do not directly address
nondiscrimination but may be useful in
diagnosing problems or improving service:
(D)6.2.2.1 Pre-Order/Ordering
DPO-1 Electronic Flow - Through of Local
Service Requests (LSRs) to the
Service Order Processor (percent)
DPO-2 LSR Rejection Notice Interval
(average)
DPO-3 LSRs Rejection (percent)
DPO-4 Firm Order Confirmation (FOC)
Interval (average)
DPO-5 Pre-Order/Order Response Times for
USW Retail Transactions (average)
DPO-6 Completion Notifications Transmitted
Within 24 hours (percent)
DPO-7 Completion Notification Interval
(average)
(D)6.2.2.2 Ordering and Provisioning
DOP-1 RESELLER or RESELLER's Customer -
Caused Installation Misses (percent)
DOP-2 Delayed Orders Completed equal to
greater than 15 days past the
Commitment Date (percent)
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DOP-3 Delayed Orders Completed equal to or
greater than 90 days past the
Commitment Date (percent)
DOP-4 RESELLER or RESELLER's
Customer-Caused Coordinated Cutover
Misses (percent)
(D)6.2.2.3 Maintenance and Repair
DMR-1 RESELLER or RESELLER's
Customer-Caused Trouble Reports
(percent)
(D)6.2.2.4 Access to OSS Functions:
(GA-1) Gateway Availability - Human-to-
Computer Interface (percent)
(GA-2) Gateway Availability - Computer-to-
Computer Interface (percent)
(PO-1) Per-Order/Order Response Times
(average)
(OP-1 and MR-1)Speed of Answer -
Provisioning and Repair Centers
(average)
(OP-2 and MR-2) Calls Answered Within 20
Seconds - Provisioning and Repair
Centers (percent)
(BI-1) Mean Time to Provide USW - Recorded
Usage Records(
(BI-2) Mean Time to Deliver Invoices
(B1-3) Billing Accuracy
(D)6.2.2.5 Access to Emergency Services
(ES-1) ALI Database Updates Within 24 Hours
(percent)
(ES-1) 911/E911 ES Trunk Installation
Intervals (average)
(D)6.2.2.6 Access to Directory Assistance and
Operator Services:
(DA-1 and OP-1) Speed of Answer (average)
(DA-2 and OS-2) Calls Answered Within 10
Seconds (percent)
(D)6.2.2.7 Resale Services Ordering and
Provisioning:
(OP-3) Installation Commitments Met
(percent)
(OP-4) Installation Interval (average)
(OP-5) Installation Trouble Reports
(percent)
(OP-6) Delayed Days (average)
(D)6.2.2.8 Resale Services Maintenance and
Repair:
(MR-3) Out of Service Cleared Within 24
Hours - Non-Designed Repair Process
(percent)
(MR-4) All Troubles Cleared Within 48 Hours
- Non-Designed Repair Process
(percent)
(MR-5) All Troubles Cleared Within 4 Hours
- Designed Repair Process (percent)
(MR-6) Mean Time to Restore (average)
(MR-6) Repair Repeated Report Rate
(percent)
(MR-6) Trouble Rate (percent)
Page 56
<PAGE>
Part D
Miscellaneous Provisions
(D)6.3 Service Quality Performance Results Reports
(D)6.3.1 For Resale, USW will provide core service
performance results for the performance
indicators listed above for RESELLER, other
Resellers in aggregate and USW end users.
(D)6.4 Performance Results Provided to Reseller
The performance results provided to RESELLER by USW shall
be consistent with the current version of the USW Service
Performance Indicator Description (PID).
(D)6.5 The performance results provided under this Agreement are
to be used solely for the purposes set forth herein, and
shall be treated as "Proprietary Information" as provided
in Section (A)3.14 of this Agreement.
(D)6.6 Service Performance - Reported Events
(D)6.6.1 When applicable, USW will report
service-related performance results for all
"events". An "event" is the activity that
generates the measurement.
(D)6.6.2 The Parties will report RESELLER results
referenced above provided that RESELLER has
ordered and is utilizing the services reported;
(D)6.6.3 USW will provide the reports on a calendar
monthly basis. These reports will be provided
within forty-five (45) calendar days of the
close of the preceding month.
(D)6.7 Self Executing Remedies
The purpose and focus of remedies provisions under this
Resale Agreement shall be to resolve significant
differences in service quality that have been identified
through appropriate comparisons of the service performance
results reported for the core performance indicators
defined above. Self-executing remedies are those actions,
defined herein, that USW will undertake in good faith and
in cooperation with RESELLER to respond to such
differences immediately, without waiting for determination
of whether actual discrimination may exist.
(D)6.7.1 For this purpose, significant differences shall
be considered to be those that are determined
to be statistically, operationally, and
materially significant in each of three (3) or
more consecutive months and that reflect a
probability that inferior service was
apparently provided to RESELLER, based on the
relevant comparison of performance indicator
results. Statistical significance shall be
determined as defined below. Operational and
material significance shall be established by
including for comparison only those results
that have (a) minimum sample sizes of 30 each,
and (b) a relevant comparison demonstrating a
service performance difference of a magnitude
that can be reasonably considered to have a
perceptible effect on end users or RESELLER
operations.
Page 57
<PAGE>
Part D
Miscellaneous Provisions
(D)6.7.2 Determination of the statistical significance
of any difference in appropriately comparable
results shall be based on statistical testing
for (1) differences in means (where performance
indicator results are reported as averages) or
(2) difference in proportions (where
performance indicator results are reported as
percentages), as follows:
(D)6.7.2.1 Determination of the significance of
a difference in mean values of each
monthly service performance
indicator results shall be based on
a "permutation" test using what is
commonly referred to as a "Z"
statistic and a maximum of 1,000
randomly selected permutations of
the samples. Where sample sizes
exceed 600, the "Z" test using the
"modified Z statistic" may be used
instead of the permutation test.
Where used, the modified Z statistic
will be based on the statistical
variance associated with USW's
retail performance results, where
applicable, or on the variance
associated with RESELLER aggregate
performance results, where there are
no retail performance results.
(D)6.7.2.2 The significance of a difference in
proportional measurements shall be
based on direct calculation of the
probability of the observed
difference using the binomial
distribution with a pooled p value.
(D)6.7.2.3 A difference in results by either
test type (i.e., differences in
means or differences in proportions)
will be deemed statistically
significant if the appropriate one
tailed test indicates, with 99
percent confidence, that the
performance indicator results being
compared appear to be from different
populations of performance. In other
words, that service being provided
to RESELLER appears to be inferior
to that represented by the
comparable results (such as, results
representing service provided to
Resellers in aggregate or to USW
retail).
(D)6.7.3 For each case in which a significant
difference as defined above has occurred, USW
shall:
(D)6.7.3.1 Immediately investigate to determine
the cause(s) of the difference and,
where feasible, begin good-faith
efforts to resolve the difference;
(D)6.7.3.2 Within 45 days, provide to RESELLER
a written explanation of the result
of the investigation as to
Page 58
<PAGE>
Part D
Miscellaneous Provisions
cause(s) and, as applicable, an
action plan describing (i) what has
and will be done to resolve the
difference, (ii) what cooperative
actions and timelines on the part of
RESELLER are needed to facilitate or
expedite resolution, and (iii)
listing key milestones for use by
the Parties in tracking progress;
(D)6.7.3.3 Offer and meet with designated
RESELLER representatives monthly to
discuss progress on resolving the
difference(s);
(D)6.7.3.4 Escalate to vice president level any
significant difference that has or
is not projected to be resolved
within three months of the
difference first being identified as
significant as defined above, with
commitment at that level to direct
due diligence toward removing
obstacles and expediting resources
where feasible and necessary to
resolve the difference as soon as
possible.
(D)6.7.4 If a statistically and operationally
significant difference has occurred in the
trend results for any particular performance
indicator, the Parties shall allow three (3)
months to correct the difference in the trend
results. If the statistically, and
operationally significant difference in trend
results is corrected within the three (3) month
time, no action, formal or informal, shall be
taken by either Party with respect to that
difference.
(D)6.7.5 If the statistically and operationally
significant difference in trend results is not
corrected within the three (3) month time
frame, the Dispute Resolution provision of this
Resale Agreement shall apply.
(D)6.8 Delaying Events
(D)6.8.1 A Party's failure to meet a requirement in this
Section of this Agreement shall not be included
when that failure is a result, directly or
indirectly, of a Delaying Event.
(D)6.8.2 A "Delaying Event" means:
(D)6.8.2.1 Failure by either Party to perform
any of its obligations set forth in
this Agreement,
(D)6.8.2.2 Any delay, act or failure to act by
an end user, agent or subcontractor
of the other Party, or
(D)6.8.2.3 Any Force Majeure Event.
(D)6.8.3 If a Delaying Event prevents either Party from
performing a measured activity, then such
measured activity shall be excluded from the
performance indicator(s).
Page 59
<PAGE>
Part D
Miscellaneous Provisions
(D)6.9 Records Retention for Service Performance Indicators
USW shall maintain complete and accurate records, for the specified
review period of its performance under this Agreement for each
measured activity. USW shall provide such records to RESELLER in a
self-reporting format. Such records shall be in the format kept in
USW's ordinary course of business. The Parties agree that such
records shall be deemed "Confidential Information."
(D)6.10 Joint Defense and Advocacy
The Parties shall jointly and separately advocate and defend the
sufficiency of this Agreement in addressing the nondiscrimination
requirements of the Act and wholesale services performance
measurements reporting rights, remedies and related terms and
conditions in any forum in which its sufficiency might be challenged.
(D)6.11 Cost Recovery
Each Party reserves the right to recover the costs associated with
the creation of the above measures, indicators, and reports through a
future proceeding before a regulatory body. Such a proceeding may
address a wide range of implementation costs not otherwise recovered
through charges established herein.
Page 60
<PAGE>
Part E
Wyoming Rates
PART E - WYOMING RATES
LOCAL EXCHANGE SERVICES RESALE OF SERVICES
The Parties agree the following charges apply to the Resale of Local Services:
1. Non-Recurring Charges:
(a) Customer Transfer Charge (CTC):
The following nonrecurring charges apply when converting a USW
account to a RESELLER account or when changing an end user from
one Reseller to another.
<TABLE>
<CAPTION>
CATEGORY OF SERVICE NONRECURRING CHARGE
------------------- -------------------
<S> <C>
RESIDENCE OR BUSINESS MECHANIZED
First Line $14.56
Each Additional Line $ 6.57
RESIDENCE OR BUSINESS MANUAL
First Line $27.52
Each Additional Line $ 7.12
PRIVATE LINE TRANSPORT
First Circuit $45.08
Additional Circuits, Same CSR $31.19
ADVANCED COMMUNICATIONS SERVICES, PER CIRCUIT $50.48
</TABLE>
b. Product Specific Nonrecurring Charge:
As set forth in USW tariffs, the product specific nonrecurring charges,
without discount, will apply when additional lines or trunks are added
or when the end user adds features or services to existing lines or
trunks.
2. The following USW services are available for resale at the rates listed
below:
<TABLE>
<CAPTION>
- ----------------------------------------------------------------------------------------------
CATEGORY: DISCOUNT RATE
<S> <C>
- Basic Exchange Business, PBX Trunks 12%
- ISDN, Frame Relay 12%
- Listings, CO Features 12%
- IntraLATA Toll 12%
- ----------------------------------------------------------------------------------------------
</TABLE>
3. The following services are available for resale under this Agreement but
are not included in the wholesale pricing reflected above unless and until
the state public utilities Commission in a particular state orders that
wholesale discount rates are generally available to resellers with respect
to these products in that state:
- Basic Exchange Residence - Private Line
- Volume Discount and/or Term Arrangement (WHERE CONTAINED IN END
USER CONTRACTS OR USW TARIFFS)
- Centrex - Public Access
Lines
4. The following service is available for resale under this Agreement but is
not included in the wholesale pricing reflected above:
- Special Access
Page 61
<PAGE>
Part E
Wyoming Rates
5. The following services are not available for resale:
- Lifeline
- Technical Trials
- Enhanced Services (e.g., Voice Messaging)
- Promotions equal to or less than ninety (90) days in length
- Inside wiring installation and maintenance (including maintenance
plans)
- Grandfathered Products and Services (EXCEPT TO END USERS CURRENTLY
SERVED WITH SUCH SERVICES)
- Customer premises equipment (separately or when included in
packages)
- Concession Service
- USW Calling Cards
6. Daily Usage Record File: Recurring Charge - $.0011 per record.
Page 62
<PAGE>
Part F
Signature
PART F - SIGNATURE
ENTIRE AGREEMENT
This Agreement constitutes the entire agreement between the Parties and
supersedes all prior oral or written agreements, representations, statements,
negotiations, understandings, proposals and undertakings with respect to the
subject matter hereof.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed
by their respective duly authorized representatives.
<TABLE>
<CAPTION>
essential.com U S WEST COMMUNICATIONS, INC.
<S> <C>
/s/ Akhil Garland /s/ E. J. Stamp for
- ----------------------------- --------------------------------
Signature Signature
Akhil Garland Katherine L. Fleming
- ----------------------------- --------------------------------
Name Printed/Typed Name Printed/Typed
CEO Vice President - Interconnection
- ----------------------------- --------------------------------
Title Title
2-15-00 2/25/00
- ----------------------------- --------------------------------
Date Date
</TABLE>
Page 63
<PAGE>
RESALE
AGREEMENT
BETWEEN
U S WEST COMMUNICATIONS, INC.
AND
ESSENTIAL.COM
FOR
IOWA
Page i
<PAGE>
TABLE OF CONTENTS
<TABLE>
<S> <C>
PART A - GENERAL TERMS .......................................................1
(A)1. SCOPE OF AGREEMENT .....................................................1
(A)2. DEFINITIONS ............................................................2
(A)3. TERMS AND CONDITIONS ...................................................4
(A)3.1 GENERAL PROVISIONS ..................................................4
(A)3.2 TERM OF AGREEMENT ...................................................4
(A)3.3 PROOF OF AUTHORIZATION...............................................5
(A)3.4 PAYMENT..............................................................5
(A)3.5 TAXES ...............................................................7
(A)3.6 FORCE MAJEURE .......................................................7
(A)3.7 LIMITATION OF LIABILITY..............................................7
(A)3.8 INDEMNITY ...........................................................8
(A)3.9 INTELLECTUAL PROPERTY................................................9
(A)3.10 WARRANTIES ........................................................12
(A)3.11 ASSIGNMENT ........................................................12
(A)3.12 DEFAULT ...........................................................13
(A)3.13 DISCLAIMER OF AGENCY ..............................................13
(A)3.14 NONDISCLOSURE .....................................................13
(A)3.15 SURVIVAL ..........................................................15
(A)3.16 DISPUTE RESOLUTION ................................................15
(A)3.17 CONTROLLING LAW ...................................................16
(A)3.18 JOINT WORK PRODUCT ................................................16
(A)3.19 RESPONSIBILITY FOR ENVIRONMENTAL CONTAMINATION.....................17
(A)3.20 NOTICES ...........................................................17
(A)3.21 RESPONSIBILITY OF EACH PARTY ......................................17
(A)3.22 NO THIRD PARTY BENEFICIARIES ......................................18
(A)3.23 REFERENCED DOCUMENTS ..............................................18
(A)3.24 PUBLICITY .........................................................18
(A)3.25 AMENDMENT .........................................................18
(A)3.26 EXECUTED IN COUNTERPARTS ..........................................19
(A)3.27 HEADINGS OF NO FORCE OR EFFECT ....................................19
(A)3.28 REGULATORY APPROVAL ...............................................19
(A)3.29 COMPLIANCE ........................................................19
(A)3.30 COMPLIANCE WITH THE COMMUNICATIONS ASSISTANCE
FOR LAW ENFORCEMENT ACT OF 1994 ("CALEA")..................................19
(A)3.31 COOPERATION .......................................................19
(A)3.32 AVAILABILITY OF OTHER AGREEMENTS ..................................20
PART B - RESALE...............................................................21
(B)1. Description...........................................................21
(B)2. Terms and Conditions..................................................21
(B)3. Rates and Charges.....................................................24
Page ii
<PAGE>
TABLE OF CONTENTS
(B)4. Ordering Process.......................................................25
(B)5. Billing................................................................27
(B)6. Maintenance and Repair.................................................27
PART C - WHITE PAGES DIRECTORY LISTINGS ......................................28
(C)1. Description ...........................................................28
(C)2. Terms and Conditions ..................................................28
PART D- MISCELLANEOUS PROVISIONS .............................................31
(D)1. Network Security.......................................................31
(D)2. Access To Operational Support Systems (OSS)............................31
(D)3. U S WEST Dex...........................................................46
(D)4. Notice Of Changes......................................................46
(D)5. Maintenance and Repair ................................................47
(D)6. Service Performance....................................................53
PART E IOWA RATES.............................................................61
PART F - SIGNATURE............................................................63
</TABLE>
Page iii
<PAGE>
Part A
General Terms
PART A - GENERAL TERMS
This Resale Agreement is between essential.com ("RESELLER"), a Delaware
corporation, and U S WEST Communications, Inc. ("USW"), a Colorado corporation.
(A)1. SCOPE OF AGREEMENT
(A)1.1 Pursuant to this negotiated Resale Agreement ("Agreement"),
RESELLER and USW (collectively, "the Parties") will extend
certain arrangements to one another within the geographical
areas where USW is the incumbent Local Exchange Carrier within
the state of Iowa for purposes of providing the resale of
local Telecommunications Services. This Agreement or the
portions of this Agreement relative to a particular state will
be submitted to the Iowa Utilities Board ("Commission") for
approval. Notwithstanding this mutual commitment, however, the
Parties enter into this Agreement without prejudice to any
positions they have taken previously, or may take in the
future in any legislative, regulatory, or other public forum
addressing any matters, including matters related to the types
of arrangements prescribed by this Agreement.
(A)1.2 The provisions in this Agreement are based, in large part, on
the existing state of the law, rules, regulations and
interpretations thereof, as of the date hereof (the "Existing
Rules"). Among the Existing Rules are or could be the results
of arbitrated decisions by the Commission which are currently
being challenged by USW. Among the Existing Rules are certain
FCC rules and orders that are the subject of, or affected by,
the opinion issued by the Supreme Court of the United States
in AT&T CORP., ET AL. V. IOWA UTILITIES BOARD, ET AL. on
January 25, 1999. Nothing in this Agreement shall preclude or
stop USW from taking any position in any forum concerning the
proper interpretation or effect of the Existing Rules or
concerning whether the Existing Rules should be changed,
dismissed, stayed or modified. To the extent that the Existing
Rules are changed, vacated, dismissed, stayed or modified,
then the Parties shall amend this Agreement and all contracts
adopting all or part of this Agreement pursuant to Section
252(i) of the Act, shall be amended to reflect such
modification or change of the Existing Rules. Where the
Parties fail to agree upon such an amendment, it shall be
resolved in accordance with the Dispute Resolution provision
of this Agreement. It is expressly understood that this
Agreement will be corrected to reflect the outcome of generic
pricing proceedings by the Commission. This Section (A)1.2
shall be considered part of the rates, terms and conditions of
each service resale arrangement contained in this Agreement,
and this Section (A)1.2 shall be considered legitimately
related to the purchase of each service for resale arrangement
contained in this Agreement.
(A)1.3 This Agreement sets forth the terms, conditions and prices
under which USW agrees to provide services for resale to
RESELLER, all for the sole purpose of providing
Telecommunications Services.
Page 1
<PAGE>
Part A
General Terms
(A)1.4 In the performance of their obligations under this Agreement,
the Parties shall act in good faith and consistently with the
intent of the Act. Where notice, approval or similar action by
a Party is permitted or required by any provision of this
Agreement, (including, without limitation, the obligation of
the Parties to further negotiate the resolution of new or open
issues under this Agreement) such action shall not be
unreasonably delayed, withheld or conditioned.
(A)1.5 USW may make services and features available to RESELLER for
resale under this Agreement consistent with the way they are
available to USW end users, without a formal amendment to this
Agreement. Nothing herein prevents either Party from raising
other issues through additional good faith negotiations.
(A)1.6 This Agreement is structured in the following format:
Part A - General Terms
Part B - Resale
Part C - Directory Services
Part D - Miscellaneous Provisions
Part E - Rates
Part F - Signature
(A)1.7 Prior to placing any orders for services under this Agreement,
the Parties will jointly complete USW`s "Reseller
Questionnaire". This questionnaire will then be used to:
Determine geographical requirements
Identify RESELLER Ids
Determine USW system requirements to support RESELLER specific
activity
Collect credit information
Obtain billing information
Create summary bills
Establish input and output requirements
Create and distribute USW and RESELLER contact lists
Identify client hours and holidays
(A)2. DEFINITIONS
(A)2.1 "Act" means the Communications Act of 1934 (47 U.S.C. 151 et.
seq.), as amended by the Telecommunications Act of 1996, and
as from time to time interpreted in the duly authorized rules
and regulations of the FCC or a Commission within its state of
jurisdiction.
(A)2.2 "Basic Exchange Features" are optional end user switched
services that include, but are not necessarily limited to:
Automatic Call Back; Call Trace; Caller ID and Related
Blocking Features; Distinctive Ringing/Call Waiting; Selective
Call Forward; and Selective Call Rejection.
(A)2.3 Basic Exchange Telecommunications Service" means a service
offered to end users which provides the end user with a
telephonic connection to, and a unique local telephone number
address on the public switched telecommunications
Page 2
<PAGE>
Part A
General Terms
network, and which enables such end user to generally place
calls to, or receive calls from, other stations on the public
switched telecommunications network. Basic residence and
business line services are Basic Exchange Telecommunications
Services. As used solely in the context of this statement and
unless otherwise agreed, Basic Exchange Telecommunications
Service includes access to ancillary services such as 911,
directory assistance and operator services.
(A)2.4 "Commission" means the Utilities Board in the state of Iowa.
(A)2.5 "Enhanced Services" means any service offered over common
carrier transmission facilities that employ computer
processing applications that act on format, content, code,
protocol or similar aspects of the subscriber's transmitted
information; that provide the subscriber with additional,
different or restructured information; or involve end user
interaction with stored information.
(A)2.6 "Interconnect & Resale Resource Guide" is a USW document that
provides essential information needed to request services
available under this Agreement. It is available on USW's Web
site.
(A)2.7 "Interexchange Carrier" or "IXC" means a carrier that provides
interLATA or IntraLATA Toll services.
(A)2.8 "intraLATA Toll" is defined in accordance with USW's current
IntraLATA toll serving areas, as determined by the Federal
Communications Commission.
(A)2.9 "Local Exchange Carrier" or "LEC" means any person that is
engaged in the provision of telephone exchange service or
exchange access. Such term does not include a person insofar
as such person is engaged in the provision of a commercial
mobile service under Section 332(c) of the Act, except to the
extent that the FCC finds that such service should be included
in the definition of such term.
(A)2.10 "Party" means either USW or RESELLER and "Parties" means USW
and RESELLER.
(A)2.11 "Reseller" is a category of local exchange service provider
that obtains dial tone and associated Telecommunications
Services from another provider through the purchase of
finished services for resale to its end users.
(A)2.12 "Tariff" as used throughout this Agreement refers to USW
interstate Tariffs and state Tariffs, price lists, price
schedules and catalogs.
(A)2.13 "Telecommunications Carrier" means any provider of
Telecommunications Services, except that such term does not
include aggregators of Telecommunications Services (as defined
in Section 226 of the Act). A Telecommunications Carrier shall
be treated as a common carrier under the Act only to the
extent that it is engaged in providing Telecommunications
Services, except that the Federal Communications Commission
shall determine whether the provision of fixed and mobile
satellite service shall be treated as common carriage.
Page 3
<PAGE>
Part A
General Terms
(A)2.14 "Telecommunications Services" means the offering of
telecommunications for a fee directly to the public, or to
such classes of users as to be effectively available
directly to the public, regardless of the facilities used.
(A)2.15 Terms not otherwise defined here, but defined in the Act
shall have the meaning defined there. Where a term is
defined in the regulations implementing the Act but not in
this Agreement, the Parties do not necessarily intend to
adopt the definition as set forth in said regulations.
(A)3. TERMS AND CONDITIONS
(A)3.1 GENERAL PROVISIONS
(A)3. 1.1 Each Party is solely responsible for
the services it provides to its end users
and to other Telecommunications Carriers.
(A)3.1.2 The Parties shall work cooperatively to
minimize fraud associated with intra-LATA
toll, third-number billed calls, and any
other services related to this Agreement.
(A)3.1.3 Nothing in this Agreement shall prevent
either Party from seeking to recover the
costs and expenses, if any, it may incur
in (a) complying with and implementing
its obligations under this Agreement,
the Act, and the rules, regulations and
orders of the FCC and the Commission,
and (b) the development, modification,
technical installation and maintenance
of any systems or other infrastructure
which it requires to comply with and to
continue complying with its
responsibilities and obligations under
this Agreement.
(A)3.2 TERM OF AGREEMENT
This Agreement shall become effective upon Commission
approval, pursuant to Sections 251 and 252 of the Act, shall
terminate on February 4, 2002, and shall be binding upon the
Parties during that term, notwithstanding Section 252(i) of
the Act. After the date specified above, this Agreement shall
continue in force and effect until terminated by either Party
providing one hundred sixty (160) days written notice of
termination to the other Party. The day the notice is served
will determine the starting point for a 160-day negotiation
period (in accordance with 252(b)1 of the Act. In the event of
such termination, existing or pending service arrangements
made available under this Agreement shall continue in total
without interruption under either a) a new or adoption
agreement executed by the Parties, or b) tariff terms and
conditions generally available to all resellers.
(A)3.2.1 If the Parties are unable to negotiate a
new agreement during the negotiation period
described above, the window of opportunity to
file for arbitration to resolve outstanding
contractual issues in accordance with the Act
will occur between days 135 and 160 of the
160 day notice period.
<PAGE>
Part A
General Terms
(A)3.2.2 If the Parties are able to reach agreement,
this Agreement shall continue for the brief
period of time needed to secure the
Commission's approval of an adoption
agreement or a new resale agreement. In the
case of Section (A)3.2.1, this Agreement will
expire on the termination date specified in
the one hundred sixty (160) day notice
referenced above, unless a petition for
arbitration has been filed, but if such a
petition has been filed then this Agreement
shall continue for the period necessary for
the Commission to act and resolve the
disputed issues so that the Parties will have
an effective resale agreement.
(A)3.3 PROOF OF AUTHORIZATION
Where so indicated in specific sections of this Agreement,
each party shall be responsible for obtaining and having in
its possession Proof of Authorization ("POA"). POA shall
consist of verification of the end user's selection and
authorization adequate to document the end user's selection..
Such selection may be obtained in the following ways:
(A)3.3.1 The end user's written Letter of Authorization.
(A)3.3.2 The end user's electronic authorization by use of an
1-8XX number.
(A)3.3.3 The end user's oral authorization verified by
an independent third party (with third party
verification as POA).
The Parties shall make POAs available to each other upon
request, in accordance with the applicable laws and rules.
Unless prohibited by applicable laws or regulations, a. charge
of $100.00 ("slamming charge") will be assessed if the POA
cannot be provided supporting the change in service provider.
If there is a conflict between the end user designation and
the other Party's written evidence of its authority, the
Parties shall honor the designation of the end user and change
the end user back to the previous service provider.
(A)3.4 PAYMENT
(A)3.4.1 Amounts payable under this Agreement are
due and payable within thirty (30) calendar
days after the date of USW's invoice, or
within twenty (20) days after receipt of the
invoice, whichever is later. If the payment
due date is not a Business Day, the payment
shall be made the next Business Day..
USW may discontinue processing orders for
the failure by RESELLER to make full payment
for the services provided under this
Agreement within thirty (30) days of the due
date on RESELLER's bill.
USW may disconnect for the failure by
RESELLER to make full payment for the
services provided under this Agreement
within sixty (60) days of the due date on
RESELLER's bill. RESELLER
<PAGE>
Part A
General Terms
will pay the Tariff charge required to
reconnect each end user line disconnected
pursuant to this paragraph.
(A)3.4.2 Should RESELLER dispute, in good faith, any
portion of the monthly billing under this
Agreement, RESELLER will notify USW in
writing within thirty (30) calendar days of
the receipt of such billing, identifying the
amount, reason and rationale of such dispute.
RESELLER shall pay all amounts due. Both
RESELLER and USW agree to expedite the
investigation of any disputed amounts in an
effort to resolve and settle the dispute
prior to initiating any other rights or
remedies. Should the dispute be resolved in
RESELLER's favor and the resolved amount did
not appear as a credit on RESELLER's next
invoice from USW, USW will reimburse RESELLER
the resolved amount plus interest from the
date of payment. The amount of interest will
be calculated using the late payment factor
that would have applied to such amount had it
not been paid on time.
(A)3.4.3 USW will determine RESELLER's credit status
based on previous payment history with USW or
credit reports such as Dun and Bradstreet. If
RESELLER has not established satisfactory
credit with USW or if RESELLER is repeatedly
delinquent in making its payments, USW may
require a deposit to be held as security
for the payment of charges. "Repeatedly
delinquent" means being thirty (30) calendar
days or more delinquent for three (3)
consecutive months. The deposit may not
exceed the estimated total monthly charges
for a two (2) month period. The deposit may
be a surety bond, a letter of credit with
terms and conditions acceptable to USW or
some other form of mutually acceptable
security such as a cash deposit. Required
deposits are due and payable within ten (10)
calendar days after demand in accordance with
Commission requirements.
(A)3.4.4 Interest will be paid on cash deposits at
the rate applying to deposits under
applicable Commission rules, regulations, or
Tariffs. Cash deposits and accrued interest
will be credited to RESELLER's account or
refunded, as appropriate, upon the earlier of
the termination of this Agreement or the
establishment of satisfactory credit with
USW, which will generally be one (1) full
year of timely payments in full by RESELLER.
The fact that a deposit has been made does
not relieve RESELLER from any requirements of
this Agreement.
(A)3.4.5 USW may review RESELLER's credit standing
and modify the amount of deposit required.
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General Terms
(A)3.4.6 The late payment charge for amounts that are
billed under this Agreement shall be in
accordance with state Tariffs/Commission
Rules and Orders.
(A)3.5 TAXES
Each Party purchasing services hereunder shall pay or
otherwise be responsible for all federal, state, or local
sales, use, excise, gross receipts, transaction or similar
taxes, fees or surcharges levied against or upon such
purchasing Party (or the providing Party when such providing
Party is permitted to pass along to the purchasing Party such
taxes, fees or surcharges), except for any tax on either
Party's corporate existence, status or income. Whenever
possible, these amounts shall be billed as a separate item on
the invoice. To the extent a sale is claimed to be for resale
tax exemption, the purchasing Party shall furnish the
providing Party a proper resale tax exemption certificate as
authorized or required by statute or regulation by the
jurisdiction providing said resale tax exemption. Until such
time as a resale tax exemption certificate is provided, no
exemptions will be applied.
(A)3.6 FORCE MAJEURE
Neither Party shall be liable for any delay or failure in
performance of any part of this Agreement from any cause
beyond its control and without its fault or negligence
including, without limitation, acts of nature, acts of civil
or military authority, government regulations, embargoes,
epidemics, terrorist acts, riots, insurrections, fires,
explosions, earthquakes, nuclear accidents, floods, work
stoppages, equipment failure, power blackouts, volcanic
action, other major environmental disturbances, unusually
severe weather conditions, inability to secure products or
services of other persons or transportation facilities or acts
or omissions of transportation carriers (collectively, a
"Force Majeure Event"). The Party affected by a Force Majeure
Event shall give prompt notice to the other Party, shall be
excused from performance of its obligations hereunder on a day
to day basis to the extent those obligations are prevented by
the Force Majeure Event, and shall use reasonable efforts to
remove or mitigate the Force Majeure Event. In the event of a
labor dispute or strike the Parties agree to provide service
to each other at a level equivalent to the level they provide
themselves.
(A)3.7 LIMITATION of LIABILITY
(A)3.7.1 Except for losses relating to or arising out of any
act or omission in its performance of services or
functions provided under this Agreement, each Party
shall be liable to the other for direct damages for
any loss, defect or equipment failure resulting from
the causing Party's conduct or the conduct of its
agents or contractors in performing the obligations
contained in this Agreement.
(A)3.7.2 Neither Party shall be liable to the other for
indirect, incidental, consequential, or special
damages, including (without limitation) damages for
lost profits, lost revenues, lost savings suffered by
the other Party regardless of the form of action,
whether in contract,
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warranty, strict liability, tort, including (without
limitation) negligence of any kind and regardless of
whether the Parties know the possibility that such
damages could result.
(A)3.7.3 Except for indemnity obligations, each Party's
liability to the other Party for any loss relating to
or arising out of any act or omission in its
performance of services or functions provided under
this Agreement, whether in contract or in tort, shall
be limited to the total amount that is or would have
been charged to the other Party by such breaching
Party for the service(s) or function(s) not performed
or improperly performed.
(A)3.7.4 Nothing contained in this Section shall limit either
Party's liability to the other for intentional,
malicious misconduct.
(A)3.7.5 Nothing contained in this Section shall limit either
Party's obligations of indemnification as specified
in the Indemnity Section of this Agreement.
(A)3.7.6 Neither Party shall be liable to the other under any
theory including indemnity on account of such Party's
failure or neglect to have or maintain a system or
systems that are Year 2000 compliant. As the Parties
approach the Year 2000, date information associated
with any interfaces between the Parties is expected
to remain as it is.
(A)3.8 INDEMNITY
(A)3.8.1 With respect to third party claims, the Parties agree
to indemnify each other as follows:
(A)3.8.1.1 Except for claims made by end users of one
Party against the other Party, which claims
are based on defective or faulty services
provided by the other Party to the one
Party, each of the Parties agree to release,
indemnify, defend and hold harmless the
other Party and each of its officers,
directors, employees and agents (each an
"Indemnity") from and against and in respect
of any loss, debt, liability, damage,
obligation, claim, demand, judgment or
settlement of any nature or kind, known or
unknown, liquidated or unliquidated
including, but not limited to, costs and
attorneys' fees, whether suffered, made,
instituted, or asserted by any other party
or person, for invasion of privacy, personal
injury to or death of any person or persons,
or for loss, damage to, or destruction of
property, whether or not owned by others,
resulting from the indemnifying Party's
performance, breach of applicable law, or
status of its employees, agents and
subcontractors; or for failure to
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perform under this Agreement, regardless of
the form of action.
(A)3.8.1.2 Where the third party claim is made by (or
through) an end user of one Party against
the other Party, which claim is based on
defective or faulty services provided by the
other Party to the one Party then there
shall be no obligation of indemnity unless
the act or omission giving rise to the
defective or faulty services is shown to be
intentional, malicious misconduct of the
other Party.
(A)3.8.1.3 If the claim is made by (or through) an
end user and where a claim is in the nature
of a claim for invasion of privacy, libel,
slander, or other claim based on the content
of a transmission, and it is made against a
Party who is not the immediate provider of
the Telecommunications Service to the end
user (the indemnified provider), then in the
absence of fault or neglect on the part of
the indemnified provider, the Party who is
the immediate seller of such
Telecommunications Service shall indemnify,
defend and hold harmless the indemnified
provider from such claim.
(A)3.8.2 The indemnification provided herein shall be
conditioned upon:
(A)3.8.2.1 The indemnified Party shall promptly
notify the indemnifying Party of any action
taken against the indemnified Party relating
to the indemnification. Failure to so notify
the indemnifying Party shall not relieve the
indemnifying Party of any liability that the
indemnifying Party might have, except to the
extent that such failure prejudices the
indemnifying Party's ability to defend such
claim.
(A)3.8.2.2 The indemnifying Party shall have sole
authority to defend any such action,
including the selection of legal counsel,
and the indemnified Party may engage
separate legal counsel only at its sole cost
and expense.
(A)3.8.2.3 In no event shall the indemnifying Party
settle or consent to any judgment pertaining
to any such action without the prior written
consent of the indemnified Party.
(A)3.9 INTELLECTUAL PROPERTY
(A)3.9.1 Each Party hereby grants to the other Party the
limited, personal and nonexclusive right and license
to use its patents, copyrights and trade secrets but
only to the extent necessary to implement this
Agreement or specifically required by the then
applicable federal and state rules and regulations
relating to Interconnection and access to
<PAGE>
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General Terms
telecommunications facilities and services, and for
no other purposes. Nothing in this Agreement shall be
construed as the grant to the other Party of any
rights or licenses to trademarks.
(A)3.9.2 The rights and licenses above are granted "AS IS" and
the other Party's exercise of any such right and
license shall be at the sole and exclusive risk of
the other Party. Neither Party shall have any
obligation to defend, indemnify or hold harmless, or
acquire any license or right for the benefit of, or
owe any other obligation or have any liability to,
the other based on or arising from any claim, demand,
or proceeding (hereinafter "claim") by any third
party alleging or asserting that the use of any
circuit, apparatus, or system, or the use of any
software, or the performance of any service or
method, or the provision of any facilities by either
Party under this Agreement constitutes infringement,
or misuse or misappropriation of any patent,
copyright, trade secret, or any other proprietary or
intellectual property right of any third party.
(A)3.9.3 As a condition to the access or use of patents,
copyrights, trade secrets and other intellectual
property (including software) owned or controlled
by a third party to the extent necessary to
implement this Agreement or specifically required
by the then applicable federal and state rules and
regulations relating to Interconnection and access
to telecommunications facilities and services, the
Party providing access may require the other, upon
written notice, from time to time, to obtain a
license or permission for such access or use, make
all payments in connection with obtaining such
license, and provide evidence of such license.
(A)3.9.4 Except as expressly provided in this Intellectual
Property Section, nothing in this Agreement shall be
construed as the grant of a license, either express
or implied, with respect to any patent, copyright,
logo, trademark, trade name, trade secret or any
other intellectual property right now or hereafter
owned, controlled or licensable by either Party.
Neither Party may use any patent, copyright, logo,
trademark, trade name, trade secret or other
intellectual property rights of the other Party or
its affiliates without execution of a separate
agreement between the Parties.
(A)3.9.5 Neither Party shall without the express written
permission of the other Party, state or imply that:
1) it is connected, or in any way affiliated with the
other or its affiliates, 2) it is part of a joint
business association or any similar arrangement with
the other or its affiliates, 3) the other Party and
its affiliates are in any way sponsoring, endorsing
or certifying it and its goods and services, or 4)
with respect to its advertising or promotional
activities or materials, that the resold goods and
services are in any way associated with or
<PAGE>
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General Terms
originated from the other or any of its affiliates.
Nothing in this paragraph shall prevent either Party
from truthfully describing the network elements it
uses to provide service to its end users, provided it
does not represent the network elements as
originating from the other Party or its affiliates.
(A)3.9.6 For purposes of resale only and notwithstanding the
above, unless otherwise prohibited by USW pursuant to
an applicable provision herein, RESELLER may use the
phrase "RESELLER is a reseller of U S WEST
Communications services" (the "Authorized Phrase") in
RESELLER's printed materials provided:
(A)3.9.6.1 The Authorized Phrase is not used in
connection with any goods or services other
than USW services resold by RESELLER.
(A)3.9.6.2 RESELLER's use of the Authorized Phrase
does not cause end users to believe that
RESELLER is USW.
(A)3.9.6.3 RESELLER may not use the U S WEST logo.
The Authorized Phrase, when displayed,
appears only in text form with all letters
being the same font and point size. The
point size of the Authorized Phrase shall be
no greater than one fourth the point size of
the smallest use of RESELLER's name and in
no event shall exceed 8 point size.
(A)3.9.6.4 RESELLER shall provide all printed
materials using the Authorized Phrase to USW
for its prior written approval.
(A)3.9.6.5 If USW determines that RESELLER's use of
the Authorized Phrase causes end user
confusion, USW may immediately terminate
RESELLER's right to use the Authorized
Phrase.
(A)3.9.6.6 Upon termination of RESELLER's right to
use the Authorized Phrase or termination
of this Agreement, all permission or
right to use the Authorized Phrase shall
immediately cease to exist and RESELLER
shall immediately cease any and all such
use of the Authorized Phrase. RESELLER
shall either promptly return to USW or
destroy all materials in its possession
or control displaying the Authorized
Phrase.
(A)3.9.7 RESELLER acknowledges the value of the marks "U S
WEST" and "U S WEST Communications" (the "Marks") and
the goodwill associated therewith and acknowledges
that such goodwill is a property right belonging to U
S WEST, Inc. and USW respectively (the "Owners").
RESELLER recognizes that nothing contained in this
Agreement is intended as an assignment or grant to
RESELLER of
<PAGE>
any right, title or interest in or to the Marks and
that this Agreement does not confer any right or
license to grant sublicenses or permission to third
parties to use the Marks and is not assignable.
RESELLER will do nothing inconsistent with the
Owner's ownership of the Marks, and all rights, if
any, that may be acquired by use of the Marks shall
inure to the benefit of the Owners. RESELLER will not
adopt, use (other than as authorized herein),
register or seek to register any mark anywhere in the
world which is identical or confusingly similar to
the Marks or which is so similar thereto as to
constitute a deceptive colorable imitation thereof or
to suggest or imply some association, sponsorship, or
endorsement by the Owners. The Owners make no
warranties regarding ownership of any rights in or
the validity of the Marks.
(A)3.10 WARRANTIES
NOTWITHSTANDING ANY OTHER PROVISION OF THIS AGREEMENT, THE
PARTIES AGREE THAT NEITHER PARTY HAS MADE, AND THAT THERE DOES
NOT EXIST, ANY WARRANTY, EXPRESS OR IMPLIED, INCLUDING BUT NOT
LIMITED TO WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A
PARTICULAR PURPOSE.
(A)3.11 ASSIGNMENT
(A)3.11.1 Neither Party may assign or transfer (whether by
operation of law or otherwise) this Agreement (or any
rights or obligations hereunder) to a third party
without the prior written consent of the other Party.
Notwithstanding the foregoing, either Party may
assign or transfer this Agreement to a corporate
affiliate or an entity under its common control;
however, if RESELLER's assignee or transferee has an
interconnection agreement with USW, no assignment or
transfer of this Agreement shall be effective without
the prior written consent of USW. Such consent shall
include appropriate resolutions of conflicts and
discrepancies between the assignee's or transferee's
interconnection agreement and this Agreement. Any
attempted assignment or transfer that is not
permitted is void AB INITIO. Without limiting the
generality of the foregoing, this Agreement shall be
binding upon and shall inure to the benefit of the
Parties' respective successors and assigns.
(A)3.11.2 Without limiting the generality of the foregoing
subsection, any merger, dissolution, consolidation or
other reorganization of RESELLER, or any sale,
transfer, pledge or other disposition by RESELLER of
securities representing more than 50% of the
securities entitled to vote in an election of
RESELLER's board of directors or other similar
governing body, or any sale, transfer, pledge or
other disposition by RESELLER of substantially all of
its assets, shall be deemed a transfer of control. If
any entity, other than
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General Terms
RESELLER, involved in such merger, dissolution,
consolidation, reorganization, sale, transfer, pledge
or other disposition of RESELLER has an
interconnection agreement with USW, the Parties agree
that only one agreement, either this Agreement or the
interconnection agreement of the other entity, will
remain valid. All other interconnection agreements
will be terminated. The Parties agree to work
together to determine which interconnection agreement
should remain valid and which should terminate. In
the event the Parties cannot reach agreement on this
issue, the issue shall be resolved through the
Dispute Resolution process contained in this
Agreement.
(A)3.12 DEFAULT
If either Party defaults in the payment of any amount due
hereunder, or if either Party violates any other material
provision of this Agreement, and such default or violation
shall continue for thirty (30) calendar days after written
notice thereof, the other Party may seek relief in accordance
with the Dispute Resolution provision of this Agreement. The
failure of either Party to enforce any of the provisions of
this Agreement or the waiver thereof in any instance shall not
be construed as a general waiver or relinquishment on its part
of any such provision, but the same shall, nevertheless, be
and remain in full force and effect.
(A)3.13 DISCLAIMER OF AGENCY
Except for provisions herein expressly authorizing a Party to
act for another, nothing in this Agreement shall constitute a
Party as a legal representative or agent of the other Party,
nor shall a Party have the right or authority to assume,
create or incur any liability or any obligation of any kind,
express or implied, against or in the name or on behalf of the
other Party unless otherwise expressly permitted by such other
Party. Except as otherwise expressly provided in this
Agreement, no Party undertakes to perform any obligation of
the other Party whether regulatory or contractual, or to
assume any responsibility for the management of the other
Party's business.
(A)3.14 NONDISCLOSURE
(A)3.14.1 All information, including but not limited to
specifications, microfilm, photocopies, magnetic
disks, magnetic tapes, drawings, sketches, models,
samples, tools, technical information, data, employee
records, maps, financial reports, and market data,
(i) furnished by one Party to the other Party dealing
with end user specific, facility specific, or usage
specific information, other than end user information
communicated for the purpose of providing directory
assistance or publication of directory database, or
(ii) in written, graphic, electromagnetic, or other
tangible form and marked at the time of delivery as
"Confidential" or "Proprietary", or (iii)
communicated and declared to the receiving Party at
the time of delivery, or by written
<PAGE>
Part A
General Terms
notice given to the receiving Party within ten (10)
calendar days after delivery, to be "Confidential" or
"Proprietary" (collectively referred to as
"Proprietary Information"), shall remain the property
of the disclosing Party. A Party who receives
Proprietary Information via an oral communication may
request written confirmation that the material is
Proprietary Information. A Party who delivers
Proprietary Information via an oral communication may
request written confirmation that the Party receiving
the information understands that the material is
Proprietary Information.
(A)3.14.2 Upon request by the disclosing Party, the receiving
Party shall return all tangible copies of Proprietary
Information, whether written, graphic or otherwise,
except that the receiving Party may retain one copy
for archival purposes.
(A)3.14.3 Each Party shall keep all of the other Party's
Proprietary Information confidential and shall use
the other Party's Proprietary Information only in
connection with this Agreement. Neither Party shall
use the other Party's Proprietary Information for any
other purpose except upon such terms and conditions
as may be agreed upon between the Parties in writing.
(A)3.14.4 Unless otherwise agreed, the obligations of
confidentiality and non-use set forth in this
Agreement do not apply to such Proprietary
Information as:
(A)3.14.4.1 was at the time of receipt already known
to the receiving Party free of any
obligation to keep it confidential evidenced
by written records prepared prior to
delivery by the disclosing Party; or
(A)3.14.4.2 is or becomes publicly known through no
wrongful act of the receiving Party; or
(A)3.14.4.3 is rightfully received from a third
person having no direct or indirect secrecy
or confidentiality obligation to the
disclosing Party with respect to such
information; or
(A)3.14.4.4 is independently developed by an
employee, agent, or contractor of the
receiving Party which individual is not
involved in any manner with the provision of
services pursuant to the Agreement and does
not have any direct or indirect access to
the Proprietary Information; or
(A)3.14.4.5 is disclosed to a third person by the
disclosing Party without similar
restrictions on such third person's rights;
or
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General Terms
(A)3.14.4.6 is approved for release by written
authorization of the disclosing Party; or
(A)3.14.4.7 is required to be made public by the
receiving Party pursuant to applicable law
or regulation provided that the receiving
Party shall give sufficient notice of the
requirement to the disclosing Party to
enable the disclosing Party to seek
protective orders.
(A)3.14.5 Nothing herein is intended to prohibit a Party
from supplying factual information about its
network and Telecommunications Services on or
connected to its network to regulatory agencies
including the Federal Communications Commission
and the Commission so long as any confidential
obligation is protected.
(A)3.14.6 Effective Date Of This Section. Notwithstanding any
other provision of this Agreement, the Proprietary
Information provisions of this Agreement shall apply
to all information furnished by either Party to the
other in furtherance of the purpose of this
Agreement, even if furnished before the date of this
Agreement.
(A)3.15 SURVIVAL
Any liabilities or obligations of a Party for acts or
omissions prior to the cancellation or termination of this
Agreement; any obligation of a Party under the provisions
regarding indemnification, Confidential or Proprietary
Information, limitations of liability, and any other
provisions of this Agreement which, by their terms, are
contemplated to survive (or to be performed after) termination
of this Agreement, shall survive cancellation or termination
hereof.
(A)3.16 DISPUTE RESOLUTION
(A)3.16.1 If any claim, controversy or dispute between the
Parties, their agents, employees, officers, directors
or affiliated agents should arise, and the Parties do
not resolve it in the ordinary course of their
dealings (the "Dispute"), then it shall be resolved
in accordance with the dispute resolution process set
forth in this Section. Each notice of default, unless
cured within the applicable cure period, shall be
resolved in accordance herewith.
(A)3.16.2 At the written request of either Party, and prior to
any other formal dispute resolution proceedings, each
Party shall designate an officer-level employee, at
no less than the vice president level, to review,
meet, and negotiate, in good faith, to resolve the
Dispute. The Parties intend that these negotiations
be conducted by non-lawyer, business representatives,
and the locations, format, frequency, duration, and
conclusions of these discussions shall be at the
discretion of the representatives. By mutual
agreement, the representatives may use other
procedures, such as mediation, to assist in these
negotiations. The discussions and correspondence
<PAGE>
Part A
General Terms
among the representatives for the purposes of these
negotiations shall be treated as Confidential Information
developed for purposes of settlement, and shall be exempt from
discovery and production, and shall not be admissible in any
subsequent arbitration or other proceedings without the
concurrence of both of the Parties.
(A)3.16.3 If the vice-presidential level representatives
have not reached a resolution of the Dispute within thirty
(30) calendar days after the matter is referred to them, then
either Party may demand that the Dispute be settled by
arbitration. Such an arbitration proceeding shall be conducted
by a single arbitrator, knowledgeable about the
telecommunications industry. The arbitration proceedings shall
be conducted under the then current rules of the American
Arbitration Association ("AAA"). The Federal Arbitration Act,
9 U.S.C. Sections 1-16, not state law, shall govern the
arbitrability of the Dispute. The arbitrator shall not have
authority to award punitive damages. All expedited procedures
prescribed by the AAA rules shall apply. The arbitrator's
award shall be final and binding and may be entered in any
court having jurisdiction thereof. Each Party shall bear its
own costs and attorneys' fees, and shall share equally in the
fees and expenses of the arbitrator. The arbitration
proceedings shall occur in the Denver, Colorado metropolitan
area. It is acknowledged that the Parties, by mutual, written
agreement, may change any of these arbitration practices for a
particular, some, or all Dispute(s).
(A)3.16.4 Should it become necessary to resort to court proceedings to
enforce a Party's compliance with the dispute resolution
process set forth herein, and the court directs or otherwise
requires compliance herewith, then all of the costs and
expenses, including its reasonable attorney fees, incurred by
the Party requesting such enforcement shall be reimbursed by
the non-complying Party to the requesting Party.
(A)3.16.5 No Dispute, regardless of the form of action, arising out
of this Agreement, may be brought by either Party more than
two (2) years after the cause of action accrues.
(A)3.17 CONTROLLING LAW
This Agreement was negotiated by the Parties in accordance with the
terms of the Act and the laws of the state where service is provided
hereunder. It shall be interpreted solely in accordance with the terms
of the Act and the applicable state law in the state where the service
is provided.
(A)3.18 JOINT WORK PRODUCT
This Agreement is the joint work product of the Parties and has been
negotiated by the Parties and their respective counsel and shall be
fairly interpreted in
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General Terms
accordance with its terms and, in the event of any ambiguities, no
inferences shall be drawn against either Party.
(A)3.19 RESPONSIBILITY FOR ENVIRONMENTAL CONTAMINATION
Neither Party shall be liable to the other for any costs whatsoever
resulting from the presence or release of any environmental hazard that
either Party did not introduce to the affected work location. Both
Parties shall defend and hold harmless the other, its officers,
directors and employees from and against any losses, damages, claims,
demands, suits, liabilities, fines, penalties and expenses (including
reasonable attorneys' fees) that arise out of or result from (i) any
environmental hazard that the indemnifying Party, its contractors or
agents introduce to the work locations or (ii) the presence or release
of any environmental hazard for which the indemnifying Party is
responsible under applicable law.
(A)3.20 NOTICES
Any notices required by or concerning this Agreement shall be sent to
the Parties at the addresses shown below:
USW
Director Interconnection Compliance
1801 California, Room 2410
Denver, CO 80202
With copy to:
U S WEST Law Department
Attention: General Counsel, Interconnection
1801 California Street, 51st Floor
Denver, CO 80202
RESELLER
John Duffy
Peter Mills
3 Burlington Woods Drive
4 1h Floor
Burlington, MA 01803
Phone: 781-229-9599, ext. 136
Fax: 781-229-9499
E-mail: [email protected]
Each Party shall inform the other of any changes in the above addresses.
(A)3.21 RESPONSIBILITY OF EACH PARTY
Each Party is an independent contractor, and has and hereby retains the
right to exercise full control of and supervision over its own
performance of its obligations under this Agreement and retains full
control over the employment, direction, compensation and discharge of
all employees assisting in the performance of such obligations. Each
Party will be solely responsible for all matters relating to
Page 17
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General Terms
payment of such employees, including compliance with social security
taxes, withholding taxes and all other regulations governing such
matters. Each Party will be solely responsible for proper handling,
storage, transport and disposal at its own expense of all (i) substances
or materials that it or its contractors or agents bring to, create or
assume control over at work locations or, (ii) waste resulting therefrom
or otherwise generated in connection with its or its contractors' or
agents' activities at the work locations. Subject to the limitations on
liability and except as otherwise provided in this Agreement, each Party
shall be responsible for (i) its own acts and performance of all
obligations imposed by applicable law in connection with its activities,
legal status and property, real or personal and, (ii) the acts of its
own affiliates, employees, agents and contractors during the performance
of that Party's obligations hereunder.
(A)3.22 NO THIRD PARTY BENEFICIARIES
This Agreement does not provide and shall not be construed to provide
third parties with any remedy, claim, liability, reimbursement, cause of
action, or other privilege.
(A)3.23 REFERENCED DOCUMENTS
All references to Sections shall be deemed to be references to Sections
of this Agreement unless the context shall otherwise require. Whenever
any provision of this Agreement refers to a technical reference,
technical publication, RESELLER practice, USW practice, any publication
of telecommunications industry administrative or technical standards, or
any other document specifically incorporated into this Agreement, it
will be deemed to be a reference to the most recent version or edition
(including any amendments, supplements, addenda, or successors) of such
document that is in effect, and will include the most recent version or
edition (including any amendments, supplements, addenda, or successors)
of each document incorporated by reference in such a technical
reference, technical publication, RESELLER practice, USW practice, or
publication of industry standards. USW will not implement changes in the
most recent version or edition in the documents described above when
such changes are optional. The existing configuration of either Party's
network may not be in immediate compliance with the latest release of
applicable referenced documents.
(A)3.24 PUBLICITY
Neither Party shall publish or use any publicity materials with respect
to the execution and delivery or existence of this Agreement without the
prior written approval of the other Party.
(A)3.25 AMENDMENT
RESELLER and USW may mutually agree to amend this Agreement in writing.
Since it is possible that amendments to this Agreement may be needed to
fully satisfy the purposes and objectives of this Agreement, the Parties
agree to work cooperatively, promptly and in good faith to negotiate and
implement any such additions, changes and corrections to this Agreement.
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General Terms
(A)3.26 EXECUTED IN COUNTERPARTS
This Agreement may be executed in any number of counterparts,
each of which shall be deemed an original; but such
counterparts shall together constitute one and the same
instrument.
(A)3.27 HEADINGS OF NO FORCE OR EFFECT
The headings of Sections of this Agreement are for convenience
of reference only, and shall in no way define, modify or
restrict the meaning or interpretation of the terms or
provisions of this Agreement.
(A)3.28 REGULATORY APPROVAL
The Parties understand and agree that this Agreement will be
filed with the Commission for approval. In the event the
Commission rejects any portion of this Agreement, renders it
inoperable or creates an ambiguity that requires further
amendment, the Parties agree to meet and negotiate in good
faith to arrive at a mutually acceptable modification.
(A)3.29 COMPLIANCE
Each Party shall comply with all federal, state, and local
laws, rules and regulations applicable to its performance
under this Agreement. Without limiting the foregoing, USW and
RESELLER agree to take all action necessary to keep and
maintain in full force and effect all permits, licenses,
certificates, insurance, and other authorities needed to
perform their respective obligations hereunder.
(A)3.30 COMPLIANCE WITH THE COMMUNICATIONS ASSISTANCE FOR LAW
ENFORCEMENT ACT OF 1994 ("CALEA")
Each Party represents and warrants that any equipment,
facilities or services provided to the other Party under this
Agreement comply with CALEA. Each Party shall indemnify and
hold the other Party harmless from any and all penalties
imposed upon the other Party for such noncompliance and shall
at the noncompliant Party's sole cost and expense, modify or
replace any equipment, facilities or services provided to the
other Party under this Agreement to ensure that such
equipment, facilities and services fully comply with CALEA.
(A)3.31 COOPERATION
The Parties agree that this Agreement involves the provision
of USW services in ways such services were not previously
available and the introduction of new processes and procedures
to provide and bill such services. Accordingly, the Parties
agree to work jointly and cooperatively in testing and
implementing processes for pre-ordering, ordering,
maintenance, provisioning and billing and in reasonably
resolving issues which result from such implementation on a
timely basis. Electronic processes and procedures are
addressed in Part D of this Agreement.
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Part A
General Terms
(A)3.32 AVAILABILITY OF OTHER AGREEMENTS
With regard to the availability of other agreements, the
Parties agree that the provisions of Section 252(i) of the Act
shall apply, including state and federal, Commission and court
interpretive regulations and decisions in effect from time to
time.
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Part B
Resale
PART B - RESALE
(B)1. DESCRIPTION
(B)1.1 Pursuant to the Act and this Part B, USW shall offer for
resale at wholesale rates any Telecommunications Services it
provides to end users who are not Telecommunications Carriers
including terms and conditions (except prices) in the USW
Tariffs, where applicable. RESELLER may obtain intraLATA toll
service from USW for resale or RESELLER has the option to
self-provision intraLATA toll or to obtain intraLATA toll for
resale from another provider.
(B)1.2 The Parties agree that certain USW services are not available
for resale under this Agreement and certain other USW services
are available for resale but not at a discount, as identified
in Part E or in individual state Tariffs. The availability of
services and applicable discounts identified in Part E or in
individual Tariffs are subject to change pursuant to the Rates
and Charges sub-section of this Resale section.
(B)2. TERMS AND CONDITIONS
(B)2.1 Basic Exchange Telecommunications Service, Basic Exchange
Features, Private Line Service, Frame Relay Service and
intraLATA Toll may be resold only for their intended or
disclosed use and only to the same class of end user to which
USW sells such services (e.g., residence service may not be
resold to business end users). Service provided directly to
RESELLER for its own use, such as administrative services,
must be identified by RESELLER and RESELLER must pay the full
retail rates and prices for such services.
(B)2.2 USW shall provide to RESELLER Telecommunications Services for
resale that are at least equal in quality, and in
substantially the same time and manner that USW provides these
services to others, including other Resellers and end users,
and in accordance with any applicable Commission service
quality standards, including standards the Commission may
impose pursuant to Section 252 (e)(3) of the Act.
(B)2.3 In the event that there are existing agreements between
RESELLER and USW for resale under USW retail Tariff discounts,
RESELLER may elect to continue to obtain services for resale
under the existing agreements and retail Tariff discounts or
RESELLER may elect to terminate such existing agreements and
obtain such services under this Agreement with the associated
wholesale discount specified in Part E of this Agreement.
(B)2.4 In accordance with the Act, RESELLER will provide the date it
will begin to offer Telecommunications Services to residential
and business end users. RESELLER will provide a two (2) year
forecast within ninety (90) calendar days of signing this
Agreement The forecast shall be updated and provided to USW on
a annual basis or as requested by USW. Each forecast will
provide:
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Part B
Resale
- The date service will be offered (by city and/or
state)
- The type and quantity of service(s) which will be
offered
- RESELLER's anticipated number of service orders
- Name of RESELLER's key contact personnel
The information provided pursuant to this paragraph shall be
considered Proprietary Information under the Nondisclosure
Section of this Agreement.
(B)2.5 RESELLER may not reserve blocks of USW telephone numbers,
except as allowed by Tariffs.
(B)2.6 USW will accept at no charge one primary listing for each main
telephone number belonging to RESELLER's end user based on end
user information provided to USW by RESELLER. USW will place
RESELLER's listings in USWs directory listing database for
directory assistance purposes. Additional terms and conditions
with respect to directory listings are described in Part C of
this Agreement.
(B)2.7 USW shall provide to RESELLER, for RESELLER's end users,
E911/911 call routing to the appropriate Public Safety
Answering Point ("PSAP). USW shall not be responsible for any
failure of RESELLER to provide accurate end user information
for listings in any databases in which USW is required to
retain and/or maintain end user information.. USW shall
provide and validate RESELLER's end user information to the
Automatic Location Identification/Database Management System
("ALI/DMS"). USW shall use its standard process to update and
maintain, on the same schedule that it uses for its end users,
RESELLER's end user service information in the ALI/DMS used to
support E911/911 services. USW assumes no liability for the
accuracy of information provided by RESELLER.
(B)2.8 If USW provides and RESELLER accepts operator services,
directory assistance, and intraLATA long distance as a part of
the resold line, it will be offered with standard USW
branding. RESELLER is not permitted to alter the branding of
these services in any manner when the services are a part of
the resold line without the prior written approval of USW.
However, at the request of RESELLER and where technically
feasible, USW will rebrand operator services and directory
assistance in RESELLER's name, provided the charges associated
with such rebranding are paid by RESELLER.
(B)2.9 RESELLER shall designate the Primary Interexchange Carrier
(PIC) assignments on behalf of its end users for interLATA
services and intraLATA services.
(B)2.10 When end users switch from USW to RESELLER, or to RESELLER
from any other Reseller, and if they do not change their
service address to an address served by a different Central
Office, such end users shall be permitted to retain their
current telephone numbers if they so desire. USW shall take no
action to prevent RESELLER end users from retaining their
current telephone numbers.
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Part 8
Resale
(B)2.11 RESELLER is liable for all fraud associated with service to
its end-users and accounts. USW takes no responsibility, will
not investigate, and will make no adjustments to RESELLER's
account in cases of fraud unless such fraud is the result of
any intentional act or gross negligence of USW Notwithstanding
the above, if USW becomes aware of potential fraud with
respect to RESELLER's accounts, USW will promptly inform
RESELLER and, at the direction of RESELLER, take reasonable
action to mitigate the fraud where such action is possible.
(B)2.12 Resold services are available only where facilities
currently exist and are capable of providing such services
without construction of additional facilities or enhancement
of existing facilities. However, if RESELLER requests that
facilities be constructed or enhanced to provide resold
services, USW will review such requests on a case-by-case
basis and determine if it is economically feasible for USW to
build or enhance facilities. If USW decides to build or
enhance the requested facilities, USW will develop and provide
to RESELLER a price quote for the construction. Construction
charges associated with resold services will be applied in
the same manner that construction charges apply to USW's
retail end users. If the quote is accepted, RESELLER will be
billed the quoted price and construction will commence after
receipt of payment.
(B) 2.13 In the event USW terminates the provisioning of any resold
services to RESELLER for any reason, including RESELLER's
non-payment of charges, RESELLER shall be responsible for
providing any and all necessary notice to its end users of
the termination. In no case shall USW be responsible for
providing such notice to RESELLER's end users. USW will
provide notice to RESELLER of USW's termination of a resold
service on a timely basis consistent with Commission rules
and notice requirements.
(B)2.14 The underlying network provider of a resold service shall be
entitled to receive, from the purchaser of Switched Access,
the appropriate access charges pursuant to its then effective
Switched Access Tariff.
(B)2.15 Centrex terms and conditions related to calculation of charges
for, and provisioning of common blocks, station lines, and
optional features will be based on the Centrex definition of a
system and a Reseller's serving location.
(B)2.15.1 Where a common block is applicable, a Centrex
system is defined by a single common block or
multiple common blocks for a single RESELLER within a
single Central Office switching system. A common
block defines the dialing plan for intercom calling,
access to Public Switched Network and/or private
facilities, station line and system restrictions and
feature access arrangements and functionality.
RESELLER may purchase multiple common blocks within a
single Central Office switching system when RESELLER
requires different dialing plans, feature access
arrangements and
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Part B Resale
station line or system restrictions within a single
system operation. A Reseller with multiple common
blocks within the same Central Office switch may have
Network Access Register and Private Facility trunk
groups aggregated across multiple common blocks.
Centrex system based optional features (i.e.
Automatic Route Selection) may not be aggregated
across multiple common blocks. A Centrex system must
provide station lines to at least one location and
may provide station lines to multiple locations.
(B)2.15.2 Centrex station lines are provisioned and charges
are calculated based on serving Reseller's location.
A location is defined as the site where USW
facilities (cable plant from the serving Central
Office switch) meet Reseller facilities (inside
wire). In a multi-tenant building, USW may bring
facilities directly to a single point of
interconnection with Reseller facilities, typically
in a basement equipment room, which would be
considered a single location for this multi-tenant
building. Should USW bring service to multiple floors
or offices within a multi-tenant building each floor
or office with a separate Reseller facilities
termination point is considered a location. Multiple
buildings within contiguous property (campus) will be
provisioned and billed as a single location.
Contiguous property is defined as property owned or
leased by a single end user and not separated by
public thoroughfare, river or railroad rights-of-way.
Property will be considered contiguous when connected
via connecting passageways or conduit acceptable to
USW for its facilities. A Reseller with Centrex
station lines from multiple Central Office switching
systems, within the same USW Wire Center, and
provisioned to the same location will not be charged
for service or provisioned as if service was
originating from a single Centrex system. For
example, station lines may only be aggregated from a
single Centrex Reseller system to a single Reseller
serving location for rating purposes. RESELLER may
not specify a USW Central Office as a RESELLER
location for termination of Centrex station lines.
(B)2.16 Private Line Service used for Special Access is available for
resale but not at a discount.
(B)2.17 DSL Service (such as Megabit Service) is available for resale
by RESELLER out of USW's Interstate Tariff, but at no
wholesale discount.
(B)3. RATES AND CHARGES
(B)3.1 The Telecommunications Services identified in Part E are
available for resale at the wholesale discount percentage
shown in Part E. Telecommunications
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Part B Resale
Services available for resale but excluded from the wholesale
pricing arrangement in this Agreement are available at the
retail Tariff rates.
(B)3.2 The Customer Transfer Charges (CTC) as specified in Part E
apply when transferring services to RESELLER.
(B)3.3 A Subscriber Line Charge (SLC), or any subsequent federally
mandated charge to end users, will continue to be paid by
RESELLER without discount for each local exchange line resold
under this Agreement. All federal and state rules and
regulations associated with SLC as found in the applicable
Tariffs also apply.
(B)3.4 RESELLER will pay to USW the PIC change charge without
discount for RESELLER end user changes of interexchange or
intraLATA carriers. Any change in RESELLER's end users'
interexchange or intraLATA carrier must be requested by
RESELLER on behalf of its end user.
(B)3.5 RESELLER agrees to pay USW when its end user activates any
services or features that are billed on a per use or per
activation basis subject to the applicable discount in Part E
as such may be amended pursuant to this Section (e.g.,
continuous redial, last call return, call back calling, call
trace, etc.).
(B)3.6 Product specific non-recurring charges, as set forth in USW's
applicable Tariffs will apply when additional lines, trunks or
circuits are added or when the end user adds features or
services to existing lines or trunks.
(B)3.7 Miscellaneous charges, if applicable, will be consistent with
charges for equivalent services ordered by USW end users.
(B)3.8 The wholesale discount rates (the "Rates") in Part E were
established in the Final Decision and Order, Docket No.
RPU-96-9.
(B)3.9 If the Rates or the applicability of the Rates to the services
in Part E are changed by a nonappealable administrative or
judicial order following a decision on rehearing or appeal or
other similar proceeding, such changed rate(s) will be
available to RESELLER effective as of the date of the order.
No true-up of the Rates will occur unless ordered as a part of
the nonappealable, administrative or judicial order.
(B)3.10 If the resold services are purchased pursuant to Tariffs and
the Tariff rates change, charges billed to RESELLER for such
services will be based upon the new Tariff rates less the
applicable wholesale discount, if any, as agreed to herein or
as established by Commission order and/or resale Tariff. The
new rate will be effective upon the Tariff effective date.
(B)4. ORDERING PROCESS
(B)4.1 RESELLER, or RESELLER's agent, shall act as the single point
of contact for its end users' service needs, including without
limitation, sales, service design, order taking, provisioning,
change orders, training, maintenance, trouble
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<PAGE>
Part B
Resale
reports, repair, post-sale servicing, billing, collection and
inquiry. RESELLER shall inform its end users that they are end
users of RESELLER for resold services. RESELLER's end users
contacting USW will be instructed to contact RESELLER;
however, nothing in this Agreement, except as provided below,
shall be deemed to prohibit USW from discussing its products
and services with RESELLER's end users who call USW.
(B)4.2 RESELLER shall transmit to USW all information necessary for
the ordering (billing, listing and other information),
installation, repair, maintenance and post-installation
servicing according to USW`s standard procedures, as described
in the USW Interconnect & Resale Resource Guide available on
USW's Web site. Information shall be provided using USW's
designated Local Service Request (LSR) format which may
include the LSR, end user and resale forms. RESELLER must send
USW complete and accurate end user listing information for
Directory Assistance, Directory Listings, and 911 Emergency
Services using USW's designated resale directory listing order
forms. When USW's end user or the end user's new service
provider orders the discontinuance of the end user's existing
service in anticipation of moving to another service provider,
USW will render its closing bill to the end user effective
with the disconnection. If another service provider,
RESELLER's end user or RESELLER requests that service be
discontinued from RESELLER and subsequently USW's service to
RESELLER is discontinued USW will issue a bill to RESELLER for
that portion of the service provided to RESELLER.. USW will
notify RESELLER by FAX, OSS interface or other agreed upon
processes, in accordance with the OSS section of this
Agreement when an end user moves to another service provider.
USW will not provide RESELLER with the name of the other
service provider selected by the end user.
(B)4.3 RESELLER shall provide USW and USW shall provide RESELLER with
points of contact for order entry, problem resolution and
repair of the resold services.
(B)4.4 Prior to placing orders on behalf of the end user, RESELLER
shall be responsible for obtaining and have in its possession
Proof of Authorization ("POA"), as set forth in Part A of this
Agreement.
(B)4.5 Due date interval standards are addressed in the Interconnect
& Resale Resource Guide.
(B)4.6 Firm Order Confirmation (FOC) guidelines are addressed in the
Interconnect & Resale Resource Guide.
(B)4.7 USW will provide completion notification that is equal to that
provided to USW end users.
(B)4.8 USW will provide Design Layout Records when requested under
terms and conditions consistent with USW end users.
(B)4.9 USW will handle jeopardy orders based upon the same
performance standards and criteria that USW provides to
itself.
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Part B
Resale
(B)5. BILLING
(B)5.1 USW shall bill RESELLER and RESELLER is responsible for all
applicable charges for the resold services as provided herein.
RESELLER shall also be responsible for all Tariffed charges
and charges separately identified in this Agreement associated
with services that RESELLER resells to an end user under this
Agreement.
(B)5.2 USW shall provide RESELLER, on a monthly basis, within 7-10
calendar days of the last day of the most recent billing
period, in an agreed upon standard electronic billing format
as detailed in Part D, billing information including (1) a
summary bill, and (2) individual end user sub-account
information consistent with the samples available for RESELLER
review.
(B)6. MAINTENANCE AND REPAIR
RESELLER and USW will employ the procedures for handling misdirected
repair calls as specified in the Maintenance and Repair Section of this
Agreement.
(B)6.1 USW will maintain facilities and equipment used to provide
RESELLER resold services. RESELLER or its end user may not
rearrange, move, disconnect, or attempt to repair USW
facilities or equipment, other than by connection or
disconnection to any interface between USW and the end user,
without written consent of USW.
(B)6.2 Maintenance and repair processes are detailed in the
Maintenance and Repair Section of this Agreement.
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<PAGE>
Part C
Directory Listings
PART C - WHITE PAGES DIRECTORY LISTINGS
(C)1. DESCRIPTION
White Pages Listings Service (Listings) consists of USW placing the
names, addresses and telephone numbers of RESELLER's end users in USW's
listing database, based on end user information provided to USW by
RESELLER. USW is authorized to use Listings in Directory Assistance
(DA) and as noted below.
(C)2. TERMS AND CONDITIONS
(C)2.1 RESELLER will provide in standard, mechanized format,
and USW will accept at no charge, one primary listing
for each main telephone number belonging to
RESELLER's end users. Primary listings for RESELLER
will include the end user Listings for any resold
services or wireless services and are further defined
in USW's general exchange Tariffs. RESELLER will be
charged for premium and privacy listings, (e.g.,
additional, foreign, cross reference, informational,
etc.), at USW's general exchange listing Tariff
rates, less the wholesale discount. If RESELLER
utilizes Remote Call Forwarding for local number
portability, RESELLER can list only one number
without charge - either the end user's original
telephone number or RESELLER-assigned number. The
standard discounted rate for an additional listing
applies to the other number.
(C)2.2 USW will furnish RESELLER the Listings format
specifications. All manual requests are considered a
project and require coordination between RESELLER and
USW to determine time frames.
(C)2.3 RESELLER grants USW a non-exclusive license to
incorporate Listings information into its Directory
Assistance database. With this license USW will
incorporate Listings in the DA database.
(C)2.4 No prior authorization is needed for USW to release
Listings to directory publishers or other third
parties. USW will incorporate Listings information in
all existing and future directory assistance
applications developed by USW. RESELLER authorizes
USW to sell and otherwise make Listings available to
directory publishers. Listings shall not be provided
or sold in such a manner as to segregate end users by
carrier. USW will not charge for updating and
maintaining the Listings database. RESELLER will not
receive compensation from USW for any sale of
Listings by USW.
(C)2.5 To the extent that state Tariffs limit USW's
liability with regard to Listings, the applicable
state Tariff(s) is incorporated herein and supersedes
the Limitation of Liability section of this Agreement
with respect to Listings only.
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<PAGE>
PART C
DIRECTORY LISTINGS
(C)2.6 USW is responsible for maintaining Listings,
including entering, changing, correcting, rearranging
and removing Listings in accordance with RESELLER
orders. USW will take reasonable steps in accordance
with industry practices to accommodate non-published
and non-listed Listings provided that RESELLER has
supplied USW the necessary privacy indicators on such
Listings.
(C)2.7 USW will include RESELLER Listings in USW's Directory
Assistance service to ensure that callers to USW's
Directory Assistance service have non-discriminatory
access to RESELLER's Listings.
(C)2.8 USW will ensure RESELLER Listings provided to USW are
included in the white pages directory published on
USW's behalf.
(C)2.9 RESELLER agrees to provide to USW its end user names,
addresses and telephone numbers in a standard
mechanized format, as specified by USW.
(C)2.10 RESELLER will supply its ACNA/CIC or CLCC/OCN, as
appropriate, with each order to provide USW the means
of identifying Listings ownership.
(C)2.11 Upon request by USW, RESELLER shall submit proof to
USW, of authorization from each end user for which
RESELLER submits a change in end user's Listing.
(C)2.12 RESELLER represents and warrants the end user
information provided to USW is accurate and correct.
RESELLER further represents and warrants that it has
reviewed all Listings provided to USW, including end
user requested restrictions on use such as non-
published and non-listed. RESELLER shall be solely
responsible for knowing and adhering to state laws or
rulings regarding Listings (e.g., no solicitation
requirements in the states of Arizona and Oregon,
privacy requirements in Colorado), and for supplying
USW with the applicable Listing information.
(C)2.13 RESELLER is responsible for all dealings with, and on
behalf of, RESELLER's end users, including:
(C)2.13.1 All end user account activity, (e.g. end
user queries and complaints).
(C)2.13.2 All account maintenance activity, (e.g.,
additions, changes, issuance of orders for
listings to usw).
(C)2.13.3 Determining privacy requirements and
accurately coding the privacy indicators for
RESELLER's end user information. If end user
information provided by RESELLER to USW does
not contain a privacy indicator, no privacy
restrictions will apply.
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<PAGE>
Part C
Directory Listings
(C)2.13.4 Any additional services requested by
RESELLER's end users.
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<PAGE>
Part D
Miscellaneous Provisions
PART D- MISCELLANEOUS PROVISIONS
(D)1. NETWORK SECURITY
(D)1.1 Protection of Service and Property - Each Party shall exercise
the same degree of care to prevent harm or damage to the other
Party and any third parties, its employees, agents or end
users, or their property as it employs to protect its own
personnel, end users and property, etc. Each Party shall
comply at all times with USW security and safety procedures
and requirements.
(D)1.2 Revenue Protection - USW shall make available to RESELLER all
present and future fraud prevention or revenue protection
features. These features include, but are not limited to
screening codes, and 900 numbers.
(D)1.3. Law Enforcement Interface - USW provides emergency assistance
to 911 centers and law enforcement agencies seven (7) days a
week/twenty-four (24) hours a day. Assistance includes, but is
not limited to release of 911 trace and subscriber
information; in-progress trace requests; establishing
emergency trace equipment, release of information from an
emergency trap/trace or *57 trace; requests for emergency
subscriber information; assistance to law enforcement agencies
in hostage/barricade situations, kidnappings, bomb threats,
extortion/scams, runaways and life threats.
(D)1.4 USW provides trap/trace, pen register and Title III assistance
directly to law enforcement, if such assistance is directed by
a court order. This service is provided during normal business
hours, Monday through Friday. Exceptions are addressed in the
above paragraph. The charges for these services will be billed
directly to the law enforcement agency, without involvement of
RESELLER, for any lines served from USW Wire Centers or cross
boxes.
(D)1.5 In all cases involving telephone lines served from USW Wire
Centers or cross boxes, USW will perform trap/trace Title III
and pen register assistance directly with law enforcement.
RESELLER will not be involved or notified of such actions, due
to non-disclosure court order considerations, as well as
timely response duties when law enforcement agencies are
involved. Exceptions to the above will be those cases, as yet
undetermined, where RESELLER must participate due to technical
reasons wherein its circuitry must be accessed or modified to
comply with law enforcement, or for legal reasons that may
evolve over time. RESELLER will provide USW with a 24 hour a
day, 7 days a week contact for processing such requests,
should they occur.
(D)2. ACCESS TO OPERATIONAL SUPPORT SYSTEMS (OSS)
(D)2.1 Description
(D)2.1.1 USW has developed and shall continue to provide Operational
Support Systems OSS interfaces using electronic gateways.
These gateways act as a mediation or control point between
RESELLER's
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Part D
Miscellaneous Provisions
and USW's OSS. These gateways provide security for the
interfaces, protecting the integrity of the USW OSS and its
databases. USWs OSS interfaces have been developed to support
Pre-ordering, Ordering and Provisioning, Maintenance and
Repair and Billing. Included below is a description of the
products and functions supported by USW OSS interfaces and the
technology used by each. This section describes the interfaces
that USW has developed and shall provide RESELLER. Additional
technical information and details shall be provided by USW in
training sessions and documentation, such as the "Interconnect
Mediated Access User's Guide". USW will continue to make
improvements to the electronic interfaces as technology
evolves, providing notification to RESELLER consistent with
the provisions of this Section.
(D)2.1.2 Through its electronic gateways, USW shall provide RESELLER
nondiscriminatory access to USWs operational support systems
for pre-ordering, ordering and provisioning, maintenance and
repair, and billing for resale. For the pre-ordering, ordering
and provisioning of resold services, USW shall provide
RESELLER access to its OSS in substantially the same time and
manner as it provides to itself.
(D)2.2 OSS Support for Pre-Ordering, Ordering and Provisioning
(D)2.2.1 LSR (Local Service Request) Ordering Process
(D)2.2.1.1 RESELLER shall use electronic interfaces for orders
placed using the LSR Ordering Process for the
services it supports. The electronic interface
gateways include both the Electronic Data Interchange
(EDI) interface and the Interconnect Mediated Access
(IMA) Graphical User Interface (GUI).
(D)2.2.1.2 The EDI interface provides a single interface for
PreOrder and Order transactions from RESELLER to USW
and is transaction based rather than batch based. The
interface standards for EDI are based upon the Order
& Billing Forum (OBF) Local Service Order Guidelines
(LSOG), the Telecommunication Industry Forum (TCIF)
Customer Service Guideline and the American National
Standards Institute/Accredited Standards Committee
(ANSI ASC) X12 with exceptions as specified in the
IMA and EDI disclosure documents which are provided
in conjunction with the implementation
responsibilities contained in this Section.
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(D)2.2.1.3 The IMA GUI also provides a single interface for
Pre-Order and Order transactions from RESELLER to USW
and is browser based The IMA GUI interface is based
on the LSOG and utilizes a WEB standard technology,
Hyper Text Markup Language (HTML), JAVA, and the
Transmission Control Protocol/Internet Protocol
(TCP/IP) to transmit messages.
(D)2.2.1.4 Functions
(D)2.2.1.4.1 Pre-ordering
Pre-Ordering refers to the set of activities
performed in conjunction with placing an
order. Pre-order consists of the following
functions: validate address, service
availability, review Customer Service Record
(CSR), check facility availability, reserve
telephone numbers, and schedule an
appointment. The electronic interface
gateways provide on-line capabilities to
perform these functions. Not all functions
apply to all products.
(D)2.2.1.4.1.1 Validate address will verify the end
user's address.
(D)2.2.1.1.4.1.2 Service Availability will
return the list of (1) POTS
products and services available in
the Central Office switch serving a
particular end user address, which
will indicate to RESELLER, among
other things, which products and
services are authorized for resale
in the Central Office switch
serving a particular end user
address and (2) nonswitched-based
products and services that RESELLER
is authorized to provide according
to its resale agreement with USW.
(D)2.2.1.1.4.1.3 Review Customer Service
Record (CSR) gives RESELLER the
ability to request a display of
local exchange services and
features (CPNI) USW is currently
providing to an end user.
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(D)2.2.1.4.1.4 Check Facility Availability
will provide an indication of
whether existing facilities are
available or if new facilities are
required, and if a technician must
be dispatched to provide the
facilities requested at the end
user's address. This transaction
does not reserve facilities and
does not guarantee that facilities
will or will not be available when
the order is submitted.
(D)2.2.1.4.1.5 Reserve Telephone Numbers
provides RESELLER with the ability
to select an end user's telephone
number. The reservation process is
further divided into telephone
number availability, selection,
exchange and return functionality.
Expiration period for selection and
submission of Telephone Number are:
- A period up to thirty (30) minutes
in which to make a telephone number
selection. If this time limit is
exceeded, and no attempt has been
made to select the telephone
numbers, the telephone numbers are
sent back to the OSS and an error
message is displayed on the LSR. A
new query will need to be performed
for available telephone numbers.
- When a telephone number has been
reserved, there is a twenty-four
(24) hour business period that the
telephone number may be included on
an LSR. If the time limit is
exceeded, the telephone number is
returned to the OSS.
(D)2.2.1.4.1.6 Schedule Appointment allows
RESELLER to retrieve a calendar of
available appointments and to
reserve an appointment date and
time so that a technician can be
dispatched for premises and/or
non-premises work.
(D)2.2.1.4.1.7 Expiration period for
selection and submission of
Appointment Reservation are:
- A selection must be made within a
thirty (30) minute period. If an
appointment
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has been selected and the time
limit was exceeded, an error
message will display. If the error
message displays, an updated list
of available appointments will need
to be requested. If an appointment
has already been reserved for this
Purchase Order Number, the
Appointment Confirmation window
will be displayed and will be
prepopulated with confirmation
number, appointment date and time,
and after and before times.
- Appointments are reserved for a 24
hour business period. If the
appointment is not attached to a
submitted order within 24 business
hours, the appointment is returned.
When the appointment is
successfully reserved, confirmation
of the appointment will be
displayed to RESELLER.
(D)2.2.1.4.2 Ordering and Provisioning
Submitting an LSR will result in the
provisioning and installation, if necessary,
of an end user's service. The functional set
associated with ordering is: Create New LSR,
Open LSR, Query LSR Status and FOC Return.
(D)2.2.1.4.2.1 Create New LSR allows entry
of information specific to the LSR,
including required OBF forms,
validates information and submits
the LSR for processing.
(D)2.2.1.4.2.2 Open LSR allows RESELLER to
save LSRs it is not ready to submit
for processing as a pending status.
When an LSR is saved as pending,
all the data in all the forms
associated with the LSR is saved.
This feature permits RESELLER to
access, edit, submit, re-save, and
purge pending LSRs. In addition,
for issued LSRs, RESELLER can issue
supplemental LSRs and
cancellations.
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(D)2.2.1.4.2.3 Query LSR Status allows
RESELLER to obtain the status of
the LSR. Status is provided to
RESELLER upon inquiry. Order status
functions include the following:
Submitted, In Review, Issued,
Rejected, Erred, Completed and
Jeopardy.
(D)2.2.1.4.2.4 FOC Return returns a Firm
Order Confirmation to RESELLER. The
FOC confirms that USW has received
a SR, issued an order, and assigned
an order number for tracking.
(D)2.2.1.5 Forecast of Usage
(D)2.2.1.5.1 RESELLER shall supply USW with
a forecast of products and volumes
they anticipate ordering through
the electronic interface gateways
on a quarterly basis.
(D)2.2.1.5.2 USW will use RESELLER's
forecast to provide RESELLER
sufficient capacity to provide the
services and elements requested. If
RESELLER exceeds its capacity
without notification, to the extent
that it causes degradation to other
users' response times, RESELLER's
use of its capacity on the IMA or
EDI server may be discontinued
until a resolution can be mutually
agreed to by both Parties. USW will
attempt to notify RESELLER before
discontinuing RESELLER's use of the
IMA or EDI server; however USW
reserves the right to discontinue
use if it is unable to contact
RESELLER.
(D)2.2.1.5.3 When RESELLER requests more
than twenty (20) Secure IDs from
USW RESELLER shall use a T1 line
instead of dial-up capabilities.
(D)2.2.1.6. Access Service Request (ASR) Ordering
Process
(D)2.2.1.6.1 The Exchange Access Control and
Tracking (EXACT) system may be used
for orders placed using the ASR
process. EXACT is based upon the
OBF Access Service Order Guidelines
(ASOG). The EXACT interface accepts
a batch
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file that is transmitted via a
Network Data Mover (NDM) connection
to USW from RESELLER. It is
RESELLER's responsibility to obtain
the appropriate software to
interface with USW's EXACT system.
(D)2.2.1.7 Facility Based EDI Listing Process
(D)2.2.1.7.1 The Facility Based EDI Listing
Process is a single interface from
RESELLER to USW. This interface is
based upon the OBF LSOG and ANSI
ASC X12 standards, version 4010.
This interface enables RESELLER
listing data to be translated and
passed into the USW listing
database. After USWs daily batch
processing, a
Confirmation/Completion record (for
every PON provided on input) is
returned to RESELLER via an EDI 855
transaction.
(D)2.2.2 Maintenance and Repair
(D)2.2.2.1 Maintenance and Repair electronic
interfaces support the tracking and
resolution of end users' repair and
maintenance needs as reported to RESELLER.
They facilitate the exchange of updated
information and progress reports between USW
and RESELLER while the Trouble Report (TR)
is open and a USW technician is working on
the resolution.
(D)2.2.2.2 RESELLER shall use the electronic
interface gateways for reporting trouble.
The electronic interface gateways are
comprised of either the Mediated Access
System Electronic Bonding (MEDIACC EB)
interface or the IMA GUI interface.
(D)2.2.2.3 The MEDIACC Electronic Bonding (EB)
interface uses CMIP protocol over X.25
packet switching network using ANS T1M1.5
227/228 standards.
(D)2.2.2.4 The IMA GUI also provides a single
interface for trouble reporting from
RESELLER to USW and is browser based. The
IMA GUI interface uses a Berkley Socket
interface using ANSI T1M1.5 227/228
standards. The IMA GUI uses JAVA as the
standard. The IMA GUI Interface currently
supports trouble reporting for resale
services.
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(D)2.2.2.5 Functions
(D)2.2.2.5.1 Maintenance and Repair - The functions,
processes and systems used in repair are
based on a Trouble Report (TR), which is an
electronic document maintained in one or
more OSS. A TR contains information about
the end user, the trouble, the status of the
work on the trouble and the results of the
investigation and resolution efforts. These
business processes will be made available to
RESELLER in the following functional set:
open a trouble report, modify a trouble
report, notification of status change, view
trouble report status, cancel a trouble
report, receive a trouble report history,
resubmit/delete an erred trouble report and
close a trouble report.
(D)2.2.2.5.1.1 Open Trouble Report is the mechanism
that captures information needed to resolve
the trouble. Once a TR has been opened, if
RESELLER is using MEDIACC EB, USW sends an
electronic transaction to RESELLER
identifying information about the TR (e.g.,
commitment date and tracking number).
(D)2.2.2.5.1.2 In IMA for POTS, and in EBTA for POTS
and designed services, Modify Trouble Report
allows RESELLER to modify the trouble
severity (for example; change from "service
affecting" to "out of service") and trouble
narrative on a TR until it has been cleared.
(D)2.2.2.5.1.3 Status Change Notification provides
notification to RESELLER that the status of
a previously opened TR has changed. if
RESELLER is using MEDIACC EB, RESELLER will
receive this notification via an electronic
transaction. If RESELLER is using the IMA
GUI Interface, RESELLER will receive this
notification via email and/or fax.
(D)2.2.2.5.1.4 View Trouble Report Status/Trouble
Report Status Request allows RESELLER to
view the status of an opened Trouble Report.
If RESELLER is using MEDIACC EB, USW sends
an electronic transaction to RESELLER with
the
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status of an opened TR after RESELLER sends
an electronic transaction to request the
status.
(D)2.2.2.5.1.5 Cancel Trouble Report allows RESELLER
to request cancellation of a previously
opened TR. Once a request to cancel is
received, an orderly cessation of the
trouble resolution process begins. If USW
has completed any work before the trouble
resolution process is stopped, charges to
RESELLER may apply.
(D)2.2.2.5.1.6 Trouble Report History provides
RESELLER with historical information on up
to the last three trouble reports. For POTS
resale, the disposition and trouble report
date and time are provided. For design
services resale, the trouble report date and
time, a text description of the disposition,
the USW Trouble Report Number, and the
trouble type are provided. IMA provides
trouble report history.
(D)2.2.2.5.1.7 Resubmit/Delete allows trouble reports
to be resubmitted or deleted via IMA GUI if,
prior to entering USW's OSS, the transaction
fails or errors. This transaction is only
valid if the TR has not entered USW's OSS.
This transaction is currently only available
via IMA GUI.
(D)2.2.5.1.8 Close a Trouble Report for resale,
allows USW to close the TR once work is
complete. For design resale services, USW
sends RESELLER a request for verification to
close. RESELLER then authorizes or denies
the closure. RESELLER has twenty-four (24)
hours to respond. If a response is not
received within that time frame, the TR will
automatically be closed. USW provides
notification to RESELLER that a TR has been
closed because the trouble was resolved.
Additional information, (e.g.,disposition,
disposition description, outage duration,
maintenance of service, charge indicator) is
also included. If RESELLER is using EB,
RESELLER will receive this response via an
electronic
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transaction. If RESELLER is using the IMA
GUI Interface, RESELLER will receive this
response via email and/or fax.
(D)2.2.2.5.1.9 The test results give RESELLER the
ability to request a loop test for POTS
service via EBTA. When RESELLER submits a TR
through IMA, the technician handling the TR
will order a MLT test in appropriate
situations.
(D)2.3 Hours of Operation
USW's electronic interface gateways will be available to Resellers
according to the following schedule:
------------------------ ----------------- ---------------- --------------
Function Monday - Friday Saturday Sunday
------------------------ ----------------- ---------------- --------------
IMA Pre-Order & Order 06:00 - 20:00
------------------------ ----------------- ---------------- --------------
Exact Order 06:00 - 19:00 07:00 - 17:00
------------------------ ----------------- ---------------- --------------
Repair 02:15 - 23:15 07:00 - 21:00 13:00 - 17:00
------------------------ ----------------- ---------------- --------------
USW shall notify Resellers regarding system downtime through mass
facsimile distribution and pop-up windows in the IMA GUI. All
referenced times are Mountain Time.
The preceding times represent the period when USW commits that its OSS
interfaces and downstream systems will be functioning (except for
unforeseen system crashes) and its personnel will be available to
assist RESELLER. USW's OSS interfaces are typically available 23 hours
a day. RESELLER may call any maintenance and repair issues to the
applicable repair center 24 hours per day, seven days per week. USW
shall provide RESELLER current repair contact numbers.
(D)2.4 Billing
(D)2.4.1 For products billed out of the USW Interexchange
Access Billing System (IABS), USW will utilize the
existing CABS/BOS format and technology for the
transmission of bills.
(D)2.4.2 For products billed out of the USW Customer Record
Information System (CRIS), USW will utilize the
existing EDI standard for the transmission of monthly
local billing information. EDI is an established
standard under the auspices of the American National
Standards Institute/Accredited Standards Committee
(ANSI/ASC) X12 Committee. A proper subset of this
specification has been adopted by the
Telecommunications Industry Forum (TCIF) as the "811
Guidelines" specifically for the purposes of
telecommunications billing.
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(D)2.5 Outputs
Output information will be provided to RESELLER in the form of bills,
files, and reports. Bills will capture all regular monthly and
incremental/usage charges and present them in a summarized format. The
files and reports delivered to RESELLER provide more detailed
information than the bills. They come in the following categories:
---------------------------------------------------------------------------
Usage Record File Line Usage Information
---------------------------------------------------------------------------
Loss and Completion Order Information
---------------------------------------------------------------------------
Category 11 Facility Based Line Usage Information
---------------------------------------------------------------------------
SAG/FAM Street Address/Facility Availability Information
---------------------------------------------------------------------------
(D)2.5.1 Bills
(D)2.5.1.1 CRIS Summary Bill - The CRIS (Customer Record
Information System) Summary Bill represents a monthly
summary of charges for most wholesale products sold
by USW. This bill includes a total of all charges by
entity plus a summary of current charges and
adjustments on each sub-account. Individual
sub-accounts are provided as billing detail and
contain monthly, one time charges and
incremental/call detail information. The Summary
provides one bill and one payment document for
RESELLER. These bills are segmented by state and bill
cycle. The number of bills received by RESELLER is
dictated by the product ordered and the USW region in
which RESELLER is operating.
(D)2.5.1.2 IABS Bill - The IABS (Interexchange Access Billing
System) Bill represents a monthly summary of charges.
This bill includes monthly and one time charges plus
a summary of any usage charges. These bills are
segmented by product, LATA, billing account number
(BAN) and bill cycle.
(D)2.5.2 Files and Reports
(D)2.5.2.1 Daily Usage Record File provides the accumulated
set of call information for a given day as captured,
or recorded" by the network switches. This file
will be transmitted Monday through Friday, excluding
USW holidays. This information is a file of un-rated
USW originated usage messages and rated RESELLER
originated usage messages. It is provided in Alliance
for Telecommunication Industry Solution (ATIS)
standard
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Electronic Message Interface (EMI) format. This EMI
format is outlined in the document SR-320; which can
be obtained directly from ATIS. The Daily Usage
Record File contains multi-state data for the Data
Processing Center generating this information.
Individual state identification information is
contained with the message detail. USW will provide
this data to RESELLER with the same level of
precision and accuracy it provides itself. This file
will be provided for Resale services.
(D)2.5.2.2 The charge for this Daily Usage Record File is
contained in Part E of this Agreement.
(D)2.5.2.3 Routing of in-region IntraLATA Collect, Calling
Card, and Third Number Billed Messages - USW will
distribute in-region intraLATA collect, calling card,
and third number billed messages to RESELLER and
exchange with other Co-Providers operating in region
in a manner consistent with existing inter-company
processing agreements. Whenever the daily usage
information is transmitted to a carrier, it will
contain these records for these types of calls as
well.
(D)2.5.2.4 Loss Report provides RESELLER with a daily report
that contains a list of accounts that have had lines
and/or services disconnected. This may indicate that
the end user has changed Resellers or removed
services from an existing account. This report also
details the order number, service name and address,
and date this change was made. Individual reports
will be provided for resale services.:
(D)2.5.2.5 Completion Report provides RESELLER with a daily
report. This report is used to advise RESELLER that
the order(s) for the service(s) requested is
complete. It details the order number, service name
and address and date this change was completed.
Individual reports will be provided for resale
services.:
This report media is described in Exhibit C.
(D)2.5.2.6 Category 11 Records are Exchange Message Records
(EMR) which provide mechanized record formats that
can be used to exchange access usage information
between USW and RESELLER. Category 1101 series
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records are used to exchange detailed access usage
information.
(D)2.5.2.7 Category 1150 series records are used to exchange
summarized Meet Point Billed access minutes-of-use.
These mechanized records are available from USW in
the following formats:
NDM (direct connect or dial-up)
Comet
Tape
Cartridge
(D)2.5.2.8 SAG/FAM Files - The SAG (Street Address Guide)/ FAM
(Facility Availability Matrix) files contain the
following information:
SAG provides: - Address and Serving Central Office
Information.
FAM provides USOCs and descriptions by state - (POTS
services only). USOC availability by NPA-NXX (with
the exception of Centrex). interLATA/intraLATA
carriers by NPA-NXX.
These files are made available via a download
process. They can be retrieved by ftp (file transfer
protocol), NDM (Network Data Mover) connectivity, or
a Web browser.
(D)2.6 Modifications to OSS Interfaces
(D)2.6.1 RESELLER and USW agree to discuss the modification of
OSS interfaces based upon evolving standards (e.g.,
data elements, protocols, transport networks, etc.)
and guidelines issued by or referenced by relevant
Alliance for Telecommunication Industry Solution
(ATIS) committees. Establishment of new, or changes
to industry standards and guidelines will be reviewed
semi-annually. The review will consider standards
and guidelines that have reached final closure as
well as those published in final form. Both Parties
agree to evaluate evolving standards and determine
the relevant modification to be implemented based
upon the latest approved version adopted or the
latest version reflecting final closure by the
relevant ATIS committee or subcommittee. As a result
of the review, USW shall draft appropriate interface
specifications that shall be made available to
RESELLER through the electronic gateway disclosure
document. Changes shall be implemented in the next
release after the distribution of the electronic
gateway disclosure document to the Resellers.
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(D)2.6.2 In the course of establishing operational ready
system interfaces between USW and RESELLER to support
local service delivery, RESELLER and USW may need to
define and implement system interface specifications
that are supplemental to existing standards. RESELLER
and USW will submit such specifications to the
appropriate standards committee and will work towards
their acceptance as a standard.
(D)2.6.3 Release updates will be based on regulatory
obligations as dictated by the FCC or Commissions
and, as time permits, business requirements. USW will
provide to RESELLER the features list for
modifications to the interface. Specifications for
interface modifications will be provided to RESELLER
three (3) weeks prior to the release date. RESELLER
is required to upgrade to the current release within
six (6) months of the installation date.
(D)2.7 Reseller Responsibilities for Implementation of OSS Interfaces
(D)2.7.1 Before any RESELLER implementation can begin,
RESELLER must completely and accurately answer the
New Customer Questionnaire. This questionnaire is
provided by the USW account manager and details
information needed by USW in order to establish
service for RESELLER.
(D)2.7.2 Once USW receives a complete and accurate New
Customer Questionnaire, USW and RESELLER will
mutually agree upon time frames for RESELLER
implementation.
(D)2.7.3 If using the EDI interfaces, USW will provide
RESELLER with a copy of the Production Readiness
Verification document. RESELLER is obligated to meet
the requirements specified in the Production
Readiness Verification document regardless of whether
RESELLER chooses to participate in the Production
Readiness Verification Test.
(D)2.8 Reseller Responsibilities for On-going Support for OSS Interfaces
(D)2.8.1 If using the IMA GUI interface, RESELLER must work
with USW to train RESELLER personnel on the IMA GUI
functions that RESELLER will be using. USW and
RESELLER shall concur on which IMA GUI functions
should be included in RESELLER's training. USW and
RESELLER shall make reasonable efforts to schedule
training in a timely fashion.
(D)2.8.2 An exchange protocol will be used to transport EDI
formatted content. RESELLER must perform
certification testing of exchange protocol prior to
using EDI.
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(D)2.8.3 If RESELLER is using EDI, USW shall provide RESELLER
with a preallotted amount of time to complete
certification of its business scenarios. It is the
sole responsibility of RESELLER to schedule an
appointment with USW for certification of its
business scenarios. RESELLER must comply with the
agreed upon dates and times scheduled for the
certification of its business scenarios. If the
certification of business scenarios is delayed due to
RESELLER, it is the sole responsibility of RESELLER
to schedule new appointments for certification of its
business scenarios. Conflicts in the schedule could
result in certification being delayed. If a delay is
due to USW, USW will honor RESELLER's schedule
through the use of alternative hours.
(D)2.8.4 If RESELLER is using the EDI interface, RESELLER must
work with USW to certify the business scenarios that
RESELLER will be using in order to ensure successful
transaction processing. USW and RESELLER shall
mutually agree to the business scenarios for which
RESELLER is required to be certified. Certification
is granted only for a specific release of EDI. New
releases of EDI may require re-certification of some
or all business scenarios. A determination as to the
need for re-certification will be made by the USW
Coordinator in conjunction with the release manager
of each EDI release. Notice of the need for
re-certification will be provided to RESELLER three
(3) weeks prior to the release date.
(D)2.8.5 In the event of Electronic Interface trouble,
RESELLER shall use its best efforts to isolate and
resolve the trouble using the guidelines provided in
the Production Readiness Verification document. If
RESELLER cannot resolve the problem, then RESELLER
should contact the LSP Systems Help Desk. The LSP
Systems Help Desk is RESELLER's Single Point of
Contact for electronic interface trouble.
(D)2.9 Reseller Support
(D)2.9.1 USW shall provide adequate assistance to RESELLER for
RESELLER to understand how to implement and use the
OSS functions for which USW provides access. This
assistance will include training, documentation, and
a LSP Help Desk. The LSP Help Desk will provide a
single point of entry for RESELLER to gain assistance
in areas involving connectivity, system availability,
and file outputs. The LSP Systems Help Desk is
available Monday through Friday, 6:00 a.m. until 8:00
p.m. Mountain Time, excluding USW holidays. The Help
Desk areas are further described below..
(D)2.9.1.1 Connectivity covers trouble with
RESELLER's access to the USW system for
hardware configuration requirements with
relevance to EDI and IMA GUI;
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software configuration requirements with
relevance to EDI and IMA GUI; modem
configuration requirements; T1 configuration
and dial in string requirements; firewall
access configuration; Secure ID
configuration; Profile Setup and password
verification.
(D)2.9.1.2 System availability covers system errors
generated during an attempt by RESELLER to
place orders or open trouble reports through
EDI and IMA GUI. These system errors are
limited to: POTS; Design Services and
Repair.
(D)2.9.1.3 File Outputs covers RESELLER's output
files and reports produced from its usage
and order activity. File outputs system
errors are limited to: Daily Usage File;
Loss / Completion File; IABS Bill; CRIS
Summary Bill; Category 11 Report and
SAG/FAIVI Reports.
(D)2.9.2 Additional assistance to Resellers; is available
through various web sites. These web sites provide
electronic interface training information and user
documentation and technical specifications.
(D)2.10 Compensation / Cost Recovery
On-going and one-time startup charges, as applicable, will be
billed at rates to be specified by the Commission at the
completion of an appropriate cost docket hearing. USW shall
establish rates for any systems charges not included in
appropriate cost docket hearings.
(D)3. U S WEST DEX
USW and RESELLER agree that certain issues outside the provision of
basic white page directory listings, such as yellow pages advertising,
yellow pages listings, directory coverage, directory distribution,
access to call guide pages (phone service pages), applicable listings
criteria, white page enhancements and publication schedules will be the
subject of negotiations between RESELLER and directory publishers,
including U S WEST Dex. USW acknowledges that RESELLER may request USW
to facilitate discussions between RESELLER and U S WEST Dex.
(D)4. NOTICE OF CHANGES
Notice should be written and provide pertinent descriptive information
of such changes, within the limitations of confidentiality and
disclosure, such that the other Party can evaluate potential effects.
Also included with the written notice should be contact names and phone
numbers for subsequent discussions.
This represents GOOD FAITH EFFORT ON THE PART OF THE PARTIES AND WILL
evolve over time as required for the effective provision of resale
services and end user service delivery.
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(D)5. MAINTENANCE AND REPAIR
(D)5.1 Service Levels
(D)5.1.1 USW will provide repair and maintenance for all
services covered by this Agreement in a manner equal
to that which USW provides for itself.
(D)5.1.2 During the term of this Agreement, USW will provide
necessary maintenance business process support to
allow RESELLER to provide similar service quality to
that provided by USW to its end users.
(D)5.1.3 USW will perform repair service that is equal in
timeliness and quality to that which it provides to
its own end users.
(D)5.2 Branding
(D)5.2.1 Should USW need to use various forms for
communication with RESELLER end users (while out on
premises dispatch on behalf of RESELLER, for
example), USW will use unbranded forms.
(D)5.2.2 If required by RESELLER, USW will use branded forms
provided at RESELLER's full expense, covering
training costs, storage, printing, distribution and
all other branding-related costs.
(D)5.3 Service interruptions
(D) 5.3.1 The characteristics and methods of operation of
any circuits, facilities or equipment of either Party
connected with the services, facilities or equipment
of the other Party pursuant to this Agreement shall
not: 1) interfere with or impair service over any
facilities of the other Party; its affiliated
companies, or its connecting and concurring carriers
involved in providing its services; 2) cause damage
to their plant; 3) violate any applicable law or
regulation regarding the invasion of privacy of any
communications carried over the Party's facilities;
or 4) create hazards to the employees of either Party
or to the public. Each of these requirements is
hereinafter referred to as an "Impairment of
Service".
(D) 5.3.2 If it is confirmed that either Party is causing
an Impairment of Service, as set forth in this
Section, the Party whose network or service is being
impaired (the "Impaired Party") shall promptly notify
the Party causing the Impairment of Service (the
"Impairing Party") of the nature and location of the
problem. The Impaired Party shall advise the
Impairing Party that, unless promptly rectified, a
temporary discontinuance of the use of any circuit,
facility or equipment may be required. The Impairing
Party and the Impaired Party agree to work together
to attempt to promptly resolve the Impairment of
Service. If the Impairing Party is unable to promptly
remedy the Impairment of
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Miscellaneous Provisions
Service, the Impaired Party may temporarily
discontinue use of the affected circuit, facility or
equipment.
(D) 5.3.3 To facilitate trouble reporting and to coordinate the
repair of the service provided by each Party to the
other under this Agreement, each Party shall
designate a repair center for such service.
(D) 5.3.4 Each Party shall furnish a trouble reporting
telephone number for the designated repair center.
This number shall give access to the location where
records are normally located and where current status
reports on any trouble reports are readily available.
If necessary, alternative out-of-hours procedures
shall be established to ensure access to a location
that is staffed and has the authority to initiate
corrective action.
(D) 5.3.5 Before either Party reports a trouble condition,
it shall use its best efforts to isolate the trouble
to the other's facilities
(D) 5.3.5.1 In cases where a trouble condition
affects a significant portion of the other's
service, the Parties shall assign the same
priority provided to other Resellers and to
itself.
(D) 5.3.5.2 The Parties shall cooperate in
isolating trouble conditions.
(D)5.4 Trouble Isolation
(D)5.4.1 According to applicable state Tariffs, USW will bill
appropriate Trouble Isolation Charges for dispatched
work done by USW where the trouble is found to be on
the end user's side of the NID or trouble is found to
be in RESELLER's portion of the network.
(D)5.4.2 Other Trouble Isolation Charges may also be imposed
by USW on RESELLER for other internal repair work
incurred on behalf of RESELLER and later found to be
in RESELLER network components.
(D)5.5 Inside Wire Maintenance
Except where specifically required by state or federal
regulatory mandates, USW will not perform any maintenance of
inside wire (premises wiring beyond the end user's NID) for
RESELLER or its end users.
(D)5.6 Testing/Test Requests/Coordinated Testing
(D)5.6.1 USW will make the decision to test an end user's line
or circuit. The test systems used by USW are finite,
and their capacity has been designed according to
USW'S operating standards.
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(D)5.6.2 Although some types of trouble reports typically will
not require a test, USW usually runs certain standard
tests on each line on which trouble has been
reported.
(D)5.6.3 Prior to any test being conducted on a line, USW must
receive a trouble report from RESELLER.
(D)5.6.4 USW end users are not given test results. On
manually-reported trouble USW will not provide to
RESELLER the test results for its trouble reports.
For electronically-reported trouble, RESELLER may see
various basic test results.
(D)5.7 Workcenter Interfaces
(D)5.7.1 USW and RESELLER shall work cooperatively to develop
positive, close working relationships among
corresponding work centers involved in the trouble
resolution processes..
(D)5.8 Misdirected Repair Calls
(D)5.8.1 RESELLER shall inform its own end users where to
report their trouble conditions. Persons placing a
misdirected repair call will be advised to call their
own telephone service provider and will be provided
the correct telephone number for that purpose (this
referral may occur within a voice response system or
other interactive systems).
(D)5.8.2 RESELLER and USW will employ the following procedures
for handling misdirected repair calls;
(D)5.8.2.1 RESELLER and USW will provide their
respective end users with the correct
telephone numbers to call for access to
their respective repair bureaus.
(D)5.8.2.2 End users of RESELLER shall be
instructed to report all cases of
trouble to RESELLER. End users of USW
shall be instructed to report all cases
of trouble to USW.
(D)5.8.2.3 To the extent the correct provider can
be determined, misdirected repair calls
will be referred to the proper provider
of Basic Exchange Telecommunications
Service.
(D)5.8.2.4 RESELLER and USW will provide their
respective repair contact numbers to
one another on a reciprocal basis.
(D)5.8.2.5 In responding to repair calls, neither
Party shall make disparaging remarks
about each other, nor shall they use
these repair calls as the basis for
internal referrals or to solicit end
users to market services.
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(D)5.8.2.6 Performance targets for speed of repair
call answering will be the same as USW's
performance targets for its own end users.
(D)5.9 Major Outages/Restoral/Notification
(D)5.9.1 USW will notify RESELLER of major network outages as
soon as is practical. This notification will be via
e-mail to RESELLER's identified contact. With the
minor exception of certain proprietary information,
USW will utilize the same thresholds and processes
for external notification as it does for internal
purposes. This major outage information will be sent
via E-mail on the same frequency schedule as is
provided internally within USW. Service restoration
will be non discriminatory, and will be accomplished
as quickly as possible according to USW and/or
industry standards.
(D)5.9.2 If desired, USW will meet with associated personnel
from RESELLER to share contact information and review
USW's outage restoral processes and notification
processes.
(D)5.9.3 USW's emergency restoration process operates on a
7X24 basis.
(D)5.10 Proactive Maintenance
(D)5.10.1 USW will perform scheduled maintenance equal in
quality to what it provides to itself.
(D)5.10.2 USW will work cooperatively with RESELLER to
develop industry wide processes to provide as
much notice as possible to RESELLER of pending
maintenance activity. Such process work will
include establishment of reasonable thresholds
and notification standards.
(D)5.11 Hours of Coverage
(D)5.11.1 USW's repair operation is 7 days a week, 24 hours
a day. Not all functions or locations are covered
with scheduled employees on a 7X24 basis. Where such
7X24 coverage is not available USW's repair
operations center (always available 7X24) can
call-out technicians or other personnel required for
the situation.
(D)5.12 Escalations
(D)5.12.1 USW will provide trouble escalation procedures to
RESELLER. Such procedures will be based on the
processes USW employs for its own end users. USW
escalations are manual processes.
(D)5.12.2 USW repair escalations begin with calls to the
up-front trouble reporting centers.
(D)5.13 Dispatch
(D)5.13.1 USW will provide maintenance dispatch personnel on
the same schedule provided for its end users.
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(D)5.13.2 Upon receipt of a trouble report from RESELLER, USW
will do all that is reasonable and practical,
according to internal and industry standards, to
resolve the repair condition. USW will dispatch
repair personnel, if necessary, to repair the
condition. It will be USW's decision whether it is
necessary to send a technician on a dispatch. USW
will make this dispatch decision based on the best
information available in the trouble resolution
process. Since it is not always necessary to dispatch
to resolve trouble; should RESELLER require a
dispatch when USW believes the dispatch is not
necessary, appropriate charges may be billed to
RESELLER for dispatch-related costs.
(D)5.13.3 For non-designed resale services USW will not
request authorization from RESELLER prior to
dispatch. For lines supported by USW's designed
services process, USW may accept RESELLER
authorization to dispatch. USW's operational
processes are regularly reviewed and may be altered
in the future. Should processes be changed, RESELLER
will be notified.
(D)5.13.4 USW expects that RESELLER will have performed
appropriate trouble isolation and screening prior to
handing the trouble report off to USW.
(D)5.14 Electronic Reporting
(D)5.14.1 USW will accept repair reports from RESELLER through
a mechanized system (IMA).
(D)5.14.2 USW will work cooperatively to develop repair
reporting via electronic bonding (other than IMA),
based on national standards.
(D)5.15 Intervals
(D)5.15.1 Similar trouble conditions, whether reported by USW
end users or on behalf of RESELLER end users, will
receive similar commitment intervals.
(D)5.16 Jeopardy Management
(D)5.16.1 Notification will be given as soon as USW is aware
that a trouble report interval is likely to be
missed. This process will be the same as that used by
USW for its own end users.
(D)5.17 Trouble Screening
(D)5.17.1 RESELLER shall screen and test its end user trouble
reports completely enough to insure that it sends USW
only trouble reports that involve USW facilities.
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(D)5.17.2 If desired, USW will cooperate with RESELLER to show
RESELLER how USW screens trouble conditions in its
own centers, so that RESELLER may employ similar
techniques in its centers.
(D)5.18 Maintenance Standards
(D)5.18.1 USW will cooperate with RESELLER to meet the
maintenance standards outlined in this Agreement.
(D)5.18.2 For manually-reported trouble, USW will inform
RESELLER of repair completion as soon as practical
after completion. On electronically reported trouble
reports the electronic system will automatically
update status information, including trouble
completion, across the joint electronic gateway.
(D)5.19 End User Interfaces
(D)5.19.1 RESELLER will be responsible for all interactions
with its end users including service call handling
and notifying end users of trouble status and
resolution.
(D)5.19.2 All USW employees who perform repair service for
RESELLER end users will be trained in
non-discriminatory behavior.
(D)5.20 Repair Call Handling
(D)5.20.1 Manually-reported repair calls by RESELLER to USW
will be answered with the same quality and speed USW
answers calls from its own end users.
(D)5.21 Single Point of Contact
(D)5.21.1 USW will provide a single point of contact for
RESELLER to report maintenance issues and trouble
reports via electronic interfaces seven days a week,
twenty-four hours a day.
(D)5.21.2 For manually-reported trouble reports, a single 7X24
trouble reporting telephone number will be provided
to RESELLER for each category of trouble situation
encountered.
(D)5.22 Maintenance Windows
(D)5.22.1 Generally, USW performs major switch maintenance
activities during off-hours time periods, during
certain "maintenance windows" in the early morning
hours and/or on weekends.
(D)5.22.2 Generally, the maintenance window is from 10:00 PM
to 6:00 AM Monday through Friday and from 10:00 PM
Saturday to 6:00 AM Monday.
(D)5.22.3 Although USW attempts to perform major switch
maintenance at these times, on some occasions this
will not be possible.
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(D)6. SERVICE PERFORMANCE
(D)6.1 General Provisions
(D)6.1.1 USW will provide reports of service indicators
that will assist in an evaluation of the service
provided to RESELLER.
(D)6.1.2 In no instance shall the Agreement be construed to
require USW to provide superior levels of service to
RESELLER in comparison to the level of service USW
provides to itself or its own end users.
(D)6.1.3 As further specified in this Section, USW will
provide results for the list of performance
indicators identified for the following Standard
Service Groupings: Resold Residential Plain Old
Telephone Service (POTS); Resold Business POTS;
Resold ISDN; Resold Centrex service; Resold PBX
trunks, Resold Direct Inward Dialing (DID) and Resold
Digital Switched Service (DDS); Resold DS-0, Resold
DS-1, Resold DS-3.
(D)6.1.4 As specified in this Section, USW will provide
results for the following types of Orders:
C = Change in existing service or billing
number
D = total disconnect of service
F = From the outward service associated with a
transfer (To or "T") of service from one
address to another
N = New connection for service
R = Record order; record change only.
(For Resale services, service migrations
without changes for non-designed services
are record orders.)
T = To or transfer of service from one address to
another
X = USW initiated internal work order
(D)6.2 Service Performance Indicators
The following Service Performance Indicators will be provided
to RESELLER when available and upon request, but no more
frequently than once per month subject to the provisions of
this Section. The requests for additional Service Performance
Indicators during the term of this Agreement shall be
considered by USW. However, USW is not required to provide
additional Service Performance Indicators during the term of
this Agreement. Service Performance Indicators characterized
as "Core" indicators measure most directly the service or
process outcome USW provides to RESELLER.
Performance Indicators characterized as "Diagnostic"
indicators are those that measure aspects of service quality
that support aspects measured by core indicators, that
represent sub-process outcomes, or that are otherwise
duplicative to some degree of aspects measured by "Core"
indicators.
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(D) 6.2-11 Core Performance Indicators
(D)6.2.1.1 Gateway Availability Indicator
GA-1 Gateway Availability - via
Human-to-Computer interface
(percent).
GA-2 Gateway Availability - via
Computer-to-Computer Interface
(percent).
(D)6.2.1.2 Pre-Ordering Indicators
PO-1 Pre-Order/Order Response times
A. Appointment Scheduling (Due Date
Reservation, where appointment is
required)
B. Feature Function and Service
Availability Information
C. Facility Availability
D. Street Address Validation
E. Customer Service Records
F. Telephone Number
(D)6.2.1.3 Ordering and Provisioning Indicators
OP-1 Speed of Answer - Interconnect Provisioning
Center (average)
OP-2 Calls Answered within 20 Seconds -
Interconnect Provisioning Center (percent)
OP-3 Installation Commitments Met (percent)
OP-4 Installation Interval (average)
OP-5 Installation Trouble Reports (percent)l
OP-6 Delayed Days (average)
(D)6.2.1.4 Maintenance and Repair Indicators
MR-1 Speed of Answer - Interconnect Repair Center
(average)
MR-2 Percent Calls Answered Within 20 Seconds -
Interconnect Repair Center (percent)
MR-3 Out of Service Cleared Within 24 hours -
Non-Designed Repair Process (percent)
MR-4 All Troubles Cleared Within 48 hours -
Non-Designed Repair Process (percent)
MR-5 All Troubles Cleared Within 4 hours -
Designed Repair Process (percent)
MR-6 Mean Time to Restore - Non-Designed Repair
Process (average)
MR-7 Repair Repeat Report Rate (percent)
MR-8 Trouble Rate (percent)
(D)6.2.1.5 Billing Indicators
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BI-1 Mean Time to Provide USW Recorded Usage Records
((average)
BI-2 Mean Time to Deliver Invoices (average)BI-3 Billing
Accuracy
(D)6.2.1.6 Emergency Services
ES-1 ALI Database Updates Completed Within 24 hours (percent)
ES-2 911/E911 Emergency Services Trunk Installation Interval
(average)
(D)6.2.1.7 Directory Assistance
DA-1 Speed of Answer - Directory Assistance (average)
DA-2 Calls Answered Within Ten Seconds - Directory Assistance
(percent)
(D)6.2.1.8 Operator Services
OS-1 Speed of Answer - Operator Services (average)
OS-2 Calls Answered Within Ten Seconds - Operator Services
(percent)
(D)6.2.2 Diagnostic Indicators
In addition to the performance indicators identified above, USW
will report the following indicators that do not directly address
nondiscrimination but may be useful in diagnosing problems or
improving service:
(D)6.2.2.1 Pre-Order/Ordering
DPO-1 Electronic Flow - Through of Local Service Requests
(LSRs) to the Service Order Processor (percent)
DPO-2 LSR Rejection Notice Interval (average)
DPO-3 LSRs Rejection (percent)
DPO-4 Firm Order Confirmation (FOC) Interval (average)
DPO-5 Pre-Order/Order Response Times for USW Retail
Transactions (average)
DPO-6 Completion Notifications Transmitted Within 24 hours
(percent)
DPO-7 Completion Notification Interval (average)
(D)6.2.2.2 Ordering and Provisioning
DOP-1 RESELLER or RESELLER's Customer - Caused Installation
Misses (percent)
DOP-2 Delayed Orders Completed equal to greater than 15 days
past the Commitment Date (percent)
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DOP-3 Delayed Orders Completed equal to or greater than 90
days past the Commitment Date (percent)
DOP-4 RESELLER or RESELLER's Customer-Caused Coordinated
Cutover Misses (percent)
(D)6.2.2.3 Maintenance and Repair
DMR-1 RESELLER or RESELLER's Customer-Caused Trouble Reports
(percent)
(D)6.2.2.4 Access to OSS Functions:
(GA-1) Gateway Availability - Human-to-Computer Interface
(percent)
(GA-2) Gateway Availability - Computer-to-Computer Interface
(percent)
(PO-1) Per-Order/Order Response Times (average)
(OP-1 and MR-1) Speed of Answer - Provisioning and Repair
Centers (average)
(OP-2 and MR-2) Calls Answered Within 20 Seconds Provisioning
and Repair Centers (percent)
(BI-1) Mean Time to Provide USW - Recorded Usage Records
(BI-2) Mean Time to Deliver Invoices (131-3) Billing Accuracy
(D)6.2.2.5 Access to Emergency Services
(ES-1) ALI Database Updates Within 24 Hours (percent)
(ES-1) 911/E911 ES Trunk Installation Intervals (average)
(D)6.2.2.6 Access to Directory Assistance and Operator Services:
(DA-1 and OP-1) Speed of Answer (average)
(DA-2 and OS-2) Calls Answered Within 10 Seconds (percent)
(D)6.2.2.7 Resale Services Ordering and Provisioning:
(OP-3) Installation Commitments Met (percent)
(OP-4) Installation Interval (average)
(OP-5) Installation Trouble Reports (percent)
(OP-6) Delayed Days (average)
(D)6.2.2.8 Resale Services Maintenance and Repair:
(MR-3) Out of Service Cleared Within 24 Hours - Non-Designed
Repair Process (percent)
(MR-4) All Troubles Cleared Within 48 Hours - Non-Designed
Repair Process (percent)
(MR-5) All Troubles Cleared Within 4 Hours - Designed Repair
Process (percent)
(MR-6) Mean Time to Restore (average)
(MR-6) Repair Repeated Report Rate (percent)
(MR-6) Trouble Rate (percent)
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Provisions
(D)6.3 Service Quality Performance Results Reports
(D)6.3.1 For Resale, USW will provide core service performance
results for the performance indicators listed above
for RESELLER, other Resellers in aggregate and USW
end users.
(D)6.4 Performance Results Provided to Reseller
The performance results provided to RESELLER by USW shall be
consistent with the current version of the USW Service
Performance Indicator Description (PID).
(D)6.5 The performance results provided under this Agreement are to
be used solely for the purposes set forth herein, and shall be
treated as "Proprietary Information" as provided in Section
(A)3.14 of this Agreement.
(D)6.6 Service Performance - Reported Events
(D)6.6.1 When applicable, USW will report service-related
performance results for all "events". An "event" is
the activity that generates the measurement.
(D)6.6.2 The Parties will report RESELLER results referenced
above provided that RESELLER has ordered and is
utilizing the services reported;
(D)6.6.3 USW will provide the reports on a calendar monthly
basis. These reports will be provided within
forty-five (45) calendar days of the close of the
preceding month.
(D)6.7 Self Executing Remedies
The purpose and focus of remedies provisions under this
Resale Agreement shall be to resolve significant differences
in service quality that have been identified through
approprate comparisons of the service performance results
reported for the core performance indicators defined above.
Self-executing remedies are those actions, defined herein,
that USW will undertake in good faith and in cooperation
with RESELLER to respond to such differences immediately,
without waiting for determination of whether actual
discrimination may exist.
(D)6.7.1 For this purpose, significant differences shall be
considered to be those that are determined to be
statistically, operationally, and materially
significant in each of three (3) or more consecutive
months and that reflect a probability that inferior
service was apparently provided to RESELLER, based on
the relevant comparison of performance indicator
results. Statistical significance shall be determined
as defined below. Operational and material
significance shall be established by including for
comparison only those results that have (a) minimum
sample sizes of 30 each, and (b) a relevant
comparison demonstrating a service performance
difference of a magnitude that can be reasonably
considered to have a perceptible effect on end users
or RESELLER operations.
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(D)6.7.2 Determination of the statistical significance of any
difference in appropriately comparable results shall
be based on statistical testing for (1) differences
in means (where performance indicator results are
reported as averages) or (2) difference in
proportions (where performance indicator results are
reported as percentages), as follows:
(D)6.7.2.1 Determination of the significance of a
difference in mean values of each monthly
service performance indicator results
shall be based on a "permutation" test
using what is commonly referred to as a
"Z" statistic and a maximum of 1,000
randomly selected permutations of the
samples. Where sample sizes exceed 600,
the "Z" test using the "modified Z
statistic" may be used instead of the
permutation test. Where used, the
modified Z statistic will be based on the
statistical variance associated with USW's
retail performance results, where
applicable, or on the variance associated
with RESELLER aggregate performance
results, where there are no retail
performance results.
(D)6.7.2.2 The significance of a difference in
proportional measurements shall be
on direct calculation of the probability
of the observed difference using the
binomial distribution with a pooled p
value.
(D)6.7.2.3 A difference in results by either test
type (i.e., differences in means or
differences in proportions) will be deemed
statistically significant if the
appropriate one tailed test indicates,
with 99 percent confidence, that the
performance indicator results being
compared appear to be from different
populations of performance. In other
words, that service being provided to
RESELLER appears to be inferior to that
represented by the comparable results
(such as, results representing service
provided to Resellers in aggregate or to
USW retail).
(D)6.7.3 For each case in which 6 significant difference as
defined above has occurred, USW shall:
(D)6.7.3.1 Immediately investigate to determine the
cause(s) of the difference and, where
feasible, begin good-faith efforts to
resolve the difference;
(D)6.7.3.2 Within 45 days, provide to RESELLER a
written explanation of the result of the
investigation as to
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cause(s) and, as applicable, an action
plan describing (i) what has and will be
done to resolve the difference, (ii) what
cooperative actions and timelines on the
part of RESELLER are needed to facilitate
or expedite resolution, and (iii) listing
key milestones for use by the Parties in
tracking progress;
(D)6.7.3.3 Offer and meet with designated RESELLER
representatives monthly to discuss
progress on resolving the difference(s);
(D)6.7.3.4 Escalate to vice president level any
significant difference that has or is not
projected to be resolved within three
months of the difference first being
identified as significant as defined
above, with commitment at that level to
direct diligence toward removing obstacles
and expediting resources where feasible
and necessary to resolve the difference
as soon as possible.
(D)6.7.4 If a statistically and operationally significant
difference has occurred in the trend results for any
particular performance indicator, the Parties shall
allow three (3) months to correct the difference in
the trend results. If the statistically, and
operationally significant difference in trend results
is corrected within the three (3) month time, no
action, formal or informal, shall be taken by either
Party with respect to that difference.
(D)6.7.5 If the statistically and operationally significant
difference in trend results is not corrected within
the three (3) month time frame, the Dispute
Resolution provision of this Resale Agreement shall
apply.
(D)6.8 Delaying Events
(D)6.8.1 A Party's failure to meet a requirement in this
Section of this Agreement shall not be included when
that failure is a result, directly or indirectly, of
a Delaying Event.
(D)6.8.2 A "Delaying Event" means:
(D)6.8.2.1 Failure by either Party to perform any of
its obligations set forth in this
Agreement,
(D)6.8.2.2 Any delay, act or failure to act by an end
user, agent or subcontractor of the other
Party, or
(D)6.8.2.3 Any Force Majeure Event.
(D)6.8.3 If a Delaying Event prevents either Party from
performing a measured activity, then such measured
activity shall be excluded from the performance
indicator(s).
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(D)6.9 Records Retention for Service Performance Indicators
USW shall maintain complete and accurate records, for the
specified review period of its performance under this
records to RESELLER Agreement for each measured activity.
USW shall provide such in a self-reporting format. Such
records shall be in the format kept in USW's ordinary course
of business. The Parties agree that such records shall be
deemed "Confidential Information."
(D)6.10 Joint Defense and Advocacy
The Parties shall jointly and separately advocate and defend
the sufficiency of this Agreement in addressing the
nondiscrimination requirements of the Act and wholesale
services performance measurements reporting rights, remedies
and related terms and conditions in any forum in which its
sufficiency might be challenged.
(D)6.11 Cost Recovery
Each Party reserves the right to recover the costs associated
with the creation of the above measures, indicators, and
reports through a future proceeding before a regulatory body.
Such a proceeding may address a wide range of implementation
costs not otherwise recovered through charges established
herein.
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Part E
Iowa Rates
PART E IOWA RATES
LOCAL EXCHANGE SERVICES
RESALE OF SERVICES
The Parties agree the following charges apply to the Resale of Local
Services:
1. Nonrecurring Charges.
a. Customer Transfer Charge (CTC): The following nonrecurring charges
apply when converting a USW account to a RESELLER account or when
changing an end user from one reseller to another.
<TABLE>
<CAPTION>
Category of Service Nonrecurring Charge
------------------- -------------------
MECHANIZED RESIDENCE BUSINESS
--------- --------
<S> <C> <C>
First Line $2.80* $5.97*
Each Additional Line $1.70* $3.81*
MANUAL
First Line $9.92 $9.92
Each Additional Line $5.59 $5.59
</TABLE>
*In addition to these charges, a Transaction Fee of $0.3565 per order
will apply anytime the mechanized system is used.
b. Product Specific Nonrecurring Charge: As set forth in USW tariffs,
the product specific nonrecurring charges, with a 15.83% discount, will
apply when additional lines or trunks are added or when the end user
adds features or services to existing lines or trunks.
2. USW telecommunications services shall be available for resale at the
following discount levels:
<TABLE>
<S> <C>
- Business Lines and Trunks 18.5% discount
- Centrex 18.5% discount
- ISDN 18.5% discount
- Residence 10.27% discount
- Business and Residence Features 49.38% discount
- IntraLATA Toll, WATS Service 14.05% discount
- Private Line Service & Advanced Communications Service 15.66% discount
- Listings, Non-Pub & Non-List service 49.38% discount
</TABLE>
a. The following products and services are not available for resale:
- Concession Service
- Inside Wire (including installation, sale or maintenance)
- Customer Premises Equipment (separately or in packages)
- Promotions of less than 90 days
- USW Calling Card Service
Page 61
<PAGE>
Part E
Iowa Rates
b. The following products and services are available only to the same
class of customer eligible to purchase that service from USW:
- Lifeline/Link-up
- Residential - Grandfathered
c. The following services are available for resale under this Agreement
but are not included in the wholesale pricing reflected above:
- Private Line Used For Special Access
3. Daily Usage Record File: Recurring Charge - $.0011 per record.
Page 62
<PAGE>
Part F
Signature
PART F - SIGNATURE
ENTIRE AGREEMENT
This Agreement constitutes the entire agreement between the Parties and
supersedes all prior oral or written agreements, representations, statements,
negotiations, understandings, proposals and undertakings with respect to the
subject matter hereof.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed
by their respective duly authorized representatives.
essential.com U S WEST COMMUNICATIONS, INC.
/s/ Akhil Garland /s/ Katherine L. Fleming
- ------------------------------------- -----------------------------------
Signature Signature
Akhil Garland Katherine L. Fleming
- ------------------------------------- -----------------------------------
Name Printed/Typed Name Printed/Typed
CEO Vice President - Interconnection
- ------------------------------------- -----------------------------------
Title Title
2-16-00 02/25/00
- ------------------------------------- -----------------------------------
Date Date
Page 63
<PAGE>
RESALE
AGREEMENT
BETWEEN
U S WEST COMMUNICATIONS, INC.
AND
ESSENTIAL.COM
FOR
UTAH
<PAGE>
TABLE OF CONTENTS
<TABLE>
<S> <C>
PART A - GENERAL TERMS ...............................................................1
(A)1. SCOPE OF AGREEMENT ..............................................................1
(A)2. DEFINITIONS .....................................................................2
(A)3. TERMS AND CONDITIONS.............................................................4
(A)3.1 General Provisions ..........................................................4
(A)3.2 Term of Agreement ...........................................................4
(A)3.3 Proof of Authorization ......................................................5
(A)3.4 Payment .....................................................................5
(A)3.5 Taxes .......................................................................7
(A)3.6 Force Majeure ...............................................................7
(A)3.7 Limitation of Liability .....................................................7
(A)3.8 Indemnity ...................................................................8
(A)3.9 Intellectual Property.......................................................10
(A)3.10 Warranties ................................................................12
(A)3.11 Assignment ................................................................12
(A)3.12 Default ...................................................................13
(A)3.13 Disclaimer of Agency ......................................................13
(A)3.14 Nondisclosure .............................................................14
(A)3.15 Survival ..................................................................15
(A)3.16 Dispute Resolution.........................................................15
(A)3.17 Controlling Law ...........................................................17
(A)3.18 Joint Work Product ........................................................17
(A)3.19 Responsibility for Environmental Contamination ............................17
(A)3.20 Notices ...................................................................17
(A)3.21 Responsibility of Each Party ..............................................18
(A)3.22 No Third Party Beneficiaries ..............................................18
(A)3.23 Referenced Documents ......................................................18
(A)3.24 Publicity .................................................................19
(A)3.25 Amendment .................................................................19
(A)3.26 Executed in Counterparts ..................................................19
(A)3.27 Headings of No Force or Effect ............................................19
(A)3.28 Regulatory Approval .......................................................19
(A)3.29 Compliance ................................................................19
(A)3.30 Compliance with the Communications Assistance for Law Enforcement Act
of 1994 ("CALEA") .................................................................20
(A)3.31 Cooperation ...............................................................20
(A)3.32 Availability of Other Agreements ..........................................20
PART B - RESALE .....................................................................21
(B)1. Description ...................................................................21
(B)2. Terms and Conditions ..........................................................21
<PAGE>
TABLE OF CONTENTS
(B)3. Rates and Charges ............................................................25
(B)4. Ordering Process .............................................................26
(B)5. Billing ......................................................................27
(B)6. Maintenance and Repair .......................................................27
PART C - WHITE PAGES DIRECTORY LISTINGS ............................................28
(C)1. Description ..................................................................28
(C)2. Terms and Conditions .........................................................28
PART D- MISCELLANEOUS PROVISIONS ...................................................31
(D)1. Network Security .............................................................31
(D)2. Access To Operational Support Systems (OSS) ..................................31
(D)3. U S WEST Dex..................................................................46
(D)4. Notice Of Changes.............................................................47
(D)5. Maintenance and Repair........................................................47
(D)6. Service Performance...........................................................53
PART E - UTAH RATES.................................................................61
PART F - SIGNATURE .................................................................63
</TABLE>
<PAGE>
Part A
General Terms
PART A - GENERAL TERMS
This Resale Agreement is between essential.com ("RESELLER"), a
Delaware corporation, and U S WEST Communications, Inc. ("USW"), a Colorado
corporation.
(A)1. SCOPE OF AGREEMENT
(A)1.1 Pursuant to this negotiated Resale Agreement
("Agreement"), RESELLER and USW (collectively, "the
Parties") will extend certain arrangements to one another
within the geographical areas where USW is the incumbent
Local Exchange Carrier within the state of Utah for
purposes of providing the resale of local
Telecommunications Services. This Agreement or the
portions of this Agreement relative to a particular state
will be submitted to the Public Service Commission of Utah
("Commission") for approval. Notwithstanding this mutual
commitment, however, the Parties enter into this Agreement
without prejudice to any positions they have taken
previously, or may take in the future in any legislative,
regulatory, or other public forum addressing any matters,
including matters related to the types of arrangements
prescribed by this Agreement.
(A)1.2 The provisions in this Agreement are based, in large part,
on the existing state of the law, rules, regulations and
interpretations thereof, as of the date hereof (the
"Existing Rules"). Among the Existing Rules are or could
be the results of arbitrated decisions by the Commission
which are currently being challenged by USW. Among the
Existing Rules are certain FCC rules and orders that are
the subject of, or affected by, the opinion issued by the
Supreme Court of the United States in AT&T CORP., ET AL.
V. IOWA UTILITIES BOARD, ET AL. on January 25, 1999.
Nothing in this Agreement shall preclude or stop USW from
taking any position in any forum concerning the proper
interpretation or effect of the Existing Rules or
concerning whether the Existing Rules should be changed,
dismissed, stayed or modified. To the extent that the
Existing Rules are changed, vacated, dismissed, stayed or
modified, then the Parties shall amend this Agreement and
all contracts adopting all or part of this Agreement
pursuant to Section 252(i) of the Act, shall be amended to
reflect such modification or change of the Existing Rules.
Where the Parties fail to agree upon such an amendment, it
shall be resolved in accordance with the Dispute
Resolution provision of this Agreement. It is expressly
understood that this Agreement will be corrected to
reflect the outcome of generic pricing proceedings by the
Commission. This Section (A)1.2 shall be considered part
of the rates, terms and conditions of each service resale
arrangement contained in this Agreement, and this Section
(A)1.2 shall be considered legitimately related to the
purchase of each service for resale arrangement contained
in this Agreement.
(A)1.3 This Agreement sets forth the terms, conditions and prices
under which USW agrees to provide services for resale to
RESELLER, all for the sole purpose of providing
Telecommunications Services.
Page 1
<PAGE>
Part A
General Terms
(A)1.4 In the performance of their obligations under this
Agreement, the Parties shall act in good faith and
consistently with the intent of the Act. Where notice,
approval or similar action by a Party is permitted or
required by any provision of this Agreement, (including,
without limitation, the obligation of the Parties to
further negotiate the resolution of new or open issues
under this Agreement) such action shall not be
unreasonably delayed, withheld or conditioned.
(A)1.5 USW may make services and features available to RESELLER
for resale under this Agreement consistent with the way
they are available to USW end users, without a formal
amendment to this Agreement. Nothing herein prevents
either Party from raising other issues through additional
good faith negotiations.
(A)1.6 This Agreement is structured in the following format:
Part A - General Terms
Part B - Resale
Part C - Directory Services
Part D - Miscellaneous Provisions
Part E - Rates
Part F - Signature
(A)1.7 Prior to placing any orders for services under this
Agreement, the Parties will jointly complete USW's
"Reseller Questionnaire". This questionnaire will then be
used to:
Determine geographical requirements
Identify RESELLER Ids
Determine USW system requirements to support RESELLER
specific activity
Collect credit information
Obtain billing information
Create summary bills
Establish input and output requirements
Create and distribute USW and RESELLER contact lists
Identify client hours and holidays
(A)2. DEFINITIONS
(A)2.1 "Act" means the Communications Act of 1934 (47 U.S.C. 151
et. seq.), as amended by the Telecommunications Act of
1996, and as from time to time interpreted in the duly
authorized rules and regulations of the FCC or a
Commission within its state of jurisdiction.
(A)2.2 "Basic Exchange Features" are optional end user switched
services that include, but are not necessarily limited to:
Automatic Call Back; Call Trace; Caller ID and Related
Blocking Features; Distinctive Ringing/Call Waiting;
Selective Call Forward; and Selective Call Rejection.
(A)2.3 "Basic Exchange Telecommunications Service" means a
service offered to end users which provides the end user
with a telephonic connection to, and a unique
Page 2
<PAGE>
Part A
General Terms
local telephone number address on the public switched
telecommunications network, and which enables such end
user to generally place calls to, or receive calls from,
other stations on the public switched telecommunications
network. Basic residence and business line services are
Basic Exchange Telecommunications Services. As used solely
in the context of this statement and unless otherwise
agreed, Basic Exchange Telecommunications Service includes
access to ancillary services such as 911, directory
assistance and operator services.
(A)2.4 "Commission" means the Public Service Commission(s) in the
state of Utah.
(A)2.5 "Enhanced Services" means any service offered over common
carrier transmission facilities that employ computer
processing applications that act on format, content, code,
protocol or similar aspects of the subscriber's
transmitted information; that provide the subscriber with
additional, different or restructured information; or
involve end user interaction with stored information.
(A)2.6 "Interconnect & Resale Resource Guide" is a USW document
that provides essential information needed to request
services available under this Agreement. It is available
on USW's Web site.
(A)2.7 "Interexchange Carrier" or "IXC" means a carrier that
provides interLATA or IntraLATA Toll services.
(A)2.8 "IntraLATA Toll" is defined in accordance with USW's
current intraLATA toll serving areas, as determined by the
Federal Communications Commission.
(A)2.9 "Local Exchange Carrier" or "LEC" means any person that is
engaged in the provision of telephone exchange service or
exchange access. Such term does not include a person
insofar as such person is engaged in the provision of a
commercial mobile service under Section 332(c) of the Act,
except to the extent that the FCC finds that such service
should be included in the definition of such term.
(A)2.10 "Party" means either USW or RESELLER and "Parties" means
USW and RESELLER.
(A)2.11 "Reseller" is a category of local exchange service
provider that obtains dial tone and associated
Telecommunications Services from another provider through
the purchase of finished services for resale to its end
users.
(A)2.12 "Tariff" as used throughout this Agreement refers to USW
interstate Tariffs and state Tariffs, price lists, price
schedules and catalogs.
(A)2.13 "Telecommunications Carrier" means any provider of
Telecommunications Services, except that such term does
not include aggregators of Telecommunications Services (as
defined in Section 226 of the Act). A Telecommunications
Carrier shall be treated as a common carrier under the Act
only to the extent that it is engaged in providing
Telecommunications Services,
Page 3
<PAGE>
Part A
General Terms
except that the Federal Communications Commission shall
determine whether the provision of fixed and mobile
satellite service shall be treated as common carriage.
(A)2.14 "Telecommunications Services" means the offering of
telecommunications for a fee directly to the public, or to
such classes of users as to be effectively available
directly to the public, regardless of the facilities used.
(A)2.15 Terms not otherwise defined here, but defined in the Act
shall have the meaning defined there. Where a term is
defined in the regulations implementing the Act but not in
this Agreement, the Parties do not necessarily intend to
adopt the definition as set forth in said regulations.
(A)3. TERMS AND CONDITIONS
(A)3.1 GENERAL PROVISIONS
(A)3.1.1 Each Party is solely responsible for the
services it provides to its end users and to
other Telecommunications Carriers.
(A)3.1.2 The Parties shall work cooperatively to
minimize fraud associated with intra-LATA toll,
third-number billed calls, and any other
services related to this Agreement.
(A)3.1.3 Nothing in this Agreement shall prevent either
Party from seeking to recover the costs and
expenses, if any, it may incur in (a) complying
with and implementing its obligations under
this Agreement, the Act, and the rules,
regulations and orders of the FCC and the
Commission, and (b) the development,
modification, technical installation and
maintenance of any systems or other
infrastructure which it requires to comply with
and to continue complying with its
responsibilities and obligations under this
Agreement.
(A)3.2 TERM OF AGREEMENT
This Agreement shall become effective upon Commission
approval, pursuant to Sections 251 and 252 of the Act,
shall terminate on April 9, 2002, and shall be binding
upon the Parties during that term, notwithstanding Section
252(i) of the Act. After the date specified above, this
Agreement shall continue in force and effect until
terminated by either Party providing one hundred sixty
(160) days written notice of termination to the other
Party. The day the notice is served will determine the
starting point for a 160-day negotiation period (in
accordance with 252(b)l of the Act. In the event of such
termination, existing or pending service arrangements made
available under this Agreement shall continue in total
without interruption under either a) a new or adoption
agreement executed by the Parties, or b) tariff terms and
conditions generally available to all resellers.
(A)3.2.1 If the Parties are unable to negotiate a new
agreement during the negotiation period
described above, the window of opportunity to
file for arbitration to resolve outstanding
contractual issues in
Page 4
<PAGE>
Part A
General Terms
accordance with the Act will occur between days
135 and 160 of the 160 day notice period.
(A)3.2.2 If the Parties are able to reach agreement,
this Agreement shall continue for the brief
period of time needed to secure the
Commission's approval of an adoption agreement
or a new resale agreement. In the case of
Section (A)3.2.1, this Agreement will expire on
the termination date specified in the one
hundred sixty (160) day notice referenced
above, unless a petition for arbitration has
been filed, but if such a petition has been
filed then this Agreement shall continue for
the period necessary for the Commission to act
and resolve the disputed issues so that the
Parties will have an effective resale
agreement.
(A)3.3 PROOF OF AUTHORIZATION
Where so indicated in specific sections of this Agreement,
each party shall be responsible for obtaining and having
in its possession Proof of Authorization ("POA"). POA
shall consist of verification of the end user's selection
and authorization adequate to document the end user's
selection.. Such selection may be obtained in the
following ways:
(A)3.3.1 The end user's written Letter of Authorization.
(A)3.3.2 The end user's electronic authorization by use
of an 1-8XX number.
(A)3.3.3 The end user's oral authorization verified by
an independent third party (with third party
verification as POA).
The Parties shall make POAs available to each other upon
request, in accordance with the applicable laws and rules.
Unless prohibited by applicable laws or regulations, a.
charge of $100.00 ("slamming charge") will be assessed if
the POA cannot be provided supporting the change in
service provider. If there is a conflict between the end
user designation and the other Party's written evidence of
its authority, the Parties shall honor the designation of
the end user and change the end user back to the previous
service provider.
(A)3.4 PAYMENT
(A)3.4.1 Amounts payable under this Agreement are due
and payable within thirty (30) calendar days
after the date of USW's invoice, or within
twenty (20) days after receipt of the invoice,
whichever is later. If the payment due date is
not a Business Day, the payment shall be made
the next Business Day..
USW may discontinue processing orders for the
failure by RESELLER to make full payment for
the services provided under this Agreement
within thirty (30) days of the due date on
RESELLER's bill.
Page 5
<PAGE>
Part A
General Terms
USW may disconnect for the failure by RESELLER
to make full payment for the services provided
under this Agreement within sixty (60) days of
the due date on RESELLER's bill. RESELLER will
pay the Tariff charge required to reconnect
each end user line disconnected pursuant to
this paragraph.
(A)3.4.2 Should RESELLER dispute, in good faith, any
portion of the monthly billing under this
Agreement, RESELLER will notify USW in writing
within thirty (30) calendar days of the receipt
of such billing, identifying the amount, reason
and rationale of such dispute. RESELLER shall
pay all amounts due. Both RESELLER and USW
agree to expedite the investigation of any
disputed amounts in an effort to resolve and
settle the dispute prior to initiating any
other rights or remedies. Should the dispute be
resolved in RESELLER's favor and the resolved
amount did not appear as a credit on RESELLER's
next invoice from USW, USW will reimburse
RESELLER the resolved amount plus interest from
the date of payment. The amount of interest
will be calculated using the late payment
factor that would have applied to such amount
had it not been paid on time.
(A)3.4.3 USW will determine RESELLER's credit status
based on previous payment history with USW or
credit reports such as Dun and Bradstreet. If
RESELLER has not established satisfactory
credit with USW or if RESELLER is repeatedly
delinquent in making its payments, USW may
require a deposit to be held as security for
the payment of charges. "Repeatedly delinquent"
means being thirty (30) calendar days or more
delinquent for three (3) consecutive months.
The deposit may not exceed the estimated total
monthly charges for a two (2) month period. The
deposit may be a surety bond, a letter of
credit with terms and conditions acceptable to
USW or some other form of mutually acceptable
security such as a cash deposit. Required
deposits are due and payable within ten (10)
calendar days after demand in accordance with
Commission requirements.
(A)3.4.4 Interest will be paid on cash deposits at the
rate applying to deposits under applicable
Commission rules, regulations, or Tariffs. Cash
deposits and accrued interest will be credited
to RESELLER's account or refunded, as
appropriate, upon the earlier of the
termination of this Agreement or the
establishment of satisfactory credit with USW,
which will generally be one (1) full year of
timely payments in full by RESELLER. The fact
that a deposit has been made does not relieve
RESELLER from any requirements of this
Agreement.
Page 6
<PAGE>
Part A
General Terms
(A)3.4.5 USW may review RESELLER's credit standing and
modify the amount of deposit required.
(A)3.4.6 The late payment charge for amounts that are
billed under this Agreement shall be in
accordance with state Tariffs/Commission Rules
and Orders.
(A)3.5 TAXES
Each Party purchasing services hereunder shall pay or
otherwise be responsible for all federal, state, or local
sales, use, excise, gross receipts, transaction or similar
taxes, fees or surcharges levied against or upon such
purchasing Party (or the providing Party when such
providing Party is permitted to pass along to the
purchasing Party such taxes, fees or surcharges), except
for any tax on either Party's corporate existence, status
or income. Whenever possible, these amounts shall be
billed as a separate item on the invoice. To the extent a
sale is claimed to be for resale tax exemption, the
purchasing Party shall furnish the providing Party a
proper resale tax exemption certificate as authorized or
required by statute or regulation by the jurisdiction
providing said resale tax exemption. Until such time as a
resale tax exemption certificate is provided, no
exemptions will be applied.
(A)3.6 FORCE MAJEURE
Neither Party shall be liable for any delay or failure in
performance of any part of this Agreement from any cause
beyond its control and without its fault or negligence
including, without limitation, acts of nature, acts of
civil or military authority, government regulations,
embargoes, epidemics, terrorist acts, riots,
insurrections, fires, explosions, earthquakes, nuclear
accidents, floods, work stoppages, equipment failure,
power blackouts, volcanic action, other major
environmental disturbances, unusually severe weather
conditions, inability to secure products or services of
other persons or transportation facilities or acts or
omissions of transportation carriers (collectively, a
"Force Majeure Event"). The Party affected by a Force
Majeure Event shall give prompt notice to the other Party,
shall be excused from performance of its obligations
hereunder on a day to day basis to the extent those
obligations are prevented by the Force Majeure Event, and
shall use reasonable efforts to remove or mitigate the
Force Majeure Event. In the event of a labor dispute or
strike the Parties agree to provide service to each other
at a level equivalent to the level they provide
themselves.
(A)3.7 LIMITATION OF LIABILITY
(A)3.7.1 Except for losses relating to or arising out of
any act or omission in its performance of
services or functions provided under this
Agreement, each Party shall be liable to the
other for direct damages for any loss, defect
or equipment failure resulting from the causing
Party's conduct or the conduct of its agents or
contractors in performing the obligations
contained in this Agreement.
Page 7
<PAGE>
Part A
General Terms
(A)3.7.2 Neither Party shall be liable to the other for
indirect, incidental, consequential, or special
damages, including (without limitation) damages
for lost profits, lost revenues, lost savings
suffered by the other Party regardless of the
form of action, whether in contract, warranty,
strict liability, tort, including (without
limitation) negligence of any kind and
regardless of whether the Parties know the
possibility that such damages could result.
(A)3.7.3 Except for indemnity obligations, each Party's
liability to the other Party for any loss
relating to or arising out of any act or
omission in its performance of services or
functions provided under this Agreement,
whether in contract or in tort, shall be
limited to the total amount that is or would
have been charged to the other Party by such
breaching Party for the service(s) or
function(s) not performed or improperly
performed.
(A)3.7.4 Nothing contained in this Section shall limit
either Party's liability to the other for
intentional, malicious misconduct.
(A)3.7.5 Nothing contained in this Section shall limit
either Party's obligations of indemnification
as specified in the Indemnity Section of this
Agreement.
(A)3.7.6 Neither Party shall be liable to the other
under any theory including indemnity on account
of such Party's failure or neglect to have or
maintain a system or systems that are Year 2000
compliant. As the Parties approach the Year
2000, date information associated with any
interfaces between the Parties is expected to
remain as it is.
(A)3.8 INDEMNITY
(A)3.8.1 With respect to third party claims, the Parties
agree to indemnify each other as follows:
(A)3.8.1.1 Except for claims made by end users
of one Party against the other
Party, which claims are based on
defective or faulty services
provided by the other Party to the
one Party, each of the Parties agree
to release, indemnify, defend and
hold harmless the other Party and
each of its officers, directors,
employees and agents (each an
"Indemnitee") from and against and
in respect of any loss, debt,
liability, damage, obligation,
claim, demand, judgment or
settlement of any nature or kind,
known or unknown, liquidated or
unliquidated including, but not
limited to, costs and attorneys'
fees, whether suffered, made,
instituted, or asserted by any other
party or person, for invasion of
privacy, personal injury to or death
of any person or persons, or for
loss, damage to,
Page 8
<PAGE>
Part A
General Terms
or destruction of property, whether
or not owned by others, resulting
from the indemnifying Party's
performance, breach of applicable
law, or status of its employees,
agents and subcontractors; or for
failure to perform under this
Agreement, regardless of the form of
action.
(A)3.8.1.2 Where the third party claim is made
by (or through) an end user of one
Party against the other Party, which
claim is based on defective or
faulty services provided by the
other Party to the one Party then
there shall be no obligation of
indemnity unless the act or omission
giving rise to the defective or
faulty services is shown to be
intentional, malicious misconduct of
the other Party.
(A)3.8.1.3 If the claim is made by (or through)
an end user and where a claim is in
the nature of a claim for invasion
of privacy, libel, slander, or other
claim based on the content of a
transmission, and it is made against
a Party who is not the immediate
provider of the Telecommunications
Service to the end user (the
indemnified provider), then in the
absence of fault or neglect on the
part of the indemnified provider,
the Party who is the immediate
seller of such Telecommunications
Service shall indemnify, defend and
hold harmless the indemnified
provider from such claim.
(A)3.8.2 The indemnification provided herein shall be
conditioned upon:
(A)3.8.2.1 The indemnified Party shall promptly
notify the indemnifying Party of any
action taken against the indemnified
Party relating to the
indemnification. Failure to so
notify the indemnifying Party shall
not relieve the indemnifying Party
of any liability that the
indemnifying Party might have,
except to the extent that such
failure prejudices the indemnifying
Party's ability to defend such
claim.
(A)3.8.2.2 The indemnifying Party shall have
sole authority to defend any such
action, including the selection of
legal counsel, and the indemnified
Party may engage separate legal
counsel only at its sole cost and
expense.
(A)3.8.2.3 In no event shall the indemnifying
Party settle or consent to any
judgment pertaining to any such
action without the prior written
consent of the indemnified Party.
Page 9
<PAGE>
Part A
General Terms
(A)3.9 INTELLECTUAL PROPERTY
(A)3.9.1 Each Party hereby grants to the other Party the
limited, personal and nonexclusive right and
license to use its patents, copyrights and
trade secrets but only to the extent necessary
to implement this Agreement or specifically
required by the then applicable federal and
state rules and regulations relating to
Interconnection and access to
telecommunications facilities and services, and
for no other purposes. Nothing in this
Agreement shall be construed as the grant to
the other Party of any rights or licenses to
trademarks.
(A)3.9.2 The rights and licenses above are granted "AS
IS" and the other Party's exercise of any such
right and license shall be at the sole and
exclusive risk of the other Party. Neither
Party shall have any obligation to defend,
indemnify or hold harmless, or acquire any
license or right for the benefit of, or owe any
other obligation or have any liability to, the
other based on or arising from any claim,
demand, or proceeding (hereinafter "claim") by
any third party alleging or asserting that the
use of any circuit, apparatus, or system, or
the use of any software, or the performance of
any service or method, or the provision of any
facilities by either Party under this Agreement
constitutes infringement, or misuse or
misappropriation of any patent, copyright,
trade secret, or any other proprietary or
intellectual property right of any third party.
(A)3.9.3 As a condition to the access or use of patents,
copyrights, trade secrets and other
intellectual property (including software)
owned or controlled by a third party to the
extent necessary to implement this Agreement or
specifically required by the then applicable
federal and state rules and regulations
relating to Interconnection and access to
telecommunications facilities and services, the
Party providing access may require the other,
upon written notice, from time to time, to
obtain a license or permission for such access
or use, make all payments in connection with
obtaining such license, and provide evidence of
such license.
(A)3.9.4 Except as expressly provided in this
Intellectual Property Section, nothing in this
Agreement shall be construed as the grant of a
license, either express or implied, with
respect to any patent, copyright, logo,
trademark, trade name, trade secret or any
other intellectual property right now or
hereafter owned, controlled or licensable by
either Party. Neither Party may use any patent,
copyright, logo, trademark, trade name, trade
secret or other intellectual property rights of
the other Party or its affiliates without
execution of a separate agreement between the
Parties.
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Part A
General Terms
(A)3.9.5 Neither Party shall without the express written
permission of the other Party, state or imply
that: 1) it is connected, or in any way
affiliated with the other or its affiliates, 2)
it is part of a joint business association or
any similar arrangement with the other or its
affiliates, 3) the other Party and its
affiliates are in any way sponsoring, endorsing
or certifying-it and, its goods and services,
or 4) with respect to its advertising or
promotional activities or materials, that the
resold goods and services are in any way
associated with or originated from the other or
any of its affiliates. Nothing in this
paragraph shall prevent either Party from
truthfully describing the network elements it
uses to provide service to its end users,
provided it does not represent the network
elements as originating from the other Party or
its affiliates.
(A)3.9.6 For purposes of resale only and notwithstanding
the above, unless otherwise prohibited by USW
pursuant to an applicable provision herein,
RESELLER may use the phrase "RESELLER is a
reseller of U S WEST Communications services"
(the "Authorized Phrase") in RESELLER's printed
materials provided:
(A)3.9.6.1 The Authorized Phrase is not used in
connection with any goods or
services other than USW services
resold by RESELLER.
(A)3.9.6.2 RESELLER's use of the Authorized
Phrase does not cause end users to
believe that RESELLER is USW.
(A)3.9.6.3 RESELLER may not use the U S WEST
logo. The Authorized Phrase, when
displayed, appears only in text form
with all letters being the same font
and point size. The point size of
the Authorized Phrase shall be no
greater than one fourth the point
size of the smallest use of
RESELLER's name and in no event
shall exceed 8 point size.
(A)3.9.6.4 RESELLER shall provide all printed
materials using the Authorized
Phrase to USW for its prior written
approval.
(A)3.9.6.5 If USW determines that RESELLER's
use of the Authorized Phrase causes
end user confusion, USW may
immediately terminate RESELLER's
right to use the Authorized Phrase.
(A)3.9.6.6 Upon termination of RESELLER's right
to use the Authorized Phrase or
termination of this Agreement, all
permission or right to use the
authorized phrase shall immediately
cease to exist and RESELLER shall
immediately cease any and all such
use of the
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General Terms
Authorized Phrase. RESELLER shall
either promptly return to USW or
destroy all materials in its
possession or control displaying the
Authorized Phrase.
(A)3.9.7 RESELLER acknowledges the value of the marks "U
S WEST" and "U S WEST Communications" (the
"Marks") and the goodwill associated therewith
and acknowledges that such goodwill is a
property right belonging to U S WEST, Inc. and
USW respectively (the "Owners"). RESELLER
recognizes that nothing contained in this
Agreement is intended as an assignment or grant
to RESELLER of any right, title or interest in
or to the Marks and that this Agreement does
not confer any right or license to grant
sublicenses or permission to third parties to
use the Marks and is not assignable. RESELLER
will do nothing inconsistent with the Owner's
ownership of the Marks, and all rights, if any,
that may be acquired by use of the Marks shall
inure to the benefit of the Owners. RESELLER
will not adopt, use (other than as authorized
herein), register or seek to register any mark
anywhere in the world which is identical or
confusingly similar to the Marks or which is so
similar thereto as to constitute a deceptive
colorable imitation thereof or to suggest or
imply some association, sponsorship, or
endorsement by the Owners. The Owners make no
warranties regarding ownership of any rights in
or the validity of the Marks.
(A)3.10 WARRANTIES
NOTWITHSTANDING ANY OTHER PROVISION OF THIS AGREEMENT, THE
PARTIES AGREE THAT NEITHER PARTY HAS MADE, AND THAT THERE
DOES NOT EXIST, ANY WARRANTY, EXPRESS OR IMPLIED,
INCLUDING BUT NOT LIMITED TO WARRANTIES OF MERCHANTABILITY
AND FITNESS FOR A PARTICULAR PURPOSE.
(A)3.11 ASSIGNMENT
(A)3.11.1 Neither Party may assign or transfer (whether
by operation of law or otherwise) this
Agreement (or any rights or obligations
hereunder) to a third party without the prior
written consent of the other Party.
Notwithstanding the foregoing, either Party may
assign or transfer this Agreement to a
corporate affiliate or an entity under its
common control; however, if RESELLER's assignee
or transferee has an interconnection agreement
with USW, no assignment or transfer of this
Agreement shall be effective without the prior
written consent of USW Such consent shall
include appropriate resolutions of conflicts
and discrepancies between the assignee's or
transferee's interconnection agreement and this
Agreement. Any attempted assignment or transfer
that is not permitted is void AB INITIO.
Without limiting the generality of the
foregoing, this Agreement shall be
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Part A
General Terms
binding upon and shall inure to the benefit of
the Parties' respective successors and assigns.
(A)3.11.2 Without limiting the generality of the
foregoing subsection, any merger, dissolution,
consolidation or other reorganization of
RESELLER, or any sale, transfer, pledge or
other disposition by RESELLER of securities
representing more than 50% of the securities
entitled to vote in an election of RESELLER's
board of directors or other similar governing
body, or any sale, transfer, pledge or other
disposition by RESELLER of substantially all of
its assets, shall be deemed a transfer of
control. If any entity, other than RESELLER,
involved in such merger, dissolution,
consolidation, reorganization, sale, transfer,
pledge or other disposition of RESELLER has an
interconnection agreement with USW, the Parties
agree that only one agreement, either this
Agreement or the interconnection agreement of
the other entity, will remain valid. All other
interconnection agreements will be terminated.
The Parties agree to work together to determine
which interconnection agreement should remain
valid and which should terminate. In the event
the Parties cannot reach agreement on this
issue, the issue shall be resolved through the
Dispute Resolution process contained in this
Agreement.
(A)3.12 DEFAULT
If either Party defaults in the payment of any amount due
hereunder, or if either Party violates any other material
provision of this Agreement, and such default or violation
shall continue for thirty (30) calendar days after written
notice thereof, the other Party may seek relief in
accordance with the Dispute Resolution provision of this
Agreement. The failure of either Party to enforce any of
the provisions of this Agreement or the waiver thereof in
any instance shall not be construed as a general waiver or
relinquishment on its part of any such provision, but the
same shall, nevertheless, be and remain in full force and
effect.
(A)3.13 DISCLAIMER OF AGENCY
Except for provisions herein expressly authorizing a Party
to act for another, nothing in this Agreement shall
constitute a Party as a legal representative or agent of
the other Party, nor shall a Party have the right or
authority to assume, create or incur any liability or any
obligation of any kind, express or implied, against or in
the name or on behalf of the other Party unless otherwise
expressly permitted by such other Party. Except as
otherwise expressly provided in this Agreement, no Party
undertakes to perform any obligation of the other Party
whether regulatory or contractual, or to assume any
responsibility for the management of the other Party's
business.
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Part A
General Terms
(A)3.14 Nondisclosure
(A)3.14.1 All information, including but not limited to
specifications, microfilm, photocopies,
magnetic disks, magnetic tapes, drawings,
sketches, models, samples, tools, technical
information, data, employee records, maps,
financial reports, and market data, (i)
furnished by one Party to the other Party
dealing with end user specific, facility
specific, or usage specific information, other
than end user information communicated for the
purpose of providing directory assistance or
publication of directory database, or (ii) in
written, graphic, electromagnetic, or other
tangible form and marked at the time of
delivery as "Confidential" or "Proprietary", or
(iii) communicated and declared to the
receiving Party at the time of delivery, or by
written notice given to the receiving Party
within ten (10) calendar days after delivery,
to be "Confidential" or "Proprietary"
(collectively referred to as "Proprietary
Information"), shall remain the property of the
disclosing Party. A Party who receives
Proprietary Information via an oral
communication may request written confirmation
that the material is Proprietary Information. A
Party who delivers Proprietary Information via
an oral communication may request written
confirmation that the Party receiving the
information understands that the material is
Proprietary Information.
(A)3.14.2 Upon request by the disclosing Party, the
receiving Party shall return all tangible
copies of Proprietary Information, whether
written, graphic or otherwise, except that the
receiving Party may retain one copy for
archival purposes.
(A)3.14.3 Each Party shall keep all of the other Party's
Proprietary Information confidential and shall
use the other Party's Proprietary Information
only in connection with this Agreement. Neither
Party shall use the other Party's Proprietary
Information for any other purpose except upon
such terms and conditions as may be agreed upon
between the Parties in writing.
(A)3.14.4 Unless otherwise agreed, the obligations of
confidentiality and non-use set forth in this
Agreement do not apply to such Proprietary
Information as:
(A)3.14.4.1 was at the time of receipt already
known to the receiving Party free
of any obligation to keep it
confidential evidenced by written
records prepared prior to delivery
by the disclosing Party; or
(A)3.14.4.2 is or becomes publicly known
through no wrongful act of the
receiving Party; or
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Part A
General Terms
(A)3.14.4.3 is rightfully received from a third
person having no direct or indirect
secrecy or confidentiality
obligation to the disclosing Party
with respect to such information;
or
(A)3.14.4.4 is independently developed by an
employee, agent, or contractor of
the receiving Party which
individual is not involved in any
manner with the provision of
services pursuant to the Agreement
and does not have any direct or
indirect access to the Proprietary
Information; or
(A)3.14.4.5 is disclosed to a third person by
the disclosing Party without
similar restrictions on such third
person's rights; or
(A)3.14.4.6 is approved for release by written
authorization of the disclosing
Party; or
(A)3.14.4.7 is required to be made public by
the receiving Party pursuant to
applicable law or regulation
provided that the receiving Party
shall give sufficient notice of the
requirement to the disclosing Party
to enable the disclosing Party to
seek protective orders.
(A)3.14.5 Nothing herein is intended to prohibit a Party
from supplying factual information about its
network and Telecommunications Services on or
connected to its network to regulatory agencies
including the Federal Communications Commission
and the Commission so long as any confidential
obligation is protected.
(A)3.14.6 Effective Date Of This Section. Notwithstanding
any other provision of this Agreement, the
Proprietary Information provisions of this
Agreement shall apply to all information
furnished by either Party to the other in
furtherance of the purpose of this Agreement,
even if furnished before the date of this
Agreement.
(A)3.15 SURVIVAL
Any liabilities or obligations of a Party for acts or
omissions prior to the cancellation or termination of this
Agreement; any obligation of a Party under the provisions
regarding indemnification, Confidential or Proprietary
Information, limitations of liability, and any other
provisions of this Agreement which, by their terms, are
contemplated to survive (or to be performed after)
termination of this Agreement, shall survive cancellation
or termination hereof.
(A)3.16 DISPUTE RESOLUTION
(A)3.16.1 If any claim, controversy or dispute between
the Parties, their agents, employees, officers,
directors or affiliated agents should arise,
and the Parties do not resolve it in the
ordinary course of their dealings
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Part A
General Terms
(the "Dispute"), then it shall be resolved in
accordance with the dispute resolution process
set forth in this Section. Each notice of
default, unless cured within the applicable
cure period, shall be resolved in accordance
herewith.
(A)3.16.2 At the written request of either Party, and
prior to any other formal dispute resolution
proceedings, each Party shall designate an
officer-level employee, at no less than the
vice president level, to review, meet, and
negotiate, in good faith, to resolve the
Dispute. The Parties intend that these
negotiations be conducted by non-lawyer,
business representatives, and the locations,
format, frequency, duration, and conclusions of
these discussions shall be at the discretion of
the representatives. By mutual agreement, the
representatives may use other procedures, such
as mediation, to assist in these negotiations.
The discussions and correspondence among the
representatives for the purposes of these
negotiations shall be treated as Confidential
Information developed for purposes of
settlement, and shall be exempt from discovery
and production, and shall not be admissible in
any subsequent arbitration or other proceedings
without the concurrence of both of the Parties.
(A)3.16.3 If the vice-presidential level representatives
have not reached a resolution of the Dispute
within thirty (30) calendar days after the
matter is referred to them, then either Party
may demand that the Dispute be settled by
arbitration. Such an arbitration proceeding
shall be conducted by a single arbitrator,
knowledgeable about the telecommunications
industry. The arbitration proceedings shall be
conducted under the then current rules of the
American Arbitration Association ("AAA"). The
Federal Arbitration Act, 9 U.S.C. Sections
1-16, not state law, shall govern the
arbitrability of the Dispute. The arbitrator
shall not have authority to award punitive
damages. All expedited procedures prescribed by
the AAA rules shall apply. The arbitrator's
award shall be final and binding and may be
entered in any court having jurisdiction
thereof. Each Party shall bear its own costs
and attorneys' fees, and shall share equally in
the fees and expenses of the arbitrator. The
arbitration proceedings shall occur in the
Denver, Colorado metropolitan area. It is
acknowledged that the Parties, by mutual,
written agreement, may change any of these
arbitration practices for a particular, some,
or all Dispute(s).
(A)3.16.4 Should it become necessary to resort to court
proceedings to enforce a Party's compliance
with the dispute resolution process set forth
herein, and the court directs or otherwise
requires compliance herewith, then all of the
costs and expenses, including its reasonable
attorney fees, incurred by the Party requesting
such enforcement
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Part A
General Terms
shall be reimbursed by the non-complying Party
to the requesting Party.
(A)3.16.5 No Dispute, regardless of the form of action,
arising out of this Agreement, may be brought
by either Party more than two (2) years after
the cause of action accrues.
(A)3.17 CONTROLLING LAW
This Agreement was negotiated by the Parties in accordance
with the terms of the Act and the laws of the state where
service is provided hereunder. It shall be interpreted
solely in accordance with the terms of the Act and the
applicable state law in the state where the service is
provided.
(A)3.18 JOINT WORK PRODUCT
This Agreement is the joint work product of the Parties
and has been negotiated by the Parties and their
respective counsel and shall be fairly interpreted in
accordance with its terms and, in the event of any
ambiguities, no inferences shall be drawn against either
Party.
(A)3.19 RESPONSIBILITY FOR ENVIRONMENTAL CONTAMINATION
Neither Party shall be liable to the other for any costs
whatsoever resulting from the presence or release of any
environmental hazard that either Party did not introduce
to the affected work location. Both Parties shall defend
and hold harmless the other, its officers, directors and
employees from and against any losses, damages, claims,
demands, suits, liabilities, fines, penalties and expenses
(including reasonable attorneys' fees) that arise out of
or result from (i) any environmental hazard that the
indemnifying Party, its contractors or agents introduce to
the work locations or (ii) the presence or release of any
environmental hazard for which the indemnifying Party is
responsible under applicable law.
(A)3.20 NOTICES
Any notices required by or concerning this Agreement shall
be sent to the Parties at the addresses shown below:
USW
Director Interconnection Compliance
1801 California, Room 2410
Denver, CO 80202
With copy to:
U S WEST Law Department
Attention: General Counsel, Interconnection
1801 California Street, 51st Floor
Denver, CO 80202
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Part A
General Terms
RESELLER
John Duffy
Peter Mills
3 Burlington Woods Drive
4th Floor
Burlington, MA 01803
Phone: 781-229-9599, ext. 136
Fax: 781-229-9499
E-mail: [email protected]
Each Party shall inform the other of any changes in the
above addresses.
(A)3.21 RESPONSIBILITY OF EACH PARTY
Each Party is an independent contractor, and has and
hereby retains the right to exercise full control of and
supervision over its own performance of its obligations
under this Agreement and retains full control over the
employment, direction, compensation and discharge of all
employees assisting in the performance of such
obligations. Each Party will be solely responsible for all
matters relating to payment of such employees, including
compliance with social security taxes, withholding taxes
and all other regulations governing such matters. Each
Party will be solely responsible for proper handling,
storage, transport and disposal at its own expense of all
(i) substances or materials that it or its contractors or
agents bring to, create or assume control over at work
locations or, (ii) waste resulting therefrom or otherwise
generated in connection with its or its contractors' or
agents' activities at the work locations. Subject to the
limitations on liability and except as otherwise provided
in this Agreement, each Party shall be responsible for (i)
its own acts and performance of all obligations imposed by
applicable law in connection with its activities, legal
status and property, real or personal and, (ii) the acts
of its own affiliates, employees, agents and contractors
during the performance of that Party's obligations
hereunder.
(A)3.22 NO THIRD PARTY BENEFICIARIES
This Agreement does not provide and shall not be construed
to provide third parties with any remedy, claim,
liability, reimbursement, cause of action, or other
privilege.
(A)3.23 REFERENCED DOCUMENTS
All references to Sections shall be deemed to be
references to Sections of this Agreement unless the
context shall otherwise require. Whenever any provision of
this Agreement refers to a technical reference, technical
publication, RESELLER practice, USW practice, any
publication of telecommunications industry administrative
or technical standards, or any other document specifically
incorporated into this Agreement, it will be deemed to be
a reference to the most recent version or edition
(including any amendments, supplements, addenda, or
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Part A
General Terms
successors) of such document that is in effect, and will
include the most recent version or edition (including any
amendments, supplements, addenda, or successors) of each
document incorporated by reference in such a technical
reference, technical publication, RESELLER practice, USW
practice, or publication of industry standards. USW will
not implement changes in the most recent version or
edition in the documents described above when such changes
are optional. The existing configuration of either Party's
network may not be in immediate compliance with the latest
release of applicable referenced documents.
(A)3.24 PUBLICITY
Neither Party shall publish or use any publicity materials
with respect to the execution and delivery or existence of
this Agreement without the prior written approval of the
other Party.
(A)3.25 AMENDMENT
RESELLER and USW may mutually agree to amend this
Agreement in writing. Since it is possible that amendments
to this Agreement may be needed to fully satisfy the
purposes and objectives of this Agreement, the Parties
agree to work cooperatively, promptly and in good faith to
negotiate and implement any such additions, changes and
corrections to this Agreement.
(A)3.26 EXECUTED IN COUNTERPARTS
This Agreement may be executed in any number of
counterparts, each of which shall be deemed an original;
but such counterparts shall together constitute one and
the same instrument.
(A)3.27 HEADINGS OF NO FORCE OR EFFECT
The headings of Sections of this Agreement are for
convenience of reference only, and shall in no way define,
modify or restrict the meaning or interpretation of the
terms or provisions of this Agreement.
(A)3.28 REGULATORY APPROVAL
The Parties understand and agree that this Agreement will
be filed with the Commission for approval. In the event
the Commission rejects any portion of this Agreement,
renders it inoperable or creates an ambiguity that
requires further amendment, the Parties agree to meet and
negotiate in good faith to arrive at a mutually acceptable
modification.
(A)3.29 COMPLIANCE
Each Party shall comply with all federal, state, and local
laws, rules and regulations applicable to its performance
under this Agreement. Without limiting the foregoing, USW
and RESELLER agree to take all action necessary to keep
and maintain in full force and effect all permits,
licenses, certificates, insurance, and other authorities
needed to perform their respective obligations hereunder.
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Part A
General Terms
(A)3.30 COMPLIANCE WITH THE COMMUNICATIONS ASSISTANCE FOR LAW
ENFORCEMENT ACT OF 1994 ("CALEA")
Each Party represents and warrants that any equipment,
facilities or services provided to the other Party under
this Agreement comply with CALEA. Each Party shall
indemnify and hold the other Party harmless from any and
all penalties imposed upon the other Party for such
noncompliance and shall at the noncompliant Party's sole
cost and expense, modify or replace any equipment,
facilities or services provided to the other Party under
this Agreement to ensure that such equipment, facilities
and services fully comply with CALEA.
(A)3.31 COOPERATION
The Parties agree that this Agreement involves the
provision of USW services in ways such services were not
previously available and the introduction of new processes
and procedures to provide and bill such services.
Accordingly, the Parties agree to work jointly and
cooperatively in testing and implementing processes for
pre-ordering, ordering, maintenance, provisioning and
billing and in reasonably resolving issues which result
from such implementation on a timely basis. Electronic
processes and procedures are addressed in Part D of this
Agreement.
(A)3.32 AVAILABILITY OF OTHER AGREEMENTS
With regard to the availability of other agreements, the
Parties agree that the provisions of Section 252(i) of the
Act shall apply, including state and federal, Commission
and court interpretive regulations and decisions in effect
from time to time.
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Part B
Resale
PART B - RESALE
(B)l. DESCRIPTION
(B)1.1 Pursuant to the Act and this Part B, USW shall offer for
resale at wholesale rates any Telecommunications Services
it provides to end users who are not Telecommunications
Carriers including terms and conditions (except prices) in
the USW Tariffs, where applicable. RESELLER may obtain
intraLATA toll service from USW for resale or RESELLER has
the option to self-provision intraLATA toll or to obtain
intraLATA toll for resale from another provider.
(B)1.2 The Parties agree that certain USW services are not
available for resale under this Agreement and certain
other USW services are available for resale but not at a
discount, as identified in Part E or in individual state
Tariffs. The availability of services and applicable
discounts identified in Part E or in individual Tariffs
are subject to change pursuant to the Rates and Charges
sub-section of this Resale section.
(B)2. TERMS AND CONDITIONS
(B)2.1 Basic Exchange Telecommunications Service, Basic Exchange
Features, Private Line Service, Frame Relay Service and
intraLATA Toll may be resold only for their intended or
disclosed use and only to the same class of end user to
which USW sells such services (e.g., residence service may
not be resold to business end users). Service provided
directly to RESELLER for its own use, such as
administrative services, must be identified by RESELLER
and RESELLER must pay the full retail rates and prices for
such services.
(B)2.2 USW shall provide to RESELLER Telecommunications Services
for resale that are at least equal in quality, and in
substantially the same time and manner that USW provides
these services to others, including other Resellers and
end users, and in accordance with any applicable
Commission service quality standards, including standards
the Commission may impose pursuant to Section 252 (e)(3)
of the Act.
(B)2.3 In the event that there are existing agreements between
RESELLER and USW for resale under USW retail Tariff
discounts, RESELLER may elect to continue to obtain
services for resale under the existing agreements and
retail Tariff discounts or RESELLER may elect to terminate
such existing agreements and obtain such services under
this Agreement with the associated wholesale discount
specified in Part E of this Agreement.
(B)2.4 In accordance with the Act, RESELLER will provide the date
it will begin to offer Telecommunications Services to
residential and business end users. RESELLER will provide
a two (2) year forecast within ninety (90) calendar days
of signing this Agreement The forecast shall be updated
and provided to USW on a annual basis or as requested by
USW Each forecast will provide:
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Part B
Resale
- The date service will be offered (by city and/or state)
- The type and quantity of service(s) which will be
offered
- RESELLER's anticipated number of service orders
- Name of RESELLER's key contact personnel
The information provided pursuant to this paragraph shall
be considered Proprietary Information under the
Nondisclosure Section of this Agreement.
(B)2.5 RESELLER may not reserve blocks of USW telephone numbers,
except as allowed by Tariffs.
(B)2.6 USW will accept at no charge one primary listing for each
main telephone number belonging to RESELLER's end user
based on end user information provided to USW by RESELLER.
USW will place RESELLER's listings in USW's directory
listing database for directory assistance purposes.
Additional terms and conditions with respect to directory
listings are described in Part C of this Agreement.
(B)2.7 USW shall provide to RESELLER, for RESELLER's end users,
E911/911 call routing to the appropriate Public Safety
Answering Point ("PSAP"). USW shall not be responsible for
any failure of RESELLER to provide accurate end user
information for listings in any databases in which USW is
required to retain and/or maintain end user information..
USW shall provide and validate RESELLER's end user
information to the Automatic Location Identification/
Database Management System ("ALI/DMS"). USW shall use its
standard process to update and maintain, on the same
schedule that it uses for its end users, RESELLER's end
user service information in the ALI/DMS used to support
E911/911 services. USW assumes no liability for the
accuracy of information provided by RESELLER.
(B)2.8 If USW provides and RESELLER accepts operator services,
directory assistance, and intraLATA long distance as a
part of the resold line, it will be offered with standard
USW branding. RESELLER is not permitted to alter the
branding of these services in any manner when the services
are a part of the resold line without the prior written
approval of USW. However, at the request of RESELLER and
where technically feasible, USW will rebrand operator
services and directory assistance in RESELLER's name,
provided the charges associated with such rebranding are
paid by RESELLER.
(B)2.9 RESELLER shall designate the Primary Interexchange Carrier
(PIC) assignments on behalf of its end users for interLATA
services and intraLATA services.
(B)2.10 When end users switch from USW TO RESELLER, or to RESELLER
from any other Reseller, and if they do not change their
service address to an address served by a different
Central Office, such end users shall be permitted to
retain their current telephone numbers if they so desire.
USW shall take no action to prevent RESELLER end users
from retaining their current telephone numbers.
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Part B
Resale
(B)2.11 RESELLER is liable for all fraud associated with service
to its end-users and accounts. USW takes no
responsibility, will not investigate, and will make no
adjustments to RESELLER's account in cases of fraud unless
such fraud is the result of any intentional act or gross
negligence of USW. Notwithstanding the above, if USW
becomes aware of potential fraud with respect to
RESELLER's accounts, USW will promptly inform RESELLER
and, at the direction of RESELLER, take reasonable action
to mitigate the fraud where such action is possible.
(B)2.12 Resold services are available only where facilities
currently exist and are capable of providing such services
without construction of additional facilities or
enhancement of existing facilities. However, if RESELLER
requests that facilities be constructed or enhanced to
provide resold services, USW will review such requests on
a case-by-case basis and determine if it is economically
feasible for USW to build or enhance facilities. If USW
decides to build or enhance the requested facilities, USW
will develop and provide to RESELLER a price quote for the
construction. Construction charges associated with resold
services will be applied in the same manner that
construction charges apply to USW's retail end users. If
the quote is accepted, RESELLER will be billed the quoted
price and construction will commence after receipt of
payment.
(B)2.13 In the event USW terminates the provisioning of any resold
services to RESELLER for any reason, including RESELLER's
non-payment of charges, RESELLER shall be responsible for
providing any and all necessary notice to its end users of
the termination. In no case shall USW be responsible for
providing such notice to RESELLER's end users. USW will
provide notice to RESELLER of USW's termination of a
resold service on a timely basis consistent with
Commission rules and notice requirements.
(B)2.14 The underlying network provider of a resold service shall
be entitled to receive, from the purchaser of Switched
Access, the appropriate access charges pursuant to its
then effective Switched Access Tariff.
(B)2.15 Centrex terms and conditions related to calculation of
charges for, and provisioning of common blocks, station
lines, and optional features will be based on the Centrex
definition of a system and a Reseller's serving location.
(B)2.15.1 Where a common block is applicable, a Centrex
system is defined by a single common block or
multiple common blocks for a single RESELLER
within a single Central Office switching
system. A common block defines the dialing plan
for intercom calling, access to Public Switched
Network and/or private facilities, station line
and system restrictions and feature access
arrangements and functionality. RESELLER may
purchase multiple common blocks within a single
Central Office switching system when RESELLER
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Part B
Resale
requires different dialing plans, feature
access arrangements and station line or system
restrictions within a single system operation.
A Reseller with multiple common blocks within
the same Central Office switch may have Network
Access Register and Private Facility trunk
groups aggregated across multiple common
blocks. Centrex system based optional features
(i.e. Automatic Route Selection) may not be
aggregated across multiple common blocks. A
Centrex system must provide station lines to at
least one location and may provide station
lines to multiple locations.
(B)2.15.2 Centrex station lines are provisioned and
charges are calculated based on serving
Reseller's location. A location is defined as
the site where USW facilities (cable plant from
the serving Central Office switch) meet
Reseller facilities (inside wire). In a multi-
tenant building, USW may bring facilities
directly to a single point of interconnection
with Reseller facilities, typically in a
basement equipment room, which would be
considered a single location for this
multi-tenant building. Should USW bring service
to multiple floors or offices within a
multi-tenant building each floor or office with
a separate Reseller facilities termination
point is considered a location. Multiple
buildings within contiguous property (campus)
will be provisioned and billed as a single
location. Contiguous property is defined as
property owned or leased by a single end user
and not separated by public thoroughfare, river
or railroad rights-of-way. Property will be
considered contiguous when connected via
connecting passageways or conduit acceptable to
USW for its facilities. A Reseller with Centrex
station lines from multiple Central Office
switching systems, within the same USW Wire
Center, and provisioned to the same location
will not be charged for service or provisioned
as if service was originating from a single
Centrex system. For example, station lines may
only be aggregated from a single Centrex
Reseller system to a single Reseller serving
location for rating purposes. RESELLER may not
specify a USW Central Office as a RESELLER
location for termination of Centrex station
lines.
(B)2.16 Private Line Service used for Special Access is available
for resale but not at a discount.
(B)2.17 DSL Service (such as Megabit Service) is available for
resale by RESELLER out of USW's Interstate Tariff, but at
no wholesale discount.
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Part B
Resale
(B)3. RATES AND CHARGES
(B)3.1 The Telecommunications Services identified in Part E are
available for resale at the wholesale discount percentage
shown in Part E. Telecommunications Services available for
resale but excluded from the wholesale pricing arrangement
in this Agreement are available at the retail Tariff
rates.
(B)3.2 The Customer Transfer Charges (CTC) as specified in Part E
apply when transferring services to RESELLER.
(B)3.3 A Subscriber Line Charge (SLC), or any subsequent
federally mandated charge to end users, will continue to
be paid by RESELLER without discount for each local
exchange line resold under this Agreement. All federal and
state rules and regulations associated with SLC as found
in the applicable Tariffs also apply.
(B)3.4 RESELLER will pay to USW the PIC change charge without
discount for RESELLER end user changes of interexchange or
intraLATA carriers. Any change in RESELLER's end users'
interexchange or intraLATA carrier must be requested by
RESELLER on behalf of its end user.
(B)3.5 RESELLER agrees to pay USW when its end user activates any
services or features that are billed on a per use or per
activation basis subject to the applicable discount in
Part E as such may be amended pursuant to this Section
(e.g., continuous redial, last call return, call back
calling, call trace, etc.).
(B)3.6 Product specific non-recurring charges, as set forth in
USW's applicable Tariffs will apply when additional lines,
trunks or circuits are added or when the end user adds
features or services to existing lines or trunks.
(B)3.7 Miscellaneous charges, if applicable, will be consistent
with charges for equivalent services ordered by USW end
users.
(B)3.8 The wholesale discount rates, (the "Rates"), in Part E
were established in the Report and Order on Avoided Costs,
Docket No. 94-999-01, "In the Matter of an Investigation
into Collocation and Expanded Interconnection". The
Parties agree that Rates in this Agreement will remain in
effect as described below until the exhaustion of all
appeals, if any, of the final order in this docket.
(B)3.9 If the Rates or the applicability of the Rates to the
services in Part E are changed by a nonappealable
administrative or judicial order following a decision on
rehearing or appeal or other similar proceeding, such
changed rate(s) will be available to RESELLER, effective
as of the date of the order. No true-up of the Rates will
occur unless ordered as a part of the nonappealable
administrative or judicial order.
(B)3.10 USW shall have a reasonable time necessary to make the
system changes necessary to implement and bill the changed
rates.
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Part B
Resale
(B)3.11 If the resold services are purchased pursuant to Tariffs
and the Tariff rates change, charges billed to RESELLER
for such services will be based upon the new Tariff rates
less the applicable wholesale discount, if any, as agreed
to herein or as established by Commission order and/or
resale Tariff. The new rate will be effective upon the
Tariff effective date.
(B)4. ORDERING PROCESS
(B)4.1 RESELLER, or RESELLER's agent, shall act as the single
point of contact for its end users' service needs,
including without limitation, sales, service design, order
taking, provisioning, change orders, training,
maintenance, trouble reports, repair, post-sale servicing,
billing, collection and inquiry. RESELLER shall inform its
end users that they are end users of RESELLER for resold
services. RESELLER's end users contacting USW will be
instructed to contact RESELLER; however, nothing in this
Agreement, except as provided below, shall be deemed to
prohibit USW from discussing its products and services
with RESELLER's end users who call USW.
(B)4.2 RESELLER shall transmit to USW all information necessary
for the ordering (billing, listing and other information),
installation, repair, maintenance and post-installation
servicing according to USW's standard procedures, as
described in the USW Interconnect & Resale Resource Guide
available on USW's Web site. Information shall be provided
using USW's designated Local Service Request (LSR) format
which may include the LSR, end user and resale forms.
RESELLER must send USW complete and accurate end user
listing information for Directory Assistance, Directory
Listings, and 911 Emergency Services using USW's
designated resale directory listing order forms. When
USW's end user or the end user's new service provider
orders the discontinuance of the end user's existing
service in anticipation of moving to another service
provider, USW will render its closing bill to the end user
effective with the disconnection. If another service
provider, RESELLER's end user or RESELLER requests that
service be discontinued from RESELLER and subsequently
USW's service to RESELLER is discontinued USW will issue a
bill to RESELLER for that portion of the service provided
to RESELLER.. USW will notify RESELLER by FAX, OSS
interface or other agreed upon processes, in accordance
with the OSS section of this Agreement when an end user
moves to another service provider. USW will not provide
RESELLER with the name of the other service provider
selected by the end user.
(B)4.3 RESELLER shall provide USW and USW shall provide RESELLER
with points of contact for order entry, problem resolution
and repair of the resold services.
(B)4.4 Prior to placing orders on behalf of the end user,
RESELLER shall be responsible for obtaining and have in
its possession Proof of Authorization ("POA"), as set
forth in Part A of this Agreement.
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Part B
Resale
(B)4.5 Due date interval standards are addressed in the
Interconnect & Resale Resource Guide.
(B)4.6 Firm Order Confirmation (FOC) guidelines are addressed in
the Interconnect & Resale Resource Guide.
(B)4.7 USW will provide completion notification that is equal to
that provided to USW end users.
(B)4.8 USW will provide Design Layout Records when requested
under terms and conditions consistent with USW end users.
(B)4.9 USW will handle jeopardy orders based upon the same
performance standards and criteria that USW provides to
itself.
(B)5. BILLING
(B)5.1 USW shall bill RESELLER and RESELLER is responsible for
all applicable charges for the resold services as provided
herein. RESELLER shall also be responsible for all
Tariffed charges and charges separately identified in this
Agreement associated with services that RESELLER resells
to an end user under this Agreement.
(B)5.2 USW shall provide RESELLER, on a monthly basis, within
7-10 calendar days of the last day of the most recent
billing period, in an agreed upon standard electronic
billing format as detailed in Part D, billing information
including (1) a summary bill, and (2) individual end user
sub-account information consistent with the samples
available for RESELLER review.
(B)6. MAINTENANCE AND REPAIR
RESELLER and USW will employ the procedures for handling misdirected
repair calls as specified in the Maintenance and Repair Section of
this Agreement.
(B)6.1 USW will maintain facilities and equipment used to provide
RESELLER resold services. RESELLER or its end user may not
rearrange, move, disconnect, or attempt to repair USW
facilities or equipment, other than by connection or
disconnection to any interface between USW and the end
user, without written consent of USW.
(B)6.2 Maintenance and repair processes are detailed in the
Maintenance and Repair Section of this Agreement.
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Part C
Directory Listings
PART C - WHITE PAGES DIRECTORY LISTINGS
(C)1. DESCRIPTION
White Pages Listings Service (Listings) consists of USW placing the
names, addresses and telephone numbers of RESELLER's end users in
USW's listing database, based on end user information provided to USW
by RESELLER. USW is authorized to use Listings in Directory
Assistance (DA) and as noted below.
(C)2. TERMS AND CONDITIONS
(C)2.1 RESELLER will provide in standard, mechanized format, and
USW will accept at no charge, one primary listing for each
main telephone number belonging to RESELLER's end users.
Primary listings for RESELLER will include the end user
Listings for any resold services or wireless services and
are further defined in USW's general exchange Tariffs.
RESELLER will be charged for premium and privacy listings,
(e.g., additional, foreign, cross reference,
informational, etc.), at USW's general exchange listing
Tariff rates, less the wholesale discount. If RESELLER
utilizes Remote Call Forwarding for local number
portability, RESELLER can list only one number without
charge - either the end user's original telephone number
or RESELLER-assigned number. The standard discounted rate
for an additional listing applies to the other number.
(C)2.2 USW will furnish RESELLER the Listings format
specifications. All manual requests are considered a
project and require coordination between RESELLER and USW
to determine time frames.
(C)2.3 RESELLER grants USW a non-exclusive license to incorporate
Listings information into its Directory Assistance
database. With this license USW will incorporate Listings
in the DA database.
(C)2.4 No prior authorization is needed for USW to release
Listings to directory publishers or other third parties.
USW will incorporate Listings information in all existing
and future directory assistance applications developed by
USW RESELLER authorizes USW to sell and otherwise make
Listings available to directory publishers. Listings shall
not be provided or sold in such a manner as to segregate
end users by carrier. USW will not charge for updating and
maintaining the Listings database. RESELLER will not
receive compensation from USW for any sale of listings by
USW.
(C)2.5 To the extent that state tariffs limit USW's liability
with regard to Listings, the applicable state Tariff(s) is
incorporated herein and supersedes the Limitation of
Liability section of this Agreement with respect to
Listings only.
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Part C
Directory Listings
(C)2.6 USW is responsible for maintaining Listings, including
entering, changing, correcting, rearranging and removing
Listings in accordance with RESELLER orders. USW will take
reasonable steps in accordance with industry practices to
accommodate non-published and non-listed Listings provided
that RESELLER has supplied USW the necessary privacy
indicators on such Listings.
(C)2.7 USW will include RESELLER Listings in USW's Directory
Assistance service to ensure that callers to USW's
Directory Assistance service have non-discriminatory
access to RESELLER's Listings.
(C)2.8 USW will ensure RESELLER Listings provided to USW are
included in the white pages directory published on USW's
behalf.
(C)2.9 RESELLER agrees to provide to USW its end user names,
addresses and telephone numbers in a standard mechanized
format, as specified by USW.
(C)2.10 RESELLER will supply its ACNA/CIC or CLCC/OCN, as
appropriate, with each order to provide USW the means of
identifying Listings ownership.
(C)2.11 Upon request by USW, RESELLER shall submit proof to USW,
of authorization from each end user for which RESELLER
submits a change in end user's Listing.
(C)2.12 RESELLER represents and warrants the end user information
provided to USW is accurate and correct. RESELLER further
represents and warrants that it has reviewed all Listings
provided to USW, including end user requested restrictions
on use such as non published and non-listed. RESELLER
shall be solely responsible for knowing and adhering to
state laws or rulings regarding Listings (e.g., no
solicitation requirements in the states of Arizona and
Oregon, privacy requirements in Colorado), and for
supplying USW with the applicable Listing information.
(C)2.13 RESELLER is responsible for all dealings with, and on
behalf of, RESELLER's end users, including:
(C)2.13.1 All end user account activity, (e.g. end user
queries and complaints).
(C)2.13.2 All account maintenance activity, (e.g.,
additions, changes, issuance of orders for
Listings to USW).
(C)2.13.3 Determining privacy requirements and accurately
coding the privacy indicators for RESELLER's
end user information. If end user information
provided by RESELLER to USW does not contain a
privacy indicator, no privacy restrictions will
apply.
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Part C
Directory Listings
(C)2.13.4 Any additional services requested by RESELLER's
end users.
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<PAGE>
Part D
Miscellaneous Provisions
PART D- MISCELLANEOUS PROVISIONS
(D)1. NETWORK SECURITY
(D)1.1 Protection of Service and Property - Each Party shall
exercise the same degree of care to prevent harm or
damage to the other Party and any third parties, its
employees, agents or end users, or their property as it
employs to protect its own personnel, end users and
property, etc. Each Party shall comply at all times with
USW security and safety procedures and requirements.
(D)1.2 Revenue Protection - USW shall make available to RESELLER
all present and future fraud prevention or revenue
protection features. These features include, but are not
limited to screening codes, and 900 numbers.
(D)1.3. Law Enforcement Interface - USW provides emergency
assistance to 911 centers and law enforcement agencies
seven (7) days a week/twenty-four (24) hours a day.
Assistance includes, but is not limited to release of 911
trace and subscriber information; in-progress trace
requests; establishing emergency trace equipment, release
of information from an emergency trap/trace or *57 trace;
requests for emergency subscriber information; assistance
to law enforcement agencies in hostage/barricade
situations, kidnappings, bomb threats, extortion/scams,
runaways and life threats.
(D)1.4 USW provides trap/trace, pen register and Title III
assistance directly to law enforcement, if such assistance
is directed by a court order. This service is provided
during normal business hours, Monday through Friday.
Exceptions are addressed in the above paragraph. The
charges for these services will be billed directly to the
law enforcement agency, without involvement of RESELLER,
for any lines served from USW Wire Centers or cross boxes.
(D)1.5 In all cases involving telephone lines served from USW
Wire Centers or cross boxes, USW will perform trap/trace
Title III and pen register assistance directly with law
enforcement. RESELLER will not be involved or notified of
such actions, due to non-disclosure court order
considerations, as well as timely response duties when law
enforcement agencies are involved. Exceptions to the above
will be those cases, as yet undetermined, where RESELLER
must participate due to technical reasons wherein its
circuitry must be accessed or modified to comply with law
enforcement, or for legal reasons that may evolve over
time. RESELLER will provide USW with a 24 hour a day, 7
days a week contact for processing such requests, should
they occur.
(D)2. ACCESS TO OPERATIONAL SUPPORT SYSTEMS (OSS)
(D)2.1 Description
(D)2.1.1 USW has developed and shall continue to provide
Operational Support Systems OSS interfaces
using electronic gateways. These gateways act
as a mediation or control point between
RESELLER's
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Part D
Miscellaneous Provisions
and USW's OSS. These gateways provide security
for the interfaces, protecting the integrity of
the USW OSS and its databases. USW's OSS
interfaces have been developed to support
Pre-ordering, Ordering and Provisioning,
Maintenance and Repair and Billing. Included
below is a description of the products and
functions supported by USW OSS interfaces and
the technology used by each. This section
describes the interfaces that USW has developed
and shall provide RESELLER. Additional
technical information and details shall be
provided by USW in training sessions and
documentation, such as the "Interconnect
Mediated Access User's Guide". USW will
continue to make improvements to the electronic
interfaces as technology evolves, providing
notification to RESELLER consistent with the
provisions of this Section.
(D)2.1.2 Through its electronic gateways, USW shall
provide RESELLER nondiscriminatory access to
USW's operational support systems for
pre-ordering, ordering and provisioning,
maintenance and repair, and billing for resale.
For the pre-ordering, ordering and provisioning
of resold services, USW shall provide RESELLER
access to its OSS in substantially the same
time and manner as it provides to itself.
(D)2.2 OSS Support for Pre-Ordering, Ordering and Provisioning
(D)2.2.1 LSR (Local Service Request) Ordering Process
(D)2.2.1.1 RESELLER shall use electronic
interfaces for orders placed using
the LSR Ordering Process for the
services it supports. The electronic
interface gateways include both the
Electronic Data Interchange (EDI)
interface and the Interconnect
Mediated Access (IMA) Graphical User
Interface (GUI).
(D)2.2.1.2 The EDI interface provides a single
interface for Pre-Order and Order
transactions from RESELLER to USW
and is transaction based rather than
batch based. The interface standards
for EDI are based upon the Order &
Billing Forum (OBF) Local Service
Order Guidelines (LSOG), the
Telecommunication Industry Forum
(TCIF) Customer Service Guideline
and the American National Standards
Institute/Accredited Standards
Committee (ANSI ASC) X12 with
exceptions as specified in the IMA
and EDI disclosure documents which
are provided in
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Part D
Miscellaneous Provisions
conjunction with the implementation
responsibilities contained in this
Section.
(D)2.2.1.3 The IMA GUI also provides a single
interface for Pre-Order and Order
transactions from RESELLER to USW
and is browser based The IMA GUI
interface is based on the LSOG and
utilizes a WEB standard technology,
Hyper Text Markup Language (HTML),
JAVA, and the Transmission Control
Protocol/Internet Protocol (TCP/IP)
to transmit messages.
(D)2.2.1.4 Functions
(D)2.2.1.4.1 Pre-ordering
Pre-Ordering refers to the set of
activities performed in conjunction
with placing an order. Pre-order
consists of the following functions:
validate address, service
availability, review Customer
Service Record (CSR), check facility
availability, reserve telephone
numbers, and schedule an
appointment. The electronic
interface gateways provide on-line
capabilities to perform these
functions. Not all functions apply
to all products.
(D)2.2.1.4.1.1 Validate address will
verify the end user's
address.
(D)2.2.1.1.4.1.2 Service
Availability will return
the list of (1) POTS
products and services
available in the Central
Office switch serving a
particular end user
address, which will
indicate to RESELLER,
among other things, which
products and services are
authorized for resale in
the Central Office switch
serving a particular end
user address and (2)
non-switched-based
products and services
that RESELLER is
authorized to provide
according to its resale
agreement with USW.
(D)2.2.1.1.4.1.3 Review Customer
Service Record (CSR)
gives RESELLER the
ability to request a
display of local exchange
services and
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Part D
Miscellaneous Provisions
features (CPNI) USW is currently
providing to an end user.
(D)2.2.1.4.1.4 Check Facility
Availability will provide
an indication of whether
existing facilities are
available or if new
facilities are required,
and if a technician must
be dispatched to provide
the facilities requested
at the end user's
address. This transaction
does not reserve
facilities and does not
guarantee that facilities
will or will not be
available when the order
is submitted.
(D)2.2.1.4.1.5 Reserve Telephone
Numbers provides RESELLER
with the ability to
select an end user's
telephone number. The
reservation process is
further divided into
telephone number
availability, selection,
exchange and return
functionality. Expiration
period for selection and
submission of Telephone
Number are:
- A period up to thirty
(30) minutes in which to
make a telephone number
selection. If this time
limit is exceeded, and no
attempt has been made to
select the telephone
numbers, the telephone
numbers are sent back to
the OSS and an error
message is displayed on
the LSR. A new query will
need to be performed for
available telephone
numbers.
- When a telephone number
has been reserved, there
is a twenty-four (24)
hour business period that
the telephone number may
be included on an LSR. If
the time limit is
exceeded, the telephone
number is returned to the
OSS.
(D)2.2.1.4.1.6 Schedule Appointment
allows RESELLER to
retrieve a calendar of
available appointments
and to reserve an
appointment date and time
so that a technician can
be dispatched for
premises and/or
non-premises work.
(D)2.2.1.4.1.7 Expiration period for
selection and submission
of Appointment
Reservation are:
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Part D
Miscellaneous Provisions
- A selection must be made
within a thirty (30)
minute period. If an
appointment has been
selected and the time
limit was exceeded, an
error message will
display. If the error
message displays, an
updated list of available
appointments will need to
be requested. If an
appointment has already
been reserved for this
Purchase Order Number,
the Appointment
Confirmation window will
be displayed and will be
pre-populated with
confirmation number,
appointment date and
time, and after and
before times.
- Appointments are reserved
for a 24-hour business
period. If the
appointment is not
attached to a submitted
order within 24 business
hours, the appointment is
returned. When the
appointment is
successfully reserved,
confirmation of the
appointment will be
displayed to RESELLER.
(D)2.2.1.4.2 Ordering and Provisioning
Submitting an LSR will
result in the
provisioning and
installation, if
necessary, of an end
user's service. The
functional set
associated with ordering
is: Create New LSR, Open
LSR, Query LSR Status and
FOC Return.
(D)2.2.1.4.2.1 Create New LSR allows entry
of information
specific to the LSR,
including required OBF
forms, validates
information and
submits the LSR for
processing.
(D)2.2.1.4.2.2 Open LSR allows RESELLER to
save LSRs it is not
ready to submit for
processing as a
pending status. When
an LSR is saved as
pending, all the data
in all the forms
associated with the
LSR is saved. This
feature permits
RESELLER to access,
edit, submit, re-save,
and purge pending
LSRs. In addition, for
issued
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Part D
Miscellaneous Provisions
LSRs, RESELLER can issue
supplemental LSRs and cancellations.
(D)2.2.1.4.2.3 Query LSR Status allows RESELLER
to obtain the status of the LSR.
Status is provided to RESELLER
upon inquiry. Order status functions
include the following: Submitted, In
Review, Issued, Rejected, Erred,
Completed and Jeopardy.
(D)2.2.1.4.2.4 FOC Return returns a Firm Order
Confirmation to RESELLER. The FOC
confirms that USW has received a SR,
issued an order, and assigned an
order number for tracking.
(D)2.2.1.5 Forecast of Usage
(D)2.2.1.5.1 RESELLER shall supply USW with a
forecast of products and volumes
they anticipate ordering through
the electronic interface gateways
on a quarterly basis.
(D)2.2.1.5.2 USW will use RESELLER's forecast
to provide RESELLER sufficient
capacity to provide the services
and elements requested. If
RESELLER exceeds its capacity
without notification, to the
extent that it causes degradation
to other users' response times,
RESELLER's use of its capacity on
the IMA or EDI server may be
discontinued until a resolution
can be mutually agreed to by both
Parties. USW will attempt to
notify RESELLER before
discontinuing RESELLER's use of
the IMA or EDI server; however USW
reserves the right to discontinue
use if it is unable to contact
RESELLER.
(D)2.2.1.5.3 When RESELLER requests more than
twenty (20) Secure IDs from USW
RESELLER shall use a T1 line
instead of dial-up capabilities.
(D)2.2.1.6. Access Service Request (ASR) Ordering Process
(D)2.2.1.6.1 The Exchange Access Control and
Tracking (EXACT) system may be
used for orders placed
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using the ASR process. EXACT is
based upon the OBF Access Service
Order Guidelines (ASOG). The EXACT
interface accepts a batch file
that is transmitted via a Network
Data Mover (NDM) connection to USW
from RESELLER. It is RESELLER's
responsibility to obtain the
appropriate software to interface
with USW's EXACT system.
(D)2.2.1.7 Facility Based EDI Listing Process
(D)2.2.1.7.1 The Facility Based EDI Listing
Process is a single interface from
RESELLER to USW. This interface is
based upon the OBF LSOG and ANSI
ASC X12 standards, version 4010.
This interface enables RESELLER
listing data to be translated and
passed into the USW listing
database. After USW's daily batch
processing, a Confirmation/
Completion record (for every PON
provided on input) is returned to
RESELLER via an EDI 855
transaction.
(D)2.2.2 Maintenance and Repair
(D)2.2.2.1 Maintenance and Repair electronic
interfaces support the tracking and
resolution of end users' repair and
maintenance needs as reported to
RESELLER. They facilitate the
exchange of updated information and
progress reports between USW and
RESELLER while the Trouble Report
(TR) is open and a USW technician is
working on the resolution.
(D)2.2.2.2 RESELLER shall use the electronic
interface gateways for reporting
trouble. The electronic interface
gateways are comprised of either the
Mediated Access System Electronic
Bonding (MEDIACC EB) interface or
the IMA GUI interface.
(D)2.2.2.3 The MEDIACC Electronic Bonding (EB)
interface uses CMIP protocol over
X.25 packet switching network using
ANS T1M1.5 227/228 standards.
(D)2.2.2.4 The IMA GUI also provides a single
interface for trouble reporting from
RESELLER to USW and is browser
based. The IMA GUI interface uses a
Berkley Socket interface using ANSI
T1M1.5 227/228 standards. The IMA
GUI uses JAVA as the standard. The
IMA GUI
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Interface currently supports trouble reporting
for resale services.
(D)2.2.2.5 Functions
(D)2.2.2.5.1 Maintenance and Repair - The
functions, processes and systems
used in repair are based on a
Trouble Report (TR), which is an
electronic document maintained in
one or more OSS. A TR contains
information about the end user,the
trouble, the status of the work on
the trouble and the results of the
investigation and resolution
efforts. These business processes
will be made available to RESELLER
in the following functional set:
open a trouble report, modify a
trouble report, notification of
status change, view trouble report
status, cancel a trouble report,
receive a trouble report history,
resubmit/delete an erred trouble
report and close a trouble report.
(D) 2.2.2.5.1.1 Open Trouble Report is the
mechanism that captures information
needed to resolve the trouble. Once
a TR has been opened, if RESELLER is
using MEDIACC EB, USW sends an
electronic transaction to RESELLER
identifying information about the TR
(e.g., commitment date and tracking
number).
(D)2.2.2.5.1.2 In IMA for POTS, and in EBTA for
POTS and designed services, Modify
Trouble Report allows RESELLER to
modify the trouble severity (for
example; change from "service
affecting" to "out of service") and
trouble narrative on a TR until it
has been cleared.
(D)2.2.2.5.1.3 Status Change Notification
provides notification to RESELLER
that the status of a previously
opened TR has changed. If RESELLER
is using MEDIACC EB, RESELLER will
receive this notification via an
electronic transaction. If RESELLER
is using the IMA GUI INTERFACE,
RESELLER will receive this
notification via email and/or fax.
(D)2.2.2.5.1.4 View Trouble Report Status/
Trouble Report Status Request allows
RESELLER to
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view the status of an opened Trouble
Report. If RESELLER is using MEDIACC
EB, USW sends an electronic
transaction to RESELLER with the
status of an opened TR after
RESELLER sends an electronic
transaction to request the status.
(D)2.2.2.5.1.5 Cancel Trouble Report allows
RESELLER to request cancellation of
a previously opened TR. Once a
request to cancel is received, an
orderly cessation of the trouble
resolution process begins. If USW
has completed any work before the
trouble resolution process is
stopped, charges to RESELLER may
apply.
(D)2.2.2.5.1.6 Trouble Report History provides
RESELLER with historical information
on up to the last three trouble
reports. For POTS resale, the
disposition and trouble report date
and time are provided. For design
services resale, the trouble report
date and time, a text description of
the disposition, the USW Trouble
Report Number, and the trouble type
are provided. IMA provides trouble
report history.
(D)2.2.2.5.1.7 Resubmit/Delete allows trouble
reports to be resubmitted or deleted
via IMA GUI if, prior to entering
USW's OSS, the transaction fails or
errors. This transaction is only
valid if the TR has not entered
USW's OSS. This transaction is
currently only available via IMA
GUI.
(D)2.2.5.1.8 Close a Trouble Report for resale,
allows USW to close the TR once work
is complete. For design resale
services, USW sends RESELLER a
request for verification to close.
RESELLER then authorizes or denies
the closure. RESELLER has
twenty-four (24) hours to respond.
If a response is not received within
that time frame, the TR will
automatically be closed. USW
provides notification to RESELLER
that a TR has been closed because
the trouble was resolved. Additional
information, (e.g., disposition,
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disposition description, outage
duration, maintenance of service,
charge indicator) is also included.
If RESELLER is using EB, RESELLER
will receive this response via an
electronic transaction. If RESELLER
is using the IMA GUI lnterface,
RESELLER will receive this response
via email and/or fax.
(D)2.2.2.5.1.9 MLT test results give RESELLER
the ability to request a loop test
for POTS service via EBTA. When
RESELLER submits a TR through IMA,
the technician handling the TR will
order a MLT test in appropriate
situations.
(D)2.3 Hours of Operation
USW's electronic interface gateways will be available to Resellers
according to the following schedule:
<TABLE>
<CAPTION>
- --------------------------------------- ------------------------ --------------------- -----------------------
Function Monday - Friday Saturday Sunday
- --------------------------------------- ------------------------ --------------------- -----------------------
<S> <C> <C> <C>
IMA Pre-Order & Order 06:00 - 20:00
- --------------------------------------- ------------------------ --------------------- -----------------------
Exact Order 06:00 - 19:00 07:00 - 17:00
- --------------------------------------- ------------------------ --------------------- -----------------------
Repair 02:15 - 23:15 07:00 - 21:00 13:00 - 17:00
- --------------------------------------- ------------------------ --------------------- -----------------------
</TABLE>
USW shall notify Resellers regarding system downtime through mass
facsimile distribution and pop-up windows in the IMA GUI. All
referenced times are Mountain Time.
The preceding times represent the period when USW commits that its
OSS interfaces and downstream systems will be functioning (except
for unforeseen system crashes) and its personnel will be available
to assist RESELLER. USW's OSS interfaces are typically available 23
hours a day. RESELLER may call any maintenance and repair issues to
the applicable repair center 24 hours per day, seven days per week.
USW shall provide RESELLER current repair contact numbers.
(D)2.4 Billing
(D)2.4.1 For products billed out of the USW Interexchange Access
Billing System (IABS), USW will utilize the existing
CABS/BOS format and technology for the transmission of
bills.
(D)2.4.2 For products billed out of the USW Customer Record
Information System (CRIS), USW will utilize the existing
EDI standard for the transmission of monthly local billing
information. EDI is an established standard under the
auspices of the American National Standards
Institute/Accredited Standards Committee (ANSI/ASC) X12
Committee. A proper subset of this specification has been
adopted
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by the Telecommunications Industry Forum (TCIF) as the
"811 Guidelines" specifically for the purposes of
telecommunications billing.
(D)2.5 Outputs
Output information will be provided to RESELLER in the form of bills,
files, and reports. Bills will capture all regular monthly and
incremental/usage charges and present them in a summarized format.
The files and reports delivered to RESELLER provide more detailed
information than the bills. They come in the following categories:
<TABLE>
<S> <C>
- --------------------------------------------------------------------------------------------------
Usage Record File Line Usage Information
- ----------------------------------------------------------------------------------------------------
Loss and Completion Order Information
- ----------------------------------------------------------------------------------------------------
Category 11 Facility Based Line Usage Information
- ----------------------------------------------------------------------------------------------------
SAG/FAM Street Address/Facility Availability Information
- --------------------------------------------------------------------------------------------------
</TABLE>
(D)2.5.1 Bills
(D)2.5.1.1 CRIS Summary Bill - The CRIS (Customer Record
Information System) Summary Bill represents a
monthly summary of charges for most wholesale
products sold by USW. This bill includes a
total of all charges by entity plus a summary
of current charges and adjustments on each
sub-account. Individual sub-accounts are
provided as billing detail and contain monthly,
one time charges and incremental/call detail
information. The Summary provides one bill and
one payment document for RESELLER. These bills
are segmented by state and bill cycle. The
number of bills received by RESELLER is
dictated by the product ordered and the USW
region in which RESELLER is operating.
(D)2.5.1.2 IABS Bill - The IABS (Interexchange Access
Billing System) Bill represents a monthly
summary of charges. This bill includes monthly
and one time charges plus a summary of any
usage charges. These bills are segmented by
product, LATA, billing account number (BAN) and
bill cycle.
(D)2.5.2 Files and Reports
(D)2.5.2.1 Daily Usage Record File provides the
accumulated set of call information for a given
day as captured, or "recorded" by the network
switches. This file will be transmitted Monday
through Friday, excluding USW
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holidays. This information is a file of
un-rated USW originated usage messages and
rated RESELLER originated usage messages. It is
provided in Alliance for Telecommunication
Industry Solution (ATIS) standard Electronic
Message Interface (EMI) format. This EMI format
is outlined in the document SR-320; which can
be obtained directly from ATIS. The Daily Usage
Record File contains multi-state data for the
Data Processing Center generating this
information. Individual state identification
information is contained with the message
detail. USW will provide this data to RESELLER
with the same level of precision and accuracy
it provides itself. This file will be provided
for Resale services.
(D)2.5.2.2 The charge for this Daily Usage Record File is
contained in Part E of this Agreement.
(D)2.5.2.3 Routing of in-region IntraLATA Collect, Calling
Card, and Third Number Billed Messages - USW
will distribute in-region intraLATA collect,
calling card, and third number billed messages
to RESELLER and exchange with other
Co-Providers operating in region in a manner
consistent with existing inter-company
processing agreements. Whenever the daily usage
information is transmitted to a carrier, it
will contain these records for these types of
calls as well.
(D)2.5.2.4 Loss Report provides RESELLER with a daily
report that contains a list of accounts that
have had lines and/or services disconnected.
This may indicate that the end user has changed
Resellers or removed services from an existing
account. This report also details the order
number, service name and address, and date this
change was made. Individual reports will be
provided for resale services.:
(D)2.5.2.5 Completion Report provides RESELLER with a
daily report. This report is used to advise
RESELLER that the order(s) for the service(s)
requested is complete. It details the order
number, service name and address and date this
change was completed. Individual reports will
be provided for resale services.:
This report media is described in Exhibit C.
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(D)2.5.2.6 Category 11 Records are Exchange Message
Records (EMR) which provide mechanized record
formats that can be used to exchange access
usage information between USW and RESELLER.
Category 1101 series records are used to
exchange detailed access usage information.
(D)2.5.2.7 Category 1150 series records are used to
exchange summarized Meet Point Billed access
minutes-of-use.
These mechanized records are available from
USW in the following formats:
NDM (direct connect or dial-up)
Comet
Tape
Cartridge
(D)2.5.2.8 SAG/FAM Files - The SAG (Street Address Guide)/
FAM (Facility Availability Matrix) files
contain the following information:
SAG provides: - Address and Serving Central
Office Information.
FAM provides USOCs and descriptions by state -
(POTS services only). USOC availability by
NPA-NXX (with the exception of Centrex).
interLATA/intraLATA carriers by NPA-NXX.
These files are made available via a download
process. They can be retrieved by ftp (file
transfer protocol), NDM (Network Data Mover)
connectivity, or a Web browser.
(D)2.6 Modifications to OSS Interfaces
(D)2.6.1 RESELLER and USW agree to discuss the modification of OSS
interfaces based upon evolving standards (e.g., data
elements, protocols, transport networks, etc.) and
guidelines issued by or referenced by relevant Alliance
for Telecommunication Industry Solution (ATIS)
committees. Establishment of new, or changes to industry
standards and guidelines will be reviewed semi-annually.
The review will consider standards and guidelines that
have reached final closure as well as those published in
final form. Both Parties agree to evaluate evolving
standards and determine the relevant modification to be
implemented based upon the latest approved version adopted
or the latest version reflecting final closure by the
relevant ATIS committee or subcommittee. As a result of
the review, USW shall draft appropriate
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interface specifications that shall be made available to
RESELLER through the electronic gateway disclosure
document. Changes shall be implemented in the next release
after the distribution of the electronic gateway
disclosure document to the Resellers.
(D)2.6.2 In the course of establishing operational ready system
interfaces between USW and RESELLER to support local
service delivery, RESELLER and USW may need to define and
implement system interface specifications that are
supplemental to existing standards. RESELLER and USW will
submit such specifications to the appropriate standards
committee and will work towards their acceptance as a
standard.
(D)2.6.3 Release updates will be based on regulatory obligations as
dictated by the FCC or Commissions and, as time permits,
business requirements. USW will provide to RESELLER the
features list for modifications to the interface.
Specifications for interface modifications will be
provided to RESELLER three (3) weeks prior to the release
date. RESELLER is required to upgrade to the current
release within six (6) months of the installation date.
(D)2.7 Reseller Responsibilities for Implementation of OSS Interfaces
(D)2.7.1 Before any RESELLER implementation can begin, RESELLER
must completely and accurately answer the New Customer
Questionnaire. This questionnaire is provided by the USW
account manager and details information needed by USW in
order to establish service for RESELLER.
(D)2.7.2 Once USW receives a complete and accurate New Customer
Questionnaire, USW and RESELLER will mutually agree upon
time frames for RESELLER implementation.
(D)2.7.3 If using the EDI interfaces, USW will provide RESELLER
with a copy of the Production Readiness Verification
document. RESELLER is obligated to meet the requirements
specified in the Production Readiness Verification
document regardless of whether RESELLER chooses to
participate in the Production Readiness Verification Test.
(D)2.8 Reseller Responsibilities for On-going Support for OSS Interfaces
(D)2.8.1 If using the IMA GUI interface, RESELLER must work with
USW to train RESELLER personnel on the IMA GUI functions
that RESELLER will be using. USW and RESELLER shall concur
on which IMA GUI functions should be included in
RESELLER's training. USW and
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RESELLER shall make reasonable efforts to schedule
training in a timely fashion.
(D)2.8.2 An exchange protocol will be used to transport EDI
formatted content. RESELLER must perform certification
testing of exchange protocol prior to using EDI.
(D)2.8.3 If RESELLER is using EDI, USW shall provide RESELLER with
a pre-allotted amount of time to complete certification of
its business scenarios. It is the sole responsibility of
RESELLER to schedule an appointment with USW for
certification of its business scenarios. RESELLER must
comply with the agreed upon dates and times scheduled for
the certification of its business scenarios. If the
certification of business scenarios is delayed due to
RESELLER, it is the sole responsibility of RESELLER to
schedule new appointments for certification of its
business scenarios. Conflicts in the schedule could result
in certification being delayed. If a delay is due to USW,
USW will honor RESELLER's schedule through the use of
alternative hours.
(D)2.8.4 If RESELLER is using the EDI interface, RESELLER must work
with USW to certify the business scenarios that RESELLER
will be using in order to ensure successful transaction
processing. USW and RESELLER shall mutually agree to the
business scenarios for which RESELLER is required to be
certified. Certification is granted only for a specific
release of EDI. New releases of EDI may require
re-certification of some or all business scenarios. A
determination as to the need for re-certification will be
made by the USW Coordinator in conjunction with the
release manager of each EDI release. Notice of the need
for re-certification will be provided to RESELLER three
(3) weeks prior to the release date.
(D)2.8.5 In the event of Electronic Interface trouble, RESELLER
shall use its best efforts to isolate and resolve the
trouble using the guidelines provided in the Production
Readiness Verification document. If RESELLER cannot
resolve the problem, then RESELLER should contact the LSP
Systems Help Desk. The LSP Systems Help Desk is RESELLER's
Single Point of Contact for electronic interface trouble.
(D)2.9 Reseller Support
(D)2.9.1 USW shall provide adequate assistance to RESELLER for
RESELLER to understand how to implement and use the OSS
functions for which USW provides access. This assistance
will include training, documentation, and a LSP Help Desk.
The LSP Help Desk will provide a single point of entry for
RESELLER to gain
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assistance in areas involving connectivity, system
availability, and file outputs. The LSP Systems Help Desk
is available Monday through Friday, 6:00 a.m. until 8:00
p.m. Mountain Time, excluding USW holidays. The Help Desk
areas are further described below..
(D)2.9.1.1 Connectivity covers trouble with RESELLER's
access to the USW system for hardware
configuration requirements with relevance to
EDI and IMA GUI; software configuration
requirements with relevance to EDI and IMA GUI;
modem configuration requirements; T1
configuration and dial in string requirements;
firewall access configuration; Secure ID
configuration; Profile Setup and password
verification.
(D)2.9.1.2 System availability covers system errors
generated during an attempt by RESELLER to
place orders or open trouble reports through
EDI and IMA GUI. These system errors are
limited to: POTS; Design Services and Repair.
(D)2.9.1.3 File Outputs covers RESELLER's output files and
reports produced from its usage and order
activity. File outputs system errors are
limited to: Daily Usage File; Loss / Completion
File; IABS Bill; CRIS Summary Bill; Category 11
Report and SAG/FAM Reports.
(D)2.9.2 Additional assistance to Resellers is available through
various web sites. These web sites provide electronic
interface training information and user documentation and
technical specifications.
(D)2.10 Compensation/ Cost Recovery
On-going and one-time startup charges, as applicable, will be billed
at rates to be specified by the Commission at the completion of an
appropriate cost docket hearing. USW shall establish rates for any
systems charges not included in appropriate cost docket hearings.
(D)3. U S WEST DEX
USW and RESELLER agree that certain issues outside the provision of
basic white page directory listings, such as yellow pages
advertising, yellow pages listings, directory coverage, directory
distribution, access to call guide pages (phone service pages),
applicable listings criteria, white page enhancements and publication
schedules will be the subject of negotiations between RESELLER and
directory publishers, including U S WEST Dex. USW acknowledges that
RESELLER may request USW to facilitate discussions between RESELLER
and U S WEST Dex.
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(D)4. NOTICE OF CHANGES
Notice should be written and provide pertinent descriptive
information of such changes, within the limitations of
confidentiality and disclosure, such that the other Party can
evaluate potential effects. Also included with the written notice
should be contact names and phone numbers for subsequent discussions.
This represents good faith effort on the part of the Parties and will
evolve over time as required for the effective provision of resale
services and end user service delivery.
(D)5. MAINTENANCE AND REPAIR
(D)5.1 Service Levels
(D)5.1.1 USW will provide repair and maintenance for all
services covered by this Agreement in a manner
equal to that which USW provides for itself.
(D)5.1.2 During the term of this Agreement, USW will
provide necessary maintenance business process
support to allow RESELLER to provide similar
service quality to that provided by USW to its
end users.
(D)5.1.3 USW will perform repair service that is equal
in timeliness and quality to that which it
provides to its own end users.
(D)5.2 Branding
(D)5.2.1 Should USW need to use various forms for
communication with RESELLER end users (while
out on premises dispatch on behalf of RESELLER,
for example), USW will use unbranded forms.
(D)5.2.2 If required by RESELLER, USW will use branded
forms provided at RESELLER's full expense,
covering training costs, storage, printing,
distribution and all other branding-related
costs.
(D)5.3 Service interruptions
(D)5.3.1 The characteristics and methods of operation of
any circuits, facilities or equipment of either
Party connected with the services, facilities
or equipment of the other Party pursuant to
this Agreement shall not: 1) interfere with or
impair service over any facilities of the other
Party; its affiliated companies, or its
connecting and concurring carriers involved in
providing its services; 2) cause damage to
their plant; 3) violate any applicable law or
regulation regarding the invasion of privacy of
any communications carried over the Party's
facilities; or 4) create hazards to the
employees of either Party or to the public.
Each of these requirements is hereinafter
referred to as an "Impairment of Service".
(D)5.3.2 If it is confirmed that either Party is causing
an Impairment of Service, as set forth in this
Section, the Party whose network or service is
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being impaired (the "Impaired Party") shall
promptly notify the Party causing the
Impairment of Service (the "Impairing Party")
of the nature and location of the problem. The
Impaired Party shall advise the Impairing Party
that, unless promptly rectified, a temporary
discontinuance of the use of any circuit,
facility or equipment may be required. The
Impairing Party and the Impaired Party agree to
work together to attempt to promptly resolve
the Impairment of Service. If the Impairing
Party is unable to promptly remedy the
Impairment of Service, the Impaired Party may
temporarily discontinue use of the affected
circuit, facility or equipment.
(D)5.3.3 To facilitate trouble reporting and to
coordinate the repair of the service provided
by each Party to the other under this
Agreement, each Party shall designate a repair
center for such service.
(D)5.3.4 Each Party shall furnish a trouble reporting
telephone number for the designated repair
center. This number shall give access to the
location where records are normally located and
where current status reports on any trouble
reports are readily available. If necessary,
alternative out-of-hours procedures shall be
established to ensure access to a location that
is staffed and has the authority to initiate
corrective action.
(D)5.3.5 Before either Party reports a trouble
condition, it shall use its best efforts to
isolate the trouble to the other's facilities
(D)5.3.5.1 In cases where a trouble condition
affects a significant portion of the
other's service, the Parties shall
assign the same priority provided to
other Resellers and to itself.
(D)5.3.5.2 The Parties shall cooperate in
isolating trouble conditions.
(D)5.4 Trouble Isolation
(D)5.4.1 According to applicable state Tariffs, USW will
bill appropriate Trouble Isolation Charges for
dispatched work done by USW where the trouble
is found to be on the end user's side of the
NID or trouble is found to be in RESELLER's
portion of the network.
(D)5.4.2 Other Trouble Isolation Charges may also be
imposed by USW on RESELLER for other internal
repair work incurred on behalf of RESELLER and
later found to be in RESELLER network
components.
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(D)5.5 Inside Wire Maintenance
Except where specifically required by state or federal
regulatory mandates, USW will not perform any maintenance
of inside wire (premises wiring beyond the end user's NID)
for RESELLER or its end users.
(D)5.6 Testing/Test Requests/Coordinated Testing
(D)5.6.1 USW will make the decision to test an end
user's line or circuit. The test systems used
by USW are finite, and their capacity has been
designed according to USW's operating
standards.
(D)5.6.2 Although some types of trouble reports
typically will not require a test, USW usually
runs certain standard tests on each line on
which trouble has been reported.
(D)5.6.3 Prior to any test being conducted on a line,
USW must receive a trouble report from
RESELLER.
(D)5.6.4 USW end users are not given test results. On
manually-reported trouble USW will not provide
to RESELLER the test results for its trouble
reports. For electronically-reported trouble,
RESELLER may see various basic test results.
(D)5.7 Workcenter Interfaces
(D)5.7.1 USW and RESELLER shall work cooperatively to
develop positive, close working relationships
among corresponding work centers involved in
the trouble resolution processes..
(D)5.8 Misdirected Repair Calls
(D)5.8.1 RESELLER shall inform its own end users where
to report their trouble conditions. Persons
placing a misdirected repair call will be
advised to call their own telephone service
provider and will be provided the correct
telephone number for that purpose (this
referral may occur within a voice response
system or other interactive systems).
(D)5.8.2 RESELLER and USW will employ the following
procedures for handling misdirected repair
calls;
(D)5.8.2.1 RESELLER and USW will provide their
respective end users with the
correct telephone numbers to call
for access to their respective
repair bureaus.
(D)5.8.2.2 End users of RESELLER shall be
instructed to report all cases of
trouble to RESELLER. End users of
USW shall be instructed to report
all cases of trouble to USW.
(D)5.8.2.3 To the extent the correct provider
can be determined, misdirected
repair calls will be referred to the
proper
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provider of Basic Exchange
Telecommunications Service.
(D)5.8.2.4 RESELLER and USW will provide their
respective repair contact numbers to
one another on a reciprocal basis.
(D)5.8.2.5 In responding to repair calls,
neither Party shall make disparaging
remarks about each other, nor shall
they use these repair calls as the
basis for internal referrals or to
solicit end users to market
services.
(D)5.8.2.6 Performance targets for speed of
repair call answering will be the
same as USW's performance targets
for its own end users.
(D)5.9 Major Outages/Restoral/Notification
(D)5.9.1 USW will notify RESELLER of major network
outages as soon as is practical. This
notification will be via e-mail to RESELLER's
identified contact. With the minor exception of
certain proprietary information, USW will
utilize the same thresholds and processes for
external notification as it does for internal
purposes. This major outage information will be
sent via E-mail on the same frequency schedule
as is provided internally within USW. Service
restoration will be non-discriminatory, and
will be accomplished as quickly as possible
according to USW and/or industry standards.
(D)5.9.2 If desired, USW will meet with associated
personnel from RESELLER to share contact
information and review USW's outage restoral
processes and notification processes.
(D)5.9.3 USW's emergency restoration process operates on
a 7X24 basis.
(D)5.10 Proactive Maintenance
(D)5.10.1 USW will perform scheduled maintenance equal in
quality to what it provides to itself.
(D)5.10.2 USW will work cooperatively with RESELLER to
develop industry-wide processes to provide as
much notice as possible to RESELLER of pending
maintenance activity. Such process work will
include establishment of reasonable thresholds
and notification standards.
(D)5.11 Hours of Coverage
(D)5.11.1 USW`s repair operation is 7 days a week, 24
hours a day. Not all functions or locations are
covered with scheduled employees on a 7X24
basis. Where such 7X24 coverage is not
available USW's repair operations center
(always available 7X24) can call-out
technicians or other personnel required for the
situation.
Page 50
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Part D
Miscellaneous Provisions
(D)5.12 Escalations
(D)5.12.1 USW will provide trouble escalation procedures
to RESELLER. Such procedures will be based on
the processes USW employs for its own end
users. USW escalations are manual processes.
(D)5.12.2 USW repair escalations begin with calls to the
up-front trouble reporting centers.
(D)5.13 Dispatch
(D)5.13.1 USW will provide maintenance dispatch personnel
on the same schedule provided for its end
users.
(D)5.13.2 Upon receipt of a trouble report from RESELLER,
USW will do all that is reasonable and
practical, according to internal and industry
standards, to resolve the repair condition. USW
will dispatch repair personnel, if necessary,
to repair the condition. It will be USW's
decision whether it is necessary to send a
technician on a dispatch. USW will make this
dispatch decision based on the best information
available in the trouble resolution process.
Since it is not always necessary to dispatch to
resolve trouble; should RESELLER require a
dispatch when USW believes the dispatch is not
necessary, appropriate charges may be billed to
RESELLER for dispatch-related costs.
(D)5.13.3 For non-designed resale services USW will not
request authorization from RESELLER prior to
dispatch. For lines supported by USW's designed
services process, USW may accept RESELLER
authorization to dispatch. USW's operational
processes are regularly reviewed and may be
altered in the future. Should processes be
changed, RESELLER will be notified.
(D)5.13.4 USW expects that RESELLER will have performed
appropriate trouble isolation and screening
prior to handing the trouble report off to USW.
(D)5.14 Electronic Reporting
(D)5.14.1 USW will accept repair reports from RESELLER
through a mechanized system (IMA).
(D)5.14.2 USW will work cooperatively to develop repair
reporting via electronic bonding (other than
IMA), based on national standards.
(D)5.15 Intervals
(D)5.15.1 Similar trouble conditions, whether reported by
USW end users or on behalf of RESELLER end
users, will receive similar commitment
intervals.
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Part D
Miscellaneous Provisions
(D)5.16 Jeopardy Management
(D)5.16.1 Notification will be given as soon as USW is
aware that a trouble report interval is likely
to be missed. This process will be the same as
that used by USW for its own end users.
(D)5.17 Trouble Screening
(D)5.17.1 RESELLER shall screen and test its end user
trouble reports completely enough to insure
that it sends USW only trouble reports that
involve USW facilities.
(D)5.17.2 If desired, USW will cooperate with RESELLER to
show RESELLER how USW screens trouble
conditions in its own centers, so that RESELLER
may employ similar techniques in its centers.
(D)5.18 Maintenance Standards
(D)5.18.1 USW will cooperate with RESELLER to meet the
maintenance standards outlined in this
Agreement.
(D)5.18.2 For manually-reported trouble, USW will inform
RESELLER of repair completion as soon as
practical after completion. On electronically
reported trouble reports the electronic system
will automatically update status information,
including trouble completion, across the joint
electronic gateway.
(D)5.19 End User Interfaces
(D)5.19.1 RESELLER will be responsible for all
interactions with its end users including
service call handling and notifying end users
of trouble status and resolution.
(D)5.19.2 All USW employees who perform repair service
for RESELLER end users will be trained in
non-discriminatory behavior.
(D)5.20 Repair Call Handling
(D)5.20.1 Manually-reported repair calls by RESELLER to
USW will be answered with the same quality and
speed USW answers calls from its own end users.
(D)5.21 Single Point of Contact
(D)5.21.1 USW will provide a single point of contact for
RESELLER to report maintenance issues and
trouble reports via electronic interfaces seven
days a week, twenty-four hours a day.
(D)5.21.2 For manually-reported trouble reports, a single
7X24 trouble reporting telephone number will be
provided to RESELLER for each category of
trouble situation encountered.
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Part D
Miscellaneous Provisions
(D)5.22 Maintenance Windows
(D)5.22.1 Generally, USW performs major switch
maintenance activities during off-hours time
periods, during certain "maintenance windows"
in the early morning hours and/or on weekends.
(D)5.22.2 Generally, the maintenance window is from 10:00
PM to 6:00 AM Monday through Friday and from
10:00 PM Saturday to 6:00 AM Monday.
(D)5.22.3 Although USW attempts to perform major switch
maintenance at these times, on some occasions
this will not be possible.
(D)6. SERVICE PERFORMANCE
(D)6.1 General Provisions
(D)6.1.1 USW will provide reports of service indicators
that will assist in an evaluation of the
service provided to RESELLER.
(D)6.1.2 In no instance shall this Agreement be
construed to require USW to provide superior
levels of service to RESELLER in comparison to
the level of service USW provides to itself or
its own end users.
(D)6.1.3 As further specified in this Section, USW will
provide results for the list of performance
indicators identified for the following
Standard Service Groupings: Resold Residential
Plain Old Telephone Service (POTS); Resold
Business POTS; Resold ISDN; Resold Centrex
service; Resold PBX trunks, Resold Direct
Inward Dialing (DID) and Resold Digital
Switched Service (DSS); Resold DS-0, Resold
DS-1, Resold DS-3.
(D)6.1.4 As specified in this Section, USW will provide
results for the following types of Orders:
C = Change in existing service or billing
number
D = total disconnect of service
F = From the outward service associated with
a transfer (To or "T") of service from
one address to another
N = New connection for service
R = Record order; record change only. (For
Resale services, service migrations
without changes for non-designed services
are record orders.)
T = To or transfer of service from one
address to another
X = USW initiated internal work order
(D)6.2 Service Performance Indicators
The following Service Performance Indicators will be
provided to RESELLER when available and upon request, but
no more frequently than once per month subject to the
provisions of this Section. The requests for additional
Service
Page 53
<PAGE>
Part D
Miscellaneous Provisions
Performance Indicators during the term of this Agreement
shall be considered by USW. However, USW is not required
to provide additional Service Performance Indicators
during the term of this Agreement. Service Performance
Indicators characterized as "Core" indicators measure most
directly the service or process outcome USW provides to
RESELLER.
Performance Indicators characterized as "Diagnostic"
indicators are those that measure aspects of service
quality that support aspects measured by core indicators,
that represent sub-process outcomes, or that are otherwise
duplicative to some degree of aspects measured by "Core"
indicators.
(D)6.2.1 Core Performance Indicators
(D)6.2.1.1 Gateway Availability Indicator
GA-1 Gateway Availability - via Human-to-Computer
Interface (percent).
GA-2 Gateway Availability - via Computer-to-Computer
Interface (percent).
(D)6.2.1.2 Pre-Ordering Indicators
PO-1 Pre-Order/Order Response times
A. Appointment Scheduling (Due Date
Reservation, where appointment is
required)
B. Feature Function and Service
Availability Information
C. Facility Availability
D. Street Address Validation
E. Customer Service Records
F. Telephone Number
(D)6.2.1.3 Ordering and Provisioning Indicators
OP-1 Speed of Answer - Interconnect Provisioning Center
(average)
OP-2 Calls Answered within 20 Seconds - Interconnect
Provisioning Center (percent)
OP-3 Installation Commitments Met (percent)
OP-4 Installation Interval (average)
OP-5 Installation Trouble Reports (percent)I
OP-6 Delayed Days (average)
(D)6.2.1.4 Maintenance and Repair Indicators
MR-1 Speed of Answer - Interconnect Repair Center
(average)
MR-2 Percent Calls Answered Within 20 Seconds -
Interconnect Repair Center (percent)
MR-3 Out of Service Cleared Within 24 hours - Non-
Designed Repair Process (percent)
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Part D
Miscellaneous Provisions
MR-4 All Troubles Cleared Within 48 hours
- Non-Designed Repair Process
(percent)
MR-5 All Troubles Cleared Within 4 hours
- Designed Repair Process (percent)
MR-6 Mean Time to Restore - Non-Designed
Repair Process (average)
MR-7 Repair Repeat Report Rate (percent)
MR-8 Trouble Rate (percent)
(D)6.2.1.5 Billing Indicators
BI-1 Mean Time to Provide USW Recorded
Usage Records ((average)
BI-2 Mean Time to Deliver Invoices
(average)BI-3 Billing Accuracy
(D)6.2.1.6 Emergency Services
ES-1 ALI Database Updates Completed
Within 24 hours (percent)
ES-2 911/E911 Emergency Services Trunk
Installation Interval (average)
(D)6.2.1.7 Directory Assistance
DA-1 Speed of Answer - Directory
Assistance (average)
DA-2 Calls Answered Within Ten Seconds -
Directory Assistance (percent)
(D)6.2.1.8 Operator Services
OS-1 Speed of Answer - Operator Services
(average)
OS-2 Calls Answered Within Ten Seconds -
Operator Services (percent)
(D)6.2.2 Diagnostic Indicators
In addition to the performance indicators
identified above, USW will report the following
indicators that do not directly address
nondiscrimination but may be useful in
diagnosing problems or improving service:
(D)6.2.2.1 Pre-Order/Ordering
DPO-1 Electronic Flow - Through of Local
Service Requests (LSRs) to the
Service Order Processor (percent)
DPO-2 LSR Rejection Notice Interval
(average)
DPO-3 LSRS Rejection (percent)
DPO-4 Firm Order Confirmation (FOC)
Interval (average)
DPO-5 Pre-Order/Order Response Times for
USW Retail Transactions (average)
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Part D
Miscellaneous Provisions
DPO-6 Completion Notifications Transmitted
Within 24 hours (percent)
DPO-7 Completion Notification Interval
(average)
(D)6.2.2.2 Ordering and Provisioning
DOP-1 RESELLER or RESELLER's Customer -
Caused Installation Misses (percent)
DOP-2 Delayed Orders Completed equal to
greater than 15 days past the
Commitment Date (percent)
DOP-3 Delayed Orders Completed equal to or
greater than 90 days past the
Commitment Date (percent)
DOP-4 RESELLER or RESELLER's
Customer-Caused Coordinated Cutover
Misses (percent)
(D)6.2.2.3 Maintenance and Repair
DMR-1 RESELLER or RESELLER's
Customer-Caused Trouble Reports
(percent)
(D)6.2.2.4 Access to OSS Functions:
(GA-1) Gateway Availability -
Human-to-Computer Interface
(percent)
(GA-2) Gateway Availability
Computer-to-Computer Interface
(percent)
(PO-1) Per-Order/Order Response Times
(average)
(OP-1 and MR-1) Speed of Answer -
Provisioning and Repair Centers
(average)
(OP-2 and MR-2) Calls Answered Within 20
Seconds - Provisioning and Repair
Centers (percent)
(BI-1) Mean Time to Provide USW - Recorded
Usage Records
(BI-2) Mean Time to Deliver Invoices
(B1-3) Billing Accuracy
(D)6.2.2.5 Access to Emergency Services
(ES-1) ALI Database Updates Within 24 Hours
(percent)
(ES-1) 911/E911 ES Trunk Installation
Intervals (average)
(D)6.2.2.6 Access to Directory Assistance and
Operator Services:
(DA-1 and OP-1) Speed of Answer (average)
(DA-2 and OS-2) Calls Answered Within 10
Seconds (percent)
(D)6.2.2.7 Resale Services Ordering and
Provisioning:
(OP-3) Installation Commitments Met
(percent)
(OP-4) Installation Interval (average)
(OP-5) Installation Trouble Reports
(percent)
(OP-6) Delayed Days (average)
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Part D
Miscellaneous Provisions
(D)6.2.2.8 Resale Services Maintenance and
Repair:
(MR-3) Out of Service Cleared Within 24
Hours - Non-Designed Repair Process (percent)
(MR-4) All Troubles Cleared Within 48 Hours -
Non-Designed Repair Process (percent)
(MR-5) All Troubles Cleared Within 4 Hours -
Designed Repair Process (percent)
(MR-6) Mean Time to Restore (average)
(MR-6) Repair Repeated Report Rate (percent)
(MR-6) Trouble Rate (percent)
(D)6.3 Service Quality Performance Results Reports
(D)6.3.1 For Resale, USW will provide core service
performance results for the performance
indicators listed above for RESELLER, other
Resellers in aggregate and USW end users.
(D)6.4 Performance Results Provided to Reseller
The performance results provided to RESELLER by USW shall
be consistent with the current version of the USW Service
Performance Indicator Description (PID).
(D)6.5 The performance results provided under this Agreement are
to be used solely for the purposes set forth herein, and
shall be treated as "Proprietary Information" as provided
in Section (A)3.14 of this Agreement.
(D)6.6 Service Performance - Reported Events
(D)6.6.1 When applicable, USW will report
service-related performance results for all
"events". An "event" is the activity that
generates the measurement.
(D)6.6.2 The Parties will report RESELLER results
referenced above provided that RESELLER has
ordered and is utilizing the services reported;
(D)6.6.3 USW will provide the reports on a calendar
monthly basis. These reports will be provided
within forty-five (45) calendar days of the
close of the preceding month.
(D)6.7 Self Executing Remedies
The purpose and focus of remedies provisions under this
Resale Agreement shall be to resolve significant
differences in service quality that have been identified
through appropriate comparisons of the service performance
results reported for the core performance indicators
defined above. Self-executing remedies are those actions,
defined herein, that USW will undertake in good faith and
in cooperation with RESELLER to respond to such
differences immediately, without waiting for determination
of whether actual discrimination may exist.
(D)6.7.1 For this purpose, significant differences shall
be considered to be those that are determined
to be statistically, operationally, and
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Part D
Miscellaneous Provisions
materially significant in each of three (3) or
more consecutive months and that reflect a
probability that inferior service was
apparently provided to RESELLER, based on the
relevant comparison of performance indicator
results. Statistical significance shall be
determined as defined below. Operational and
material significance shall be established by
including for comparison only those results
that have (a) minimum sample sizes of 30 each,
and (b) a relevant comparison demonstrating a
service performance difference of a magnitude
that can be reasonably considered to have a
perceptible effect on end users or RESELLER
operations.
(D)6.7.2 Determination of the statistical significance
of any difference in appropriately comparable
results shall be based on statistical testing
for (1) differences in means (where performance
indicator results are reported as averages) or
(2) difference in proportions (where
performance indicator results are reported as
percentages), as follows:
(D)6.7.2.1 Determination of the significance of
a difference in mean values of each
monthly service performance
indicator results shall be based on
a "permutation" test using what is
commonly referred to as a "Z"
statistic and a maximum of 1,000
randomly selected permutations of
the samples. Where sample sizes
exceed 600, the "Z" test using the
"modified Z statistic" may be used
instead of the permutation test.
Where used, the modified Z statistic
will be based on the statistical
variance associated with USW's
retail performance results, where
applicable, or on the variance
associated with RESELLER aggregate
performance results, where there are
no retail performance results.
(D)6.7.2.2 The significance of a difference in
proportional measurements shall be
based on direct calculation of the
probability of the observed
difference using the binomial
distribution with a pooled P value.
(D)6.7.2.3 A difference in results by either
test type (i.e., differences in
means or differences in proportions)
will be deemed statistically
significant if the appropriate one
tailed test indicates, with 99
percent confidence, that the
performance indicator results being
compared appear to be from different
populations of performance. In other
words, that service being provided
to RESELLER
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Part D
Miscellaneous Provisions
appears to be inferior to that
represented by the comparable
results (such as, results
representing service provided to
Resellers in aggregate or to USW
retail).
(D)6.7.3 For each case in which a significant difference
as defined above has occurred, USW shall:
(D)6.7.3.1 Immediately investigate to determine
the cause(s) of the difference and,
where feasible, begin good-faith
efforts to resolve the difference;
(D)6.7.3.2 Within 45 days, provide to RESELLER
a written explanation of the result
of the investigation as to cause(s)
and, as applicable, an action plan
describing (i) what has and will be
done to resolve the difference, (ii)
what cooperative actions and
timelines on the part of RESELLER
are needed to facilitate or expedite
resolution, and (iii) listing key
milestones for use by the Parties in
tracking progress;
(D)6.7.3.3 Offer and meet with designated
RESELLER representatives monthly to
discuss progress on resolving the
difference(s);
(D)6.7.3.4 Escalate to vice president level any
significant difference that has or
is not projected to be resolved
within three months of the
difference first being identified as
significant as defined above, with
commitment at that level to direct
due diligence toward removing
obstacles and expediting resources
where feasible and necessary to
resolve the difference as soon as
possible.
(D)6.7.4 If a statistically and operationally
significant difference has occurred in the
trend results for any particular performance
indicator, the Parties shall allow three (3)
months to correct the difference in the trend
results. If the statistically, and
operationally significant difference in trend
results is corrected within the three (3) month
time, no action, formal or informal, shall be
taken by either Party with respect to that
difference.
(D)6.7.5 If the statistically and operationally
significant difference in trend results is not
corrected within the three (3) month time
frame, the Dispute Resolution provision of this
Resale Agreement shall apply.
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Part D
Miscellaneous Provisions
(D)6.8 Delaying Events
(D)6.8.1 A Party's failure to meet a requirement in this
Section of this Agreement shall not be included
when that failure is a result, directly or
indirectly, of a Delaying Event.
(D)6.8.2 A "Delaying Event" means:
(D)6.8.2.1 Failure by either Party to perform
any of its obligations set forth in
this Agreement,
(D)6.8.2.2 Any delay, act or failure to act by
an end user, agent or subcontractor
of the other Party, or
(D)6.8.2.3 Any Force Majeure Event.
(D)6.8.3 If a Delaying Event prevents either Party from
performing a measured activity, then such
measured activity shall be excluded from the
performance indicator(s).
(D)6.9 Records Retention for Service Performance Indicators
USW shall maintain complete and accurate records, for the
specified review period of its performance under this
Agreement for each measured activity. USW shall provide
such records to RESELLER in a self-reporting format. Such
records shall be in the format kept in USW's ordinary
course of business. The Parties agree that such records
shall be deemed "Confidential Information."
(D)6.10 Joint Defense and Advocacy
The Parties shall jointly and separately advocate and
defend the sufficiency of this Agreement in addressing the
nondiscrimination requirements of the Act and wholesale
services performance measurements reporting rights,
remedies and related terms and conditions in any forum in
which its sufficiency might be challenged.
(D)6.11 Cost Recovery
Each Party reserves the right to recover the costs
associated with the creation of the above measures,
indicators, and reports through a future proceeding before
a regulatory body. Such a proceeding may address a wide
range of implementation costs not otherwise recovered
through charges established herein.
Page 60
<PAGE>
Part E
Utah Rates
PART E - UTAH RATES
LOCAL EXCHANGE SERVICES RESALE OF SERVICES
(LAST UPDATE 01/10/2000)
The Parties agree the following charges apply to the Resale of Local Services:
1 Non-Recurring Charges:
a. Customer Transfer Charge (CTC):
The following nonrecurring charges apply when converting a USW account
to a RESELLER account or when changing an end user from one Reseller to
another.
<TABLE>
<S> <C>
RESIDENCE OR BUSINESS MECHANIZED
First Line $14.56
Each Additional Line $ 6.57
RESIDENCE OR BUSINESS MANUAL
First Line $27.52
Each Additional Line $ 7.12
PRIVATE LINE TRANSPORT
First Circuit $45.08
Additional Circuits, Same CSR $31.19
ADVANCED COMMUNICATIONS SERVICES, PER CIRCUIT $50.48
</TABLE>
b. Product Specific Nonrecurring Charge:
As set forth in USW tariffs, the product specific nonrecurring
charges, without discount, will apply when additional lines or
trunks are added or when the end user adds features or services to
existing lines or trunks.
2. The FOLLOWING USW SERVICES ARE AVAILABLE FOR RESALE AT THE RATES listed
below:
<TABLE>
<CAPTION>
SERVICE CLASSES & RATE ELEMENTS AVERAGE DISCOUNT APPLIED TO RETAIL TARIFFED RATES
<S> <C>
BUSINESS and RESIDENCE LINES (Flat & Measured Rated)
- Network Access (Dial Tone Line) 14.5%
- Intra-office & EAS Usage 14.5%
- Combined Elements 14.5%
BUSINESS PBX TRUNKS (Flat & Measured Rated)
- Network Access (Dial Tone Line) 22.2%
- Intra-office & EAS Usage 22.2%
- Combined Elements 22.2%
CENTRAL OFFICE FEATURES & SERVICES
(e.g. Custom Calling, CLASS, etc.) * 14.5%
CENTREX/CENTRON
- Network Access and Features * 22.2%
- Intra-office & EAS Usage 22.2%
- Combined Elements 22.2%
MESSAGE TELEPHONE, OCP,* 800 and WATS 17.0%
SERVICE
PRIVATE LINE 11.0%
DIRECTORY ASSISTANCE 13.4%
DIRECTORY LISTING SERVICES 14.5%
OPERATOR ASSISTANCE SERVICE 13.4%
ADVANCED COMMUNICATIONS SERVICES 11.0%
</TABLE>
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<PAGE>
Part E
Utah Rates
<TABLE>
<CAPTION>
SERVICE CLASSES & RATE ELEMENTS AVERAGE DISCOUNT APPLIED TO RETAIL TARIFFED RATES
<S> <C>
ISDN
- Access 14.5%
- Usage 14.5%
- Composite 15.2%
</TABLE>
*Actual discount levels for each service element in this service category are to
be established by the Division of Public Utilities and U S WEST by subsequent
evaluations.
3. The following services are not available for resale:
* Customer Premises Equipment (separately or in a package)
* Enhanced Services (e.g., Voice Messaging)
* USW Calling cards
* Inside Wire (including installation, sale or maintenance)
* Promotions of less than 90 days
* Concession Service
4. The following services are available only to the same class of customer
eligible to purchase that service from USW:
* Grandfathered
* Lifeline/Link-up
* Residence
5 The following services are available for resale under this Agreement but are
not included in the wholesale pricing reflected above:
* Public Access Lines
* Private Line Used For Special Access
* DSL Services such as Megabit Services
6. IntraLATA Toll Charges: RESELLER shall have their choice of obtaining USW
provided intraLATA toll for resale at an 17% discount, providing their own
intraLATA toll, or obtaining their IntraLATA toll from a third party.
7. Daily Usage Record File: Recurring Charge - $.0011 per record.
Page 62
<PAGE>
Part F
Signature
PART F - SIGNATURE
ENTIRE AGREEMENT
This Agreement constitutes the entire agreement between the Parties and
supersedes all prior oral or written agreements, representations, statements,
negotiations, understandings, proposals and undertakings with respect to the
subject matter hereof.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed
by their respective duly authorized representatives.
<TABLE>
<CAPTION>
<S> <C>
essential.com U S WEST Communications, Inc.
/s/ Akhil Garland /s/ Katherine L. Fleming
- ----------------------------- -----------------------------
Signature Signature
Akhil Garland Katherine L. Fleming
- ----------------------------- -----------------------------
Name Printed/Typed Name Printed/Typed
CEO Vice President - Interconnection
- ----------------------------- --------------------------------
Title Title
2-15-00 02/25/00
- ----------------------------- --------------------------------
Date Date
</TABLE>
Page 63
<PAGE>
RESALE
AGREEMENT
BETWEEN
U S WEST COMMUNICATIONS, INC.
AND
ESSENTIAL.COM
FOR
NORTH DAKOTA
<PAGE>
TABLE OF CONTENTS
<TABLE>
<CAPTION>
<S> <C>
PART A - GENERAL TERMS........................................................................................1
(A)1. SCOPE OF AGREEMENT.....................................................................................1
(A)2. DEFINITIONS............................................................................................3
(A)3. TERMS AND CONDITIONS...................................................................................4
(A)3.1 GENERAL PROVISIONS .................................................................................4
(A)3.2 TERM OF AGREEMENT ..................................................................................4
(A)3.3 PROOF OF AUTHORIZATION .............................................................................5
(A)3.4 PAYMENT ............................................................................................6
(A)3.5 TAXES ..............................................................................................7
(A)3.6 FORCE MAJEURE ......................................................................................7
(A)3.7 LIMITATION OF LIABILITY ............................................................................8
(A)3.8 INDEMNITY ..........................................................................................8
(A)3.9 INTELLECTUAL PROPERTY .............................................................................10
(A)3.10 WARRANTIES .......................................................................................12
(A)3.11 ASSIGNMENT .......................................................................................12
(A)3.12 DEFAULT ..........................................................................................13
(A)3.13 DISCLAIMER OF AGENCY .............................................................................13
(A)3.14 NONDISCLOSURE.....................................................................................14
(A)3.15 SURVIVAL..........................................................................................15
(A)3.16 DISPUTE RESOLUTION................................................................................15
(A)3.17 CONTROLLING LAW...................................................................................17
(A)3.18 JOINT WORK PRODUCT ...............................................................................17
(A)3.19 RESPONSIBILITY FOR ENVIRONMENTAL CONTAMINATION ...................................................17
(A)3.20 NOTICES...........................................................................................17
(A)3.21 RESPONSIBILITY OF EACH PARTY .....................................................................18
(A)3.22 NO THIRD PARTY BENEFICIARIES .....................................................................18
(A)3.23 REFERENCED DOCUMENTS..............................................................................18
(A)3.24 PUBLICITY.........................................................................................19
(A)3.25 AMENDMENT ........................................................................................19
(A)3.26 EXECUTED IN COUNTERPARTS .........................................................................19
(A)3.27 HEADINGS OF NO FORCE OR EFFECT ...................................................................19
(A)3.28 REGULATORY APPROVAL ..............................................................................19
(A)3.29 COMPLIANCE .......................................................................................19
(A)3.30 COMPLIANCE WITH THE COMMUNICATIONS ASSISTANCE FOR LAW ENFORCEMENT ACT
OF 1994 ("CALEA") ........................................................................................20
(A)3.31 COOPERATION ......................................................................................20
(A)3.32 AVAILABILITY OF OTHER AGREEMENTS..................................................................20
PART B - RESALE .............................................................................................21
(B)1. Description.........................................................................................21
(B)2. Terms and Conditions................................................................................21
(B)3. Rates and Charges...................................................................................24
<PAGE>
TABLE OF CONTENTS
(B)4. Ordering Process....................................................................................26
(B)5. Billing.............................................................................................27
(B)6. Maintenance and Repair..............................................................................27
PART C - WHITE PAGES DIRECTORY LISTINGS......................................................................29
(C)1. Description ........................................................................................29
(C)2. Terms and Conditions ...............................................................................29
PART D- MISCELLANEOUS PROVISIONS ...........................................................................32
(D)1. Network Security....................................................................................32
(D)2. Access To Operational Support Systems (OSS).........................................................32
(D)3. U S WEST Dex........................................................................................47
(D)4. Notice of Changes...................................................................................47
(D)5. Maintenance and Repair..............................................................................48
(D)6. Service Performance.................................................................................54
PART E - NORTH DAKOTA RATES ................................................................................62
PART F - SIGNATURE .........................................................................................64
</TABLE>
<PAGE>
Part A
General Terms
PART A - GENERAL TERMS
This Resale Agreement is between essential.com ("RESELLER"), a Delaware
corporation, and U S WEST Communications, Inc. ("USW"), a Colorado corporation.
(A)1. SCOPE OF AGREEMENT
(A)1.1 Pursuant to this negotiated Resale Agreement ("Agreement"),
RESELLER and USW (collectively, "the Parties") will extend
certain arrangements to one another within the geographical
areas where USW is the incumbent Local Exchange Carrier within
the state of North Dakota for purposes of providing the resale
of local Telecommunications Services. This Agreement or the
portions of this Agreement relative to a particular state will
be submitted to the North Dakota Public Service Commission for
approval. Notwithstanding this mutual commitment, however, the
Parties enter into this Agreement without prejudice to any
positions they have taken previously, or may take in the
future in any legislative, regulatory, or other public forum
addressing any matters, including matters related to the types
of arrangements prescribed by this Agreement.
(A)1.2 The provisions in this Agreement are based, in large part, on
the existing state of the law, rules, regulations and
interpretations thereof, as of the date hereof (the "Existing
Rules"). Among the Existing Rules are or could be the results
of arbitrated decisions by the Commission which are currently
being challenged by USW. Among the Existing Rules are certain
FCC rules and orders that are the subject of, or affected by,
the opinion issued by the Supreme Court of the United States
in AT&T Corp., ET AL. V. IOWA UTILITIES BOARD, ET AL. on
January 25, 1999. Nothing in this Agreement shall preclude or
stop USW from taking any position in any forum concerning the
proper interpretation or effect of the Existing Rules or
concerning whether the Existing Rules should be changed,
dismissed, stayed or modified. To the extent that the Existing
Rules are changed, vacated, dismissed, stayed or modified,
then the Parties shall amend this Agreement and all contracts
adopting all or part of this Agreement pursuant to Section
252(i) of the Act, shall be amended to reflect such
modification or change of the Existing Rules. Where the
Parties fail to agree upon such an amendment, it shall be
resolved in accordance with the Dispute Resolution provision
of this Agreement. It is expressly understood that this
Agreement will be corrected to reflect the outcome of generic
pricing proceedings by the Commission. This Section (A)1.2
shall be considered part of the rates, terms and conditions of
each service resale arrangement contained in this Agreement,
and this Section (A)1.2 shall be considered legitimately
related to the purchase of each service for resale arrangement
contained in this Agreement.
(A)1.3 This Agreement is entered into as a result of both private
negotiations between the Parties and the incorporation of some
of the results of arbitrated decisions by the Commission,
acting pursuant to Section 252 (b) of the Act, and involving
interconnection/resale agreements of other parties. The
Parties have included for convenience certain rates, terms or
conditions in this Agreement which reflect
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Part A
General Terms
rates, terms or conditions established in some or all of those
other arbitrations. RESELLER acknowledges: (1) that those
rates, terms or conditions are extended only because of the
arbitrated results in other dockets, (2) that USW intends to
appeal certain of those decisions, and (3) that any
negotiations, appeal, stay, injunction or similar proceeding
impacting the applicability of those rates, terms or
conditions to the local service providers who were parties to
those arbitrations will similarly impact the applicability of
those rates, terms or conditions to RESELLER. The Parties
further recognize that this Agreement is subject to the
generic proceedings by the Commission addressing the services
in this Agreement.
(A)1.4 This Agreement sets forth the terms, conditions and prices
under which USW agrees to provide services for resale to
RESELLER, all for the sole purpose of providing
Telecommunications Services.
(A)1.5 In the performance of their obligations under this Agreement,
the Parties shall act in good faith and consistently with the
intent of the Act. Where notice, approval or similar action by
a Party is permitted or required by any provision of this
Agreement, (including, without limitation, the obligation of
the Parties to further negotiate the resolution of new or open
issues under this Agreement) such action shall not be
unreasonably delayed, withheld or conditioned.
(A)1.6 USW may make services and features available to RESELLER for
resale under this Agreement consistent with the way they are
available to USW end users, without a formal amendment to this
Agreement. Nothing herein prevents either Party from raising
other issues through additional good faith negotiations.
(A)1.7 This Agreement is structured in the following format:
Part A - General Terms
Part B - Resale
Part C - Directory Services
Part D - Miscellaneous Provisions
Part E - Rates
Part F - Signature
(A)1.8 Prior to placing any orders for services under this Agreement,
the Parties will jointly complete USW`s "Reseller
Questionnaire". This questionnaire will then be used to:
Determine geographical requirements
Identify RESELLER Ids
Determine USW system requirements to support RESELLER specific
activity
Collect credit information
Obtain billing information
Create summary bills
Establish input and output requirements
Create and distribute USW and RESELLER contact lists
Identify client hours and holidays
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Part A
General Terms
(A)2. DEFINITIONS
(A)2.1 "Act" means the Communications Act of 1934 (47 U.S.C. 151 et.
seq.), as amended by the Telecommunications Act of 1996, and
as from time to time interpreted in the duly authorized rules
and regulations of the FCC or a Commission within its state of
jurisdiction.
(A)2.2 "Basic Exchange Features" are optional end user switched
services that include, but are not necessarily limited to:
Automatic Call Back; Call Trace; Caller ID and Related
Blocking Features; Distinctive Ringing/Call Waiting; Selective
Call Forward; and Selective Call Rejection.
(A)2.3 "Basic Exchange Telecommunications Service" means a service
offered to end users which provides the end user with a
telephonic connection to, and a unique local telephone number
address on the public switched telecommunications network, and
which enables such end user to generally place calls to, or
receive calls from, other stations on the public switched
telecommunications network. Basic residence and business line
services are Basic Exchange Telecommunications Services. As
used solely in the context of this statement and unless
otherwise agreed, Basic Exchange Telecommunications Service
includes access to ancillary services such as 911, directory
assistance and operator services.
(A)2.4 "Commission" means the Public Service Commission in the state
of North Dakota.
(A)2.5 "Enhanced Services" means any service offered over common
carrier transmission facilities that employ computer
processing applications that act on format, content, code,
protocol or similar aspects of the subscriber's transmitted
information; that provide the subscriber with additional,
different or restructured information; or involve end user
interaction with stored information.
(A)2.6 "Interconnect & Resale Resource Guide" is a USW document that
provides essential information needed to request services
available under this Agreement. It is available on USW`s Web
site.
(A)2.7 "Interchange Carrier" or "IXC" means a carrier that provides
interLATA or IntraLATA Toll services.
(A)2.8 "IntraLATA Toll" is defined in accordance with USW`s current
intraLATA toll serving areas, as determined by the Federal
Communications Commission.
(A)2.9 "Local Exchange Carrier" or "LEC" means any person that is
engaged in the provision of telephone exchange service or
exchange access. Such term does not include a person insofar
as such person is engaged in the provision of a commercial
mobile service under Section 332(c) of the Act, except to the
extent that the FCC finds that such service should be included
in the definition of such term.
(A)2.10 "Party" means either USW or RESELLER and "Parties" means USW
and RESELLER.
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Part A
General Terms
(A)2.11 "Reseller" is a category of local exchange service provider
that obtains dial tone and associated Telecommunications
Services from another provider through the purchase of
finished services for resale to its end users.
(A)2.12 "Tariff" as used throughout this Agreement refers to USW
interstate Tariffs and state Tariffs, price lists, price
schedules and catalogs.
(A)2.13 "Telecommunications Carrier" means any provider of
Telecommunications Services, except that such term does not
include aggregators of Telecommunications Services (as defined
in Section 226 of the Act). A Telecommunications Carrier shall
be treated as a common carrier under the Act only to the
extent that it is engaged in providing Telecommunications
Services, except that the Federal Communications Commission
shall determine whether the provision of fixed and mobile
satellite service shall be treated as common carriage.
(A)2.14 "Telecommunications Services" means the offering of
telecommunications for a fee directly to the public, or to
such classes of users as to be effectively available directly
to the public, regardless of the facilities used.
(A)2.15 Terms not otherwise defined here, but defined in the Act shall
have the meaning defined there. Where a term is defined in the
regulations implementing the Act but not in this Agreement,
the Parties do not necessarily intend to adopt the definition
as set forth in said regulations.
(A)3. TERMS AND CONDITIONS
(A)3.1 GENERAL PROVISIONS
(A)3.1.1 Each Party is solely responsible for the services it
provides to its end users and to other
Telecommunications Carriers.
(A)3.1.2 The Parties shall work cooperatively to minimize
fraud associated with intra-LATA toll, third-number
billed calls, and any other services related to this
Agreement.
(A)3.1.3 Nothing in this Agreement shall prevent either Party
from seeking to recover the costs and expenses, if
any, it may incur in (a) complying with and
implementing its obligations under this Agreement,
the Act, and the rules, regulations and orders of the
FCC and the Commission, and (b) the development,
modification, technical installation and maintenance
of any systems or other infrastructure which it
requires to comply with and to continue complying
with its responsibilities and obligations under this
Agreement.
(A)3.2 TERM OF AGREEMENT
This Agreement shall become effective upon Commission
approval, pursuant to Sections 251 and 252 of the Act, shall
terminate on April 8, 2002, and shall be binding upon the
Parties during that term, notwithstanding Section 252(i) of
the Act. After the date specified above, this Agreement shall
continue in force and
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Part A
General Terms
effect until terminated by either Party providing one hundred
sixty (160) days written notice of termination to the other
Party. The day the notice is served will determine the
starting point for a 160-day negotiation period (in accordance
with 252(b)l of the Act. In the event of such termination,
existing or pending service arrangements made available under
this Agreement shall continue in total without interruption
under either a) a new or adoption agreement executed by the
Parties, or b) tariff terms and conditions generally
available to all resellers.
(A)3.2.1 If the Parties are unable to negotiate a new
agreement during the negotiation period described
above, the window of opportunity to file for
arbitration to resolve outstanding contractual issues
in accordance with the Act will occur between days
135 and 160 of the 160 day notice period.
(A)3.2.2 If the Parties are able to reach agreement, this
Agreement shall continue for the brief period of time
needed to secure the Commission's approval of an
adoption agreement or a new resale agreement. In the
case of Section (A)3.2.1, this Agreement will expire
on the termination date specified in the one hundred
sixty (160) day notice referenced above, unless a
petition for arbitration has been filed, but if such
a petition has been filed then this Agreement shall
continue for the period necessary for the Commission
to act and resolve the disputed issues so that the
Parties will have an effective resale agreement.
(A)3.3 PROOF OF AUTHORIZATION
Where so indicated in specific sections of this Agreement,
each party shall be responsible for obtaining and having in
its possession Proof of Authorization ("POA"). POA shall
consist of verification of the end user's selection and
authorization adequate to document the end user's selection..
Such selection may be obtained in the following ways:
(A)3.3.1 The end user's written Letter of Authorization.
(A)3.3.2 The end user's electronic authorization by use of an
1-8XX number.
(A)3.3.3 The end user's oral authorization verified by an
independent third party (with third party
verification as POA).
The Parties shall make POAs available to each other upon
request, in accordance with the applicable laws and rules.
Unless prohibited by applicable laws or regulations, a. charge
of $100.00 ("slamming charge") will be assessed if the POA
cannot be provided supporting the change in service provider.
If there is a conflict between the end user designation and
the other Party's written evidence of its authority, the
Parties shall honor the designation of the end user and change
the end user back to the previous service provider.
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Part A
General Terms
(A)3.4 PAYMENT
(A)3.4.1 Amounts payable under this Agreement are due and
payable within thirty (30) calendar days after the
date of USW's invoice, or within twenty (20) days
after receipt of the invoice, whichever is later. If
the payment due date is not a Business Day, the
payment shall be made the next Business Day..
USW may discontinue processing orders for the failure
by RESELLER to make full payment for the services
provided under this Agreement within thirty (30) days
of the due date on RESELLER's bill.
USW may disconnect for the failure by RESELLER to
make full payment for the services provided under
this Agreement within sixty (60) days of the due date
on RESELLER's bill. RESELLER will pay the Tariff
charge required to reconnect each end user line
disconnected pursuant to this paragraph.
(A)3.4.2 Should RESELLER dispute, in good faith, any portion
of the monthly billing under this Agreement, RESELLER
will notify USW in writing within thirty (30)
calendar days of the receipt of such billing,
identifying the amount, reason and rationale of such
dispute. RESELLER shall pay all amounts due. Both
RESELLER and USW agree to expedite the investigation
of any disputed amounts in an effort to resolve and
settle the dispute prior to initiating any other
rights or remedies. Should the dispute be resolved in
RESELLER's favor and the resolved amount did not
appear as a credit on RESELLER's next invoice from
USW, USW will reimburse RESELLER the resolved amount
plus interest from the date of payment. The amount of
interest will be calculated using the late payment
factor that would have applied to such amount had it
not been paid on time.
(A)3.4.3 USW will determine RESELLER's credit status based on
previous payment history with USW or credit reports
such as Dun and Bradstreet. If RESELLER has not
established satisfactory credit with USW or if
RESELLER is repeatedly delinquent in making its
payments, USW may require a deposit to be held as
security for the payment of charges. "Repeatedly
delinquent" means being thirty (30) calendar days or
more delinquent for three (3) consecutive months. The
deposit may not exceed the estimated total monthly
charges for a two (2) month period. The deposit may
be a surety bond, a letter of credit with terms and
conditions acceptable to USW or some other form of
mutually acceptable security such as a cash deposit.
Required deposits are due and payable within ten (10)
calendar days after demand in accordance with
Commission requirements.
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Part A
General Terms
(A)3.4.4 Interest will be paid on cash deposits at the rate
applying to deposits under applicable Commission
rules, regulations, or Tariffs. Cash deposits and
accrued interest will be credited to RESELLER's
account or refunded, as appropriate, upon the earlier
of the termination of this Agreement or the
establishment of satisfactory credit with USW, which
will generally be one (1) full year of timely
payments in full by RESELLER. The fact that a deposit
has been made does not relieve RESELLER from any
requirements of this Agreement.
(A)3.4.5 USW may review RESELLER's credit standing and modify
the amount of deposit required.
(A)3.4.6 The late payment charge for amounts that are billed
under this Agreement shall be in accordance with
state Tariffs/Commission Rules and Orders.
(A)3.5 Taxes
Each Party purchasing services hereunder shall pay or
otherwise be responsible for all federal, state, or local
sales, use, excise, gross receipts, transaction or similar
taxes, fees or surcharges levied against or upon such
purchasing Party (or the providing Party when such providing
Party is permitted to pass along to the purchasing Party such
taxes, fees or surcharges), except for any tax on either
Party's corporate existence, status or income. Whenever
possible, these amounts shall be billed as a separate item on
the invoice. To the extent a sale is claimed to be for resale
tax exemption, the purchasing Party shall furnish the
providing Party a proper resale tax exemption certificate as
authorized or required by statute or regulation by the
jurisdiction providing said resale tax exemption. Until such
time as a resale tax exemption certificate is provided, no
exemptions will be applied.
(A)3.6 FORCE MAJEURE
Neither Party shall be liable for any delay or failure in
performance of any part of this Agreement from any cause
beyond its control and without its fault or negligence
including, without limitation, acts of nature, acts of civil
or military authority, government regulations, embargoes,
epidemics, terrorist acts, riots, insurrections, fires,
explosions, earthquakes, nuclear accidents, floods, work
stoppages, equipment failure, power blackouts, volcanic
action, other major environmental disturbances, unusually
severe weather conditions, inability to secure products or
services of other persons or transportation facilities or acts
or omissions of transportation carriers (collectively, a
"Force Majeure Event"). The Party affected by a Force Majeure
Event shall give prompt notice to the other Party, shall be
excused from performance of its obligations hereunder on a day
to day basis to the extent those obligations are prevented by
the Force Majeure Event, and shall use reasonable efforts to
remove or mitigate the Force Majeure Event. In the event of a
labor dispute or strike the Parties agree to provide service
to each other at a level equivalent to the level they provide
themselves.
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Part A
General Terms
(A)3.7 LIMITATION OF LIABILITY
(A)3.7.1 Except for losses relating to or arising out of any
act or omission in its performance of services or
functions provided under this Agreement, each Party
shall be liable to the other for direct damages for
any loss, defect or equipment failure resulting from
the causing Party's conduct or the conduct of its
agents or contractors in performing the obligations
contained in this Agreement.
(A)3.7.2 Neither Party shall be liable to the other for
indirect, incidental, consequential, or special
damages, including (without limitation) damages for
lost profits, lost revenues, lost savings suffered by
the other Party regardless of the form of action,
whether in contract, warranty, strict liability,
tort, including (without limitation) negligence of
any kind and regardless of whether the Parties know
the possibility that such damages could result.
(A)3.7.3 Except for indemnity obligations, each Party's
liability to the other Party for any loss relating to
or arising out of any act or omission in its
performance of services or functions provided under
this Agreement, whether in contract or in tort, shall
be limited to the total amount that is or would have
been charged to the other Party by such breaching
Party for the service(s) or function(s) not performed
or improperly performed.
(A)3.7.4 Nothing contained in this Section shall limit either
Party's liability to the other for intentional,
malicious misconduct.
(A)3.7.5 Nothing contained in this Section shall limit either
Party's obligations of indemnification as specified
in the Indemnity Section of this Agreement.
(A)3.7.6 Neither Party shall be liable to the other under any
theory including indemnity on account of such Party's
failure or neglect to have or maintain a system or
systems that are Year 2000 compliant. As the Parties
approach the Year 2000, date information associated
with any interfaces between the Parties is expected
to remain as it is.
(A)3.8 INDEMNITY
(A)3.8.1 With respect to third party claims, the Parties agree
to indemnify each other as follows:
(A)3.8.1.1 Except for claims made by end users of one
Party against the other Party, which
claims are based on defective or faulty
services provided by the other Party to
the one Party, each of the Parties agree
to release, indemnify, defend and hold
harmless the other Party and each of its
officers, directors, employees and agents
(each an "Indemnitee") from and against
and in respect
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Part A
General Terms
of any loss, debt, liability, damage,
obligation, claim, demand, judgment or
settlement of any nature or kind, known
or unknown, liquidated or unliquidated
including, but not limited to, costs and
attorneys' fees, whether suffered, made,
instituted, or asserted by any other party
or person, for invasion of privacy,
personal injury to or death of any person
or persons, or for loss, damage to, or
destruction of property, whether or not
owned by others, resulting from the
indemnifying Party's performance, breach
of applicable law, or status of its
employees, agents and subcontractors; or
for failure to perform under this
Agreement, regardless of the form of
action.
(A)3.8.1.2 Where the third party claim is made by (or
through) an end user of one Party against
the other Party, which claim is based on
defective or faulty services provided by
the other Party to the one Party then
there shall be no obligation of indemnity
unless the act or omission giving rise to
the defective or faulty services is shown
to be intentional, malicious misconduct of
the other Party.
(A)3.8.1.3 If the claim is made by (or through) an
end user and where a claim is in the
nature of a claim for invasion of privacy,
libel, slander, or other claim based on
the content of a transmission, and it is
made against a Party who is not the
immediate provider of the
Telecommunications Service to the end user
(the indemnified provider), then in the
absence of fault or neglect on the part
of the indemnified provider, the Party
who is the immediate seller of such
Telecommunications Service shall
indemnify, defend and hold harmless the
indemnified provider from such claim.
(A)3.8.2 The indemnification provided herein shall be conditioned
upon:
(A)3.8.2.1 The indemnified Party shall promptly
notify the indemnifying Party of any
action taken against the indemnified Party
relating to the indemnification. Failure
to so notify the indemnifying Party shall
not relieve the indemnifying Party of any
liability that the indemnifying Party
might have, except to the extent that such
failure prejudices the indemnifying
Party's ability to defend such claim.
(A)3.8.2.2 The indemnifying Party shall have sole
authority to defend any such action,
including the selection of legal
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Part A
General Terms
counsel, and the indemnified Party
may engage separate legal counsel
only at its sole cost and expense.
(A)3.8.2.3 In no event shall the indemnifying
Party settle or consent to any
judgment pertaining to any such
action without the prior written
consent of the indemnified Party.
(A)3.9 INTELLECTUAL PROPERTY
(A)3.9.1 Each Party hereby grants to the other Party the
limited, personal and nonexclusive right and
license to use its patents, copyrights and
trade secrets but only to the extent necessary
to implement this Agreement or specifically
required by the then applicable federal and
state rules and regulations relating to
Interconnection and access to
telecommunications facilities and services, and
for no other purposes. Nothing in this
Agreement shall be construed as the grant to
the other Party of any rights or licenses to
trademarks.
(A)3.9.2 The rights and licenses above are granted "AS
IS" and the other Party's exercise of any such
right and license shall be at the sole and
exclusive risk of the other Party. Neither
Party shall have any obligation to defend,
indemnify or hold harmless, or acquire any
license or right for the benefit of, or owe any
other obligation or have any liability to, the
other based on or arising from any claim,
demand, or proceeding (hereinafter "claim") by
any third party alleging or asserting that the
use of any circuit, apparatus, or system, or
the use of any software, or the performance of
any service or method, or the provision of any
facilities by either Party under this Agreement
constitutes infringement, or misuse or
misappropriation of any patent, copyright,
trade secret, or any other proprietary or
intellectual property right of any third party.
(A)3.9.3 As a condition to the access or use of patents,
copyrights, trade secrets and other
intellectual property (including software)
owned or controlled by a third party to the
extent necessary to implement this Agreement or
specifically required by the then applicable
federal and state rules and regulations
relating to Interconnection and access to
telecommunications facilities and services, the
Party providing access may require the other,
upon written notice, from time to time, to
obtain a license or permission for such access
or use, make all payments in connection with
obtaining such license, and provide evidence of
such license.
(A)3.9.4 Except as expressly provided in this
Intellectual Property Section, nothing in this
Agreement shall be construed as the grant of a
license, either express or implied, with
respect to any patent, copyright, logo,
trademark, trade name, trade secret or any
other intellectual property right now or
hereafter owned, controlled or licensable by
either Party.
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Part A
General Terms
Neither Party may use any patent, copyright,
logo, trademark, trade name, trade secret or
other intellectual property rights of the other
Party or its affiliates without execution of a
separate agreement between the Parties.
(A)3.9.5 Neither Party shall without the express written
permission of the other Party, state or imply
that: 1) it is connected, or in any way
affiliated with the other or its affiliates, 2)
it is part of a joint business association or
any similar arrangement with the other or its
affiliates, 3) the other Party and its
affiliates are in any way sponsoring, endorsing
or certifying it and its goods and services, or
4) with respect to its advertising or
promotional activities or materials, that the
resold goods and services are in any way
associated with or originated from the other or
any of its affiliates. Nothing in this
paragraph shall prevent either Party from
truthfully describing the network elements it
uses to provide service to its end users,
provided it does not represent the network
elements as originating from the other Party or
its affiliates.
(A)3.9.6 For purposes of resale only and notwithstanding
the above, unless otherwise prohibited by USW
pursuant to an applicable provision herein,
RESELLER may use the phrase "RESELLER is a
reseller of U S WEST Communications services"
(the "Authorized Phrase") in RESELLER's printed
materials provided:
(A)3.9.6.1 The Authorized Phrase is not used in
connection with any goods or
services other than USW services
resold by RESELLER.
(A)3.9.6.2 RESELLER's use of the Authorized
Phrase does not cause end users to
believe that RESELLER is USW.
(A)3.9.6.3 RESELLER may not use the U S WEST
logo. The Authorized Phrase, when
displayed, appears only in text form
with all letters being the same font
and point size. The point size of
the Authorized Phrase shall be no
greater than one fourth the point
size of the smallest use of
RESELLER's name and in no event
shall exceed 8 point size.
(A)3.9.6.4 RESELLER shall provide all printed
materials using the Authorized
Phrase to USW for its prior written
approval.
(A)3.9.6.5 If USW determines that RESELLER's
use of the Authorized Phrase causes
end user confusion, USW may
immediately terminate RESELLER's
right to use the Authorized Phrase.
(A)3.9.6.6 Upon termination of RESELLER's right
to use the Authorized Phrase or
termination of this Agreement, all
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General Terms
permission or right to use the
Authorized Phrase shall immediately
cease to exist and RESELLER shall
immediately cease any and all such
use of the Authorized Phrase.
RESELLER shall either promptly
return to USW or destroy all
materials in its possession or
control displaying the Authorized
Phrase.
(A)3.9.7 RESELLER acknowledges the value of the marks
"U S WEST" and "U S WEST Communications" (the
"Marks") and the goodwill associated therewith
and acknowledges that such goodwill is a
property right belonging to U S WEST, Inc. and
USW respectively (the "Owners"). RESELLER
recognizes that nothing contained in this
Agreement is intended as an assignment or grant
to RESELLER of any right, title or interest in
or to the Marks and that this Agreement does
not confer any right or license to grant
sublicenses or permission to third parties to
use the Marks and is not assignable. RESELLER
will do nothing inconsistent with the Owner's
ownership of the Marks, and all rights, if any,
that may be acquired by use of the Marks shall
inure to the benefit of the Owners. RESELLER
will not adopt, use (other than as authorized
herein), register or seek to register any mark
anywhere in the world which is identical or
confusingly similar to the Marks or which is so
similar thereto as to constitute a deceptive
colorable imitation thereof or to suggest or
imply some association, sponsorship, or
endorsement by the Owners. The Owners make no
warranties regarding ownership of any rights in
or the validity of the Marks.
(A)3.10 WARRANTIES
NOTWITHSTANDING ANY OTHER PROVISION OF THIS AGREEMENT, THE
PARTIES AGREE THAT NEITHER PARTY HAS MADE, AND THAT THERE
DOES NOT EXIST, ANY WARRANTY, EXPRESS OR IMPLIED,
INCLUDING BUT NOT LIMITED TO WARRANTIES OF MERCHANTABILITY
AND FITNESS FOR A PARTICULAR PURPOSE.
(A)3.11 ASSIGNMENT
(A)3.11.1 Neither Party may assign or transfer (whether
by operation of law or otherwise) this
Agreement (or any rights or obligations
hereunder) to a third party without the prior
written consent of the other Party.
Notwithstanding the foregoing, either Party may
assign or transfer this Agreement to a
corporate affiliate or an entity under its
common control; however, if RESELLER's assignee
or transferee has an interconnection agreement
with USW, no assignment or transfer of this
Agreement shall be effective without the prior
written consent of USW. Such consent shall
include appropriate resolutions of conflicts
and discrepancies between the assignee's or
transferee's interconnection agreement and this
Agreement. Any attempted
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General Terms
assignment or transfer that is not permitted is
void AB INITIO. Without limiting the generality
of the foregoing, this Agreement shall be
binding upon and shall inure to the benefit of
the Parties' respective successors and assigns.
(A)3.11.2 Without limiting the generality of the
foregoing subsection, any merger, dissolution,
consolidation or other reorganization of
RESELLER, or any sale, transfer, pledge or
other disposition by RESELLER of securities
representing more than 50% of the securities
entitled to vote in an election of RESELLER's
board of directors or other similar governing
body, or any sale, transfer, pledge or other
disposition by RESELLER of substantially all of
its assets, shall be deemed a transfer of
control. If any entity, other than RESELLER,
involved in such merger, dissolution,
consolidation, reorganization, sale, transfer,
pledge or other disposition of RESELLER has an
interconnection agreement with USW, the Parties
agree that only one agreement, either this
Agreement or the interconnection agreement of
the other entity, will remain valid. All other
interconnection agreements will be terminated.
The Parties agree to work together to determine
which interconnection agreement should remain
valid and which should terminate. In the event
the Parties cannot reach agreement on this
issue, the issue shall be resolved through the
Dispute Resolution process contained in this
Agreement.
(A)3.12 DEFAULT
If either Party defaults in the payment of any amount due
hereunder, or if either Party violates any other material
provision of this Agreement, and such default or violation
shall continue for thirty (30) calendar days after written
notice thereof, the other Party may seek relief in
accordance with the Dispute Resolution provision of this
Agreement. The failure of either Party to enforce any of
the provisions of this Agreement or the waiver thereof in
any instance shall not be construed as a general waiver or
relinquishment on its part of any such provision, but the
same shall, nevertheless, be and remain in full force and
effect.
(A)3.13 DISCLAIMER OF AGENCY
Except for provisions herein expressly authorizing a Party
to act for another, nothing in this Agreement shall
constitute a Party as a legal representative or agent of
the other Party, nor shall a Party have the right or
authority to assume, create or incur any liability or any
obligation of any kind, express or implied, against or in
the name or on behalf of the other Party unless otherwise
expressly permitted by such other Party. Except as
otherwise expressly provided in this Agreement, no Party
undertakes to perform any obligation of the other Party
whether regulatory or contractual, or to assume any
responsibility for the management of the other Party's
business.
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Part A
General Terms
(A)3.14 NONDISCLOSURE
(A)3.14.1 All information, including but not limited to
specifications, microfilm, photocopies,
magnetic disks, magnetic tapes, drawings,
sketches, models, samples, tools, technical
information, data, employee records, maps,
financial reports, and market data, (i)
furnished by one Party to the other Party
dealing with end user specific, facility
specific, or usage specific information, other
than end user information communicated for the
purpose of providing directory assistance or
publication of directory database, or (ii) in
written, graphic, electromagnetic, or other
tangible form and marked at the time of
delivery as "Confidential" or "Proprietary", or
(iii) communicated and declared to the
receiving Party at the time of delivery, or by
written notice given to the receiving Party
within ten (10) calendar days after delivery,
to be "Confidential" or "Proprietary"
(collectively referred to as "Proprietary
Information"), shall remain the property of the
disclosing Party. A Party who receives
Proprietary Information via an oral
communication may request written confirmation
that the material is Proprietary Information. A
Party who delivers Proprietary Information via
an oral communication may request written
confirmation that the Party receiving the
information understands that the material is
Proprietary Information.
(A)3.14.2 Upon request by the disclosing Party, the
receiving Party shall return all tangible
copies of Proprietary Information, whether
written, graphic or otherwise, except that the
receiving Party may retain one copy for
archival purposes.
(A)3.14.3 Each Party shall keep all of the other Party's
Proprietary Information confidential and shall
use the other Party's Proprietary Information
only in connection with this Agreement. Neither
Party shall use the other Party's Proprietary
Information for any other purpose except upon
such terms and conditions as may be agreed upon
between the Parties in writing.
(A)3.14.4 Unless otherwise agreed, the obligations of
confidentiality and non-use set forth in this
Agreement do not apply to such Proprietary
Information as:
(A)3.14.4.1 was at the time of receipt already
known to the receiving Party free
of any obligation to keep it
confidential evidenced by written
records prepared prior to delivery
by the disclosing Party; or
(A)3.14.4.2 is or becomes publicly known
through no wrongful act of the
receiving Party; or
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Part A
General Terms
(A)3.14.4.3 is rightfully received from a third
person having no direct or indirect
secrecy or confidentiality
obligation to the disclosing Party
with respect to such information;
or
(A)3.14.4.4 is independently developed by an
employee, agent, or contractor of
the receiving Party which
individual is not involved in any
manner with the provision of
services pursuant to the Agreement
and does not have any direct or
indirect access to the Proprietary
Information; or
(A)3.14.4.5 is disclosed to a third person by
the disclosing Party without
similar restrictions on such third
person's rights; or
(A)3.14.4.6 is approved for release by written
authorization of the disclosing
Party; or
(A)3.14.4.7 is required to be made public by
the receiving Party pursuant to
applicable law or regulation
provided that the receiving Party
shall give sufficient notice of the
requirement to the disclosing Party
to enable the disclosing Party to
seek protective orders.
(A)3.14.5 Nothing herein is intended to prohibit a Party
from supplying factual information about its
network and Telecommunications Services on or
connected to its network to regulatory agencies
including the Federal Communications Commission
and the Commission so long as any confidential
obligation is protected.
(A)3.14.6 Effective Date Of This Section. Notwithstanding
any other provision of this Agreement, the
Proprietary Information provisions of this
Agreement shall apply to all information
furnished by either Party to the other in
furtherance of the purpose of this Agreement,
even if furnished before the date of this
Agreement.
(A)3.15 SURVIVAL
Any liabilities or obligations of a Party for acts or
omissions prior to the cancellation or termination of this
Agreement; any obligation of a Party under the provisions
regarding indemnification, Confidential or Proprietary
Information, limitations of liability, and any other
provisions of this Agreement which, by their terms, are
contemplated to survive (or to be performed after)
termination of this Agreement, shall survive cancellation
or termination hereof.
(A)3.16 DISPUTE RESOLUTION
(A)3.16.1 If any claim, controversy or dispute between
the Parties, their agents, employees, officers,
directors or affiliated agents should arise,
and the Parties do not resolve it in the
ordinary course of their dealings (the
"Dispute"), then it shall be resolved in
accordance with the
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General Terms
dispute resolution process set forth in this
Section. Each notice of default, unless cured
within the applicable cure period, shall be
resolved in accordance herewith.
(A)3.16.2 At the written request of either Party, and
prior to any other formal dispute resolution
proceedings, each Party shall designate an
officer-level employee, at no less than the
vice president level, to review, meet, and
negotiate, in good faith, to resolve the
Dispute. The Parties intend that these
negotiations be conducted by non-lawyer,
business representatives, and the locations,
format, frequency, duration, and conclusions of
these discussions shall be at the discretion of
the representatives. By mutual agreement, the
representatives may use other procedures, such
as mediation, to assist in these negotiations.
The discussions and correspondence among the
representatives for the purposes of these
negotiations shall be treated as Confidential
Information developed for purposes of
settlement, and shall be exempt from discovery
and production, and shall not be admissible in
any subsequent arbitration or other proceedings
without the concurrence of both of the Parties.
(A)3.16.3 If the vice-presidential level representatives
have not reached a resolution of the Dispute
within thirty (30) calendar days after the
matter is referred to them, then either Party
may demand that the Dispute be settled by
arbitration. Such an arbitration proceeding
shall be conducted by a single arbitrator,
knowledgeable about the telecommunications
industry. The arbitration proceedings shall be
conducted under the then current rules of the
American Arbitration Association ("AAA"). The
Federal Arbitration Act, 9 U.S.C. Sections
1-16, not state law, shall govern the
arbitrability of the Dispute. The arbitrator
shall not have authority to award punitive
damages. All expedited procedures prescribed by
the AAA rules shall apply. The arbitrator's
award shall be final and binding and may be
entered in any court having jurisdiction
thereof. Each Party shall bear its own costs
and attorneys' fees, and shall share equally in
the fees and expenses of the arbitrator. The
arbitration proceedings shall occur in the
Denver, Colorado metropolitan area. It is
acknowledged that the Parties, by mutual,
written agreement, may change any of these
arbitration practices for a particular, some,
or all Dispute(s).
(A)3.16.4 Should it become necessary to resort to court
proceedings to enforce a Party's compliance
with the dispute resolution process set forth
herein, and the court directs or otherwise
requires compliance herewith, then all of the
costs and expenses, including its reasonable
attorney fees, incurred by the Party requesting
such enforcement shall be reimbursed by the
non-complying Party to the requesting Party.
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(A)3.16.5 No Dispute, regardless of the form of action,
arising out of this Agreement, may be brought
by either Party more than two (2) years after
the cause of action accrues.
(A)3.17 CONTROLLING LAW
This Agreement was negotiated by the Parties in accordance
with the terms of the Act and the laws of the state where
service is provided hereunder. It shall be interpreted
solely in accordance with the terms of the Act and the
applicable state law in the state where the service is
provided.
(A)3.18 JOINT WORK PRODUCT
This Agreement is the joint work product of the Parties
and has been negotiated by the Parties and their
respective counsel and shall be fairly interpreted in
accordance with its terms and, in the event of any
ambiguities, no inferences shall be drawn against either
Party.
(A)3.19 RESPONSIBILITY FOR ENVIRONMENTAL CONTAMINATION
Neither Party shall be liable to the other for any costs
whatsoever resulting from the presence or release of any
environmental hazard that either Party did not introduce
to the affected work location. Both Parties shall defend
and hold harmless the other, its officers, directors and
employees from and against any losses, damages, claims,
demands, suits, liabilities, fines, penalties and expenses
(including reasonable attorneys' fees) that arise out of
or result from (i) any environmental hazard that the
indemnifying Party, its contractors or agents introduce to
the work locations or (ii) the presence or release of any
environmental hazard for which the indemnifying Party is
responsible under applicable law.
(A)3.20 NOTICES
Any notices required by or concerning this Agreement shall
be sent to the Parties at the addresses shown below:
USW
Director Interconnection Compliance
1801 California, Room 2410
Denver, CO 80202
With copy to:
U S WEST Law Department
Attention: General Counsel, Interconnection
1801 California Street, 51st Floor
Denver, CO 80202
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General Terms
RESELLER
John Duffy
Peter Mills
3 Burlington Woods Drive
4th Floor
Burlington, MA 01803
Phone: 781-229-9599, ext. 136
Fax: 781-229-9499
E-mail: [email protected]
Each Party shall inform the other of any changes in the
above addresses.
(A)3.21 RESPONSIBILITY OF EACH PARTY
Each Party is an independent contractor, and has and
hereby retains the right to exercise full control of and
supervision over its own performance of its obligations
under this Agreement and retains full control over the
employment, direction, compensation and discharge of all
employees assisting in the performance of such
obligations. Each Party will be solely responsible for all
matters relating to payment of such employees, including
compliance with social security taxes, withholding taxes
and all other regulations governing such matters. Each
Party will be solely responsible for proper handling,
storage, transport and disposal at its own expense of all
(i) substances or materials that it or its contractors or
agents bring to, create or assume control over at work
locations or, (ii) waste resulting therefrom or otherwise
generated in connection with its or its contractors' or
agents' activities at the work locations. Subject to the
limitations on liability and except as otherwise provided
in this Agreement, each Party shall be responsible for (i)
its own acts and performance of all obligations imposed by
applicable law in connection with its activities, legal
status and property, real or personal and, (ii) the acts
of its own affiliates, employees, agents and contractors
during the performance of that Party's obligations
hereunder.
(A)3.22 NO THIRD PARTY BENEFICIARIES
This Agreement does not provide and shall not be construed
to provide third parties with any remedy, claim,
liability, reimbursement, cause of action, or other
privilege.
(A)3.23 REFERENCED DOCUMENTS
All references to Sections shall be deemed to be
references to Sections of this Agreement unless the
context shall otherwise require. Whenever any provision of
this Agreement refers to a technical reference, technical
publication, RESELLER practice, USW practice, any
publication of telecommunications industry administrative
or technical standards, or any other document specifically
incorporated into this Agreement, it will be deemed to be
a reference to the most recent version or edition
(including any amendments, supplements, addenda, or
successors) of such document that is in effect, and will
include the most recent
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Part A
General Terms
version or edition (including any amendments, supplements,
addenda, or successors) of each document incorporated by
reference in such a technical reference, technical
publication, RESELLER practice, USW practice, or
publication of industry standards. USW will not implement
changes in the most recent version or edition in the
documents described above when such changes are optional.
The existing configuration of either Party's network may
not be in immediate compliance with the latest release of
applicable referenced documents.
(A)3.24 PUBLICITY
Neither Party shall publish or use any publicity materials
with respect to the execution and delivery or existence of
this Agreement without the prior written approval of the
other Party.
(A)3.25 AMENDMENT
RESELLER and USW may mutually agree to amend this
Agreement in writing. Since it is possible that amendments
to this Agreement may be needed to fully satisfy the
purposes and objectives of this Agreement, the Parties
agree to work cooperatively, promptly and in good faith to
negotiate and implement any such additions, changes and
corrections to this Agreement.
(A)3.26 EXECUTED IN COUNTERPARTS
This Agreement may be executed in any number of
counterparts, each of which shall be deemed an original;
but such counterparts shall together constitute one and
the same instrument.
(A)3.27 HEADINGS OF NO FORCE OR EFFECT
The headings of Sections of this Agreement are for
convenience of reference only, and shall in no way define,
modify or restrict the meaning or interpretation of the
terms or provisions of this Agreement.
(A)3.28 REGULATORY APPROVAL
The Parties understand and agree that this Agreement will
be filed with the Commission for approval. In the event
the Commission rejects any portion of this Agreement,
renders it inoperable or creates an ambiguity that
requires further amendment, the Parties agree to meet and
negotiate in good faith to arrive at a mutually acceptable
modification.
(A)3.29 COMPLIANCE
Each Party shall comply with all federal, state, and local
laws, rules and regulations applicable to its performance
under this Agreement. Without limiting the foregoing, USW
and RESELLER agree to take all action necessary to keep
and maintain in full force and effect all permits,
licenses, certificates, insurance, and other authorities
needed to perform their respective obligations hereunder.
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Part A
General Terms
(A)3.30 COMPLIANCE WITH THE COMMUNICATIONS ASSISTANCE FOR LAW
ENFORCEMENT ACT OF 1994 ("CALEA")
Each Party represents and warrants that any equipment,
facilities or services provided to the other Party under
this Agreement comply with CALEA. Each Party shall
indemnify and hold the other Party harmless from any and
all penalties imposed upon the other Party for such
noncompliance and shall at the noncompliant Party's sole
cost and expense, modify or replace any equipment,
facilities or services provided to the other Party under
this Agreement to ensure that such equipment, facilities
and services fully comply with CALEA.
(A)3.31 COOPERATION
The Parties agree that this Agreement involves the
provision of USW services in ways such services were not
previously available and the introduction of new processes
and procedures to provide and bill such services.
Accordingly, the Parties agree to work jointly and
cooperatively in testing and implementing processes for
pre-ordering, ordering, maintenance, provisioning and
billing and in reasonably resolving issues which result
from such implementation on a timely basis. Electronic
processes and procedures are addressed in Part D of this
Agreement.
(A)3.32 AVAILABILITY OF OTHER AGREEMENTS
With regard to the availability of other agreements, the
Parties agree that the provisions of Section 252(i) of the
Act shall apply, including state and federal, Commission
and court interpretive regulations and decisions in effect
from time to time.
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Part B
Resale
PART B - RESALE
(B)1. DESCRIPTION
(B)1.1 Pursuant to the Act and this Part B, USW shall offer for
resale at wholesale rates any Telecommunications Services
it provides to end users who are not Telecommunications
Carriers including terms and conditions (except prices) in
the USW Tariffs, where applicable. RESELLER may obtain
intraLATA toll service from USW for resale or RESELLER has
the option to self-provision intraLATA toll or to obtain
intraLATA toll for resale from another provider.
(B)1.2 The Parties agree that certain USW services are not
available for resale under this Agreement and certain
other USW services are available for resale but not at a
discount, as identified in Part E or in individual state
Tariffs. The availability of services and applicable
discounts identified in Part E or in individual Tariffs
are subject to change pursuant to the Rates and Charges
sub-section of this Resale section.
(B)2. TERMS AND CONDITIONS
(B)2.1 Basic Exchange Telecommunications Service, Basic Exchange
Features, Private Line Service, Frame Relay Service and
intraLATA Toll may be resold only for their intended or
disclosed use and only to the same class of end user to
which USW sells such services (e.g., residence service may
not be resold to business end users). Service provided
directly to RESELLER for its own use, such as
administrative services, must be identified by RESELLER
and RESELLER must pay the full retail rates and prices for
such services.
(B)2.2 USW shall provide to RESELLER Telecommunications Services
for resale that are at least equal in quality, and in
substantially the same time and manner that USW provides
these services to others, including other Resellers and
end users, and in accordance with any applicable
Commission service quality standards, including standards
the Commission may impose pursuant to Section 252 (e)(3)
of the Act.
(B)2.3 In the event that there are existing agreements between
RESELLER and USW for resale under USW retail Tariff
discounts, RESELLER may elect to continue to obtain
services for resale under the existing agreements and
retail Tariff discounts or RESELLER may elect to terminate
such existing agreements and obtain such services under
this Agreement with the associated wholesale discount
specified in Part E of this Agreement.
(B)2.4 In accordance with the Act, RESELLER will provide the date
it will begin to offer Telecommunications Services to
residential and business end users. RESELLER will provide
a two (2) year forecast within ninety (90) calendar days
of signing this Agreement The forecast shall be updated
and provided to USW on a annual basis or as requested by
USW. Each forecast will provide:
- The date service will be offered (by city and/or state)
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Part B
Resale
- The type and quantity of service(s) which will be
offered
- RESELLER's anticipated number of service orders
- Name of RESELLER's key contact personnel
The information provided pursuant to this paragraph shall
be considered Proprietary Information under the
Nondisclosure Section of this Agreement.
(B)2.5 RESELLER may not reserve blocks of USW telephone numbers,
except as allowed by Tariffs.
(B)2.6 USW will accept at no charge one primary listing for each
main telephone number belonging to RESELLER's end user
based on end user information provided to USW by RESELLER.
USW will place RESELLER's listings in USW's directory
listing database for directory assistance purposes.
Additional terms and conditions with respect to directory
listings are described in Part C of this Agreement.
(B)2.7 USW shall provide to RESELLER, for RESELLER's end users,
E911/911 call routing to the appropriate Public Safety
Answering Point ("PSAP). USW shall not be responsible for
any failure of RESELLER to provide accurate end user
information for listings in any databases in which USW is
required to retain and/or maintain end user information.
USW shall provide and validate RESELLER's end user
information to the Automatic Location
Identification/Database Management System ("ALI/DMS"). USW
shall use its standard process to update and maintain, on
the same schedule that it uses for its end users,
RESELLER's end user service information in the ALI/DMS
used to support E911/911 services. USW assumes no
liability for the accuracy of information provided by
RESELLER.
(B)2.8 If USW provides and RESELLER accepts operator services,
directory assistance, and intraLATA long distance as a
part of the resold line, it will be offered with standard
USW branding. RESELLER is not permitted to alter the
branding of these services in any manner when the services
are a part of the resold line without the prior written
approval of USW. However, at the request of RESELLER and
where technically feasible, USW will rebrand operator
services and directory assistance in RESELLER's name,
provided the charges associated with such rebranding are
paid by RESELLER.
(B)2.9 RESELLER shall designate the Primary Interexchange Carrier
(PIC) assignments on behalf of its end users for interLATA
services and intraLATA services.
(B)2.10 When end users switch from USW to RESELLER, or to RESELLER
from any other Reseller, and if they do not change their
service address to an address served by a different
Central Office, such end users shall be permitted to
retain their current telephone numbers if they so desire.
USW shall take no action to prevent RESELLER end users
from retaining their current telephone numbers.
(B)2.11 RESELLER is liable for all fraud associated with service
to its end-users and accounts. USW takes no
responsibility, will not investigate, and will make no
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Part B
Resale
adjustments to RESELLER's account in cases of fraud unless
such fraud is the result of any intentional act or gross
negligence of USW. Notwithstanding the above, if USW
becomes aware of potential fraud with respect to
RESELLER's accounts, USW will promptly inform RESELLER
and, at the direction of RESELLER, take reasonable action
to mitigate the fraud where such action is possible.
(B)2.12 Resold services are available only where facilities
currently exist and are capable of providing such services
without construction of additional facilities or
enhancement of existing facilities. However, if RESELLER
requests that facilities be constructed or enhanced to
provide resold services, USW will review such requests on
a case-by-case basis and determine if it is economically
feasible for USW to build or enhance facilities. If USW
decides to build or enhance the requested facilities, USW
will develop and provide to RESELLER a price quote for the
construction. Construction charges associated with resold
services will be applied in the same manner that
construction charges apply to USW`s retail end users. If
the quote is accepted, RESELLER will be billed the quoted
price and construction will commence after receipt of
payment.
(B)2.13 In the event USW terminates the provisioning of any resold
services to RESELLER for any reason, including RESELLER's
non-payment of charges, RESELLER shall be responsible for
providing any and all necessary notice to its end users of
the termination. In no case shall USW be responsible for
providing such notice to RESELLER's end users. USW will
provide notice to RESELLER of USW`s termination of a
resold service on a timely basis consistent with
Commission rules and notice requirements.
(B)2.14 The underlying network provider of a resold service shall
be entitled to receive, from the purchaser of Switched
Access, the appropriate access charges pursuant to its
then effective Switched Access Tariff.
(B)2.15 Centrex terms and conditions related to calculation of
charges for, and provisioning of common blocks, station
lines, and optional features will be based on the Centrex
definition of a system and a Reseller's serving location.
(B)2.15.1 Where a common block is applicable, a Centrex
system is defined by a single common block or
multiple common blocks for a single RESELLER
within a single Central Office switching
system. A common block defines the dialing plan
for intercom calling, access to Public Switched
Network and/or private facilities, station line
and system restrictions and feature access
arrangements and functionality. RESELLER may
purchase multiple common blocks within a single
Central Office switching system when RESELLER
requires different dialing plans, feature
access arrangements and station line or system
restrictions within a single system operation.
A Reseller with multiple common blocks within
the same Central
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Part B
Resale
Office switch may have Network Access Register
and Private Facility trunk groups aggregated
across multiple common blocks. Centrex system
based optional features (i.e. Automatic Route
Selection) may not be aggregated across
multiple common blocks. A Centrex system must
provide station lines to at least one location
and may provide station lines to multiple
locations.
(B)2.15.2 Centrex station lines are provisioned and
charges are calculated based on serving
Reseller's location. A location is defined as
the site where USW facilities (cable plant from
the serving Central Office switch) meet
Reseller facilities (inside wire). In a multi-
tenant building, USW may bring facilities
directly to a single point of interconnection
with Reseller facilities, typically in a
basement equipment room, which would be
considered a single location for this
multi-tenant building. Should USW bring service
to multiple floors or offices within a
multi-tenant building each floor or office with
a separate Reseller facilities termination
point is considered a location. Multiple
buildings within contiguous property (campus)
will be provisioned and billed as a single
location. Contiguous property is defined as
property owned or leased by a single end user
and not separated by public thoroughfare, river
or railroad rights-of-way. Property will be
considered contiguous when connected via
connecting passageways or conduit acceptable to
USW for its facilities. A Reseller with Centrex
station lines from multiple Central Office
switching systems, within the same USW Wire
Center, and provisioned to the same location
will not be charged for service or provisioned
as if service was originating from a single
Centrex system. For example, station lines may
only be aggregated from a single Centrex
Reseller system to a single Reseller serving
location for rating purposes. RESELLER may not
specify a USW Central Office as a RESELLER
location for termination of Centrex station
lines.
(B)2.16 Private Line Service used for Special Access is available
for resale but not at a discount.
(B)2.17 DSL Service (such as Megabit Service) is available for
resale by RESELLER out of USWs Interstate Tariff, but at
no wholesale discount.
(B)3. RATES AND CHARGES
(B)3.1 The Telecommunications Services identified in Part E are
available for resale at the wholesale discount percentage
shown in Part E. Telecommunications Services available for
resale but excluded from the wholesale pricing arrangement
in this Agreement are available at the retail Tariff
rates.
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Part B
Resale
(B)3.2 The Customer Transfer Charges (CTC) as specified in Part E
apply when transferring services to RESELLER.
(B)3.3 A Subscriber Line Charge (SLC), or any subsequent
federally mandated charge to end users, will continue to
be paid by RESELLER without discount for each local
exchange line resold under this Agreement. All federal and
state rules and regulations associated with SLC as found
in the applicable Tariffs also apply.
(B)3.4 RESELLER will pay to USW the PIC change charge without
discount for RESELLER end user changes of interexchange or
intraLATA carriers. Any change in RESELLER's end users'
interexchange or intraLATA carrier must be requested by
RESELLER on behalf of its end user.
(B)3.5 RESELLER agrees to pay USW when its end user activates any
services or features that are billed on a per use or per
activation basis subject to the applicable discount in
Part E as such may be amended pursuant to this Section
(e.g., continuous redial, last call return, call back
calling, call trace, etc.).
(B)3.6 Product specific non-recurring charges, as set forth in
USW's applicable Tariffs will apply when additional lines,
trunks or circuits are added or when the end user adds
features or services to existing lines or trunks.
(B)3.7 Miscellaneous charges, if applicable, will be consistent
with charges for equivalent services ordered by USW end
users.
(B)3.8 The wholesale discount rates in Part E established in the
North Dakota Case No. PU-453-96-497, "In the Matter of
AT&T Corporation and U S WEST Communications, Inc., for
Arbitration of the Interconnection Rates, Terms and
Pursuant to 47 U.S.C. Sec. 252(b) of the
Telecommunications Act of 1996", (the "AT&T Arbitration")
are interim rates and are pending the outcome of a final
Commission decision in an interconnection cost docket.
Such rates, as adopted in this Agreement, will be subject
to true-up from the date those rates became effective in
this Agreement to the effective date of the final
interconnection cost docket order. Notwithstanding this
true-up obligation, the Parties agree that rates in this
Agreement will remain in effect as described below until
the exhaustion of all appeals of the final order in the
interconnection cost docket.
(B)3.9 The Parties intend that, if the AT&T rates or the services
in the AT&T Arbitration are changed by any negotiations,
appeal, stay, injunction, settlement, or similar
proceeding with respect to AT&T, those rates and services,
if they have been adopted into this Agreement, shall be
changed in this Agreement to the same extent as the rates
and services in the AT&T Arbitration. Notwithstanding the
above, the Parties agree that in the event a stay or
injunction is granted with respect to the implementation
of the services and rates in the AT&T Arbitration, the
Parties agree that the telecommunications services still
available for resale following the stay or
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Part B
Resale
injunction will be available to RESELLER, effective as of
the date of the stay order or injunction, at a wholesale
discount rate of 12% (the "Standard Rate") until such time
as a nonappealable order establishes a wholesale discount
rate(s). If the Standard Rate becomes effective pursuant
to this paragraph, the Standard Rate will also be subject
to true-up to the rate(s) established in the nonappealable
order for the period that the Standard Rate was in effect.
If the AT&T rates or the applicability of the rate to the
services in Part E is changed by a nonappealable
administrative or judicial order following approval of
negotiated rates, rates reached in an approved settlement
agreement, a decision on appeal or other similar
proceeding, such changed rate(s) will be available to
RESELLER, effective as of the date of the order. The AT&T
rate shall be subject to true-up to the changed rates for
the period of time the AT&T rate was in effect.
Notwithstanding the above, no true-up of either the
Standard Rate or the AT&T rate will occur unless ordered
as a part of the nonappealable administrative or judicial
order.
(B)3.10 If the resold services are purchased pursuant to Tariffs
and the Tariff rates change, charges billed to RESELLER
for such services will be based upon the new Tariff rates
less the applicable wholesale discount, if any, as agreed
to herein or as established by Commission order and/or
resale Tariff. The new rate will be effective upon the
Tariff effective date.
(B)4. ORDERING PROCESS
(B)4.1 RESELLER, or RESELLER's agent, shall act as the single
point of contact for its end users' service needs,
including without limitation, sales, service design, order
taking, provisioning, change orders, training,
maintenance, trouble reports, repair, post-sale servicing,
billing, collection and inquiry. RESELLER shall inform its
end users that they are end users of RESELLER for resold
services. RESELLER's end users contacting USW will be
instructed to contact RESELLER; however, nothing in this
Agreement, except as provided below, shall be deemed to
prohibit USW from discussing its products and services
with RESELLER's end users who call USW.
(B)4.2 RESELLER shall transmit to USW all information necessary
for the ordering (billing, listing and other information),
installation, repair, maintenance and post-installation
servicing according to USW's standard procedures, as
described in the USW Interconnect & Resale Resource Guide
available on USW's Web site. Information shall be provided
using USW's designated Local Service Request (LSR) format
which may include the LSR, end user and resale forms.
RESELLER must send USW complete and accurate end user
listing information for Directory Assistance, Directory
Listings, and 911 Emergency Services using USW's
designated resale directory listing order forms. When
USW's end user or the end user's new service provider
orders the discontinuance of the end user's existing
service in anticipation of moving to another service
provider, USW will render its closing bill to the end
user effective with the disconnection. If another service
provider, RESELLER's end
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Part B
Resale
user or RESELLER requests that service be discontinued
from RESELLER and subsequently USW's service to RESELLER
is discontinued USW will issue a bill to RESELLER for that
portion of the service provided to RESELLER.. USW will
notify RESELLER by FAX, OSS interface or other agreed upon
processes, in accordance with the OSS section of this
Agreement when an end user moves to another service
provider. USW will not provide RESELLER with the name of
the other service provider elected by the end user.
(B)4.3 RESELLER shall provide USW and USW shall provide RESELLER
with points of contact for order entry, problem resolution
and repair of the resold services.
(B)4.4 Prior to placing orders on behalf of the end user,
RESELLER shall be responsible for obtaining and have in
its possession Proof of Authorization ("POA"), as set
forth in Part A of this Agreement.
(B)4.5 Due date interval standards are addressed in the
Interconnect & Resale Resource Guide.
(B)4.6 Firm Order Confirmation (FOC) guidelines are addressed in
the Interconnect & Resale Resource Guide.
(B)4.7 USW will provide completion notification that is equal to
that provided to USW end users.
(B)4.8 USW will provide Design Layout Records when requested
under terms and conditions consistent with USW end users.
(B)4.9 USW will handle jeopardy orders based upon the same
performance standards and criteria that USW provides to
itself.
(B)5. BILLING
(B)5.1 USW shall bill RESELLER and RESELLER is responsible for
all applicable charges for the resold services as provided
herein. RESELLER shall also be responsible for all
Tariffed charges and charges separately identified in this
Agreement associated with services that RESELLER resells
to an end user under this Agreement.
(B)5.2 USW shall provide RESELLER, on a monthly basis, within
7-10 calendar days of the last day of the most recent
billing period, in an agreed upon standard electronic
billing format as detailed in Part D, billing information
including (1) a summary bill, and (2) individual end user
sub-account information consistent with the samples
available for RESELLER review.
(B)6. MAINTENANCE AND REPAIR
RESELLER AND USW will employ the procedures for handling misdirected
repair calls as specified in the Maintenance and Repair Section of
this Agreement.
(B)6.1 USW will maintain facilities and equipment used to provide
RESELLER resold services. RESELLER or its end user may not
rearrange, move, disconnect, or attempt to repair USW
facilities or equipment, other than by connection or
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Part B
Resale
disconnection to any interface between USW and the end
user, without written consent of USW.
(B)6.2 Maintenance and repair processes are detailed in the
Maintenance and Repair Section of this Agreement.
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Part C
Directory Listings
PART C - WHITE PAGES DIRECTORY LISTINGS
(C)1. DESCRIPTION
White Pages Listings Service (Listings) consists of USW placing the
names, addresses and telephone numbers of RESELLER's end users in
USW`s listing database, based on end user information provided to USW
by RESELLER. USW is authorized to use Listings in Directory
Assistance (DA) and as noted below.
(C)2. TERMS AND CONDITIONS
(C)2.1 RESELLER will provide in standard, mechanized format, and
USW will accept at no charge, one primary listing for each
main telephone number belonging to RESELLER's end users.
Primary listings for RESELLER will include the end user
Listings for any resold services or wireless services and
are further defined in USW`s general exchange Tariffs.
RESELLER will be charged for premium and privacy listings,
(e.g., additional, foreign, cross reference,
informational, etc.), at USW's general exchange listing
Tariff rates, less the wholesale discount. If RESELLER
utilizes Remote Call Forwarding for local number
portability, RESELLER can list only one number without
charge - either the end user's original telephone number
or RESELLER-assigned number. The standard discounted rate
for an additional listing applies to the other number.
(C)2.2 USW will furnish RESELLER the Listings format
specifications. All manual requests are considered a
project and require coordination between RESELLER and USW
to determine time frames.
(C)2.3 RESELLER grants USW a non-exclusive license to incorporate
Listings information into its Directory Assistance
database. With this license USW will incorporate Listings
in the DA database.
(C)2.4 No prior authorization is needed for USW to release
Listings to directory publishers or other third parties.
USW will incorporate Listings information in all existing
and future directory assistance applications developed by
USW. RESELLER authorizes USW to sell and otherwise make
Listings available to directory publishers. Listings shall
not be provided or sold in such a manner as to segregate
end users by carrier. USW will not charge for updating and
maintaining the Listings database. RESELLER will not
receive compensation from USW for any sale of listings by
USW.
(C)2.5 To the extent that state Tariffs limit USW`s liability
with regard to Listings, the applicable state Tariff(s) is
incorporated herein and supersedes the Limitation of
Liability section of this Agreement with respect to
Listings only.
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Part C
Directory Listings
(C)2.6 USW is responsible for maintaining Listings, including
entering, changing, correcting, rearranging and removing
Listings in accordance with RESELLER orders. USW will take
reasonable steps in accordance with industry practices to
accommodate non-published and non-listed Listings provided
that RESELLER has supplied USW the necessary privacy
indicators on such Listings.
(C)2.7 USW will include RESELLER Listings in USW's Directory
Assistance service to ensure that callers to USW's
Directory Assistance service have non-discriminatory
access to RESELLER's Listings.
(C)2.8 USW will ensure RESELLER Listings provided to USW are
included in the white pages directory published on USW's
behalf.
(C)2.9 RESELLER agrees to provide to USW its end user names,
addresses and telephone numbers in a standard mechanized
format, as specified by USW.
(C)2.10 RESELLER will supply its ACNA/CIC or CLCC/OCN, as
appropriate, with each order to provide USW the means of
identifying Listings ownership.
(C)2.11 Upon request by USW, RESELLER shall submit proof to USW,
of authorization from each end user for which RESELLER
submits a change in end user's Listing.
(C)2.12 RESELLER represents and warrants the end user information
provided to USW is accurate and correct. RESELLER further
represents and warrants that it has reviewed all Listings
provided to USW, including end user requested restrictions
on use such as non-published and non-listed. RESELLER
shall be solely responsible for knowing and adhering to
state laws or rulings regarding Listings (e.g., no
solicitation requirements in the states of Arizona and
Oregon, privacy requirements in Colorado), and for
supplying USW with the applicable Listing information.
(C)2.13 RESELLER is responsible for all dealings with, and on
behalf of, RESELLER's end users, including:
(C)2.13.1 All end user account activity, (e.g. end user
queries and complaints).
(C)2.13.2 All account - maintenance activity, (e.g.,
additions, changes, issuance of orders for
Listings to USW).
(C)2.13.3 Determining privacy requirements and accurately
coding the privacy indicators for RESELLER's
end user information. If end user information
provided by RESELLER to USW does not contain a
privacy indicator, no privacy restrictions will
apply.
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Part C
Directory Listings
(C)2.13.4 Any additional services requested by RESELLER's
end users.
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Part D
Miscellaneous Provisions
PART D- MISCELLANEOUS PROVISIONS
(D)1. NETWORK SECURITY
(D)1.1 Protection of Service and Property - Each Party shall
exercise the same degree of care to prevent harm or damage
to the other Party and any third parties, its employees,
agents or end users, or their property as it employs to
protect its own personnel, end users and property, etc.
Each Party shall comply at all times with USW security and
safety procedures and requirements.
(D)1.2 Revenue Protection - USW shall make available to RESELLER
all present and future fraud prevention or revenue
protection features. These features include, but are not
limited to screening codes, and 900 numbers.
(D)1.3. Law Enforcement Interface - USW provides emergency
assistance to 911 centers and law enforcement agencies
seven (7) days a week/twenty-four (24) hours a day.
Assistance includes, but is not limited to release of 911
trace and subscriber information; in-progress trace
requests; establishing emergency trace equipment, release
of information from an emergency trap/trace or *57 trace;
requests for emergency subscriber information; assistance
to law enforcement agencies in hostage/barricade
situations, kidnappings, bomb threats, extortion/scams,
runaways and life threats.
(D)1.4 USW provides trap/trace, pen register and Title III
assistance directly to law enforcement, if such assistance
is directed by a court order. This service is provided
during normal business hours, Monday through Friday.
Exceptions are addressed in the above paragraph. The
charges for these services will be billed directly to the
law enforcement agency, without involvement of RESELLER,
for any lines served from USW Wire Centers or cross boxes.
(D)1.5 In all cases involving telephone lines served from USW
Wire Centers or cross boxes, USW will perform trap/trace
Title III and pen register assistance directly with law
enforcement. RESELLER will not be involved or notified of
such actions, due to non-disclosure court order
considerations, as well as timely response duties when law
enforcement agencies are involved. Exceptions to the above
will be those cases, as yet undetermined, where RESELLER
must participate due to technical reasons wherein its
circuitry must be accessed or modified to comply with law
enforcement, or for legal reasons that may evolve over
time. RESELLER will provide USW with a 24 hour a day, 7
days a week contact for processing such requests, should
they occur.
(D)2. ACCESS TO OPERATIONAL SUPPORT SYSTEMS (OSS)
(D)2.1 Description
(D)2.1.1 USW has developed and shall continue to provide
Operational Support Systems OSS interfaces
using electronic gateways. These gateways act
as a mediation or control point between
RESELLER's
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Miscellaneous Provisions
and USW's OSS. These gateways provide security
for the interfaces, protecting the integrity of
the USW OSS and its databases. USW's OSS
interfaces have been developed to support
Pre-ordering, Ordering and Provisioning,
Maintenance and Repair and Billing. Included
below is a description of the products and
functions supported by USW OSS interfaces and
the technology used by each. This section
describes the interfaces that USW has developed
and shall provide RESELLER. Additional
technical information and details shall be
provided by USW in training sessions and
documentation, such as the "Interconnect
Mediated Access User's Guide". USW will
continue to make improvements to the electronic
interfaces as technology evolves, providing
notification to RESELLER consistent with the
provisions of this Section.
(D)2.1.2 Through its electronic gateways, USW shall
provide RESELLER nondiscriminatory access to
USW's operational support systems for
pre-ordering, ordering and provisioning,
maintenance and repair, and billing for resale.
For the pre-ordering, ordering and provisioning
of resold services, USW shall provide RESELLER
access to its OSS in substantially the same
time and manner as it provides to itself.
(D)2.2 OSS Support for Pre-Ordering, Ordering and Provisioning
(D)2.2.1 LSR (Local Service Request) Ordering Process
(D)2.2.1.1 RESELLER shall use electronic
interfaces for orders placed using
the LSR Ordering Process for the
services it supports. The electronic
interface gateways include both the
Electronic Data Interchange (EDI)
interface and the Interconnect
Mediated Access (IMA) Graphical User
Interface (GUI).
(D)2.2.1.2 The EDI interface provides a single
interface for Pre-Order and Order
transactions from RESELLER to USW
and is transaction based rather than
batch based. The interface standards
for EDI are based upon the Order &
Billing Forum (OBF) Local Service
Order Guidelines (LSOG), the
Telecommunication Industry Forum
(TCIF) Customer Service Guideline
and the American National Standards
Institute/Accredited Standards
Committee (ANSI ASC) X12 with
exceptions as specified in the IMA
and EDI disclosure documents which
are provided in conjunction with the
implementation responsibilities
contained in this Section.
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Miscellaneous Provisions
(D)2.2.1.3 The IMA GUI also provides a single
interface for Pre-Order and Order
transactions from RESELLER to USW
and is browser based The IMA GUI
interface is based on the LSOG and
utilizes a WEB standard technology,
Hyper Text Markup Language (HTML),
JAVA, and the Transmission Control
Protocol/Internet Protocol (TCP/IP)
to transmit messages.
(D)2.2.1.4 Functions
(D)2.2.1.4.1 Pre-ordering
Pre-Ordering refers to the set
of activities performed in
conjunction with placing an
order. Pre-order consists of
the following functions:
validate address, service
availability, review Customer
Service Record (CSR), check
facility availability, reserve
telephone numbers, and schedule
an appointment. The electronic
interface gateways provide
on-line capabilities to perform
these functions. Not all
functions apply to all
products.
(D)2.2.1.4.1.1 Validate address will
verify the end user's address.
(D)2.2.1.1.4.1.2 Service
Availability will return the
list of (1) POTS products and
services available in the
Central Office switch serving a
particular end user address,
which will indicate to
RESELLER, among other things,
which products and services are
authorized for resale in the
Central Office switch serving
a particular end user address
and (2) non-switched-based
products and services that
RESELLER is authorized to
provide according to its resale
agreement with USW.
(D)2.2.1.1.4.1.3 Review Customer Service
Record (CSR) gives RESELLER the
ability to request a display of
local exchange services and
features (CPNI) USW is currently
providing to an end user.
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(D)2.2.1.4.1.4 Check Facility Availability
will provide an indication of
whether existing facilities
are available or if new
facilities are required, and
if a technician must be
dispatched to provide the
facilities requested at the
end user's address. This
transaction does not reserve
facilities and does not
guarantee that facilities
will or will not be available
when the order is submitted.
(D)2.2.1.4.1.5 Reserve Telephone Numbers
provides RESELLER with the
ability to select an end
user's telephone number. The
reservation process is
further divided into
telephone number
availability, selection,
exchange and return
functionality. Expiration
period for selection and
submission of Telephone
Number are:
- A period up to thirty
(30) minutes in which to
make a telephone number
selection. If this time
limit is exceeded, and no
attempt has been made to
select the telephone
numbers, the telephone
numbers are sent back to
the OSS and an error
message is displayed on
the LSR. A new query will
need to be performed for
available telephone
numbers.
- When a telephone number
has been reserved, there
is a twenty-four (24)
hour business period that
the telephone number may
be included on an LSR. If
the time limit is
exceeded, the telephone
number is returned to the
OSS.
(D)2.2.1.4.1.6 Schedule Appointment allows
RESELLER to retrieve a
calendar of available
appointments and to reserve
an appointment date and time
so that a technician can be
dispatched for premises
and/or non-premises work.
(D)2.2.1.4.1.7 Expiration period for
selection and submission of
Appointment Reservation are:
- A selection must be made
within a thirty (30)
minute period. If an
appointment
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Part D
Miscellaneous Provisions
has been selected and the
time limit was exceeded,
an error message will
display. If the error
message displays, an
updated list of available
appointments will need to
be requested. If an
appointment has already
been reserved for this
Purchase Order Number,
the Appointment
Confirmation window will
be displayed and will be
prepopulated with
confirmation number,
appointment date and
time, and after and
before times.
- Appointments are reserved
for a 24 hour business
period. If the
appointment is not
attached to a submitted
order within 24 business
hours, the appointment is
returned. When the
appointment is
successfully reserved,
confirmation of the
appointment will be
displayed to RESELLER.
(D)2.2.1.4.2 Ordering and Provisioning
Submitting an LSR will result in the
provisioning and installation, if
necessary, of an end user's service.
The functional set associated with
ordering is: Create New LSR, Open
LSR, Query LSR Status and FOC
Return.
(D)2.2.1.4.2.1 Create New LSR allows entry of
information specific to the LSR,
including required OBF forms,
validates information and submits
the LSR for processing.
(D)2.2.1.4.2.2 Open LSR allows RESELLER to save
LSRs it is not ready to submit for
processing as a pending status. When
an LSR is saved as pending, all the
data in all the forms associated
with the LSR is saved. This feature
permits RESELLER to access, edit,
submit, re-save, and purge pending
LSRs. In addition, for issued LSRs,
RESELLER can issue supplemental LSRs
and cancellations.
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Part D
Miscellaneous Provisions
(D)2.2.1.4.2.3 Query LSR Status allows RESELLER
to obtain the status of the LSR.
Status is provided to RESELLER upon
inquiry. Order status functions
include the following: Submitted, In
Review, Issued, Rejected, Erred,
Completed and Jeopardy.
(D)2.2.1.4.2.4 FOC Return returns a Firm Order
Confirmation to RESELLER. The FOC
confirms that USW has received a SR,
issued an order, and assigned an
order number for tracking.
(D)2.2.1.5 Forecast of Usage
(D)2.2.1.5.1 RESELLER shall supply USW with a
forecast of products and volumes
they anticipate ordering through
the electronic interface gateways
on a quarterly basis.
(D)2.2.1.5.2 USW will use RESELLER's forecast
to provide RESELLER sufficient
capacity to provide the services
and elements requested. If
RESELLER exceeds its capacity
without notification, to the
extent that it causes degradation
to other users' response times,
RESELLER's use of its capacity on
the IMA or EDI server may be
discontinued until a resolution
can be mutually agreed to by both
Parties. USW will attempt to
notify RESELLER before
discontinuing RESELLER's use of
the IMA or EDI server; however
USW reserves the right to
discontinue use if it is unable
to contact RESELLER.
(D)2.2.1.5.3 When RESELLER requests more than
twenty (20) Secure IDs from USW
RESELLER shall use a T1 line
instead of dial-up capabilities.
(D)2.2.1.6. Access Service Request (ASR) Ordering Process
(D)2.2.1.6.1 The Exchange Access Control and
Tracking (EXACT) system may be
used for orders placed using the
ASR process. EXACT is based upon
the OBF access Service Order
Guidelines (ASOG). The EXACT
interface accepts a batch
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Miscellaneous Provisions
file that is transmitted via a
Network Data Mover (NDM) connection
to USW from RESELLER. It is
RESELLER's responsibility to obtain
the appropriate software to
interface with USW's EXACT system.
(D)2.2.1.7 Facility Based EDI Listing Process
(D)2.2.1.7.1 The Facility Based EDI Listing
Process is a single interface from
RESELLER to USW. This interface is
based upon the OBF LSOG and ANSI
ASC X12 standards, version 4010.
This interface enables RESELLER
listing data to be translated and
passed into the USW listing
database. After USW's daily batch
processing, a
Confirmation/Completion record
(for every PON provided on input)
is returned to RESELLER via an
EDI 855 transaction.
(D)2.2.2 Maintenance and Repair
(D)2.2.2.1 Maintenance and Repair electronic interfaces
support the tracking and resolution of end
users' repair and maintenance needs as reported
to RESELLER. They facilitate the exchange of
updated information and progress reports
between USW and RESELLER while the Trouble
Report (TR) is open and a USW technician is
working on the resolution.
(D)2.2.2.2 RESELLER shall use the electronic interface
gateways for reporting trouble. The electronic
interface gateways are comprised of either the
Mediated Access System Electronic Bonding
(MEDIACC EB) interface or the IMA GUI
interface.
(D)2.2.2.3 The MEDIACC Electronic Bonding (EB) interface
uses CMIP protocol over X.25 packet switching
network using ANS T1M1.5 227/228 standards.
(D)2.2.2.4 The IMA GUI also provides a single interface
for trouble reporting from RESELLER to USW and
is browser based. The IMA GUI interface uses a
Berkley Socket interface using ANSI T1M1.5
227/228 standards. The IMA GUI uses JAVA as the
standard. The IMA GUI Interface currently
supports trouble reporting for resale services.
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(D)2.2.2.5 Functions
(D)2.2.2.5.1 Maintenance and Repair - The
functions, processes and systems
used in repair are based on a
Trouble Report (TR), which is an
electronic document maintained in
one or more OSS. A TR contains
information about the end user,
the trouble, the status of the
work on the trouble and the
results of the investigation and
resolution efforts. These business
processes will be made available
to RESELLER in the following
functional set: open a trouble
report, modify a trouble report,
notification of status change,
view trouble report status, cancel
a trouble report, receive a
trouble report history,
resubmit/delete an erred trouble
report and close a trouble report.
(D)2.2.2.5.1.1 Open Trouble Report is the
mechanism that captures
information needed to resolve the
trouble. Once a TR has been
opened, if RESELLER is using
MEDIACC EB, USW sends an
electronic transaction to RESELLER
identifying information about the
TR (e.g., commitment date and
tracking number).
(D)2.2.2.5.1.2 In IMA for POTS, and in EBTA for
POTS and designed services, Modify
Trouble Report allows RESELLIER to
modify the trouble severity (for
example; change from "service
affecting" to "out of service")
and trouble narrative on a TR
until it has been cleared.
(D)2.2.2.5.1.3 Status Change Notification
provides notification to RESELLER
that the status of a previously
opened TR has changed. If RESELLER
is using MEDIACC EB, RESELLER will
receive this notification via an
electronic transaction. If
RESELLER is using the IMA GUI
Interface, RESELLIER will receive
this notification via email and/or
fax.
(D)2.2.2.5.1.4 View Trouble Report Status/
Trouble Report Status Request
allows RESELLER to view the status
of an opened Trouble Report. If
RESELLER is using Mediacc EB, USW
sends an electronic transaction
to RESELLER with the
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status of an opened TR after
RESELLER sends an electronic
transaction to request the status.
(D)2.2.2.5.1.5 Cancel Trouble Report allows
RESELLER to request cancellation of
a previously opened TR. Once a
request to cancel is received, an
orderly cessation of the trouble
resolution process begins. If USW
has completed any work before the
trouble resolution process is
stopped, charges to RESELLER may
apply.
(D)2.2.2.5.1.6 Trouble Report History provides
RESELLER with historical information
on up to the last three trouble
reports. For POTS resale, the
disposition and trouble report date
and time are provided. For design
services resale, the trouble report
date and time, a text description of
the disposition, the USW Trouble
Report Number, and the trouble type
are provided. IMA provides trouble
report history.
(D)2.2.2.5.1.7 Resubmit/Delete allows trouble
reports to be resubmitted or deleted
via IMA GUI if, prior to entering
USW's OSS, the transaction fails or
errors. This transaction is only
valid if the TR has not entered
USW's OSS. This transaction is
currently only available via IMA
GUI.
(D)2.2.5.1.8 Close a Trouble Report for resale,
allows USW to close the TR once work
is complete. For design resale
services, USW sends RESELLER a
request for verification to close.
RESELLER then authorizes or denies
the closure. RESELLER has
twenty-four (24) hours to respond.
If a response is not received within
that time frame, the TR will
automatically be closed. USW
provides notification to RESELLER
that a TR has been closed because
the trouble was resolved. Additional
information, (e.g., disposition,
disposition description,
outage duration, maintenance of
service, charge indicator) is also
included. If RESELLER is using EB,
RESELLER will receive this response
via an electronic
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transaction. If RESELLER is using
the IMA GUI Interface, RESELLER will
receive this response via email
and/or fax.
(D)2.2.2.5.1.9 MLT test results give RESELLER
the ability to request a loop test
for POTS service via EBTA. When
RESELLER submits a TR through IMA,
the technician handling the TR will
order a MLT test in appropriate
situations.
(D)2.3 Hours of Operation
USW's electronic interface gateways will be available to Resellers
according to the following schedule:
<TABLE>
<CAPTION>
--------------------------------------------------------------------------------------------------
Function Monday - Friday Saturday Sunday
--------------------------------------------------------------------------------------------------
<S> <C> <C> <C>
IMA Pre-Order & Order 06:00 - 20:00
--------------------------------------------------------------------------------------------------
Exact Order 06:00 - 19:00 07:00 - 17:00
--------------------------------------------------------------------------------------------------
Repair 02:15 - 23:15 07:00 - 21:00 13:00 - 17:00
--------------------------------------------------------------------------------------------------
</TABLE>
USW shall notify Resellers regarding system downtime through mass
facsimile distribution and pop-up windows in the IMA GUI All
referenced times are Mountain Time.
The preceding times represent the period when USW commits that its
OSS interfaces and downstream systems will be functioning (except for
unforeseen system crashes) and its personnel will be available to
assist RESELLER. USW's OSS interfaces are typically available 23
hours a day. RESELLER may call any maintenance and repair issues to
the applicable repair center 24 hours per day, seven days per week.
USW shall provide RESELLER current repair contact numbers.
(D)2.4 Billing
(D)2.4.1 For products billed out of the USW Interexchange Access
Billing System (IABS), USW will utilize the existing
CABS/BOS format and technology for the transmission of
bills.
(D)2.4.2 For products billed out of the USW Customer Record
Information System (CRIS), USW will utilize the existing
EDI standard for the transmission of monthly local billing
information. EDI is an established standard under the
auspices of the American National Standards
Institute/Accredited Standards Committee (ANSI/ASC) X12
Committee. A proper subset of this specification has been
adopted by the Telecommunications Industry Forum (TCIF) as
the "811 Guidelines" specifically for the purposes of
telecommunications billing.
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(D)2.5 Outputs
Output information will be provided to RESELLER in the form of bills,
files, and reports. Bills will capture all regular monthly and
incremental/usage charges and present them in a summarized format.
The files and reports delivered to RESELLER provide more detailed
information than the bills. They come in the following categories:
<TABLE>
<CAPTION>
--------------------------------------------------------------------------------------
Usage Record File Line Usage Information
--------------------------------------------------------------------------------------
<S> <C>
Loss and Completion Order Information
--------------------------------------------------------------------------------------
Category 11 Facility Based Line Usage Information
--------------------------------------------------------------------------------------
SAG/FAM Street Address/Facility Availability Information
--------------------------------------------------------------------------------------
</TABLE>
(D)2.5.1 Bills
(D)2.5.1.1 CRIS Summary Bill - The CRIS (Customer Record
Information System) Summary Bill represents a
monthly summary of charges for most wholesale
products sold by USW. This bill includes a
total of all charges by entity plus a summary
of current charges and adjustments on each
sub-account. Individual sub-accounts are
provided as billing detail and contain monthly,
one time charges and incremental/call detail
information. The Summary provides one bill and
one payment document for RESELLER. These bills
are segmented by state and bill cycle. The
number of bills received by RESELLER is
dictated by the product ordered and the USW
region in which RESELLER is operating.
(D)2.5.1.2 IABS Bill - The IABS (Interexchange Access
Billing System) Bill represents a monthly
summary of charges. This bill includes monthly
and one time charges plus a summary of any
usage charges. These bills are segmented by
product, LATA, billing account number (BAN) and
bill cycle.
(D)2.5.2 Files and Reports
(D)2.5.2.1 Daily Usage Record File provides the
accumulated set of call information for a given
day as captured, or "recorded" by the network
switches. This file will be transmitted Monday
through Friday, excluding USW holidays. This
information is a file of un-rated USW
originated usage messages and rated RESELLER
originated usage messages. It is provided in
Alliance for Telecommunication Industry
Solution (ATIS) standard
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Electronic Message Interface (EMI) format. This
EMI format is outlined in the document SR-320;
which can be obtained directly from ATIS. The
Daily Usage Record File contains multi-state
data for the Data Processing Center generating
this information. Individual state
identification information is contained with
the message detail. USW will provide this data
to RESELLER with the same level of precision
and accuracy it provides itself. This file will
be provided for Resale services.
(D)2.5.2.2 The charge for this Daily Usage Record File is
contained in Part E of this Agreement.
(D)2.5.2.3 Routing of in-region IntraLATA Collect, Calling
Card, and Third Number Billed Messages - USW
will distribute in-region intraLATA collect,
calling card, and third number billed messages
to RESELLER and exchange with other
Co-Providers operating in region in a manner
consistent with existing inter-company
processing agreements. Whenever the daily usage
information is transmitted to a carrier, it
will contain these records for these types of
calls as well.
(D)2.5.2.4 Loss Report provides RESELLER with a daily
report that contains a list of accounts that
have had lines and/or services disconnected.
This may indicate that the end user has changed
Resellers or removed services from an existing
account. This report also details the order
number, service name and address, and date this
change was made. Individual reports will be
provided for resale services.:
(D)2.5.2.5 Completion Report provides RESELLER with a
daily report. This report is used to advise
RESELLER that the order(s) for the service(s)
requested is complete. It details the order
number, service name and address and date this
change was completed. Individual reports will
be provided for resale services.:
This report media is described in Exhibit C.
(D)2.5.2.6 Category 11 Records are Exchange Message
Records (EMR) which provide mechanized record
formats that can be used to exchange access
usage information between USW and RESELLER.
Category 1101 series
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records are used to exchange detailed access
usage information.
(D)2.5.2.7 Category 1150 series records are used to
exchange summarized Meet Point Billed access
minutes-of-use.
These mechanized records are available from USW
in the following formats:
NDM (direct connect or dial-up)
Comet
Tape
Cartridge
(D)2.5.2.8 SAG/FAM Files - The SAG (Street Address Guide)/
FAM (Facility Availability Matrix) files
contain the following information:
SAG provides: - Address and Serving Central
Office Information.
FAM provides USOCs and descriptions by state -
(POTS services only). USOC availability by
NPA-NXX (with the exception of Centrex).
interLATA/intraLATA carriers by NPA-NXX.
These files are made available via a download
process. They can be retrieved by ftp (file
transfer protocol), NDM (Network Data Mover)
connectivity, or a Web browser.
(D)2.6 Modifications to OSS Interfaces
(D)2.6.1 RESELLER and USW agree to discuss the
modification of OSS interfaces based upon
evolving standards (e.g., data elements,
protocols, transport networks, etc.) and
guidelines issued by or referenced by relevant
Alliance for Telecommunication Industry
Solution (ATIS) committees. Establishment of
new, or changes to industry standards and
guidelines will be reviewed semi-annually. The
review will consider standards and guidelines
that have reached final closure as well as
those published in final form. Both Parties
agree to evaluate evolving standards and
determine the relevant modification to be
implemented based upon the latest approved
version adopted or the latest version
reflecting final closure by the relevant ATIS
committee or subcommittee. As a result of the
review, USW shall draft appropriate interface
specifications that shall be made available to
RESELLER through the electronic gateway
disclosure document. Changes shall be
implemented in the next release after the
distribution of the electronic gateway
disclosure document to the Resellers.
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(D)2.6.2 In the course of establishing operational ready
system interfaces between USW and RESELLER to
support local service delivery, RESELLER and
USW may need to define and implement system
interface specifications that are supplemental
to existing standards. RESELLER and USW will
submit such specifications to the appropriate
standards committee and will work towards
their acceptance as a standard.
(D)2.6.3 Release updates will be based on regulatory
obligations as dictated by the FCC or
Commissions and, as time permits, business
requirements. USW will provide to RESELLER the
features list for modifications to the
interface. Specifications for interface
modifications will be provided to RESELLER
three (3) weeks prior to the release date.
RESELLER is required to upgrade to the current
release within six (6) months of the
installation date.
(D)2.7 Reseller Responsibilities for Implementation of OSS
Interfaces
(D)2.7.1 Before any RESELLER implementation can begin,
RESELLER must completely and accurately answer
the New Customer Questionnaire. This
questionnaire is provided by the USW account
manager and details information needed by USW
in order to establish service for RESELLER.
(D)2.7.2 Once USW receives a complete and accurate New
Customer Questionnaire, USW and RESELLER will
mutually agree upon time frames for RESELLER
implementation.
(D)2.7.3 If using the EDI interfaces, USW will provide
RESELLER with a copy of the Production
Readiness Verification document. RESELLER is
obligated to meet the requirements specified in
the Production Readiness Verification document
regardless of whether RESELLER chooses to
participate in the Production Readiness
Verification Test.
(D)2.8 Reseller Responsibilities for On-going Support for OSS
Interfaces
(D)2.8.1 If using the IMA GUI interface, RESELLER must
work with USW to train RESELLER personnel on
the IMA GUI functions that RESELLER will be
using. USW and RESELLER shall concur on which
IMA GUI functions should be included in
RESELLER's training. USW and RESELLER shall
make reasonable efforts to schedule training in
a timely fashion.
(D)2.8.2 An exchange protocol will be used to transport
EDI formatted content. RESELLER must perform
certification testing of exchange protocol
prior to using EDI.
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(D)2.8.3 If RESELLER is using EDI, USW shall provide
RESELLER with a pre-allotted amount of time to
complete certification of its business
scenarios. It is the sole responsibility of
RESELLER to schedule an appointment with USW
for certification of its business scenarios.
RESELLER must comply with the agreed upon dates
and times scheduled for the certification of
its business scenarios. If the certification of
business scenarios is delayed due to RESELLER,
it is the sole responsibility of RESELLER to
schedule new appointments for certification of
its business scenarios. Conflicts in the
schedule could result in certification being
delayed. If a delay is due to USW, USW will
honor RESELLER's schedule through the use of
alternative hours.
(D)2.8.4 If RESELLER is using the EDI interface,
RESELLER must work with USW to certify the
business scenarios that RESELLER will be using
in order to ensure successful transaction
processing. USW and RESELLER shall mutually
agree to the business scenarios for which
RESELLER is required to be certified.
Certification is granted only for a specific
release of EDI. New releases of EDI may require
re-certification of some or all business
scenarios. A determination as to the need for
re-certification will be made by the USW
Coordinator in conjunction with the release
manager of each EDI release. Notice of the need
for re-certification will be provided to
RESELLER three (3) weeks prior to the release
date.
(D)2.8.5 In the event of Electronic Interface trouble,
RESELLER shall use its best efforts to isolate
and resolve the trouble using the guidelines
provided in the Production Readiness
Verification document. If RESELLER cannot
resolve the problem, then RESELLER should
contact the LSP Systems Help Desk. The LSP
Systems Help Desk is RESELLER's Single Point of
Contact for electronic interface trouble.
(D)2.9 Reseller Support
(D)2.9.1 USW shall provide adequate assistance to
RESELLER for RESELLER to understand how to
implement and use the OSS functions for which
USW provides access. This assistance will
include training, documentation, and a LSP Help
Desk. The LSP Help Desk will provide a single
point of entry for RESELLER to gain assistance
in areas involving connectivity, system
availability, and file outputs. The LSP Systems
Help Desk is available Monday through Friday,
6:00 a.m. until 8:00 p.m. Mountain Time,
excluding USW holidays. The Help Desk areas are
further described below.
(D)2.9.1.1 Connectivity covers trouble with
RESELLER's access to the USW system
for hardware configuration
requirements with relevance to EDI
and IMA GUI;
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software configuration requirements
with relevance to EDI and IMA GUI;
modem configuration requirements; T1
configuration and dial in string
requirements; firewall access
configuration; Secure ID
configuration; Profile Setup and
password verification.
(D)2.9.1.2 System availability covers system
errors generated during an attempt
by RESELLER to place orders or open
trouble reports through EDI and IMA
GUI. These system errors are limited
to: POTS; Design Services and
Repair.
(D)2.9.1.3 File Outputs covers RESELLER's
output files and reports produced
from its usage and order activity.
File outputs system errors are
limited to: Daily Usage File; Loss /
Completion File; IABS Bill; CRIS
Summary Bill; Category 11 Report and
SAG/FAM Reports.
(D)2.9.2 Additional assistance to Resellers is available
through various web sites. These web sites
provide electronic interface training
information and user documentation and
technical specifications.
(D)2.10 Compensation/ Cost Recovery
On-going and one-time startup charges, as applicable, will
be billed at rates to be specified by the Commission at
the completion of an appropriate cost docket hearing. USW
shall establish rates for any systems charges not included
in appropriate cost docket headings.
(D)3. U S WEST DEX
USW and RESELLER agree that certain issues outside the provision of
basic white page directory listings, such as yellow pages
advertising, yellow pages listings, directory coverage, directory
distribution, access to call guide pages (phone service pages),
applicable listings criteria, white page enhancements and publication
schedules will be the subject of negotiations between RESELLER and
directory publishers, including U S WEST Dex. USW acknowledges that
RESELLER may request USW to facilitate discussions between RESELLER
and U S WEST Dex.
(D)4. NOTICE OF CHANGES
Notice should be written and provide pertinent descriptive
information of such changes, within the limitations of
confidentiality and disclosure, such that the other Party can
evaluate potential effects. Also included with the written notice
should be contact names and phone numbers for subsequent discussions.
This represents good faith effort on the part of the Parties and will
evolve over time as required for the effective provision of resale
services and end user service delivery.
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(D)5. MAINTENANCE AND REPAIR
(D)5.1 Service Levels
(D)5.1.1 USW will provide repair and maintenance for all
services covered by this Agreement in a manner
equal to that which USW provides for itself.
(D)5.1.2 During the term of this Agreement, USW will
provide necessary maintenance business process
support to allow RESELLER to provide similar
service quality to that provided by USW to its
end users.
(D)5.1.3 USW will perform repair service that is equal
in timeliness and quality to that which it
provides to its own end users.
(D)5.2 Branding
(D)5.2.1 Should USW need to use various forms for
communication with RESELLER end users (while
out on premises dispatch on behalf of RESELLER,
for example), USW will use unbranded forms.
(D)5.2.2 If required by RESELLER, USW will use branded
forms provided at RESELLER's full expense,
covering training costs, storage, printing,
distribution and all other branding-related
costs.
(D)5.3 Service interruptions
(D)5.3.1 The characteristics and methods of operation of
any circuits, facilities or equipment of either
Party connected with the services, facilities
or equipment of the other Party pursuant to
this Agreement shall not: 1) interfere with or
impair service over any facilities of the other
Party; its affiliated companies, or its
connecting and concurring carriers involved in
providing its services; 2) cause damage to
their plant; 3) violate any applicable law or
regulation regarding the invasion of privacy of
any communications carried over the Party's
facilities; or 4) create hazards to the
employees of either Party or to the public.
Each of these requirements is hereinafter
referred to as an "Impairment of Service".
(D)5.3.2 If it is confirmed that either Party is causing
an Impairment of Service, as set forth in this
Section, the Party whose network or service is
being impaired (the "Impaired Party") shall
promptly notify the Party causing the
Impairment of Service (the "Impairing Party")
of the nature and location of the problem. The
Impaired Party shall advise the Impairing Party
that, unless promptly rectified, a temporary
discontinuance of the use of any circuit,
facility or equipment may be required. The
Impairing Party and the Impaired Party agree to
work together to attempt to promptly resolve
the Impairment of Service. If the Impairing
Party is unable to promptly remedy the
Impairment of
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Service, the Impaired Party may temporarily
discontinue use of the affected circuit,
facility or equipment.
(D)5.3.3 To facilitate trouble reporting and to
coordinate the repair of the service provided
by each Party to the other under this
Agreement, each Party shall designate a repair
center for such service.
(D)5.3.4 Each Party shall furnish a trouble reporting
telephone number for the designated repair
center. This number shall give access to the
location where records are normally located and
where current status reports on any trouble
reports are readily available. If necessary,
alternative out-of-hours procedures shall be
established to ensure access to a location that
is staffed and has the authority to initiate
corrective action.
(D)5.3.5 Before either Party reports a trouble
condition, it shall use its best efforts to
isolate the trouble to the other's facilities
(D)5.3.5.1 In cases where a trouble condition
affects a significant portion of the
other's service, the Parties shall
assign the same priority provided to
other Resellers and to itself.
(D)5.3.5.2 The Parties shall cooperate in
isolating trouble conditions.
(D)5.4 Trouble Isolation
(D)5.4.1 According to applicable state Tariffs, USW will
bill appropriate Trouble Isolation Charges for
dispatched work done by USW where the trouble
is found to be on the end user's side of the
NID or trouble is found to be in RESELLER's
portion of the network.
(D)5.4.2 Other Trouble Isolation Charges may also be
imposed by USW on RESELLER for other internal
repair work incurred on behalf of RESELLER and
later found to be in RESELLER network
components.
(D)5.5 Inside Wire Maintenance
Except where specifically required by state or federal
regulatory mandates, USW will not perform any maintenance
of inside wire (premises wiring beyond the end user's NID)
for RESELLER or its end users.
(D)5.6 Testing/Test Requests/Coordinated Testing
(D)5.6.1 USW will make the decision to test an end
user's line or circuit. The test systems used
by USW are finite, and their capacity has been
designed according to USW's operating
standards.
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(D)5.6.2 Although some types of trouble reports
typically will not require a test, USW usually
runs certain standard tests on each line on
which trouble has been reported.
(D)5.6.3 Prior to any test being conducted on a line,
USW must receive a trouble report from
RESELLER.
(D)5.6.4 USW end users are not given test results. On
manually-reported trouble USW will not provide
to RESELLER the test results for its trouble
reports. For electronically-reported trouble,
RESELLER may see various basic test results.
(D)5.7 Workcenter Interfaces
(D)5.7.1 USW and RESELLER shall work cooperatively to
develop positive, close working relationships
among corresponding work centers involved in
the trouble resolution processes..
(D)5.8 Misdirected Repair Calls
(D)5.8.1 RESELLER shall inform its own end users where
to report their trouble conditions. Persons
placing a misdirected repair call will be
advised to call their own telephone service
provider and will be provided the correct
telephone number for that purpose (this
referral may occur within a voice response
system or other interactive systems).
(D)5.8.2 RESELLER and USW will employ the following
procedures for handling misdirected repair
calls;
(D)5.8.2.1 RESELLER and USW will provide their
respective end users with the
correct telephone numbers to call
for access to their respective
repair bureaus.
(D)5.8.2.2 End users of RESELLER shall be
instructed to report all cases of
trouble to RESELLER. End users of
USW shall be instructed to report
all cases of trouble to USW.
(D)5.8.2.3 To the extent the correct provider
can be determined, misdirected
repair calls will be referred to the
proper provider of Basic Exchange
Telecommunications Service.
(D)5.8.2.4 RESELLER and USW will provide their
respective repair contact numbers to
one another on a reciprocal basis.
(D)5.8.2.5 In responding to repair calls,
neither party shall make
disparaging remarks about each
other, nor shall they use these
repair calls as the basis for
internal referrals or to solicit
end users to market services.
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(D)5.8.2.6 Performance targets for speed of repair call
answering will be the same as USW's performance
targets for its own end users.
(D)5.9 Major Outages/Restoral/Notification
(D)5.9.1 USW will notify RESELLER of major network
outages as soon as is practical. This
notification will be via e-mail to RESELLER's
identified contact. With the minor exception of
certain proprietary information, USW will
utilize the same thresholds and processes for
external notification as it does for internal
purposes. This major outage information will be
sent via E-mail on the same frequency schedule
as is provided internally within USW. Service
restoration will be non-discriminatory, and
will be accomplished as quickly as possible
according to USW and/or industry standards.
(D)5.9.2 If desired, USW will meet with associated
personnel from RESELLER to share contact
information and review USW's outage restoral
processes and notification processes.
(D)5.9.3 USW's emergency restoration process operates on
a 7X24 basis.
(D)5.10 Proactive Maintenance
(D)5.10.1 USW will perform scheduled maintenance equal in
quality to what it provides to itself.
(D)5.10.2 USW will work cooperatively with RESELLER to
develop industry-wide processes to provide as
much notice as possible to RESELLER of pending
maintenance activity. Such process work will
include establishment of reasonable thresholds
and notification standards.
(D)5.11 Hours of Coverage
(D)5.11.1 USW's repair operation is 7 days a week, 24
hours a day. Not all functions or locations are
covered with scheduled employees on a 7X24
basis. Where such 7X24 coverage is not
available USW's repair operations center
(always available 7X24) can call-out
technicians or other personnel required for the
situation.
(D)5.12 Escalations
(D)5.12.1 USW will provide trouble escalation procedures
to RESELLER. Such procedures will be based on
the processes USW employs for its own end
users. USW escalations are manual processes.
(D)5.12.2 USW repair escalations begin with calls to the
up-front trouble reporting centers.
(D)5.13 Dispatch
(D)5.13.1 USW will provide maintenance dispatch personnel
on the same schedule provided for its end
users.
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Part D
Miscellaneous Provisions
(D)5.13.2 Upon receipt of a trouble report from RESELLER,
USW will do all that is reasonable and
practical, according to internal and industry
standards, to resolve the repair condition. USW
will dispatch repair personnel, if necessary,
to repair the condition. It will be USW's
decision whether it is necessary to send a
technician on a dispatch. USW will make this
dispatch decision based on the best information
available in the trouble resolution process.
Since it is not always necessary to dispatch to
resolve trouble; should RESELLER require a
dispatch when USW believes the dispatch is not
necessary, appropriate charges may be billed to
RESELLER for dispatch-related costs.
(D)5.13.3 For non-designed resale services USW will not
request authorization from RESELLER prior to
dispatch. For lines supported by USW's designed
services process, USW may accept RESELLER
authorization to dispatch. USWs operational
processes are regularly reviewed and may be
altered in the future. Should processes be
changed, RESELLER will be notified.
(D)5.13.4 USW expects that RESELLER will have performed
appropriate trouble isolation and screening
prior to handing the trouble report off to USW.
(D)5.14 Electronic Reporting
(D)5.14.1 USW will accept repair reports from RESELLER
through a mechanized system (IMA).
(D)5.14.2 USW will work cooperatively to develop repair
reporting via electronic bonding (other than
IMA), based on national standards.
(D)5.15 Intervals
(D)5.15.1 Similar trouble conditions, whether reported by
USW end users or on behalf of RESELLER end
users, will receive similar commitment
intervals.
(D)5.16 Jeopardy Management
(D)5.16.1 Notification will be given as soon as USW is
aware that a trouble report interval is likely
to be missed. This process will be the same as
that used by USW for its own end users.
(D)5.17 Trouble Screening
(D)5.17.1 RESELLER shall screen and test its end user
trouble reports completely enough to insure
that it sends USW only trouble reports that
involve USW facilities.
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(D)5.17.2 If desired, USW will cooperate with RESELLER to
show RESELLER how USW screens trouble
conditions in its own centers, so that RESELLER
may employ similar techniques in its centers.
(D)5.18 Maintenance Standards
(D)5.18.1 USW will cooperate with RESELLER to meet the
maintenance standards outlined in this
Agreement.
(D)5.18.2 For manually-reported trouble, USW will inform
RESELLER of repair completion as soon as
practical after completion. On electronically
reported trouble reports the electronic system
will automatically update status information,
including trouble completion, across the joint
electronic gateway.
(D)5.19 End User Interfaces
(D)5.19.1 RESELLER will be responsible for all
interactions with its end users including
service call handling and notifying end users
of trouble status and resolution.
(D)5.19.2 All USW employees who perform repair service
for RESELLER end users will be trained in
non-discriminatory behavior.
(D)5.20 Repair Call Handling
(D)5.20.1 Manually-reported repair calls by RESELLER to
USW will be answered with the same quality and
speed USW answers calls from its own end users.
(D)5.21 Single Point of Contact
(D)5.21.1 USW will provide a single point of contact for
RESELLER to report maintenance issues and
trouble reports via electronic interfaces seven
days a week, twenty-four hours a day.
(D)5.21.2 For manually-reported trouble reports, a single
7X24 trouble reporting telephone number will be
provided to RESELLER for each category of
trouble situation encountered.
(D)5.22 Maintenance Windows
(D)5.22.1 Generally, USW performs major switch
maintenance activities during off-hours time
periods, during certain "maintenance windows"
in the early morning hours and/or on weekends.
(D)5.22.2 Generally, the maintenance window is from 10:00
PM to 6:00 AM Monday through Friday and from
10:00 PM Saturday to 6:00 AM Monday.
(D)5.22.3 Although USW attempts to perform major switch
maintenance at these times, on some occasions
this will not be possible.
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Part D
Miscellaneous Provisions
(D)6. SERVICE PERFORMANCE
(D)6.1 General Provisions
(D)6.1.1 USW will provide reports of service indicators
that will assist in an evaluation of the
service provided to RESELLER.
(D)6.1.2 In no instance shall this. Agreement be
construed to require USW to provide superior
levels of service to RESELLER in comparison to
the level of service USW provides to itself or
its own end users.
(D)6.1.3 As further specified in this Section, USW will
provide results for the list of performance
indicators identified for the following
Standard Service Groupings: Resold Residential
Plain Old Telephone Service (POTS); Resold
Business POTS; Resold ISDN; Resold Centrex
service; Resold PBX trunks, Resold Direct
Inward Dialing (DID) and Resold Digital
Switched Service (DSS); Resold DS-0, Resold
DS-1, Resold DS-3.
(D)6.1.4 As specified in this Section, USW will provide
results for the following types of Orders:
C = Change in existing service or billing
number
D = total disconnect of service
F = From the outward service associated with a
transfer (To or "T") of service from one
address to another
N = New connection for service
R = Record order; record change only. (For
Resale services, service migrations without
changes for non-designed services are record
orders.)
T = To or transfer of service from one address
to another
X = USW initiated internal work order
(D)6.2 Service Performance Indicators
The following Service Performance Indicators will be
provided to RESELLER when available and upon request, but
no more frequently than once per month subject to the
provisions of this Section. The requests for additional
Service Performance Indicators during the term of this
Agreement shall be considered by USW. However, USW is not
required to provide additional Service Performance
Indicators during the term of this Agreement. Service
Performance Indicators characterized as "Core" indicators
measure most directly the service or process outcome USW
provides to RESELLER.
Performance Indicators characterized as "Diagnostic"
indicators are those that measure aspects of service
quality that support aspects measured by core indicators,
that represent sub-process outcomes, or that are otherwise
duplicative to some degree of aspects measured by "Core"
indicators.
(D)6.2.1 Core Performance Indicators
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Part D
Miscellaneous Provisions
(D)6.2.1.1 Gateway Availability Indicator
GA-1 Gateway Availability - via Human-to-Computer
Interface (percent).
GA-2 Gateway Availability - via Computer-to-Computer
Interface (percent).
(D)6.2.1.2 Pre-Ordering Indicators
PO-1 Pre-Order/Order Response times
A. Appointment Scheduling (Due Date
Reservation, where appointment is
required)
B. Feature Function and Service
Availability Information
C. Facility Availability
D. Street Address Validation
E. Customer Service Records
F. Telephone Number
(D)6.2.1.3 Ordering and Provisioning Indicators
OP-1 Speed of Answer - Interconnect Provisioning
Center (average)
OP-2 Calls Answered within 20 Seconds - Interconnect
Provisioning Center (percent)
OP-3 Installation Commitments Met (percent)
OP-4 Installation Interval (average)
OP-5 Installation Trouble Reports (percent)l
OP-6 Delayed Days (average)
(D)6.2.1.4 Maintenance and Repair Indicators
MR-1 Speed of Answer - Interconnect Repair Center
(average)
MR-2 Percent Calls Answered Within 20 Seconds -
Interconnect Repair Center (percent)
MR-3 Out of Service Cleared Within 24 hours -
Non-Designed Repair Process (percent)
MR-4 All Troubles Cleared Within 48 hours -
Non-Designed Repair Process (percent)
MR-5 All Troubles Cleared Within 4 hours - Designed
Repair Process (percent)
MR-6 Mean Time to Restore - Non-Designed Repair
Process (average)
MR-7 Repair Repeat Report Rate (percent)
MR-8 Trouble Rate (percent)
(D)6.2.1.5 Billing Indicators
BI-1 Mean Time to Provide USW Recorded Usage Records
((average)
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Part D
Miscellaneous Provisions
BI-2 Mean Time to Deliver Invoices (average)BI-3
Billing Accuracy
(D)6.2.1.6 Emergency Services
ES-1 ALI Database Updates Completed Within 24
hours (percent)
ES-2 911/E911 Emergency Services Trunk
Installation Interval (average)
(D)6.2.1.7 Directory Assistance
DA-1 Speed of Answer - Directory Assistance
(average)
DA-2 Calls Answered Within Ten Seconds - Directory
Assistance (percent)
(D)6.2.1.8 Operator Services
OS-1 Speed of Answer - Operator Services (average)
OS-2 Calls Answered Within Ten Seconds - Operator
Services (percent)
(D)6.2.2 Diagnostic Indicators
In addition to the performance indicators identified
above, USW will report the following indicators that do
not directly address nondiscrimination but may be useful
in diagnosing problems or improving service:
(D)6.2.2.1 Pre-Order/Ordering
DPO-1 Electronic Flow - Through of Local Service
Requests (LSRs) to the Service Order Processor
(percent)
DPO-2 LSR Rejection Notice Interval (average)
DPO-3 LSRs Rejection (percent)
DPO-4 Firm Order Confirmation (FOC) Interval
(average)
DPO-5 Pre-Order/Order Response Times for USW Retail
Transactions (average)
DPO-6 Completion Notifications Transmitted Within 24
hours (percent)
DPO-7 Completion Notification Interval (average)
(D)6.2.2.2 Ordering and Provisioning
DOP-1 RESELLER or RESELLER's Customer - Caused
Installation Misses (percent)
DOP-2 Delayed Orders Completed equal to greater than
15 days past the Commitment Date (percent)
DOP-3 Delayed Orders Completed equal to or greater
than 90 days past the Commitment Date (percent)
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Miscellaneous Provisions
DOP-4 RESELLER or RESELLER's Customer-Caused
Coordinated Cutover Misses (percent)
(D)6.2.2.3 Maintenance and Repair
DMR-1 RESELLER or RESELLER's Customer-Caused Trouble
Reports (percent)
(D)6.2.2.4 Access to OSS Functions:
(GA-1) Gateway Availability-Human-to-Computer
Interface (percent)
(GA-2) Gateway Availability-Computer-to-Computer
Interface (percent)
(PO-1) Per-Order/Order Response Times (average)
(OP-1 and MR-1)Speed of Answer - Provisioning and
Repair Centers (average)
(OP-2 and MR-2) Calls Answered Within 20 Seconds-
Provisioning and Repair Centers (percent)
(BI-1) Mean Time to Provide USW - Recorded Usage
Records (
(BI-2) Mean Time to Deliver Invoices
(B1-3) Billing Accuracy
(D)6.2.2.5 Access to Emergency Services
(ES-1) ALI Database Updates Within 24 Hours (percent)
(ES-1) 911/E911 ES Trunk Installation Intervals
(average)
(D)6.2.2.6 Access to Directory Assistance and Operator
Services:
(DA-1 and OP-1) Speed of Answer (average)
(DA-2 and OS-2) Calls Answered Within 10 Seconds
(percent)
(D)6.2.2.7 Resale Services Ordering and Provisioning:
(OP-3) Installation Commitments Met (percent)
(OP-4) Installation Interval (average)
(OP-5) Installation Trouble Reports (percent)
(OP-6) Delayed Days (average)
(D)6.2.2.8 Resale Services Maintenance and Repair:
(MR-3) Out of Service Cleared Within 24 Hours -
Non-Designed Repair Process (percent)
(MR-4) All Troubles Cleared Within 48 Hours -
Non-Designed Repair Process (percent)
(MR-5) All Troubles Cleared Within 4 Hours - Designed
Repair Process (percent)
(MR-6) Mean Time to Restore (average)
(MR-6) Repair Repeated Report Rate (percent)
(MR-6) Trouble Rate (percent)
(D)6.3 Service Quality Performance Results Reports
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Part D
Miscellaneous Provisions
(D)6.3.1 For Resale, USW will provide core service
performance results for the performance
indicators listed above for RESELLER, other
Resellers in aggregate and USW end users.
(D)6.4 Performance Results Provided to Reseller
The performance results provided to RESELLER by USW shall
be consistent with the current version of the USW Service
Performance Indicator Description (PID).
(D)6.5 The performance results provided under this Agreement are
to be used solely for the purposes set forth herein, and
shall be treated as "Proprietary Information" as provided
in Section (A)3.14 of this Agreement.
(D)6.6 Service Performance - Reported Events
(D)6.6.1 When applicable, USW will report
service-related performance results for all
"events". An "event" is the activity that
generates the measurement.
(D)6.6.2 The Parties will report RESELLER results
referenced above provided that RESELLER has
ordered and is utilizing the services reported;
(D)6.6.3 USW will provide the reports on a calendar
monthly basis. These reports will be provided
within forty-five (45) calendar days of the
close of the preceding month.
(D)6.7 Self Executing Remedies
The purpose and focus of remedies provisions under this
Resale Agreement shall be to resolve significant
differences in service quality that have been identified
through appropriate comparisons of the service performance
results reported for the core performance indicators
defined above. Self-executing remedies are those actions,
defined herein, that USW will undertake in good faith and
in cooperation with RESELLER to respond to such
differences immediately, without waiting for determination
of whether actual discrimination may exist.
(D)6.7.1 For this purpose, significant differences shall
be considered to be those that are determined
to be statistically, operationally, and
materially significant in each of three (3) or
more consecutive months and that reflect a
probability that inferior service was
apparently provided to RESELLER, based on the
relevant comparison of performance indicator
results. Statistical significance shall be
determined as defined below. Operational and
material significance shall be established by
including for comparison only those results
that have (a) minimum sample sizes of 30 each,
and (b) a relevant comparison demonstrating a
service performance difference of a magnitude
that can be reasonably considered to have a
perceptible effect on end users or RESELLER
operations.
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(D)6.7.2 Determination of the statistical significance of any
difference in appropriately comparable results shall be
based on statistical testing for (1) differences in means
(where performance indicator results are reported as
averages) or (2) difference in proportions (where
performance indicator results are reported as
percentages), as follows:
(D)6.7.2.1 Determination of the significance of a
difference in mean values of each monthly
service performance indicator results shall be
based on a "permutation" test using what is
commonly referred to as a "Z" statistic and a
maximum of 1,000 randomly selected permutations
of the samples. Where sample sizes exceed 600,
the "Z" test using the "modified Z statistic"
may be used instead of the permutation test.
Where used, the modified Z statistic will be
based on the statistical variance associated
with USW's retail performance results, where
applicable, or on the variance associated with
RESELLER aggregate performance results, where
there are no retail performance results.
(D)6.7.2.2 The significance of a difference in
proportional measurements shall be based on
direct calculation of the probability of the
observed difference using the binomial
distribution with a pooled P value.
(D)6.7.2.3 A difference in results by either test type
(i.e., differences in means or differences in
proportions) will be deemed statistically
significant if the appropriate one tailed test
indicates, with 99 percent confidence, that the
performance indicator results being compared
appear to be from different populations of
performance. In other words, that service being
provided to RESELLER appears to be inferior to
that represented by the comparable results
(such as, results representing service provided
to Resellers in aggregate or to USW retail).
(D)6.7.3 For each case in which a significant difference as
defined above has occurred, USW shall:
(D)6.7.3.1 Immediately investigate to determine the
cause(s) of the difference and, where feasible,
begin good-faith efforts to resolve the
difference;
(D)6.7.3.2 Within 45 days, provide to RESELLER a written
explanation of the result of the investigation
as to
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Part D
Miscellaneous Provisions
cause(s) and, as applicable, an action plan
describing (i) what has and will be done to
resolve the difference, (ii) what cooperative
actions and timelines on the part of RESELLER
are needed to facilitate or expedite
resolution, and (iii) listing key milestones
for use by the Parties in tracking progress;
(D)6.7.3.3 Offer and meet with designated RESELLER
representatives monthly to discuss progress on
resolving the difference(s);
(D)6.7.3.4 Escalate to vice president level any
significant difference that has or is not
projected to be resolved within three months of
the difference first being identified as
significant as defined above, with commitment
at that level to direct due diligence toward
removing obstacles and expediting resources
where feasible and necessary to resolve the
difference as soon as possible.
(D)6.7.4 If a statistically and operationally significant
difference has occurred in the trend results for any
particular performance indicator, the Parties shall allow
three (3) months to correct the difference in the trend
results. If the statistically, and operationally
significant difference in trend results is corrected
within the three (3) month time, no action, formal or
informal, shall be taken by either Party with respect to
that difference.
(D)6.7.5 If the statistically and operationally significant
difference in trend results is not corrected within the
three (3) month time frame, the Dispute Resolution
provision of this Resale Agreement shall apply.
(D)6.8 Delaying Events
(D)6.8.1 A Party's failure to meet a requirement in this Section of
this Agreement shall not be included when that failure is
a result, directly or indirectly, of a Delaying Event.
(D)6.8.2 A "Delaying Event" means:
(D)6.8.2.1 Failure by either Party to perform any of its
obligations set forth in this Agreement,
(D)6.8.2.2 Any delay, act or failure to act by an end
user, agent or subcontractor of the other
party, or
(D)6.8.2.3 Any Force Majeure Event.
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(D)6.8.3 If a Delaying Event prevents either Party from performing
a measured activity, then such measured activity shall be
excluded from the performance indicator(s).
(D)6.9 Records Retention for Service Performance Indicators
USW shall maintain complete and accurate records, for the specified
review period of its performance under this Agreement for each
measured activity. USW shall provide such records to RESELLER in a
self-reporting format. Such records shall be in the format kept in
USW's ordinary course of business. The Parties agree that such
records shall be deemed "Confidential Information."
(D)6.10 Joint Defense and Advocacy
The Parties shall jointly and separately advocate and defend the
sufficiency of this Agreement in addressing the nondiscrimination
requirements of the Act and wholesale services performance
measurements reporting rights, remedies and related terms and
conditions in any forum in which its sufficiency might be challenged.
(D)6.11 Cost Recovery
Each Party reserves the right to recover the costs associated with
the creation of the above measures, indicators, and reports through a
future proceeding before a regulatory body. Such a proceeding may
address a wide range of implementation costs not otherwise recovered
through charges established herein.
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Part E
North Dakota Rates
PART E - NORTH DAKOTA RATES
LOCAL EXCHANGE SERVICES RESALE OF SERVICES
The Parties agree the following charges apply to the Resale of Local Services:
1. Nonrecurring Charges.
a. Customer Transfer Charge (CTC): The following nonrecurring charges
apply when converting a USW account to a Reseller account or when
changing an end user from one reseller to another.
<TABLE>
<CAPTION>
CATEGORY OF SERVICE NONRECURRING CHARGE
------------------- -------------------
<S> <C>
RESIDENCE OR BUSINESS MECHANIZED
First Line $14.56
Each Additional Line $ 6.57
RESIDENCE OR BUSINESS MANUAL
First Line $27.52
Each Additional Line $ 7.12
PRIVATE LINE TRANSPORT
First Circuit $45.08
Additional Circuits, Same CSR $31.19
ADVANCED COMMUNICATIONS SERVICES, PER CIRCUIT $50.48
</TABLE>
b. Product Specific Nonrecurring Charge: As set forth in USW tariffs, the
product specific nonrecurring charges, without discount, will apply
when additional lines or trunks are added or when the end user adds
features or services to existing lines or trunks.
2. Except as qualified below, all USW telecommunications services, including
lntraLATA Toll, shall be available for resale at a 16.15% discount.
a. The following services are not available for resale:
- Customer Premises Equipment (separately or in a package)
- USW Calling cards
- Inside Wire (including installation, sale or maintenance)
- Promotions of less than 90 days
- Concession Service
b. The following services are available only to the same class of
customer eligible to purchase that service from USW:
- Grandfathered
- Residence
- Lifeline/Link-up
c. The following services are available for resale under this Agreement
but are not included in the wholesale pricing reflected above:
- Public Access Lines
- Private Line Used For Special Access
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Part E
North Dakota Rates
d. Telecommunications services offered by USW at a volume discount are
available at an 8.15% discount.
3. Daily Usage Record File: Recurring Charge - $.0011 per record.
Page 63
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Part F
Signature
PART F - SIGNATURE
ENTIRE AGREEMENT
This Agreement constitutes the entire agreement between the Parties and
supersedes all prior oral or written agreements, representations, statements,
negotiations, understandings, proposals and undertakings with respect to the
subject matter hereof.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed
by their respective duly authorized representatives.
essential.com U S WEST Communications, Inc.
/s/ Akhil Garland /s/ Katherine L. Fleming
- ------------------------------ -------------------------------------
Signature Signature
Akhil Garland Katherine L. Fleming
- ------------------------------ -------------------------------------
Name Printed/Typed Name Printed/Typed
CEO Vice President - Interconnection
- ------------------------------ -------------------------------------
Title Title
2-16-00 02/25/00
- ------------------------------ -------------------------------------
Date Date
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<PAGE>
RESALE
AGREEMENT
BETWEEN
U S WEST COMMUNICATIONS, INC.
AND
ESSENTIAL.COM
FOR
IDAHO
Page i
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<TABLE>
<CAPTION>
TABLE OF CONTENTS
<S> <C>
PART A - GENERAL TERMS ...............................................................1
(A)1. SCOPE OF AGREEMENT .............................................................1
(A)2. DEFINITIONS ....................................................................3
(A)3. TERMS AND CONDITIONS ...........................................................4
(A)3.1 General Provisions .........................................................4
(A)3.2 Term of Agreement ..........................................................4
(A)3.3 Proof of Authorization .....................................................5
(A)3.4 Payment ....................................................................6
(A)3.5 Taxes ......................................................................7
(A)3.6 Force Majeure ..............................................................7
(A)3.7 Limitation of Liability ....................................................8
(A)3.8 Indemnity ..................................................................8
(A)3.9 Intellectual Property .....................................................10
(A)3.10 Warranties ...............................................................12
(A)3.11 Assignment ...............................................................12
(A)3.12 Default ..................................................................13
(A)3.13 Disclaimer of Agency .....................................................13
(A)3.14 Nondisclosure ............................................................14
(A)3.15 Survival .................................................................15
(A)3.16 Dispute Resolution .......................................................15
(A)3.17 Controlling Law ..........................................................17
(A)3.18 Joint Work Product .......................................................17
(A)3.19 Responsibility for Environmental Contamination ...........................17
(A)3.20 Notices ..................................................................17
(A)3.21 Responsibility of Each Party .............................................18
(A)3.22 No Third Party Beneficiaries .............................................18
(A)3.23 Referenced Documents .....................................................18
(A)3.24 Publicity ................................................................19
(A)3.25 Amendment ................................................................19
(A)3.26 Executed in Counterparts .................................................19
(A)3.27 Headings of No Force or Effect ...........................................19
(A)3.28 Regulatory Approval ......................................................19
(A)3.29 Compliance ...............................................................19
(A)3.30 Compliance with the Communications Assistance for Law Enforcement Act
of 1994 ("CALEA") ................................................................20
(A)3.31 Cooperation ..............................................................20
(A)3.32 Availability of Other Agreements .........................................20
PART B - RESALE .....................................................................21
(B)1. Description .................................................................21
(B)2. Terms and Conditions ........................................................21
(B)3. Rates and Charges ...........................................................24
</TABLE>
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<TABLE>
TABLE OF CONTENTS
<S> <C>
(B)4. Ordering Process .............................................................26
(B)5. Billing ......................................................................27
(B)6. Maintenance and Repair .......................................................27
PART C - WHITE PAGES DIRECTORY LISTINGS ............................................29
(C)1. Description ..................................................................29
(C)2. Terms and Conditions .........................................................29
PART D - MISCELLANEOUS PROVISIONS ..................................................32
(D)1. Network Security .............................................................32
(D)2. Access To Operational Support Systems (OSS) ..................................32
(D)3. US WEST Dex ..................................................................47
(D)4. Notice of Changes ............................................................47
(D)5. Maintenance and Repair .......................................................48
(D)6. Service Performance ..........................................................54
PART E - IDAHO RATES ...............................................................62
PART F - SIGNATURE .................................................................64
</TABLE>
Page iii
<PAGE>
Part A
General Terms
PART A - GENERAL TERMS
This Resale Agreement is between essential.com ("RESELLER"), a Delaware
corporation, and U S WEST Communications, Inc. ("USW"), a Colorado corporation.
(A)1. SCOPE OF AGREEMENT
(A)1.1 Pursuant to this negotiated Resale Agreement
("Agreement"), RESELLER and USW (collectively, "the Parties")
will extend certain arrangements to one another within the
geographical areas where USW is the incumbent Local Exchange
Carrier within the state of Idaho for purposes of providing
the resale of local Telecommunications Services. This
Agreement or the portions of this Agreement relative to a
particular state will be submitted to the Idaho Public
Utilities Commission ("Commission") for approval.
Notwithstanding this mutual commitment, however, the Parties
enter into this Agreement without prejudice to any positions
they have taken previously, or may take in the future in any
legislative, regulatory, or other public forum addressing any
matters, including matters related to the types of
arrangements prescribed by this Agreement.
(A)1.2 The provisions in this Agreement are based, in large part, on
the existing state of the law, rules, regulations and
interpretations thereof, as of the date hereof (the "Existing
Rules"). Among the Existing Rules are or could be the results
of arbitrated decisions by the Commission which are currently
being challenged by USW. Among the Existing Rules are certain
FCC rules and orders that are the subject of, or affected by,
the opinion issued by the Supreme Court of the United States
in AT&T CORP., ET AL. V. IOWA UTILITIES BOARD, ET AL. on
January 25, 1999. Nothing in this Agreement shall preclude or
stop USW from taking any position in any forum concerning the
proper interpretation or effect of the Existing Rules or
concerning whether the Existing Rules should be changed,
dismissed, stayed or modified. To the extent that the Existing
Rules are changed, vacated, dismissed, stayed or modified,
then the Parties shall amend this Agreement and all contracts
adopting all or part of this Agreement pursuant to Section
252(i) of the Act, shall be amended to reflect such
modification or change of the Existing Rules. Where the
Parties fail to agree upon such an amendment, it shall be
resolved in accordance with the Dispute Resolution provision
of this Agreement. It is expressly understood that this
Agreement will be corrected to reflect the outcome of generic
pricing proceedings by the Commission. This Section (A)1.2
shall be considered part of the rates, terms and conditions of
each service resale arrangement contained in this Agreement,
and this Section (A)1.2 shall be considered legitimately
related to the purchase of each service for resale arrangement
contained in this Agreement.
(A)1.3 This Agreement is entered into as a result of both private
negotiations between the Parties and the incorporation of some
of the results of arbitrated decisions by the Commission,
acting pursuant to Section 252 (b) of the Act, and involving
interconnection/resale agreements of other parties. The
Parties have included for convenience certain rates, terms or
conditions in this Agreement which reflect rates, terms or
conditions established in some or all of those other
arbitrations. RESELLER
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General Terms
acknowledges: (1) that those rates, terms or conditions are
extended only because of the arbitrated results in other
dockets, (2) that USW intends to appeal certain of those
decisions, and (3) that any negotiations, appeal, stay,
injunction or similar proceeding impacting the applicability
of those rates, terms or conditions to the local service
providers who were parties to those arbitrations will
similarly impact the applicability of those rates, terms or
conditions to RESELLER. The Parties further recognize that
this Agreement is subject to the generic proceedings by the
Commission addressing the services in this Agreement.
(A)1.4 This Agreement sets forth the terms, conditions and prices
under which USW agrees to provide services for resale to
RESELLER, all for the sole purpose of providing
Telecommunications Services.
(A)1.5 In the performance of their obligations under this Agreement,
the Parties shall act in good faith and consistently with the
intent of the Act. Where notice, approval or similar action by
a Party is permitted or required by any provision of this
Agreement, (including, without limitation, the obligation of
the Parties to further negotiate the resolution of new or open
issues under this Agreement) such action shall not be
unreasonably delayed, withheld or conditioned.
(A)1.6 USW may make services and features available to RESELLER for
resale under this Agreement consistent with the way they are
available to USW end users, without a formal amendment to this
Agreement. Nothing herein prevents either Party from raising
other issues through additional good faith negotiations.
(A)1.7 This Agreement is structured in the following format:
Part A - General Terms
Part B - Resale
Part C - Directory Services
Part D - Miscellaneous Provisions
Part E - Rates
Part F - Signature
(A)1.8 Prior to placing any orders for services under this Agreement,
the Parties will jointly complete USW's "Reseller
Questionnaire". This questionnaire will then be used to:
Determine geographical requirements
Identify RESELLER Ids
Determine USW system requirements to support RESELLER specific
activity
Collect credit information
Obtain billing information
Create summary bills
Establish input and output requirements
Create and distribute USW and RESELLER contact lists
Identify client hours and holidays
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General Terms
(A)2. DEFINITIONS
(A)2.1 "Act" means the Communications Act of 1934 (47 U.S.C. 151 et.
seq.), as amended by the Telecommunications Act of 1996, and
as from time to time interpreted in the duly authorized rules
and regulations of the FCC or a Commission within its state of
jurisdiction.
(A)2.2 "Basic Exchange Features" are optional end user switched
services that include, but are not necessarily limited to:
Automatic Call Back; Call Trace; Caller ID and Related
Blocking Features; Distinctive Ringing/Call Waiting; Selective
Call Forward; and Selective Call Rejection.
(A)2.3 "Basic Exchange Telecommunications Service" means a service
offered to end users which provides the end user with a
telephonic connection to, and a unique local telephone number
address on the public switched telecommunications network, and
which enables such end user to generally place calls to, or
receive calls from, other stations on the public switched
telecommunications network. Basic residence and business line
services are Basic Exchange Telecommunications Services. As
used solely in the context of this statement and unless
otherwise agreed, Basic Exchange Telecommunications Service
includes access to ancillary services such as 911, directory
assistance and operator services.
(A)2.4 "Commission" means the Public Utilities Commission(s) in the
state of Idaho.
(A)2.5 "Enhanced Services" means any service offered over common
carrier transmission facilities that employ computer
processing applications that act on format, content, code,
protocol or similar aspects of the subscriber's transmitted
information; that provide the subscriber with additional,
different or restructured information; or involve end user
interaction with stored information.
(A)2.6 "Interconnect & Resale Resource Guide" is a USW document that
provides essential information needed to request services
available under this Agreement. It is available on USW`s Web
site.
(A)2.7 "Interexchange Carrier" or "IXC" means a carrier that provides
interLATA or IntraLATA Toll services.
(A)2.8 "IntraLATA Toll" is defined in accordance with USW's current
intraLATA toll serving areas, as determined by the Federal
Communications Commission.
(A)2.9 "Local Exchange Carrier" or "LEC" means any person that is
engaged in the provision of telephone exchange service or
exchange access. Such term does not include a person insofar
as such person is engaged in the provision of a commercial
mobile service under Section 332(c) of the Act, except to the
extent that the FCC finds that such service should be included
in the definition of such term.
(A)2.10 "Party" means either USW or RESELLER and "Parties" means USW
and RESELLER.
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(A)2.11 "Reseller" is a category of local exchange service provider
that obtains dial tone and associated Telecommunications
Services from another provider through the purchase of
finished services for resale to its end users.
(A)2.12 "Tariff" as used throughout this Agreement refers to USW
interstate Tariffs and state Tariffs, price lists, price
schedules and catalogs.
(A)2.13 "Telecommunications Carrier" means any provider of
Telecommunications Services, except that such term does not
include aggregators of Telecommunications Services (as defined
in Section 226 of the Act). A Telecommunications Carrier shall
be treated as a common carrier under the Act only to the
extent that it is engaged in providing Telecommunications
Services, except that the Federal Communications Commission
shall determine whether the provision of fixed and mobile
satellite service shall be treated as common carriage.
(A)2.14 "Telecommunications Services" means the offering of
telecommunications for a fee directly to the public, or to
such classes of users as to be effectively available directly
to the public, regardless of the facilities used.
(A)2.15 Terms not otherwise defined here, but defined in the Act shall
have the meaning defined there. Where a term is defined in the
regulations implementing the Act but not in this Agreement,
the Parties do not necessarily intend to adopt the definition
as set forth in said regulations.
(A)3. TERMS AND CONDITIONS
(A)3.1 GENERAL PROVISIONS
(A)3.1.1 Each Party is solely responsible for the services
it provides to its end users and to other
Telecommunications Carriers.
(A)3.1.2 The Parties shall work cooperatively to minimize
fraud associated with intra-LATA toll, third-number
billed calls, and any other services related to this
Agreement.
(A)3.1.3 Nothing in this Agreement shall prevent either Party
from seeking to recover the costs and expenses, if
any, it may incur in (a) complying with and
implementing its obligations under this Agreement,
the Act, and the rules, regulations and orders of the
FCC and the Commission, and (b) the development,
modification, technical installation and maintenance
of any systems or other infrastructure which it
requires to comply with and to continue complying
with its responsibilities and obligations under this
Agreement.
(A)3.2 TERM OF AGREEMENT
This Agreement shall become effective upon Commission
approval, pursuant to Sections 251 and 252 of the Act, shall
terminate on Februray 4, 2002, and shall be binding upon the
Parties during that term, notwithstanding Section 252(i) of
the Act. After the date specified above, this Agreement shall
continue in force and
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General Terms
effect until terminated by either Party providing one hundred
sixty (160) days written notice of termination to the other
Party. The day the notice is served will determine the
starting point for a 160-day negotiation period (in accordance
with 252(b)1 of the Act. In the event of such termination,
existing or pending service arrangements made available under
this Agreement shall continue in total without interruption
under either a) a new or adoption agreement executed by the
Parties, or b) tariff terms and conditions generally available
to all resellers.
(A)3.2.1 If the Parties are unable to negotiate a new
agreement during the negotiation period
described above, the window of opportunity
to file for arbitration to resolve
outstanding contractual issues in accordance
with the Act will occur between days 135 and
160 of the 160 day notice period.
(A)3.2.2 If the Parties are able to reach agreement,
this Agreement shall continue for the brief
period of time needed to secure the
Commission's approval of an adoption
agreement or a new resale agreement. In the
case of Section (A)3.2.1, this Agreement
will expire on the termination date
specified in the one hundred sixty (160) day
notice referenced above, unless a petition
for arbitration has been filed, but if such
a petition has been filed then this
Agreement shall continue for the period
necessary for the Commission to act and
resolve the disputed issues so that the
Parties will have an effective resale
agreement.
(A)3.3 PROOF OF AUTHORIZATION
Where so indicated in specific sections of this Agreement,
each party shall be responsible for obtaining and having in
its possession Proof of Authorization ("POA"). POA shall
consist of verification of the end user's selection and
authorization adequate to document the end user's selection.
Such selection may be obtained in the following ways:
(A)3.3.1 The end user's written Letter of
Authorization.
(A)3.3.2 The end user's electronic authorization by
use of an 1-8XX number.
(A)3.3.3 The end user's oral authorization verified
by an independent third party (with third
party verification as POA).
The Parties shall make POAs available to each other upon
request, in accordance with the applicable laws and rules.
Unless prohibited by applicable laws or regulations, a.
charge of $100.00 ("slamming charge") will be assessed if
the POA cannot be provided supporting the change in service
provider. If there is a conflict between the end user
designation and the other Party's written evidence of its
authority, the Parties shall honor the designation of the end
user and change the end user back to the previous service
provider.
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(A)3.4 PAYMENT
(A)3.4.1 Amounts payable under this Agreement are due
and payable within thirty (30) calendar days
after the date of USW's invoice, or within
twenty (20) days after receipt of the
invoice, whichever is later. If the payment
due date is not a Business Day, the payment
shall be made the next Business Day..
USW may discontinue processing orders for
the failure by RESELLER to make full payment
for the services provided under this
Agreement within thirty (30) days of the due
date on RESELLER's bill.
USW may disconnect for the failure by
RESELLER to make full payment for the
services provided under this Agreement
within sixty (60) days of the due date on
RESELLER's bill. RESELLER will pay the
Tariff charge required to reconnect each end
user line disconnected pursuant to this
paragraph.
(A)3.4.2 Should RESELLER dispute, in good faith, any
portion of the monthly billing under this
Agreement, RESELLER will notify USW in
writing within thirty (30) calendar days of
the receipt of such billing, identifying the
amount, reason and rationale of such
dispute. RESELLER shall pay all amounts due.
Both RESELLER and USW agree to expedite the
investigation of any disputed amounts in an
effort to resolve and settle the dispute
prior to initiating any other rights or
remedies. Should the dispute be resolved in
RESELLER's favor and the resolved amount did
not appear as a credit on RESELLER's next
invoice from USW, USW will reimburse
RESELLER the resolved amount plus interest
from the date of payment. The amount of
interest will be calculated using the late
payment factor that would have applied to
such amount had it not been paid on time.
(A)3.4.3 USW will determine RESELLER's credit status
based on previous payment history with USW
or credit reports such as Dun and
Bradstreet. If RESELLER has not established
satisfactory credit with USW or if RESELLER
is repeatedly delinquent in making its
payments, USW may require a deposit to be
held as security for the payment of charges.
"Repeatedly delinquent" means being thirty
(30) calendar days or more delinquent for
three (3) consecutive months. The deposit
may not exceed the estimated total monthly
charges for a two (2) month period. The
deposit may be a surety bond, a letter of
credit with terms and conditions acceptable
to USW or some other form of mutually
acceptable security such as a cash deposit.
Required deposits are due and payable within
ten (10) calendar days after demand in
accordance with Commission requirements.
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(A)3.4.4 Interest will be paid on cash deposits at
the rate applying to deposits under
applicable Commission rules, regulations, or
Tariffs. Cash deposits and accrued interest
will be credited to RESELLER's account or
refunded, as appropriate, upon the earlier
of the termination of this Agreement or the
establishment of satisfactory credit with
USW, which will generally be one (1) full
year of timely payments in full by RESELLER.
The fact that a deposit has been made does
not relieve RESELLER from any requirements
of this Agreement.
(A)3.4.5 USW may review RESELLER's credit standing
and modify the amount of deposit required.
(A)3.4.6 The late payment charge for amounts that are
billed under this Agreement shall be in
accordance with state Tariffs/Commission
Rules and Orders.
(A)3.5 TAXES
Each Party purchasing services hereunder shall pay or
otherwise be responsible for all federal, state, or local
sales, use, excise, gross receipts, transaction or similar
taxes, fees or surcharges levied against or upon such
purchasing Party (or the providing Party when such providing
Party is permitted to pass along to the purchasing Party such
taxes, fees or surcharges), except for any tax on either
Party's corporate existence, status or income. Whenever
possible, these amounts shall be billed as a separate item on
the invoice. To the extent a sale is claimed to be for resale
tax exemption, the purchasing Party shall furnish the
providing Party a proper resale tax exemption certificate as
authorized or required by statute or regulation by the
jurisdiction providing said resale tax exemption. Until such
time as a resale tax exemption certificate is provided, no
exemptions will be applied.
(4)3.6 FORCE MAJEURE
Neither Party shall be liable for any delay or failure in
performance of any part of this Agreement from any cause
beyond its control and without its fault or negligence
including, without limitation, acts of nature, acts of civil
or military authority, government regulations, embargoes,
epidemics, terrorist acts, riots, insurrections, fires,
explosions, earthquakes, nuclear accidents, floods, work
stoppages, equipment failure, power blackouts, volcanic
action, other major environmental disturbances, unusually
severe weather conditions, inability to secure products or
services of other persons or transportation facilities or acts
or omissions of transportation carriers (collectively, a
"Force Majeure Event"). The Party affected by a Force Majeure
Event shall give prompt notice to the other Party, shall be
excused from performance of its obligations hereunder on a day
to day basis to the extent those obligations are prevented by
the Force Majeure Event, and shall use reasonable efforts to
remove or mitigate the Force Majeure Event. In the event of a
labor dispute or strike the Parties agree to provide service
to each other at a level equivalent to the level they provide
themselves.
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General Terms
(A)3.7 LIMITATION OF LIABILITY
(A)3.7.1 Except for losses relating to or arising out
of any act or omission in its performance of
services or functions provided under this
Agreement, each Party shall be liable to the
other for direct damages for any loss,
defect or equipment failure resulting from
the causing Party's conduct or the conduct
of its agents or contractors in performing
the obligations contained in this Agreement.
(A)3.7.2 Neither Party shall be liable to the other
for indirect, incidental, consequential, or
special damages, including (without
limitation) damages for lost profits, lost
revenues, lost savings suffered by the other
Party regardless of the form of action,
whether in contract, warranty, strict
liability, tort, including (without
limitation) negligence of any kind and
regardless of whether the Parties know the
possibility that such damages could result.
(A)3.7.3 Except for indemnity obligations, each
Party's liability to the other Party for any
loss relating to or arising out of any act
or omission in its performance of services
or functions provided under this Agreement,
whether in contract or in tort, shall be
limited to the total amount that is or would
have been charged to the other Party by such
breaching Party for the service(s) or
function(s) not performed or improperly
performed.
(A)3.7.4 Nothing contained in this Section shall
limit either Party's liability to the other
for intentional, malicious misconduct.
(A)3.7.5 Nothing contained in this Section shall
limit either Party's obligations of
indemnification as specified in the
Indemnity Section of this Agreement.
(A)3.7.6 Neither Party shall be liable to the other
under any theory including indemnity on
account of such Party's failure or neglect
to have or maintain a system or systems that
are Year 2000 compliant. As the Parties
approach the Year 2000, date information
associated with any interfaces between the
Parties is expected to remain as it is.
(A)3.8 INDEMNITY
(A)3.8.1 With respect to third party claims, the
Parties agree to indemnify each other as
follows:
(A)3.8.1.1 Except for claims made by end
users of one Party against the
other Party, which claims are based
on defective or faulty services
provided by the other Party to the
one Party, each of the Parties
agree to release, indemnify, defend
and hold harmless the other Party
and each of its officers,
directors, employees and agents
(each an "Indemnitee") from and
against and in respect
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General Terms
of any loss, debt, liability,
damage, obligation, claim, demand,
judgment or settlement of any
nature or kind, known or unknown,
liquidated or unliquidated
including, but not limited to,
costs and attorneys' fees, whether
suffered, made, instituted, or
asserted by any other party or
person, for invasion of privacy,
personal injury to or death of any
person or persons, or for loss,
damage to, or destruction of
property, whether or not owned by
others, resulting from the
indemnifying Party's performance,
breach of applicable law, or status
of its employees, agents and
subcontractors; or for failure to
perform under this Agreement,
regardless of the form of action.
(A)3.8.1.2 Where the third party claim is
made by (or through) an end user of
one Party against the other Party,
which claim is based on defective
or faulty services provided by the
other Party to the one Party then
there shall be no obligation of
indemnity unless the act or
omission giving rise to the
defective or faulty services is
shown to be intentional, malicious
misconduct of the other Party.
(A)3.8.1.3 If the claim is made by (or
through) an end user and where a
claim is in the nature of a claim
for invasion of privacy, libel,
slander, or other claim based on
the content of a transmission, and
it is made against a Party who is
not the immediate provider of the
Telecommunications Service to the
end user (the indemnified
provider), then in the absence of
fault or neglect on the part of the
indemnified provider, the Party who
is the immediate seller of such
Telecommunications Service shall
indemnify, defend and hold harmless
the indemnified provider from such
claim.
(A)3.8.2 The indemnification provided herein shall be
conditioned upon:
(A)3.8.2.1 The indemnified Party shall
promptly notify the indemnifying
Party of any action taken against
the indemnified Party relating to
the indemnification. Failure to so
notify the indemnifying Party shall
not relieve the indemnifying Party
of any liability that the
indemnifying Party might have,
except to the extent that such
failure prejudices the indemnifying
Party's ability to defend such
claim.
(A)3.8.2.2 The indemnifying Party shall have
sole authority to defend any such
action, including the selection of
legal
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General Terms
counsel, and the indemnified Party
may engage separate legal counsel
only at its sole cost and expense.
(A)3.8.2.3 In no event shall the
indemnifying Party settle or
consent to any judgment pertaining
to any such action without the
prior written consent of the
indemnified Party.
(A)3.9 INTELLECTUAL PROPERTY
(A)3.9.1 Each Party hereby grants to the other Party
the limited, personal and nonexclusive right
and license to use its patents, copyrights
and trade secrets but only to the extent
necessary to implement this Agreement or
specifically required by the then applicable
federal and state rules and regulations
relating to Interconnection and access to
telecommunications facilities and services,
and for no other purposes. Nothing in this
Agreement shall be construed as the grant to
the other Party of any rights or licenses to
trademarks.
(A)3.9.2 The rights and licenses above are granted
"AS IS" and the other Party's exercise of
any such right and license shall be at the
sole and exclusive risk of the other Party.
Neither Party shall have any obligation to
defend, indemnify or hold harmless, or
acquire any license or right for the benefit
of, or owe any other obligation or have any
liability to, the other based on or arising
from any claim, demand, or proceeding
(hereinafter "claim") by any third party
alleging or asserting that the use of any
circuit, apparatus, or system, or the use of
any software, or the performance of any
service or method, or the provision of any
facilities by either Party under this
Agreement constitutes infringement, or
misuse or misappropriation of any patent,
copyright, trade secret, or any other
proprietary or intellectual property right
of any third party.
(A)3.9.3 As a condition to the access or use of
patents, copyrights, trade secrets and other
intellectual property (including software)
owned or controlled by a third party to the
extent necessary to implement this Agreement
or specifically required by the then
applicable federal and state rules and
regulations relating to Interconnection and
access to telecommunications facilities and
services, the Party providing access may
require the other, upon written notice, from
time to time, to obtain a license or
permission for such access or use, make all
payments in connection with obtaining such
license, and provide evidence of such
license.
(A)3.9.4 Except as expressly provided in this
Intellectual Property Section, nothing in
this Agreement shall be construed as the
grant of a license, either express or
implied, with respect to any patent,
copyright, logo, trademark, trade name,
trade secret or any other intellectual
property right now or hereafter owned,
controlled or licensable by either Party.
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General Terms
Neither Party may use any patent, copyright,
logo, trademark, trade name, trade secret or
other intellectual property rights of the
other Party or its affiliates without
execution of a separate agreement between
the Parties.
(A)3.9.5 Neither Party shall without the express
written permission of the other Party, state
or imply that: 1) it is connected, or in any
way affiliated with the other or its
affiliates, 2) it is part of a joint
business association or any similar
arrangement with the other or its
affiliates, 3) the other Party and its
affiliates are in any way sponsoring,
endorsing or certifying it and its goods and
services, or 4) with respect to its
advertising or promotional activities or
materials, that the resold goods and
services are in any way associated with or
originated from the other or any of its
affiliates. Nothing in this paragraph shall
prevent either Party from truthfully
describing the network elements it uses to
provide service to its end users, provided
it does not represent the network elements
as originating from the other Party or its
affiliates.
(A)3.9.6 For purposes of resale only and
notwithstanding the above, unless otherwise
prohibited by USW pursuant to an applicable
provision herein, RESELLER may use the
phrase "RESELLER is a reseller of U S WEST
Communications services" (the "Authorized
Phrase") in RESELLER's printed materials
provided:
(A)3.9.6.1 The Authorized Phrase is not used
in connection with any goods or
services other than USW services
resold by RESELLER.
(A)3.9.6.2 RESELLER's use of the Authorized
Phrase does not cause end users to
believe that RESELLER is USW.
(A)3.9.6.3 RESELLER may not use the U S WEST
logo. The Authorized Phrase, when
displayed, appears only in text
form with all letters being the
same font and point size. The point
size of the Authorized Phrase shall
be no greater than one fourth the
point size of the smallest use of
RESELLER's name and in no event
shall exceed 8 point size.
(A)3.9.6.4 RESELLER shall provide all
printed materials using the
Authorized Phrase to USW for its
prior written approval.
(A)3.9.6.5 If USW determines that RESELLER's
use of the Authorized Phrase causes
end user confusion, USW may
immediately terminate RESELLER's
right to use the Authorized Phrase.
(A)3.9.6.6 Upon termination of RESELLER's
right to use the Authorized Phrase
or termination of this Agreement,
all
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General Terms
permission or right to use the
Authorized Phrase shall immediately
cease to exist and RESELLER shall
immediately cease any and all such
use of the Authorized Phrase.
RESELLER shall either promptly
return to USW or destroy all
materials in its possession or
control displaying the Authorized
Phrase.
(A)3.9.7 RESELLER acknowledges the value of the marks
"U S WEST" and "U S WEST Communications"
(the "Marks") and the goodwill associated
therewith and acknowledges that such
goodwill is a property right belonging to U
S WEST, Inc. and USW respectively (the
"Owners"). RESELLER recognizes that nothing
contained in this Agreement is intended as
an assignment or grant to RESELLER of any
right, title or interest in or to the Marks
and that this Agreement does not confer any
right or license to grant sublicenses or
permission to third parties to use the Marks
and is not assignable. RESELLER will do
nothing inconsistent with the Owner's
ownership of the Marks, and all rights, if
any, that may be acquired by use of the
Marks shall inure to the benefit of the
Owners. RESELLER will not adopt, use (other
than as authorized herein), register or seek
to register any mark anywhere in the world
which is identical or confusingly similar to
the Marks or which is so similar thereto as
to constitute a deceptive colorable
imitation thereof or to suggest or imply
some association, sponsorship, or
endorsement by the Owners. The Owners make
no warranties regarding ownership of any
rights in or the validity of the Marks.
(A)3.10 WARRANTIES
NOTWITHSTANDING ANY OTHER PROVISION OF THIS AGREEMENT, THE
PARTIES AGREE THAT NEITHER PARTY HAS MADE, AND THAT THERE DOES
NOT EXIST, ANY WARRANTY, EXPRESS OR IMPLIED, INCLUDING BUT NOT
LIMITED TO WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A
PARTICULAR PURPOSE.
(A)3.11 ASSIGNMENT
(A)3.11.1 Neither Party may assign or transfer
(whether by operation of law or otherwise)
this Agreement (or any rights or obligations
hereunder) to a third party without the
prior written consent of the other Party.
Notwithstanding the foregoing, either Party
may assign or transfer this Agreement to a
corporate affiliate or an entity under its
common control; however, if RESELLER's
assignee or transferee has an
interconnection agreement with USW, no
assignment or transfer of this Agreement
shall be effective without the prior written
consent of USW Such consent shall include
appropriate resolutions of conflicts and
discrepancies between the assignee's or
transferee's interconnection agreement and
this Agreement. Any attempted
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General Terms
assignment or transfer that is not permitted
is void AB INITIO. Without limiting the
generality of the foregoing, this Agreement
shall be binding upon and shall inure to the
benefit of the Parties' respective
successors and assigns.
(A)3.11.2 Without limiting the generality of the
foregoing subsection, any merger,
dissolution, consolidation or other
reorganization of RESELLER, or any sale,
transfer, pledge or other disposition by
RESELLER of securities representing more
than 50% of the securities entitled to vote
in an election of RESELLER's board of
directors or other similar governing body,
or any sale, transfer, pledge or other
disposition by RESELLER of substantially all
of its assets, shall be deemed a transfer of
control. If any entity, other than RESELLER,
involved in such merger, dissolution,
consolidation, reorganization, sale,
transfer, pledge or other disposition of
RESELLER has an interconnection agreement
with USW, the Parties agree that only one
agreement, either this Agreement or the
interconnection agreement of the other
entity, will remain valid. All other
interconnection agreements will be
terminated. The Parties agree to work
together to determine which interconnection
agreement should remain valid and which
should terminate. In the event the Parties
cannot reach agreement on this issue, the
issue shall be resolved through the Dispute
Resolution process contained in this
Agreement.
(A)3.12 DEFAULT
If either Party defaults in the payment of any amount due
hereunder, or if either Party violates any other material
provision of this Agreement, and such default or violation
shall continue for thirty (30) calendar days after written
notice thereof, the other Party may seek relief in accordance
with the Dispute Resolution provision of this Agreement. The
failure of either Party to enforce any of the provisions of
this Agreement or the waiver thereof in any instance shall not
be construed as a general waiver or relinquishment on its part
of any such provision, but the same shall, nevertheless, be
and remain in full force and effect.
(A)3.13 DISCLAIMER OF AGENCY
Except for provisions herein expressly authorizing a Party to
act for another, nothing in this Agreement shall constitute a
Party as a legal representative or agent of the other Party,
nor shall a Party have the right or authority to assume,
create or incur any liability or any obligation of any kind,
express or implied, against or in the name or on behalf of the
other Party unless otherwise expressly permitted by such other
Party. Except as otherwise expressly provided in this
Agreement, no Party undertakes to perform any obligation of
the other Party whether regulatory or contractual, or to
assume any responsibility for the management of the other
Party's business.
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Part A
General Terms
(A)3.14 NONDISCLOSURE
(A)3.14.1 All information, including but not limited
to specifications, microfilm, photocopies,
magnetic disks, magnetic tapes, drawings,
sketches, models, samples, tools, technical
information, data, employee records, maps,
financial reports, and market data, (i)
furnished by one Party to the other Party
dealing with end user specific, facility
specific, or usage specific information,
other than end user information communicated
for the purpose of providing directory
assistance or publication of directory
database, or (ii) in written, graphic,
electromagnetic, or other tangible form and
marked at the time of delivery as
"Confidential" or "Proprietary", or (iii)
communicated and declared to the receiving
Party at the time of delivery, or by written
notice given to the receiving Party within
ten (10) calendar days after delivery, to be
"Confidential" or "Proprietary"
(collectively referred to as "Proprietary
Information"), shall remain the property of
the disclosing Party. A Party who receives
Proprietary Information via an oral
communication may request written
confirmation that the material is
Proprietary Information. A Party who
delivers Proprietary Information via an oral
communication may request written
confirmation that the Party receiving the
information understands that the material is
Proprietary Information.
(A)3.14.2 Upon request by the disclosing Party, the
receiving Party shall return all tangible
copies of Proprietary Information, whether
written, graphic or otherwise, except that
the receiving Party may retain one copy for
archival purposes.
(A)3.14.3 Each Party shall keep all of the other
Party's Proprietary Information confidential
and shall use the other Party's Proprietary
Information only in connection with this
Agreement. Neither Party shall use the other
Party's Proprietary Information for any
other purpose except upon such terms and
conditions as may be agreed upon between the
Parties in writing.
(A)3.14.4 Unless otherwise agreed, the obligations of
confidentiality and nonuse set forth in this
Agreement do not apply to such Proprietary
Information as:
(A)3.14.4.1 was at the time of receipt
already known to the receiving
Party free of any obligation to
keep it confidential evidenced by
written records prepared prior to
delivery by the disclosing Party;
or
(A)3.14.4.2 is or becomes publicly known
through no wrongful act of the
receiving Party; or
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Part A
General Terms
(A)3.14.4.3 is rightfully received from a
third person having no direct or
indirect secrecy or confidentiality
obligation to the disclosing Party
with respect to such information;
or
(A)3.14.4.4 is independently developed by an
employee, agent, or contractor of
the receiving Party which
individual is not involved in any
manner with the provision of
services pursuant to the Agreement
and does not have any direct or
indirect access to the Proprietary
Information; or
(A)3.14.4.5 is disclosed to a third person
by the disclosing Party without
similar restrictions on such third
person's rights; or
(A)3.14.4.6 is approved for release by
written authorization of the
disclosing Party; or
(A)3.14.4.7 is required to be made public by
the receiving Party pursuant to
applicable law or regulation
provided that the receiving Party
shall give sufficient notice of the
requirement to the disclosing Party
to enable the disclosing Party to
seek protective orders.
(A)3.14.5 Nothing herein is intended to prohibit a
Party from supplying factual information
about its network and Telecommunications
Services on or connected to its network to
regulatory agencies including the Federal
Communications Commission and the Commission
so long as any confidential obligation is
protected.
(A)3.14.6 Effective Date Of This Section.
Notwithstanding any other provision of this
Agreement, the Proprietary Information
provisions of this Agreement shall apply to
all information furnished by either Party to
the other in furtherance of the purpose of
this Agreement, even if furnished before the
date of this Agreement.
(A)3.15 SURVIVAL
Any liabilities or obligations of a Party for acts or
omissions prior to the cancellation or termination of this
Agreement; any obligation of a Party under the provisions
regarding indemnification, Confidential or Proprietary
Information, limitations of liability, and any other
provisions of this Agreement which, by their terms, are
contemplated to survive (or to be performed after) termination
of this Agreement, shall survive cancellation or termination
hereof.
(A)3.16 DISPUTE RESOLUTION
(A)3.16.1 If any claim, controversy or dispute
between the Parties, their agents,
employees, officers, directors or affiliated
agents should arise, and the Parties do not
resolve it in the ordinary course of their
dealings (the "Dispute"), then it shall be
resolved in accordance with the
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Part A
General Terms
dispute resolution process set forth in this
Section. Each notice of default, unless
cured within the applicable cure period,
shall be resolved in accordance herewith.
(A)3.16.2 At the written request of either Party, and
prior to any other formal dispute resolution
proceedings, each Party shall designate an
officer-level employee, at no less than the
vice president level, to review, meet, and
negotiate, in good faith, to resolve the
Dispute. The Parties intend that these
negotiations be conducted by non-lawyer,
business representatives, and the locations,
format, frequency, duration, and conclusions
of these discussions shall be at the
discretion of the representatives. By mutual
agreement, the representatives may use other
procedures, such as mediation, to assist in
these negotiations. The discussions and
correspondence among the representatives for
the purposes of these negotiations shall be
treated as Confidential Information
developed for purposes of settlement, and
shall be exempt from discovery and
production, and shall not be admissible in
any subsequent arbitration or other
proceedings without the concurrence of both
of the Parties.
(A)3.16.3 If the vice-presidential level
representatives have not reached a
resolution of the Dispute within thirty (30)
calendar days after the matter is referred
to them, then either Party may demand that
the Dispute be settled by arbitration. Such
an arbitration proceeding shall be conducted
by a single arbitrator, knowledgeable about
the telecommunications industry. The
arbitration proceedings shall be conducted
under the then current rules of the American
Arbitration Association ("AAA"). The Federal
Arbitration Act, 9 U.S.C. Sections 1-16, not
state law, shall govern the arbitrability of
the Dispute. The arbitrator shall not have
authority to award punitive damages. All
expedited procedures prescribed by the AAA
rules shall apply. The arbitrator's award
shall be final and binding and may be
entered in any court having jurisdiction
thereof. Each Party shall bear its own costs
and attorneys' fees, and shall share equally
in the fees and expenses of the arbitrator.
The arbitration proceedings shall occur in
the Denver, Colorado metropolitan area. It
is acknowledged that the Parties, by mutual,
written agreement, may change any of these
arbitration practices for a particular,
some, or all Dispute(s).
(A)3.16.4 Should it become necessary to resort to
court proceedings to enforce a Party's
compliance with the dispute resolution
process set forth herein, and the court
directs or otherwise requires compliance
herewith, then all of the costs and
expenses, including its reasonable attorney
fees, incurred by the Party requesting such
enforcement shall be reimbursed by the
non-complying Party to the requesting Party.
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General Terms
(A)3.16.5 No Dispute, regardless of the form of
action, arising out of this Agreement, may
be brought by either Party more than two (2)
years after the cause of action accrues.
(A)3.17 CONTROLLING LAW
This Agreement was negotiated by the Parties in accordance with the
terms of the Act and the laws of the state where service is provided
hereunder. It shall be interpreted solely in accordance with the terms
of the Act and the applicable state law in the state where the service
is provided.
(A)3.18 JOINT WORK PRODUCT
This Agreement is the joint work product of the Parties and has been
negotiated by the Parties and their respective counsel and shall be
fairly interpreted in accordance with its terms and, in the event of any
ambiguities, no inferences shall be drawn against either Party.
(A)3.19 RESPONSIBILITY FOR ENVIRONMENTAL CONTAMINATION
Neither Party shall be liable to the other for any costs whatsoever
resulting from the presence or release of any environmental hazard that
either Party did not introduce to the affected work location. Both
Parties shall defend and hold harmless the other, its officers,
directors and employees from and against any losses, damages, claims,
demands, suits, liabilities, fines, penalties and expenses (including
reasonable attorneys' fees) that arise out of or result from (i) any
environmental hazard that the indemnifying Party, its contractors or
agents introduce to the work locations or (ii) the presence or release
of any environmental hazard for which the indemnifying Party is
responsible under applicable law.
(A)3.20 NOTICES
Any notices required by or concerning this Agreement shall be sent to
the Parties at the addresses shown below:
USW
Director Interconnection Compliance
1801 California, Room 2410
Denver, CO 80202
With copy to:
U S WEST Law Department
Attention: General Counsel, Interconnection
1801 California Street, 51st Floor
Denver, CO 80202
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Part A
General Terms
RESELLER
John Duffy
Peter Mills
3 Burlington Woods Drive
4th Floor
Burlington, MA 01803
Phone: 781-229-9599, ext. 136
Fax: 781-229-9499
E-mail: [email protected]
Each Party shall inform the other of any changes in the above
addresses.
(A)3.21 RESPONSIBILITY OF EACH PARTY
Each Party is an independent contractor, and has and hereby
retains the right to exercise full control of and supervision
over its own performance of its obligations under this
Agreement and retains full control over the employment,
direction, compensation and discharge of all employees
assisting in the performance of such obligations. Each Party
will be solely responsible for all matters relating to payment
of such employees, including compliance with social security
taxes, withholding taxes and all other regulations governing
such matters. Each Party will be solely responsible for proper
handling, storage, transport and disposal at its own expense
of all (i) substances or materials that it or its contractors
or agents bring to, create or assume control over at work
locations or, (ii) waste resulting therefrom or otherwise
generated in connection with its or its contractors' or
agents' activities at the work locations. Subject to the
limitations on liability and except as otherwise provided in
this Agreement, each Party shall be responsible for (i) its
own acts and performance of all obligations imposed by
applicable law in connection with its activities, legal status
and property, real or personal and, (ii) the acts of its own
affiliates, employees, agents and contractors during the
performance of that Party's obligations hereunder.
(A)3.22 NO THIRD PARTY BENEFICIARIES
This Agreement does not provide and shall not be construed to
provide third parties with any remedy, claim, liability,
reimbursement, cause of action, or other privilege.
(A)3.23 REFERENCED DOCUMENTS
All references to Sections shall be deemed to be references to
Sections of this Agreement unless the context shall otherwise
require. Whenever any provision of this Agreement refers to a
technical reference, technical publication, RESELLER practice,
USW practice, any publication of telecommunications industry
administrative or technical standards, or any other document
specifically incorporated into this Agreement, it will be
deemed to be a reference to the most recent version or edition
(including any amendments, supplements, addenda, or
successors) of such document that is in effect, and will
include the most recent
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Part A
General Terms
version or edition (including any amendments, supplements,
addenda, or successors) of each document incorporated by
reference in such a technical reference, technical
publication, RESELLER practice, USW practice, or publication
of industry standards. USW will not implement changes in the
most recent version or edition in the documents described
above when such changes are optional. The existing
configuration of either Party's network may not be in
immediate compliance with the latest release of applicable
referenced documents.
(A)3.24 PUBLICITY
Neither Party shall publish or use any publicity materials
with respect to the execution and delivery or existence of
this Agreement without the prior written approval of the other
Party.
(A)3.25 AMENDMENT
RESELLER and USW may mutually agree to amend this Agreement in
writing. Since it is possible that amendments to this
Agreement may be needed to fully satisfy the purposes and
objectives of this Agreement, the Parties agree to work
cooperatively, promptly and in good faith to negotiate and
implement any such additions, changes and corrections to this
Agreement.
(A)3.26 EXECUTED IN COUNTERPARTS
This Agreement may be executed in any number of counterparts,
each of which shall be deemed an original; but such
counterparts shall together constitute one and the same
instrument.
(A)3.27 HEADINGS OF NO FORCE OR EFFECT
The headings of Sections of this Agreement are for convenience
of reference only, and shall in no way define, modify or
restrict the meaning or interpretation of the terms or
provisions of this Agreement.
(A)3.28 REGULATORY APPROVAL
The Parties understand and agree that this Agreement will be
filed with the Commission for approval. In the event the
Commission rejects any portion of this Agreement, renders it
inoperable or creates an ambiguity that requires further
amendment, the Parties agree to meet and negotiate in good
faith to arrive at a mutually acceptable modification.
(A)3.29 COMPLIANCE
Each Party shall comply with all federal, state, and local
laws, rules and regulations applicable to its performance
under this Agreement. Without limiting the foregoing, USW and
RESELLER agree to take all action necessary to keep and
maintain in full force and effect all permits, licenses,
certificates, insurance, and other authorities needed to
perform their respective obligations hereunder.
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Part A
General Terms
(A)3.30 COMPLIANCE WITH THE COMMUNICATIONS ASSISTANCE FOR LAW
ENFORCEMENT ACT OF 1994 ("CALEA")
Each Party represents and warrants that any equipment,
facilities or services provided to the other Party under
this Agreement comply with CALEA. Each Party shall indemnify
and hold the other Party harmless from any and all penalties
imposed upon the other Party for such noncompliance and
shall at the noncompliant Party's sole cost and expense,
modify or replace any equipment, facilities or services
provided to the other Party under this Agreement to ensure
that such equipment, facilities and services fully comply
with CALEA.
(A)3.31 COOPERATION
The Parties agree that this Agreement involves the provision
of USW services in ways such services were not previously
available and the introduction of new processes and
procedures to provide and bill such services. Accordingly,
the Parties agree to work jointly and cooperatively in
testing and implementing processes for pre-ordering,
ordering, maintenance, provisioning and billing and in
reasonably resolving issues which result from such
implementation on a timely basis. Electronic processes and
procedures are addressed in Part D of this Agreement.
(A)3.32 AVAILABILITY OF OTHER AGREEMENTS
With regard to the availability of other agreements, the
Parties agree that the provisions of Section 252(i) of the
Act shall apply, including state and federal, Commission and
court interpretive regulations and decisions in effect from
time to time.
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Part B
Resale
PART B - RESALE
(B)1. DESCRIPTION
(B)1.1 Pursuant to the Act and this Part B, USW shall offer for
resale at wholesale rates any Telecommunications Services it
provides to end users who are not Telecommunications Carriers
including terms and conditions (except prices) in the USW
Tariffs, where applicable. RESELLER may obtain intraLATA toll
service from USW for resale or RESELLER has the option to
self-provision intraLATA toll or to obtain intraLATA toll
for resale from another provider.
(B)1.2 The Parties agree that certain USW services are not available
for resale under this Agreement and certain other USW services
are available for resale but not at a discount, as identified
in Part E or in individual state Tariffs. The availability of
services and applicable discounts identified in Part E or in
individual Tariffs are subject to change pursuant to the Rates
and Charges sub-section of this Resale section.
(B)2. TERMS AND CONDITIONS
(B)2.1 Basic Exchange Telecommunications Service, Basic Exchange
Features, Private Line Service, Frame Relay Service and
intraLATA Toll may be resold only for their intended or
disclosed use and only to the same class of end user to which
USW sells such services (e.g., residence service may not be
resold to business end users). Service provided directly to
RESELLER for its own use, such as administrative services,
must be identified by RESELLER and RESELLER must pay the full
retail rates and prices for such services.
(B)2.2 USW shall provide to RESELLER Telecommunications Services for
resale that are at least equal in quality, and in
substantially the same time and manner that USW provides these
services to others, including other Resellers and end users,
and in accordance with any applicable Commission service
quality standards, including standards the Commission may
impose pursuant to Section 252 (e)(3) of the Act.
(B)2.3 In the event that there are existing agreements between
RESELLER and USW for resale under USW retail Tariff discounts,
RESELLER may elect to continue to obtain services for resale
under the existing agreements and retail Tariff discounts or
RESELLER may elect to terminate such existing agreements and
obtain such services under this Agreement with the associated
wholesale discount specified in Part E of this Agreement.
(B)2.4 In accordance with the Act, RESELLER will provide the date it
will begin to offer Telecommunications Services to residential
and business end users. RESELLER will provide a two (2) year
forecast within ninety (90) calendar days of signing this
Agreement The forecast shall be updated and provided to USW on
a annual basis or as requested by USW. Each forecast will
provide:
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Part B
Resale
- The date service will be offered (by city and/or state)
- The type and quantity of service(s) which will be offered
- RESELLER's anticipated number of service orders
- Name of RESELLER's key contact personnel
The information provided pursuant to this paragraph shall be
considered Proprietary Information under the Nondisclosure
Section of this Agreement.
(B)2.5 RESELLER may not reserve blocks of USW telephone numbers,
except as allowed by Tariffs.
(B)2.6 USW will accept at no charge one primary listing for each main
telephone number belonging to RESELLER's end user based on end
user information provided to USW by RESELLER. USW will place
RESELLER's listings in USW's directory listing database for
directory assistance purposes. Additional terms and conditions
with respect to directory listings are described in Part C of
this Agreement.
(B)2.7 USW shall provide to RESELLER, for RESELLER's end users,
E911/911 call routing to the appropriate Public Safety
Answering Point ("PSAP). USW shall not be responsible for any
failure of RESELLER to provide accurate end user information
for listings in any databases in which USW is required to
retain and/or maintain end user information.. USW shall
provide and validate RESELLER's end user information to the
Automatic Location Identification/Database Management
System ("ALI/DMS"). USW shall use its standard process to
update and maintain, on the same schedule that it uses for its
end users, RESELLER's end user service information in the
ALI/DMS used to support E911/911 services. USW assumes no
liability for the accuracy of information provided by
RESELLER.
(B)2.8 If USW provides and RESELLER accepts operator services,
directory assistance, and intraLATA long distance as a part of
the resold line, it will be offered with standard USW
branding. RESELLER is not permitted to alter the branding of
these services in any manner when the services are a part of
the resold line without the prior written approval of USW.
However, at the request of RESELLER and where technically
feasible, USW will rebrand operator services and directory
assistance in RESELLER's name, provided the charges associated
with such rebranding are paid by RESELLER.
(B)2.9 RESELLER shall designate the Primary Interexchange Carrier
(PIC) assignments on behalf of its end users for interLATA
services and intraLATA services.
(B)2.10 When end users switch from USW to RESELLER, or to RESELLER
from any other Reseller, and if they do not change their
service address to an address served by a different Central
Office, such end users shall be permitted to retain their
current telephone numbers if they so desire. USW shall take no
action to prevent RESELLER end users from retaining their
current telephone numbers.
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Part B
Resale
(B)2.11 RESELLIER is liable for all fraud associated with service to
its end-users and accounts. USW takes no responsibility, will
not investigate, and will make no adjustments to RESELLER's
account in cases of fraud unless such fraud is the result of
any intentional act or gross negligence of USW.
Notwithstanding the above, if USW becomes aware of potential
fraud with respect to RESELLER's accounts, USW will promptly
inform RESELLER and, at the direction of RESELLER, take
reasonable action to mitigate the fraud where such action is
possible.
(B)2.12 Resold services are available only where facilities currently
exist and are capable of providing such services without
construction of additional facilities or enhancement of
existing facilities. However, if RESELLER requests that
facilities be constructed or enhanced to provide resold
services, USW will review such requests on a case-by-case
basis and determine if it is economically feasible for USW to
build or enhance facilities. If USW decides to build or
enhance the requested facilities, USW will develop and provide
to RESELLER a price quote for the construction. Construction
charges associated with resold services will be applied in the
same manner that construction charges apply to USW's retail
end users. If the quote is accepted, RESELLIER will be billed
the quoted price and construction will commence after receipt
of payment.
(B)2.13 In the event USW terminates the provisioning of any resold
services to RESELLER for any reason, including RESELLER's
non-payment of charges, RESELLER shall be responsible for
providing any and all necessary notice to its end users of the
termination. In no case shall USW be responsible for providing
such notice to RESELLER's end users. USW will provide notice
to RESELLER of USW's termination of a resold service on a
timely basis consistent with Commission rules and notice
requirements.
(B)2.14 The underlying network provider of a resold service shall be
entitled to receive, from the purchaser of Switched Access,
the appropriate access charges pursuant to its then effective
Switched Access Tariff.
(B)2.15 Centrex terms and conditions related to calculation of charges
for, and provisioning of common blocks, station lines, and
optional features will be based on the Centrex definition of a
system and a Reseller's serving location.
(B)2.15.1 Where a common block is applicable, a Centrex system
is defined by a single common block or multiple
common blocks for a single RESELLER within a single
Central Office switching system. A common block
defines the dialing plan for intercom calling, access
to Public Switched Network and/or private facilities,
station line and system restrictions and feature
access arrangements and functionality. RESELLER may
purchase multiple common blocks within a single
Central Office switching system when RESELLER
requires different dialing plans, feature access
arrangements and
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Part B
Resale
station line or system restrictions within a single
system operation. A Reseller with multiple common
blocks within the same Central Office switch may have
Network Access Register and Private Facility trunk
groups aggregated across multiple common blocks.
Centrex system based optional features (i.e.
Automatic Route Selection) may not be aggregated
across multiple common blocks. A Centrex system
must provide station lines to at least one location
and may provide station lines to multiple locations.
(B)2.15.2 Centrex station lines are provisioned and charges
are calculated based on serving Reseller's location.
A location is defined as the site where USW
facilities (cable plant from the serving Central
Office switch) meet Reseller facilities (inside
wire). In a multi-tenant building, USW may bring
facilities directly to a single point of
interconnection with Reseller facilities, typically
in a basement equipment room, which would be
considered a single location for this multi-tenant
building. Should USW bring service to multiple floors
or offices within a multi-tenant building each floor
or office with a separate Reseller facilities
termination point is considered a location. Multiple
buildings within contiguous property (campus) will be
provisioned and billed as a single location.
Contiguous property is defined as property owned or
leased by a single end user and not separated by
public thoroughfare, river or railroad rights-of-way.
Property will be considered contiguous when connected
via connecting passageways or conduit acceptable to
USW for its facilities. A Reseller with Centrex
station lines from multiple Central Office switching
systems, within the same USW Wire Center, and
provisioned to the same location will not be charged
for service or provisioned as if service was
originating from a single Centrex system. For
example, station lines may only be aggregated from a
single Centrex Reseller system to a single Reseller
serving location for rating purposes. RESELLER may
not specify a USW Central Office as a RESELLER
location for termination of Centrex station lines.
(B)2.16 Private Line Service used for Special Access is available for
resale but not at a discount.
(B)2.17 DSL Service (such as Megabit Service) is available for resale
by RESELLER out of USW's Interstate Tariff, but at no
wholesale discount.
(B)3. RATES AND CHARGES
(B)3.1 The Telecommunications Services identified in Part E are
available for resale at the wholesale discount percentage
shown in Part E. Telecommunications
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Part B
Resale
Services available for resale but excluded from the wholesale
pricing arrangement in this Agreement are available at the
retail Tariff rates.
(B)3.2 The Customer Transfer Charges (CTC) as specified in Part E
apply when transferring services to RESELLER.
(B)3.3 A Subscriber Line Charge (SLC), or any subsequent federally
mandated charge to end users, will continue to be paid by
RESELLER without discount for each local exchange line resold
under this Agreement. All federal and state rules and
regulations associated with SLC as found in the applicable
Tariffs also apply.
(B)3.4 RESELLER will pay to USW the PIC change charge without
discount for RESELLER end user changes of interexchange or
intraLATA carriers. Any change in RESELLER's end users'
interexchange or intraLATA carrier must be requested by
RESELLER on behalf of its end user.
(B)3.5 RESELLER agrees to pay USW when its end user activates any
services or features that are billed on a per use or per
activation basis subject to the applicable discount in Part E
as such may be amended pursuant to this Section (e.g.,
continuous redial, last call return, call back calling, call
trace, etc.).
(B)3.6 Product specific non-recurring charges, as set forth in USW's
applicable Tariffs will apply when additional lines, trunks or
circuits are added or when the end user adds features or
services to existing lines or trunks.
(B)3.7 Miscellaneous charges, if applicable, will be consistent with
charges for equivalent services ordered by USW end users.
(B)3.8 The wholesale discount rates in Part E established in the
Idaho Case Number USW-T-96-15, ATT-T-96-1, "In the Matter of
AT&T Communications of the Mountain States, Inc. petition for
Arbitration of the Interconnection Rates, Terms and Pursuant
to 47 U.S.C. Sec. 252(b) of the Telecommunications Act of
1996", (the "AT&T Arbitration") are interim rates and are
pending the outcome of a final Commission decision in an
interconnection cost docket. Such rates, as adopted in this
Agreement, will be subject to true-up from the date those
rates became effective in this Agreement to the effective date
of the final interconnection cost docket order.
Notwithstanding this true-up obligation, the Parties agree
that rates in this Agreement will remain in effect as
described below until the exhaustion of all appeals of the
final order in the interconnection cost docket.
(B)3.9 The Parties intend that, if the AT&T rates or the services in
the AT&T Arbitration are changed by any negotiations, appeal,
stay, injunction, settlement, or similar proceeding with
respect to AT&T, those rates and services, if they have been
adopted into this Agreement, shall be changed in this
Agreement to the same extent as the rates and services in the
AT&T Arbitration. Notwithstanding the above, the Parties agree
that in the event a stay or injunction is granted with respect
to the implementation of the services and rates in the AT&T
Arbitration, the Parties agree that the telecommunications
services still available for resale
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Part B
Resale
following the stay or injunction will be available to
RESELLER, effective as of the date of the stay order or
injunction, at a wholesale discount rate of 12% (the "Standard
Rate") until such time as a nonappealable order establishes a
wholesale discount rate(s). If the Standard Rate becomes
effective pursuant to this paragraph, the Standard Rate will
also be subject to true-up to the rate(s) established in the
nonappealable order for the period that the Standard Rate was
in effect. If the AT&T rates or the applicability of the rate
to the services in Part E is changed by a nonappealable
administrative or judicial order following approval of
negotiated rates, rates reached in an approved settlement
agreement, a decision on appeal or other similar proceeding,
such changed rate(s) will be available to RESELLER, effective
as of the date of the order. The AT&T rate shall be subject to
true-up to the changed rates for the period of time the AT&T
rate was in effect. Notwithstanding the above, no true-up of
either the Standard Rate or the AT&T rate will occur unless
ordered as a part of the nonappealable administrative or
judicial order.
(B)3.10 If the resold services are purchased pursuant to Tariffs and
the Tariff rates change, charges billed to RESELLER for such
services will be based upon the new Tariff rates less the
applicable wholesale discount, if any, as agreed to herein or
as established by Commission order and/or resale Tariff. The
new rate will be effective upon the Tariff effective date.
(B)4. ORDERING PROCESS
(B)4.1 RESELLER, or RESELLER's agent, shall act as the single point
of contact for its end users' service needs, including without
limitation, sales, service design, order taking, provisioning,
change orders, training, maintenance, trouble reports, repair,
post-sale servicing, billing, collection and inquiry. RESELLER
shall inform its end users that they are end users of RESELLER
for resold services. RESELLER's end users contacting USW will
be instructed to contact RESELLER; however, nothing in this
Agreement, except as provided below, shall be deemed to
prohibit USW from discussing its products and services with
RESELLER's end users who call USW.
(B)4.2 RESELLER shall transmit to USW all information necessary for
the ordering (billing, listing and other information),
installation, repair, maintenance and post-installation
servicing according to USW's standard procedures, as described
in the USW Interconnect & Resale Resource Guide available on
USW's Web site. Information shall be provided using USW's
designated Local Service Request (LSR) format which may
include the LSR, end user and resale forms. RESELLER must send
USW complete and accurate end user listing information for
Directory Assistance, Directory Listings, and 911 Emergency
Services using USW's designated resale directory listing order
forms. When USW's end user or the end user's new service
provider orders the discontinuance of the end user's existing
service in anticipation of moving to another service provider,
USW will render its closing bill to the end user effective
with the disconnection. If another service provider,
RESELLER's end
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Part B
Resale
user or RESELLER requests that service be discontinued from
RESELLER and subsequently USW's service to RESELLER is
discontinued USW will issue a bill to RESELLER for that
portion of the service provided to RESELLER.. USW will notify
RESELLER by FAX, OSS interface or other agreed upon
processes, in accordance with the OSS section of this
Agreement when an end user moves to another service provider.
USW will not provide RESELLER with the name of the other
service provider selected by the end user.
(B)4.3 RESELLER shall provide USW and USW shall provide RESELLER with
points of contact for order entry, problem resolution and
repair of the resold services.
(B)4.4 Prior to placing orders on behalf of the end user, RESELLER
shall be responsible for obtaining and have in its possession
Proof of Authorization ("POA"), as set forth in Part A of this
Agreement.
(B)4.5 Due date interval standards are addressed in the Interconnect
& Resale Resource Guide.
(B)4.6 Firm Order Confirmation (FOC) guidelines are addressed in the
Interconnect & Resale Resource Guide.
(B)4.7 USW will provide completion notification that is equal to that
provided to USW end users.
(B)4.8 USW will provide Design Layout Records when requested under
terms and conditions consistent with USW end users.
(B)4.9 USW will handle jeopardy orders based upon the same
performance standards and criteria that USW provides to
itself.
(B)5. BILLING
(B)5.1 USW shall bill RESELLER and RESELLER is responsible for all
applicable charges for the resold services as provided herein.
RESELLER shall also be responsible for all Tariffed charges
and charges separately identified in this Agreement associated
with services that RESELLER resells to an end user under this
Agreement.
(B)5.2 USW shall provide RESELLER, on a monthly basis, within 7-10
calendar days of the last day of the most recent billing
period, in an agreed upon standard electronic billing format
as detailed in Part D, billing information including (1) a
summary bill, and (2) individual end user sub-account
information consistent with the samples available for RESELLER
review.
(B)6. MAINTENANCE AND REPAIR
RESELLER and USW will employ the procedures for handling misdirected
repair calls as specified in the Maintenance and Repair Section of this
Agreement.
(B)6.1 USW will maintain facilities and equipment used to provide
RESELLIER resold services. RESELLER or its end user may not
rearrange, move, disconnect, or attempt to repair USW
facilities or equipment, other than by connection or
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Part B
Resale
disconnection to any interface between USW and the end user,
without written consent of USW.
(B)6.2 Maintenance and repair processes are detailed in the
Maintenance and Repair Section of this Agreement.
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Part C
Directory Listings
PART C - WHITE PAGES DIRECTORY LISTINGS
(C)1. DESCRIPTION
White Pages Listings Service (Listings) consists of USW placing the
names, addresses and telephone numbers of RESELLER's end users in
USW's listing database, based on end user information provided to USW
by RESELLER. USW is authorized to use Listings in Directory Assistance
(DA) and as noted below.
(C)2. TERMS AND CONDITIONS
(C)2.1 RESELLER will provide in standard, mechanized format, and USW
will accept at no charge, one primary listing for each main
telephone number belonging to RESELLER's end users. Primary
listings for RESELLER will include the end user Listings for
any resold services or wireless services and are further
defined in USW's general exchange Tariffs. RESELLER will be
charged for premium and privacy listings, (e.g., additional,
foreign, cross reference, informational, etc.), at USW's
general exchange listing Tariff rates, less the wholesale
discount. If RESELLER utilizes Remote Call Forwarding for
local number portability, RESELLER can list only one number
without charge - either the end user's original telephone
number or RESELLER-assigned number. The standard discounted
rate for an additional listing applies to the other number.
(C)2.2 USW will furnish RESELLER the Listings format specifications.
All manual requests are considered a project and require
coordination between RESELLER and USW to determine time
frames.
(C)2.3 RESELLER grants USW a non-exclusive license to incorporate
Listings information into its Directory Assistance database.
With this license USW will incorporate Listings in the DA
database.
(C)2.4 No prior authorization is needed for USW to release Listings
to directory publishers or other third parties. USW will
incorporate Listings information in all existing and future
directory assistance applications developed by USW. RESELLER
authorizes USW to sell and otherwise make Listings available
to directory publishers. Listings shall not be provided or
sold in such a manner as to segregate end users by carrier.
USW will not charge for updating and maintaining the Listings
database. RESELLER will not receive compensation from USW for
any sale of Listings by USW.
(C)2.5 To the extent that state Tariffs limit USW's liability with
regard to Listings, the applicable state Tariff(s) is
incorporated herein and supersedes the Limitation of Liability
section of this Agreement with respect to Listings only.
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Part C
Directory Listings
(C)2.6 USW is responsible for maintaining Listings, including
entering, changing, correcting, rearranging and removing
Listings in accordance with RESELLER orders. USW will take
reasonable steps in accordance with industry practices to
accommodate non-published and non-listed Listings provided
that RESELLER has supplied USW the necessary privacy
indicators on such Listings.
(C)2.7 USW will include RESELLER Listings in USW's Directory
Assistance service to ensure that callers to USW's Directory
Assistance service have non-discriminatory access to
RESELLER's Listings.
(C)2.8 USW will ensure RESELLER Listings provided to USW are included
in the white pages directory published on USW's behalf.
(C)2.9 RESELLER agrees to provide to USW its end user names,
addresses and telephone numbers in a standard mechanized
format, as specified by USW.
(C)2.10 RESELLER will supply its ACNA/CIC or CLCC/OCN, as appropriate,
with each order to provide USW the means of identifying
Listings ownership.
(C)2.11 Upon request by USW, RESELLER shall submit proof to USW, of
authorization from each end user for which RESELLER submits a
change in end user's Listing.
(C)2.12 RESELLER represents and warrants the end user information
provided to USW is accurate and correct. RESELLER further
represents and warrants that it has reviewed all Listings
provided to USW, including end user requested restrictions on
use such as non published and non-listed. RESELLER shall be
solely responsible for knowing and adhering to state laws or
rulings regarding Listings (e.g., no solicitation requirements
in the states of Arizona and Oregon, privacy requirements in
Colorado), and for supplying USW with the applicable Listing
information.
(C)2.13 RESELLER is responsible for all dealings with, and on behalf
of, RESELLER's end users, including:
(C)2.13.1 All end user account activity, (e.g. end user
queries and complaints).
(C)2.13.2 All account maintenance activity, (e.g., additions,
changes, issuance of orders for Listings to USW).
(C)2.13.3 Determining privacy requirements and accurately
coding the privacy indicators for RESELLER's end user
information. If end user information provided by
RESELLER to USW does not contain a privacy indicator,
no privacy restrictions will apply.
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Directory Listings
(C)2.13.4 Any additional services requested by RESELLER's end
users.
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Part D
Miscellaneous Provisions
PART D- MISCELLANEOUS PROVISIONS
(D)1. NETWORK SECURITY
(D)1.1 Protection of Service and Property - Each Party shall exercise
the same degree of care to prevent harm or damage to the other
Party and any third parties, its employees, agents or end
users, or their property as it employs to protect its own
personnel, end users and property, etc. Each Party shall
comply at all times with USW security and safety procedures
and requirements.
(D)1.2 Revenue Protection - USW shall make available to RESELLER all
present and future fraud prevention or revenue protection
features. These features include, but are not limited to
screening codes, and 900 numbers.
(D)1.3 Law Enforcement Interface - USW provides emergency assistance
to 911 centers and law enforcement agencies seven (7) days a
week/twenty-four (24) hours a day. Assistance includes, but is
not limited to release of 911 trace and subscriber
information; in-progress trace requests; establishing
emergency trace equipment, release of information from an
emergency trap/trace or *57 trace; requests for emergency
subscriber information; assistance to law enforcement agencies
in hostage/barricade situations, kidnappings, bomb threats,
extortion/scams, runaways and life threats.
(D)1.4 USW provides trap/trace, pen register and Title III assistance
directly to law enforcement, if such assistance is directed by
a court order. This service is provided during normal business
hours, Monday through Friday. Exceptions are addressed in the
above paragraph. The charges for these services will be billed
directly to the law enforcement agency, without involvement of
RESELLER, for any lines served from USW Wire Centers or cross
boxes.
(D)1.5 In all cases involving telephone lines served from USW Wire
Centers or cross boxes, USW will perform trap/trace Title III
and pen register assistance directly with law enforcement.
RESELLER will not be involved or notified of such actions, due
to non-disclosure court order considerations, as well as
timely response duties when law enforcement agencies are
involved. Exceptions to the above will be those cases, as yet
undetermined, where RESELLER must participate due to technical
reasons wherein its circuitry must be accessed or modified to
comply with law enforcement, or for legal reasons that may
evolve over time. RESELLER will provide USW with a 24 hour a
day, 7 days a week contact for processing such requests,
should they occur.
(D)2. ACCESS TO OPERATIONAL SUPPORT SYSTEMS (OSS)
(D)2.1 Description
(D)2.1.1 USW has developed and shall continue to provide
Operational Support Systems OSS interfaces using
electronic gateways. These gateways act as a
mediation or control point between RESELLER's
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Miscellaneous Provisions
and USW's OSS. These gateways provide security for
the interfaces, protecting the integrity of the USW
OSS and its databases. USW's OSS interfaces have been
developed to support Pre-ordering, Ordering and
Provisioning, Maintenance and Repair and Billing.
Included below is a description of the products and
functions supported by USW OSS interfaces and the
technology used by each. This section describes the
interfaces that USW has developed and shall provide
RESELLER. Additional technical information and
details shall be provided by USW in training sessions
and documentation, such as the "Interconnect Mediated
Access User's Guide". USW will continue to make
improvements to the electronic interfaces as
technology evolves, providing notification to
RESELLER consistent with the provisions of this
Section.
(D)2.1.2 Through its electronic gateways, USW shall provide
RESELLER nondiscriminatory access to USW's
operational support systems for pre-ordering,
ordering and provisioning, maintenance and repair,
and billing for resale. For the pre-ordering,
ordering and provisioning of resold services, USW
shall provide RESELLER access to its OSS in
substantially the same time and manner as it
provides to itself.
(D)2.2 OSS Support for Pre-Ordering, Ordering and Provisioning
(D)2.2.1 LSR (Local Service Request) Ordering Process
(D)2.2.1.1 RESELLER shall use electronic interfaces
for orders placed using the LSR Ordering
Process for the services it supports. The
electronic interface gateways include both
the Electronic Data Interchange (EDI)
interface and the Interconnect Mediated
Access (IMA) Graphical User Interface (GUI).
(D)2.2.1.2 The EDI interface provides a single
interface for Pre-Order and Order
transactions from RESELLER to USW and is
transaction based rather than batch based.
The interface standards for EDI are based
upon the Order & Billing Forum (OBF) Local
Service Order Guidelines (LSOG), the
Telecommunication Industry Forum (TCIF)
Customer Service Guideline and the American
National Standards Institute/Accredited
Standards Committee (ANSI ASC) X12 with
exceptions as specified in the IMA and EDI
disclosure documents which are provided in
conjunction with the implementation
responsibilities contained in this Section.
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(D)2.2.1.3 The IMA GUI also provides a single
interface for Pre-Order and Order
transactions from RESELLER to USW and is
browser based The IMA GUI interface is based
on the LSOG and utilizes a WEB standard
technology, Hyper Text Markup Language
(HTML), JAVA, and the Transmission Control
Protocol/Internet Protocol (TCP/IP) to
transmit messages.
(D)2.2.1.4 Functions
(D)2.2.1.4.1 Pre-ordering
Pre-Ordering refers to the set of
activities performed in conjunction
with placing an order. Pre-order
consists of the following
functions: validate address,
service availability, review
Customer Service Record (CSR),
check facility availability,
reserve telephone numbers, and
schedule an appointment. The
electronic interface gateways
provide on-line capabilities to
perform these functions. Not all
functions apply to all products.
(D)2.2.1.4.1.1 Validate address will
verify the end user's address.
(D)2.2.1.1.4.1.2 Service Availability
will return the list of (1)
POTS products and services
available in the Central
Office switch serving a
particular end user address,
which will indicate to
RESELLER, among other things,
which products and services
are authorized for resale in
the Central Office switch
serving a particular end user
address and (2)
nonswitched-based products and
services that RESELLER is
authorized to provide
according to its resale
agreement with USW.
(D)2.2.1.1.4.1.3 Review Customer Service
Record (CSR) gives RESELLER
the ability to request a
display of local exchange
services and features (CPNI)
USW is currently providing to
an end user.
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(D)2.2.1.4.1.4 Check Facility
Availability will provide an
indication of whether existing
facilities are available or if
new facilities are required,
and if a technician must be
dispatched to provide the
facilities requested at the
end user's address. This
transaction does not reserve
facilities and does not
guarantee that facilities will
or will not be available when
the order is submitted.
(D)2.2.1.4.1.5 Reserve Telephone Numbers
provides RESELLER with the
ability to select an end
user's telephone number. The
reservation process is further
divided into telephone number
availability, selection,
exchange and return
functionality. Expiration
period for selection and
submission of Telephone Number
are:
- A period up to thirty (30)
minutes in which to make a
telephone number selection. If
this time limit is exceeded,
and no attempt has been made
to select the telephone
numbers, the telephone numbers
are sent back to the OSS and
an error message is displayed
on the LSR. A new query will
need to be performed for
available telephone numbers.
- When a telephone number has
been reserved, there is a
twenty-four (24) hour business
period that the telephone
number may be included on an
LSR. If the time limit is
exceeded, the telephone number
is returned to the OSS.
(D)2.2.1.4.1.6 Schedule Appointment
allows RESELLER to retrieve a
calendar of available
appointments and to reserve an
appointment date and time so
that a technician can be
dispatched for premises and/or
-non-premises work.
(D)2.2.1.4.1.7 Expiration period for
selection and submission of
Appointment Reservation are:
- A selection must be made
within a thirty (30) minute
period. If an appointment
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Miscellaneous Provisions
has been selected and the time
limit was exceeded, an error
message will display. If the
error message displays, an
updated list of available
appointments will need to be
requested. If an appointment
has already been reserved for
this Purchase Order Number,
the Appointment Confirmation
window will be displayed and
will be pre-populated with
confirmation number,
appointment date and time, and
after and before times.
- Appointments are reserved for
a 24-hour business period. If
the appointment is not
attached to a submitted order
within 24 business hours, the
appointment is returned. When
the appointment is
successfully reserved,
confirmation of the
appointment will be displayed
to RESELLER.
(D)2.2.1.4.2 Ordering and Provisioning
Submitting an LSR will result
in the provisioning and
installation, if necessary, of
an end user's service. The
functional set associated
with ordering is: Create New
LSR, Open LSR, Query LSR
Status and FOC Return.
(D)2.2.1.4.2.1 Create New LSR allows
entry of information specific
to the LSR, including required
OBF forms, validates
information and submits the
LSR for processing.
(D)2.2.1.4.2.2 Open LSR allows RESELLER
to save LSRs it is not ready
to submit for processing as a
pending status. When an LSR is
saved as pending, all the data
in all the forms associated
with the LSR is saved. This
feature permits RESELLER to
access, edit, submit, re-save,
and purge pending LSRs. In
addition, for issued LSRs,
RESELLER can issue
supplemental LSRs and
cancellations.
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(D)2.2.1.4.2.3 Query LSR Status allows
RESELLER to obtain the status
of the LSR Status is provided
to RESELLER upon inquiry.
Order status functions include
the following: Submitted, In
Review, Issued, Rejected,
Erred, Completed and Jeopardy.
(D)2.2.1.4.2.4 FOC Return returns a Firm
Order Confirmation to
RESELLER. The FOC confirms
that USW has received a SR,
issued an order, and assigned
an order number for tracking.
(D)2.2.1.5 Forecast of Usage
(D)2.2.1.5.1 RESELLER shall supply USW
with a forecast of products
and volumes they anticipate
ordering through the
electronic interface gateways
on a quarterly basis.
(D)2.2.1.5.2 USW will use RESELLER's
forecast to provide RESELLER
sufficient capacity to provide
the services and elements
requested. If RESELLER exceeds
its capacity without
notification, to the extent
that it causes degradation to
other users' response times,
RESELLER's use of its capacity
on the IMA or EDI server may
be discontinued until a
resolution can be mutually
agreed to by both Parties. USW
will attempt to notify
RESELLER before discontinuing
RESELLER's use of the IMA or
EDI server; however USW
reserves the right to
discontinue use if it is
unable to contact RESELLER.
(D)2.2.1.5.3 When RESELLER requests more
than twenty (20) Secure IDs
from USW RESELLER shall use a
T1 line instead of dial-up
capabilities.
(D)2.2.1.6. Access Service Request (ASR)
Ordering Process
(D)2.2.1.6.1 The Exchange Access Control
and Tracking (EXACT) system
may be used for orders placed
using the ASR process. EXACT
is based upon the OBF Access
Service Order Guidelines
(ASOG). The EXACT interface
accepts a batch
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Miscellaneous Provisions
file that is transmitted via a
Network Data Mover (NDM)
connection to USW from
RESELLER. It is RESELLER's
responsibility to obtain the
appropriate software to
interface with USW's EXACT
system.
(D)2.2.1.7 Facility Based EDI Listing
Process
(D)2.2.1.7.1The Facility Based EDI
Listing Process is a single
interface from RESELLER to
USW. This Ok interface is
based upon the OBF LSOG and
ANSI ASC X12 standards,
version 4010. This interface
enables RESELLER listing data
to be translated and passed
into the USW listing database.
After USW's daily batch
processing, a Confirmation/
Completion record (for every
PON provided on input) is
returned to RESELLER via an
EDI 855 transaction.
(D)2.2.2 Maintenance and Repair
(D)2.2.2.1 Maintenance and Repair electronic
interfaces support the tracking and
resolution of end users' repair and
maintenance needs as reported to
RESELLER. They facilitate the
exchange of updated information and
progress reports between USW and
RESELLER while the Trouble Report
(TR) is open and a USW technician
is working on the resolution.
(D)2.2.2.2 RESELLER shall use the electronic
interface gateways for reporting
trouble. The electronic interface
gateways are comprised of either
the Mediated Access System
Electronic Bonding (MEDIACC EB)
interface or the IMA GUI interface.
(D)2.2.2.3 The MEDIACC Electronic Bonding
(EB) interface uses CMIP protocol
over X.25 packet switching network
using ANS T1M1.5 227/228
standards.
(D)2.2.2.4 The IMA GUI also provides a
single interface for trouble
reporting from RESELLER to USW
and is browser based. The IMA GUI
interface uses a Berkley Socket
interface using ANSI T1M1.5 227/228
standards. The IMA GUI uses JAVA as
the standard. The IMA GUI Interface
currently supports trouble
reporting for resale services.
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(D)2.2.2.5 Functions
(D)2.2.2.5.1 Maintenance and Repair -
The functions, processes and
systems used in repair are
based on a Trouble Report
(TR), which is an electronic
document maintained in one or
more OSS. A TR contains
information about the end
user, the trouble, the status
of the work on the trouble and
the results of the
investigation and resolution
efforts. These business
processes will be made
available to RESELLER in the
following functional set: open
a trouble report, modify a
trouble report, notification
of status change, view trouble
report status, cancel a
trouble report, receive a
trouble report history,
resubmit/delete an erred
trouble report and close a
trouble report.
(D)2.2.2.5.1.1 Open Trouble Report is
the mechanism that captures
information needed to resolve
the trouble. Once a TR has
been opened, if RESELLER is
using MEDIACC EB, USW sends an
electronic transaction to
RESELLER identifying
information about the TR
(E.G., commitment date and
tracking number).
(D)2.2.2.5.1.2 In IMA for POTS, and in
EBTA for POTS and designed
services, Modify Trouble
Report allows RESELLER to
modify the trouble severity
(for example; change from
"service affecting" to "out of
service") and trouble
narrative on a TR until it has
been cleared.
(D)2.2.2.5.1.3 Status Change
Notification provides
notification to RESELLIER that
the status of a previously
opened TR has changed. If
RESELLER is using MEDIACC EB,
RESELLER will receive this
notification via an electronic
transaction. If RESELLER is
using the IMA GUI Interface,
RESELLER will receive this
notification via email and/or
fax.
(D)2.2.2.5.1.4 View Trouble Report
Status/Trouble Report Status
Request allows RESELLER to
view the status of an opened
Trouble Report. If RESELLER is
using MEDIACC EB, USW sends an
electronic transaction to
RESELLER with the
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Part D
Miscellaneous Provisions
status of an opened TR after
RESELLER sends an electronic
transaction to request the
status.
(D)2.2.2.5.1.5 Cancel Trouble Report
allows RESELLER to request
cancellation of a previously
opened TR. Once a request to
cancel is received, an orderly
cessation of the trouble
resolution process begins. If
USW has completed any work
before the trouble resolution
process is stopped, charges to
RESELLER may apply.
(D)2.2.2.5.1.6 Trouble Report History
provides RESELLER with
historical information on up
to the last three trouble
reports. For POTS resale, the
disposition and trouble report
date and time are provided.
For design services resale,
the trouble report date and
time, a text description of
the disposition, the USW
Trouble Report Number, and the
trouble type are provided. IMA
provides trouble report
history.
(D)2.2.2.5.1.7 Resubmit/Delete allows
trouble reports to be
resubmitted or deleted via IMA
GUI if, prior to entering
USW's OSS, the transaction
fails or errors. This
transaction is only valid if
the TR has not entered USW's
OSS. This transaction is
currently only available via
IMA GUI.
(D)2.2.5.1.8 Close a Trouble Report for
resale, allows USW to close
the TR once work is complete.
For design resale services,
USW sends RESELLER a request
for verification to close.
RESELLER then authorizes or
denies the closure. RESELLER
has twenty-four (24) hours to
respond. If a response is not
received within that time
frame, the TR will
automatically be closed. USW
provides notification to
RESELLER that a TR has been
closed because the trouble was
resolved. Additional
information,
(e.g., disposition,
disposition description,
outage duration, maintenance
of service, charge indicator)
is also included. If RESELLER
is using EB, RESELLER will
receive this response via an
electronic
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transaction. If RESELLER is
using the IMA GUI Interface,
RESELLER will receive this
response via email and/or fax.
(D)2.2.2.5.1.9 MLT test results give
RESELLER the ability to
request a loop test for POTS
service via EBTA. When
RESELLER submits a TR through
IMA, the technician handling
the TR will order a MLT test
in appropriate situations.
(D)2.3 Hours of Operation
USW's electronic interface gateways will be available to Resellers
according to the following schedule:
<TABLE>
<CAPTION>
--------------------------- ------------------- ------------------ ----------------
Function Monday - Friday Saturday Sunday
--------------------------- ------------------- ------------------ ----------------
<S> <C> <C> <C>
IMA Pre-Order & Order 06:00 - 20:00
--------------------------- ------------------- ------------------ ----------------
Exact Order 06:00 - 19:00 07:00 - 17:00
--------------------------- ------------------- ------------------ ----------------
Repair 02:15 - 23:15 07:00 - 21:00 13:00 - 17:00
--------------------------- ------------------- ------------------ ----------------
</TABLE>
USW shall notify Resellers regarding system downtime through
mass facsimile distribution and pop-up windows in the IMA
GUI. All referenced times are Mountain Time.
The preceding times represent the period when USW commits that
its OSS interfaces and downstream systems will be functioning
(except for unforeseen system crashes) and its personnel will
be available to assist RESELLER. USW's OSS interfaces are
typically available 23 hours a day. RESELLER may call any
maintenance and repair issues to the applicable repair center
24 hours per day, seven days per week. USW shall provide
RESELLER current repair contact numbers.
(D)2.4 Billing
(D)2.4.1 For products billed out of the USW Interexchange
Access Billing System (IABS), USW will utilize the
existing CABS/BOS format and technology for the
transmission of bills.
(D)2.4.2 For products billed out of the USW Customer Record
Information System (CRIS), USW will utilize the
existing EDI standard for the transmission of monthly
local billing information. EDI is an established
standard under the auspices of the American National
Standards Institute/Accredited Standards Committee
(ANSI/ASC) X12 Committee. A proper subset of this
specification has been adopted by the
Telecommunications Industry Forum (TCIF) as the "811
Guidelines" specifically for the purposes of
telecommunications billing.
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(D)2.5 Outputs
Output information will be provided to RESELLER in the form of bills,
files, and reports. Bills will capture all regular monthly and
incremental/usage charges and present them in a summarized format. The
files and reports delivered to RESELLER provide more detailed
information than the bills. They come in the following categories:
<TABLE>
<S> <C>
-----------------------------------------------------------------------------
Usage Record File Line Usage Information
-----------------------------------------------------------------------------
Loss and Completion Order Information
-----------------------------------------------------------------------------
Category 11 Facility Based Line Usage Information
-----------------------------------------------------------------------------
SAG/FAM Street Address/Facility Availability Information
-----------------------------------------------------------------------------
</TABLE>
(D)2.5.1 Bills
(D)2.5.1.1 CRIS Summary Bill - The CRIS (Customer
Record Information System) Summary Bill
represents a monthly summary of charges for
most wholesale products sold by USW. This
bill includes a total of all charges by
entity plus a summary of current charges and
adjustments on each sub-account. Individual
sub-accounts are provided as billing detail
and contain monthly, one time charges and
incremental/call detail information. The
Summary provides one bill and one payment
document for RESELLER. These bills are
segmented by state and bill cycle. The
number of bills received by RESELLER is
dictated by the product ordered and the USW
region in which RESELLER is operating.
(D)2.5.1.2 IABS Bill - The IABS (Interexchange Access
Billing System) Bill represents a monthly
summary of charges. This bill includes
monthly and one time charges plus a summary
of any usage charges. These bills are
segmented by product, LATA, billing account
number (BAN) and bill cycle.
(D)2.5.2 Files and Reports
(D)2.5.2.1 Daily Usage Record File provides the
accumulated set of call information for a
given day as captured, or "recorded" by the
network switches. This file will be
transmitted Monday through Friday, excluding
USW holidays. This information is a file of
un-rated USW originated usage messages and
rated RESELLER originated usage messages. It
is provided in Alliance for
Telecommunication Industry Solution (ATIS)
standard
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Electronic Message Interface (EMI) format.
This EMI format is outlined in the document
SR-320; which can be obtained directly from
ATIS. The Daily Usage Record File contains
multi-state data for the Data Processing
Center generating this information.
Individual state identification information
is contained with the message detail. USW
will provide this data to RESELLER with the
same level of precision and accuracy it
provides itself. This file will be provided
for Resale services.
(D)2.5.2.2 The charge for this Daily Usage Record
File is contained in Part E of this
Agreement.
(D)2.5.2.3 Routing of in-region IntraLATA Collect,
Calling Card, and Third Number Billed
Messages - USW will distribute inregion
intraLATA collect, calling card, and third
number billed messages to RESELLER and
exchange with other Co-Providers operating
in region in a manner consistent with
existing inter-company processing
agreements. Whenever the daily usage
information is transmitted to a carrier, it
will contain these records for these types
of calls as well.
(D)2.5.2.4 Loss Report provides RESELLER with a daily
report that contains a list of accounts that
have had lines and/or services disconnected.
This may indicate that the end user has
changed Resellers or removed services from
an existing account. This report also
details the order number, service name and
address, and date this change was made.
Individual reports will be provided for
resale services.:
(D)2.5.2.5 Completion Report provides RESELLER with a
daily report. This report is used to advise
RESELLER that the order(s) for the
service(s) requested is complete. It details
the order number, service name and address
and date this change was completed.
Individual reports will be provided for
resale services.:
This report media is described in Exhibit C.
(D)2.5.2.6 Category 11 Records are Exchange Message
Records (EMR) which provide mechanized
record formats that can be used to exchange
access usage information between USW and
RESELLER. Category 1101 series
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records are used to exchange detailed access
usage information.
(D)2.5.2.7 Category 1150 series records are used to
exchange summarized Meet Point Billed access
minutes-of-use.
These mechanized records are available from
USW in the following formats:
NDM (direct connect or dial-up)
Comet
Tape
Cartridge
(D)2.5.2.8 SAG/FAM Files - The SAG (Street Address
Guide)/ FAM (Facility Availability Matrix)
files contain the following information:
SAG provides: - Address and Serving Central
Office Information.
FAM provides USOCs and descriptions by
state - (POTS services only). USOC
availability by NPA-NXX (with the exception
of Centrex). interLATA/intraLATA carriers by
NPA-NXX.
These files are made available via a
download process. They can be retrieved by
ftp (file transfer protocol), NDM (Network
Data Mover) connectivity, or a Web browser.
(D)2.6 Modifications to OSS Interfaces
(D)2.6.1 RESELLER and USW agree to discuss the modification of
OSS interfaces based upon evolving standards (e.g.,
data elements, protocols, transport networks, etc.)
and guidelines issued by or referenced by relevant
Alliance for Telecommunication Industry Solution
(ATIS) committees. Establishment of new, or changes
to industry standards and guidelines will be reviewed
semi-annually. The review will consider standards and
guidelines that have reached final closure as well as
those published in final form. Both Parties agree to
evaluate evolving standards and determine the
relevant modification to be implemented based upon
the latest approved version adopted or the latest
version reflecting final closure by the relevant ATIS
committee or subcommittee. As a result of the review,
USW shall draft appropriate interface specifications
that shall be made available to RESELLER through the
electronic gateway disclosure document. Changes shall
be implemented in the next release after the
distdbution of the electronic gateway disclosure
document to the Resellers.
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MISCELLANEOUS PROVISIONS
(D)2.6.2 In the course of establishing operational ready
system interfaces between USW and RESELLER to support
local service delivery, RESELLER and USW may need to
define and implement system interface specifications
that are supplemental to existing standards. RESELLER
and USW will submit such specifications to the
appropdate standards committee and will work towards
their acceptance as a standard.
(D)2.6.3 Release updates will be based on regulatory
obligations as dictated by the FCC or Commissions
and, as time permits, business requirements. USW will
provide to RESELLER the features list for
modifications to the interface. Specifications for
interface modifications will be provided to RESELLER
three (3) weeks prior to the release date. RESELLER
is required to upgrade to the current release within
six (6) months of the installation date.
(D)2.7 Reseller Responsibilities for Implementation of OSS Interfaces
(D)2.7.1 Before any RESELLER implementation can begin,
RESELLIER must completely and accurately answer the
New Customer Questionnaire. This questionnaire is
provided by the USW account manager and details
information needed by USW in order to establish
service for RESELLER.
(D)2.7.2 Once USW receives a complete and accurate New
Customer Questionnaire, USW and RESELLER will
mutually agree upon time frames for RESELLER
implementation.
(D)2.7.3 If using the EDI interfaces, USW will provide
RESELLER with a copy of the Production Readiness
Verification document. RESELLER is obligated to meet
the requirements specified in the Production
Readiness Verification document regardless of whether
RESELLER chooses to participate in the Production
Readiness Verification Test.
(D)2.8 Reseller Responsibilities for On-going Support for OSS
Interfaces
(D)2.8.1 If using the IMA GUI interface, RESELLER must work
with USW to train RESELLER personnel on the IMA GUI
functions that RESELLER will be using. USW and
RESELLER shall concur on which IMA GUI functions
should be included in RESELLER's training. USW and
RESELLER shall make reasonable efforts to schedule
training in a timely fashion.
(D)2.8.2 An exchange protocol will be used to transport EDI
formatted content. RESELLER must perform
certification testing of exchange protocol prior to
using EDI.
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(D)2.8.3 If RESELLER is using EDI, USW shall provide RESELLER
with a preallotted amount of time to complete
certification of its business scenarios. It is the
sole responsibility of RESELLER to schedule an
appointment with USW for certification of its
business scenarios. RESELLER must comply with the
agreed upon dates and times scheduled for the
certification of its business scenarios. If the
certification of business scenarios is delayed due to
RESELLER, it is the sole responsibility of RESELLER
to schedule new appointments for certification of its
business scenarios. Conflicts in the schedule could
result in certification being delayed. If a delay is
due to USW, USW will honor RESELLER's schedule
through the use of alternative hours.
(D)2.8.4 If RESELLER is using the EDI interface, RESELLER must
work with USW to certify the business scenarios that
RESELLER will be using in order to ensure successful
transaction processing. USW and RESELLER shall
mutually agree to the business scenarios for which
RESELLER is required to be certified. Certification
is granted only for a specific release of EDI. New
releases of EDI may require recertification of some
or all business scenarios. A determination as to the
need for re-certification will be made by the USW
Coordinator in conjunction with the release manager
of each EDI release. Notice of the need for
re-certification will be provided to RESELLER three
(3) weeks prior to the release date.
(D)2.8.5 In the event of Electronic Interface trouble,
RESELLER shall use its best efforts to isolate and
resolve the trouble using the guidelines provided in
the Production Readiness Verification document. If
RESELLER cannot resolve the problem, then RESELLER
should contact the LSP Systems Help Desk. The LSP
Systems Help Desk is RESELLER's Single Point of
Contact for electronic interface trouble.
(D)2.9 Reseller Support
(D)2.9.1 USW shall provide adequate assistance to RESELLER for
RESELLER to understand how to implement and use the
OSS functions for which USW provides access. This
assistance will include training, documentation, and
a LSP Help Desk. The LSP Help Desk will provide a
single point of entry for RESELLER to gain assistance
in areas involving connectivity, system availability,
and file outputs. The LSP Systems Help Desk is
available Monday through Friday, 6:00 a.m. until 8:00
p.m. Mountain Time, excluding USW holidays. The Help
Desk areas are further described below..
(D)2.9.1.1 Connectivity covers trouble with
RESELLER's access to the USW system for
hardware configuration requirements with
relevance to EDI and IMA GUI;
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software configuration requirements with
relevance to EDI and IMA GUI; modem
configuration requirements; T1
configuration and dial in string
requirements; firewall access
configuration; Secure ID configuration;
Profile Setup and password verification.
(D)2.9.1.2 System availability covers system errors
generated during an attempt by RESELLER to
place orders or open trouble reports through
EDI and IMA GUI. These system errors are
limited to: POTS; Design Services and
Repair.
(D)2.9.1.3 File Outputs covers RESELLER's output
files and reports produced from its usage
and order activity. File outputs system
errors are limited to: Daily Usage File;
Loss / Completion File; IABS Bill; CRIS
Summary Bill; Category 11 Report and SAG/FAM
Reports.
(D)2.9.2 Additional assistance to Resellers; is available
through various web sites. These web sites provide
electronic interface training information and user
documentation and technical specifications.
(D)2.10 Compensation / Cost Recovery
On-going and one-time startup charges, as applicable, will be
billed at rates to be specified by the Commission at the
completion of an appropriate cost docket hearing. USW shall
establish rates for any systems charges not included in
appropriate cost docket hearings.
(D)3. U S WEST DEX
USW and RESELLER agree that certain issues outside the provision of
basic white page directory listings, such as yellow pages advertising,
yellow pages listings, directory coverage, directory distribution,
access to call guide pages (phone service pages), applicable listings
criteria, white page enhancements and publication schedules will be the
subject of negotiations between RESELLER and directory publishers,
including U S WEST Dex. USW acknowledges that RESELLER may request USW
to facilitate discussions between RESELLER and U S WEST Dex.
(D)4. NOTICE OF CHANGES
Notice should be written and provide pertinent descriptive information
of such changes, within the limitations of confidentiality and
disclosure, such that the other Party can evaluate potential effects.
Also included with the written notice should be contact names and phone
numbers for subsequent discussions.
This represents good faith effort on the part of the Parties and will
evolve over time as required for the effective provision of resale
services and end user service delivery.
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(D)5. MAINTENANCE AND REPAIR
(D)5.1 Service Levels
(D)5.1.1 USW will provide repair and maintenance for all
services covered by this Agreement in a manner equal
to that which USW provides for itself.
(D)5.1.2 During the term of this Agreement, USW will provide
necessary maintenance business process support to
allow RESELLER to provide similar service quality to
that provided by USW to its end users.
(D)5.1.3 USW will perform repair service that is equal in
timeliness and quality to that which it provides to
its own end users.
(D)5.2 Branding
(D)5.2.1 Should USW need to use various forms for
communication with RESELLER end users (while out on
premises dispatch on behalf of RESELLER, for
example), USW will use unbranded forms.
(D)5.2.2 If required by RESELLER, USW will use branded forms
provided at RESELLER's full expense, covering
training costs, storage, printing, distribution and
all other branding-related costs.
(D)5.3 Service interruptions
(D)5.3.1 The characteristics and methods of operation of any
circuits, facilities or equipment of either Party
connected with the services, facilities or equipment
of the other Party pursuant to this Agreement shall
not: 1) interfere with or impair service over any
facilities of the other Party; its affiliated
companies, or its connecting and concurring carriers
involved in providing its services; 2) cause damage
to their plant; 3) violate any applicable law or
regulation regarding the invasion of privacy of any
communications carried over the Party's facilities;
or 4) create hazards to the employees of either Party
or to the public. Each of these requirements is
hereinafter referred to as an "Impairment of
Service".
(D) 5.3.2 If it is confirmed that either Party is causing an
Impairment of Service, as set forth in this Section,
the Party whose network or service is being impaired
(the "Impaired Party") shall promptly notify the
Party causing the Impairment of Service (the
"Impairing Party") of the nature and location of the
problem. The Impaired Party shall advise the
Impairing Party that, unless promptly rectified, a
temporary discontinuance of the use of any circuit,
facility or equipment may be required. The Impairing
Party and the Impaired Party agree to work together
to attempt to promptly resolve the Impairment of
Service. If the Impairing Party is unable to promptly
remedy the Impairment of
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Service, the Impaired Party may temporarily
discontinue use of the affected circuit, facility or
equipment.
(D)5.3.3 To facilitate trouble reporting and to coordinate the
repair of the service provided by each Party to the
other under this Agreement, each Party shall
designate a repair center for such service.
(D)5.3.4 Each Party shall furnish a trouble reporting
telephone number for the designated repair center.
This number shall give access to the location where
records are normally located and where current status
reports on any trouble reports are readily available.
If necessary, alternative out-of-hours procedures
shall be established to ensure access to a location
that is staffed and has the authority to initiate
corrective action.
(D)5.3.5 Before either Party reports a trouble condition, it
shall use its best efforts to isolate the trouble to
the other's facilities
(D)5.3.5.1 In cases where a trouble condition affects
a significant portion of the other's
service, the Parties shall assign the same
priority provided to other Resellers and to
itself.
(D)5.3.5.2 The Parties shall cooperate in isolating
trouble conditions.
(D)5.4 Trouble Isolation
(D)5.4.1 According to applicable state Tariffs, USW will bill
appropriate Trouble Isolation Charges for dispatched
work done by USW where the trouble is found to be on
the end user's side of the NID or trouble is found to
be in RESELLER's portion of the network.
(D)5.4.2 Other Trouble Isolation Charges may also be imposed
by USW on RESELLER for other internal repair work
incurred on behalf of RESELLER and later found to be
in RESELLER network components.
(D)5.5 Inside Wire Maintenance
Except where specifically required by state or federal
regulatory mandates, USW will not perform any maintenance of
inside wire (premises wiring beyond the end user's NID) for
RESELLER or its end users.
(D)5.6 Testing/Test Requests/Coordinated Testing
(D)5.6.1 USW will make the decision to test an end user's line
or circuit. The test systems used by USW are finite,
and their capacity has been designed according to
USW's operating standards.
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(D)5.6.2 Although some types of trouble reports typically will
not require a test, USW usually runs certain standard
tests on each line on which trouble has been
reported.
(D)5.6.3 Prior to any test being conducted on a line, USW must
receive a trouble report from RESELLER.
(D)5.6.4 USW end users are not given test results. On
manually-reported trouble USW will not provide to
RESELLER the test results for its trouble reports.
For electronically-reported trouble, RESELLER may see
various basic test results.
(D)5.7 Workcenter Interfaces
(D)5.7.1 USW and RESELLER shall work cooperatively to develop
positive, close working relationships among
corresponding work centers involved in the trouble
resolution processes..
(D)5.8 Misdirected Repair Calls
(D)5.8.1 RESELLER shall inform its own end users where to
report their trouble conditions. Persons placing a
misdirected repair call will be advised to call their
own telephone service provider and will be provided
the correct telephone number for that purpose (this
referral may occur within a voice response system or
other interactive systems).
(D)5.8.2 RESELLER and USW will employ the following procedures
for handling misdirected repair calls;
(D)5.8.2.1 RESELLER and USW will provide their
respective end users with the correct
telephone numbers to call for access to
their respective repair bureaus.
(D)5.8.2.2 End users of RESELLER shall be instructed
to report all cases of trouble to RESELLER.
End users of USW shall be instructed to
report all cases of trouble to USW.
(D)5.8.2.3 To the extent the correct provider can be
determined, misdirected repair calls will be
referred to the proper provider of Basic
Exchange Telecommunications Service.
(D)5.8.2.4 RESELLER and USW will provide their
respective repair contact numbers to one
another on a reciprocal basis.
(D)5.8.2.5 In responding to repair calls, neither
Party shall make disparaging remarks about
each other, nor shall they use these repair
calls as the basis for internal referrals or
to solicit end users to market services.
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(D)5.8.2.6 Performance targets for speed of repair
call answering will be the same as USW's
performance targets for its own end users.
(D)5.9 Major Outages/Restoral/Notification
(D)5.9.1 USW will notify RESELLER of major network outages as
soon as is practical. This notification will be via
e-mail to RESELLER's identified contact. With the
minor exception of certain proprietary information,
USW will utilize the same thresholds and processes
for external notification as it does for internal
purposes. This major outage information will be sent
via E-mail on the same frequency schedule as is
provided internally within USW. Service restoration
will be non discriminatory, and will be accomplished
as quickly as possible according to USW and/or
industry standards.
(D)5.9.2 If desired, USW will meet with associated personnel
from RESELLER to share contact information and review
USW's outage restoral processes and notification
processes.
(D)5.9.3 USW's emergency restoration process operates on a
7X24 basis.
(D)5.10 Proactive Maintenance
(D)5.10.1 USW will perform scheduled maintenance equal in
quality to what it provides to itself.
(D)5.10.2 USW will work cooperatively with RESELLER to
develop industry-wide processes to provide as much
notice as possible to RESELLER of pending maintenance
activity. Such process work will include
establishment of reasonable thresholds and
notification standards.
(D)5.11 Hours of Coverage
(D)5.11.1 USW's repair operation is 7 days a week, 24 hours a
day. Not all functions or locations are covered with
scheduled employees on a 7X24 basis. Where such 7X24
coverage is not available USW's repair operations
center (always available 7X24) can call-out
technicians or other personnel required for the
situation.
(D)5.12 Escalations
(D)5.12.1 USW will provide trouble escalation procedures to
RESELLER. Such procedures will be based on the
processes USW employs for its own end users. USW
escalations are manual processes.
(D)5.12.2 USW repair escalations begin with calls to the
up-front trouble reporting centers.
(D)5.13 Dispatch
(D)5.13.1 USW will provide maintenance dispatch personnel on
the same schedule provided for its end users.
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(D)5.13.2 Upon receipt of a trouble report from RESELLER, USW
will do all that is reasonable and practical,
according to internal and industry standards, to
resolve the repair condition. USW will dispatch
repair personnel, if necessary, to repair the
condition. It will be USW's decision whether it is
necessary to send a technician on a dispatch. USW
will make this dispatch decision based on the best
information available in the trouble resolution
process. Since it is not always necessary to dispatch
to resolve trouble; should RESELLER require a
dispatch when USW believes the dispatch is not
necessary, appropriate charges may be billed to
RESELLER for dispatch-related costs.
(D)5.13.3 For non-designed resale services USW will not
request authorization from RESELLER prior to
dispatch. For lines supported by USW's designed
services process, USW may accept RESELLER
authorization to dispatch. USW's operational
processes are regularly reviewed and may be altered
in the future. Should processes be changed, RESELLIER
will be notified.
(D)5.13.4 USW expects that RESELLER will have performed
appropriate trouble isolation and screening prior to
handing the trouble report off to USW.
(D)5.14 Electronic Reporting
(D)5.14.1 USW will accept repair reports from RESELLER through
a mechanized system (IMA).
(D)5.14.2 USW will work cooperatively to develop repair
reporting via electronic bonding (other than IMA),
based on national standards.
(D)5.15 Intervals
(D)5.15.1 Similar trouble conditions, whether reported by USW
end users or on behalf of RESELLER end users, will
receive similar commitment intervals.
(D)5.16 Jeopardy Management
(D)5.16.1 Notification will be given as soon as USW is aware
that a trouble report interval is likely to be
missed. This process will be the same as that used by
USW for its own end users.
(D)5.17 Trouble Screening
(D)5.17.1 RESELLER shall screen and test its end user trouble
reports completely enough to insure that it sends USW
only trouble reports that involve USW facilities.
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(D)5.17.2 If desired, USW will cooperate with RESELLER to show
RESELLER how USW screens trouble conditions in its
own centers, so that RESELLER may employ similar
techniques in its centers.
(D)5.18 Maintenance Standards
(D)5.18.1 USW will cooperate with RESELLER to meet the
maintenance standards outlined in this Agreement.
(D)5.18.2 For manually-reported trouble, USW will inform
RESELLER of repair completion as soon as practical
after completion. On electronically reported trouble
reports the electronic system will automatically
update status information, including trouble
completion, across the joint electronic gateway.
(D)5.19 End User Interfaces
(D)5.19.1 RESELLER will be responsible for all interactions
with its end users including service call handling
and notifying end users of trouble status and
resolution.
(D)5.19.2 All USW employees who perform repair service for
RESELLER end users will be trained in
non-discriminatory behavior.
(D)5.20 Repair Call Handling
(D)5.20.1 Manually-reported repair calls by RESELLER to USW
will be answered with the same quality and speed USW
answers calls from its own end users.
(D)5.21 Single Point of Contact
(D)5.21.1 USW will provide a single point of contact for
RESELLER to report maintenance issues and trouble
reports via electronic interfaces seven days a week,
twenty-four hours a day.
(D)5.21.2 For manually-reported trouble reports, a single 7X24
trouble reporting telephone number will be provided
to RESELLER for each category of trouble situation
encountered.
(D)5.22 Maintenance Windows
(D)5.22.1 Generally, USW performs major switch maintenance
activities during off-hours time periods, during
certain "maintenance windows" in the early morning
hours and/or on weekends.
(D)5.22.2 Generally, the maintenance window is from 10:00 PM
to 6:00 AM Monday through Friday and from 10:00 PM
Saturday to 6:00 AM Monday.
(D)5.22.3 Although USW attempts to perform major switch
maintenance at these times, on some occasions this
will not be possible.
Page 53
<PAGE>
Part D
Miscellaneous Provisions
(D)6. SERVICE PERFORMANCE
(D)6.1 General Provisions
(D)6.1.1 USW will provide reports of service indicators
that will assist in an evaluation of the service
provided to RESELLER.
(D)6.1.2 In no instance shall this Agreement be construed to
require USW to provide superior levels of service to
RESELLER in comparison to the level of service USW
provides to itself or its own end users.
(D)6.1.3 As further specified in this Section, USW will
provide results for the list of performance
indicators identified for the following Standard
Service Groupings: Resold Residential Plain Old
Telephone Service (POTS); Resold Business POTS;
Resold ISDN; Resold Centrex service; Resold PBX
trunks, Resold Direct Inward Dialing (DID) and Resold
Digital Switched Service (DSS); Resold DS-0, Resold
DS-1, Resold DS-3.
(D)6.1.4 As specified in this Section, USW will provide
results for the following types of Orders:
C = Change in existing service or billing number
D = total disconnect of service
F = From the outward service associated with a
transfer (To or "T") of service from one address to
another
N = New connection for service
R = Record order; record change only. (For Resale
services, service migrations without changes for
non-designed services are record orders.)
T = To or transfer of service from one address to
another
X = USW initiated internal work order
(D)6.2 Service Performance Indicators
The following Service Performance Indicators will be provided
to RESELLER when available and upon request, but no more
frequently than once per month subject to the provisions of
this Section. The requests for additional Service Performance
Indicators during the term of this Agreement shall be
considered by USW. However, USW is not required to provide
additional Service Performance Indicators during the term of
this Agreement. Service Performance Indicators characterized
as "Core" indicators measure most directly the service or
process outcome USW provides to RESELLER.
Performance Indicators characterized as "Diagnostic"
indicators are those that measure aspects of service quality
that support aspects measured by core indicators, that
represent sub-process outcomes, or that are otherwise
duplicative to some degree of aspects measured by "Core"
indicators.
Page 54
<PAGE>
Part D
Miscellaneous Provisions
(D)6.2.1 Core Performance Indicators
(D)6.2.1.1 Gateway Availability Indicator
GA-1 Gateway Availability - via Human-to-
Computer Interface (percent).
GA-2 Gateway Availability - via Computer-
to-Computer Interface (percent).
(D)6.2.1.2 Pre-Ordering Indicators
PO-1 Pre-Order/Order Response times
A. Appointment Scheduling (Due Date
Reservation, where appointment is
required)
B. Feature Function and Service
Availability Information
C. Facility Availability
D. Street Address Validation
E. Customer Service Records
F. Telephone Number
(D)6.2.1.3 Ordering and Provisioning Indicators
OP-1 Speed of Answer - Interconnect
Provisioning Center (average)
OP-2 Calls Answered within 20 Seconds -
Interconnect Provisioning Center (percent)
OP-3 Installation Commitments Met (percent)
OP-4 Installation Interval (average)
OP-5 Installation Trouble Reports (percent)l
OP-6 Delayed Days (average)
(D)6.2.1.4 Maintenance and Repair Indicators
MR-1 Speed of Answer - Interconnect Repair
Center (average)
MR-2 Percent Calls Answered Within 20
Seconds - Interconnect Repair Center
(percent)
MR-3 Out of Service Cleared Within 24 hours
- Non-Designed Repair Process (percent)
MR-4 All Troubles Cleared Within 48 hours -
Non-Designed Repair Process (percent)
MR-5 All Troubles Cleared Within 4 hours -
Designed Repair Process (percent)
MR-6 Mean Time to Restore - Non-Designed
Repair Process (average)
MR-7 Repair Repeat Report Rate (percent)
MR-8 Trouble Rate (percent)
Page 55
<PAGE>
Part D
Miscellaneous Provisions
(D)6.2.1.5 Billing Indicators
BI-1 Mean Time to Provide USW Recorded Usage
Records ((average)
BI-2 Mean Time to Deliver Invoices
(average) BI-3 Billing Accuracy
(D)6.2.1.6 Emergency Services
ES-1 ALI Database Updates Completed Within
24 hours (percent)
ES-2 911/E911 Emergency Services Trunk
Installation Interval (average)
(D)6.2.1.7 Directory Assistance
DA-1 Speed of Answer - Directory Assistance
(average)
DA-2 Calls Answered Within Ten Seconds -
Directory Assistance (percent)
(D)6.2.1.8 Operator Services
OS-1 Speed of Answer - Operator Services
(average)
OS-2 Calls Answered Within Ten Seconds -
Operator Services (percent)
(D)6.2.2 Diagnostic Indicators
In addition to the performance indicators
identified above, USW will report the
following indicators that do not directly
address nondiscrimination but may be useful
in diagnosing problems or improving service:
(D)6.2.2.1 Pre-Order/Ordering
DPO-1 Electronic Flow - Through of Local
Service Requests (LSRs) to the Service
Order Processor (percent)
DPO-2 LSR Rejection Notice Interval
(average)
DPO-3 LSRs Rejection (percent)
DPO-4 Firm Order Confirmation (FOC) Interval
(average)
DPO-5 Pre-Order/Order Response Times for USW
Retail Transactions (average)
DPO-6 Completion Notifications Transmitted
Within 24 hours (percent)
DPO-7 Completion Notification Interval
(average)
(D)6.2.2.2 Ordering and Provisioning
DOP-1 RESELLER or RESELLER's Customer -
Caused Installation Misses (percent)
DOP-2 Delayed Orders Completed equal to
greater than 15 days past the
Commitment Date (percent)
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<PAGE>
Part D
Miscellaneous Provisions
DOP-3 Delayed Orders Completed equal to or
greater than 90 days past the Commitment
Date (percent)
DOP-4 RESELLER or RESELLER's Customer-Caused
Coordinated Cutover Misses (percent)
(D)6.2.2.3 Maintenance and Repair
DMR-1 RESELLER or RESELLER's Customer-Caused
Trouble Reports (percent)
(D)6.2.2.4 Access to OSS Functions:
(GA-1) Gateway Availability - Human-to-
Computer Interface (percent)
(GA-2) Gateway Availability - Computer-to-
Computer Interface (percent)
(PO-1) Per-Order/Order Response Times
(average)
(OP-1 and MR-1)Speed of Answer -
Provisioning and Repair Centers
(average)
(OP-2 and MR-2) Calls Answered Within 20
Seconds - Provisioning and Repair
Centers (percent)
(BI-1) Mean Time to Provide USW - Recorded
Usage Records
(BI-2) Mean Time to Deliver Invoices
(BI-3) Billing Accuracy
(D)6.2.2.5 Access to Emergency Services
(ES-1) ALI Database Updates Within 24 Hours
(percent)
(ES-1) 911/E911 ES Trunk Installation
Intervals (average)
(D)6.2.2.6 Access to Directory Assistance
and Operator Services:
(DA-1 and OP-1) Speed of Answer (average)
(DA-2 and OS-2) Calls Answered Within 10
Seconds (percent)
(D)6.2.2.7 Resale Services Ordering and
Provisioning:
(OP-3) Installation Commitments Met
(percent)
(OP-4) Installation Interval (average)
(OP-5) Installation Trouble Reports
(percent)
(OP-6) Delayed Days (average)
(D)6.2.2.8 Resale Services Maintenance and Repair:
(MR-3) Out of Service Cleared Within 24
Hours - Non-Designed Repair Process
(percent)
(MR-4) All Troubles Cleared Within 48
Hours - Non-Designed Repair Process
(percent)
(MR-5) All Troubles Cleared Within 4 Hours -
Designed Repair Process (percent)
(MR-6) Mean Time to Restore (average)
(MR-6) Repair Repeated Report Rate (percent)
(MR-6) Trouble Rate (percent)
Page 57
<PAGE>
Part D Miscellaneous
Provisions
(D)6.3 Service Quality Performance Results Reports
(D)6.3.1 For Resale, USW will provide core service performance
results for the performance indicators listed above
for RESELLER, other Resellers in aggregate and USW
end users.
(D)6.4 Performance Results Provided to Reseller
The performance results provided to RESELLER by USW shall be
consistent with the current version of the USW Service
Performance Indicator Description (PID).
(D)6.5 The performance results provided under this Agreement are to
be used solely for the purposes set forth herein, and shall be
treated as "Proprietary Information" as provided in Section
(A)3.14 of this Agreement.
(D)6.6 Service Performance - Reported Events
(D)6.6.1 When applicable, USW will report service-related
performance results for all "events". An "event" is
the activity that generates the measurement.
(D)6.6.2 The Parties will report RESELLER results referenced
above provided that RESELLER has ordered and is
utilizing the services reported;
(D)6.6.3 USW will provide the reports on a calendar monthly
basis. These reports will be provided within
forty-five (45) calendar days of the close of the
preceding month.
(D)6.7 Self Executing Remedies
The purpose and focus of remedies provisions under this Resale
Agreement shall be to resolve significant differences in
service quality that have been identified through appropriate
comparisons of the service performance results reported for
the core performance indicators defined above.
Self-executing remedies are those actions, defined herein,
that USW will undertake in good faith and in cooperation with
RESELLER to respond to such differences immediately, without
waiting for determination of whether actual discrimination may
exist.
(D)6.7.1 For this purpose, significant differences shall be
considered to be those that are determined to be
statistically, operationally, and materially
significant in each of three (3) or more consecutive
months and that reflect a probability that inferior
service was apparently provided to RESELLER, based on
the relevant comparison of performance indicator
results. Statistical significance shall be determined
as defined below. Operational and material
significance shall be established by including for
comparison only those results that have (a) minimum
sample sizes of 30 each, and (b) a relevant
comparison demonstrating a service performance
difference of a magnitude that can be reasonably
considered to have a perceptible effect on end users
or RESELLER operations.
Page 58
<PAGE>
Part D Miscellaneous
Provisions
(D)6.7.2 Determination of the statistical significance of any
difference in appropriately comparable results shall
be based on statistical testing for (1) differences
in means (where performance indicator results are
reported as averages) or (2) difference in
proportions (where performance indicator results are
reported as percentages), as follows:
(D)6.7.2.1 Determination of the significance of a
difference in mean values of each monthly
service performance indicator results shall
be based on a "permutation" test using what
is commonly referred to as a "Z" statistic
and a maximum of 1,000 randomly selected
permutations of the samples. Where sample
sizes exceed 600, the "Z" test using the
"modified Z statistic" may be used instead
of the permutation test. Where used, the
modified Z statistic will be based on the
statistical variance associated with USW's
retail performance results, where
applicable, or on the variance associated
with RESELLER aggregate performance results,
where there are no retail performance
results.
(D)6.7.2.2 The significance of a difference in
proportional measurements shall be based on
direct calculation of the probability of the
observed difference using the binomial
distribution with a pooled P value.
(D)6.7.2.3 A difference in results by either test
type (i.e., differences in means or
differences in proportions) will be deemed
statistically significant if the appropriate
one tailed test indicates, with 99 percent
confidence, that the performance indicator
results being compared appear to be from
different populations of performance. In
other words, that service being provided to
RESELLER appears to be inferior to that
represented by the comparable results (such
as, results representing service provided to
Resellers in aggregate or to USW retail).
(D)6.7.3 For each case in which a significant difference as
defined above has occurred, USW shall:
(D)6.7.3.1 Immediately investigate to determine the
cause(s) of the difference and, where
feasible, begin good-faith efforts to
resolve the difference;
(D)6.7.3.2 Within 45 days, provide to RESELLER a
written explanation of the result of the
investigation as to
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<PAGE>
Part D Miscellaneous
Provisions
cause(s) and, as applicable, an action plan
describing (i) what has and will be done to
resolve the difference, (ii) what
cooperative actions and timelines on the
part of RESELLER are needed to facilitate or
expedite resolution, and (iii) listing key
milestones for use by the Parties in
tracking progress;
(D)6.7.3.3 Offer and meet with designated RESELLER
representatives monthly to discuss progress
on resolving the difference(s);
(D)6.7.3.4 Escalate to vice president level any
significant difference that has or is not
projected to be resolved within three
months of the difference first being
identified as significant as defined above,
with commitment at that level to direct due
diligence toward removing obstacles and
expediting resources where feasible and
necessary to resolve the difference as soon
as possible.
(D)6.7.4 If a statistically and operationally significant
difference has occurred in the trend results for any
particular performance indicator, the Parties shall
allow three (3) months to correct the difference in
the trend results. If the statistically, and
operationally significant difference in trend results
is corrected within the three (3) month time, no
action, formal or informal, shall be taken by either
Party with respect to that difference.
(D)6.7.5 If the statistically and operationally significant
difference in trend results is not corrected within
the three (3) month time frame, the Dispute
Resolution provision of this Resale Agreement shall
apply.
(D)6.8 Delaying Events
(D)6.8.1 A Party's failure to meet a requirement in this
Section of this Agreement shall not be included when
that failure is a result, directly or indirectly, of
a Delaying Event.
(D)6.8.2 A "Delaying Event" means:
(D)6.8.2.1 Failure by either Party to perform any of
its obligations set forth in this Agreement,
(D)6.8.2.2 Any delay, act or failure to act by an end
user, agent or subcontractor of the other
Party, or
(D)6.8.2.3 Any Force Majeure Event.
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<PAGE>
Part D
Miscellaneous Provisions
(D)6.8.3 If a Delaying Event prevents either Party from
performing a measured activity, then such measured
activity shall be excluded from the performance
indicator(s).
(D)6.9 Records Retention for Service Performance Indicators
USW shall maintain complete and accurate records, for the
specified review period of its performance under this
Agreement for each measured activity. USW shall provide such
records to RESELLER in a self-reporting format. Such records
shall be in the format kept in USW's ordinary course of
business. The Parties agree that such records shall be deemed
"Confidential Information."
(D)6.10 Joint Defense and Advocacy
The Parties shall jointly and separately advocate and defend
the sufficiency of this Agreement in addressing the
nondiscrimination requirements of the Act and wholesale
services performance measurements reporting rights, remedies
and related terms and conditions in any forum in which its
sufficiency might be challenged.
(D)6.11 Cost Recovery
Each Party reserves the right to recover the costs associated
with the creation of the above measures, indicators, and
reports through a future proceeding before a regulatory body.
Such a proceeding may address a wide range of implementation
costs not otherwise recovered through charges established
herein.
Page 61
<PAGE>
Part E
Idaho Rates
PART E - IDAHO RATES
LOCAL EXCHANGE SERVICES RESALE OF SERVICES
The Parties agree the following charges apply to the Resale of Local Services:
1. Nonrecurring Charges.
a. Customer Transfer Charge (CTC): The following nonrecurring charges
apply when converting a USW account to a RESELLER account or when
changing an end user from one reseller to another.
<TABLE>
<CAPTION>
CATEGORY OF SERVICE NONRECURRING CHARGE
<S> <C>
RESIDENCE OR BUSINESS MECHANIZED
First Line $14.56
Each Additional Line $6.57
RESIDENCE OR BUSINESS MANUAL
First Line $27.52
Each Additional Line $7.12
PRIVATE LINE TRANSPORT
First Circuit $45.08
Additional Circuits, Same CSR $31.19
ADVANCED COMMUNICATIONS SERVICES, PER $50.48
CIRCUIT
</TABLE>
b. Product Specific Nonrecurring Charge: As set forth in USW tariffs,
the product specific nonrecurring charges, without discount, will apply
when additional lines or trunks are added or when the end user adds
features or services to existing lines or trunks.
2. Except as qualified below, all USW telecommunications services,
including IntraLATA Toll, shall be available for resale at an 18.25%
discount in Southern Idaho and a 19.37% discount in Northern Idaho.
a. The following services are not available for resale:
- Customer Premises Equipment (separately or in a package)
- USW Calling cards
- Inside Wire (including installation, sale or maintenance)
- Promotions of less than 90 days
- Enhanced Services (including Voice Messaging)
- Concession Service
b. The following services are available only to the same class of
customer eligible to purchase that service from USW:
- Grandfathered (NOTE: IN IDAHO, CENTREX PLUS SERVICE IS
GRANDFATHERED)
- Residence
- Lifeline/Link-up
Page 62
<PAGE>
Part E
Idaho Rates
c. The following services are available for resale under this
Agreement but are not included in the wholesale pricing
reflected above:
- Public Access Lines
- Private Line Used For Special Access
d. Telecommunications services offered by USW at a term or volume
discount are available at a 6.65% discount in Southern Idaho
and a 6.87% discount in Northern Idaho.
3. Daily Usage Record File: Recurring Charge - $.0011 per record.
Page 63
<PAGE>
Part F
Signature
PART F - SIGNATURE
ENTIRE AGREEMENT
This Agreement constitutes the entire agreement between the Parties and
supersedes all prior oral or written agreements, representations, statements,
negotiations, understandings, proposals and undertakings with respect to the
subject matter hereof.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed
by their respective duly authorized representatives.
ESSENTIAL.COM U S WEST COMMUNICATIONS, INC.
/s/ Akhil Garland /s/ E. J. Stamp for
- -------------------------- --------------------------------
Signature Signature
Akhil Garland Katherine L. Fleming
- -------------------------- --------------------------------
Name Printed/Typed Name Printed/Typed
CEO Vice President - Interconnection
- -------------------------- --------------------------------
Title Title
02/16/00 02/25/00
- -------------------------- --------------------------------
Date Date
Page 64
<PAGE>
Exhibit 10.30
STANDARD FORM
COMMERCIAL LEASE
In consideration of the covenants herein contained Cummings Properties
Management, Inc., hereinafter called LESSOR, does hereby lease Wholesale
Telecom & Electric Corporation (a MA corp.), One Corporate Place, 99 South
Bedford St., #202, Burlington, MA 01803 hereinafter called LESSEE, the
following described premises, hereinafter called the leased premises:
approximately 1,915 square feet (including 12% common area) at 52-D Cummings
Park, Woburn, MA 01801. TO HAVE AND HOLD the leased premises for a term of
five (5) years commencing at noon on March 1, 1998 and ending at noon on
February 28, 2003 unless sooner terminated as herein provided. LESSOR and
LESSEE now covenant and agree that the following terms and conditions shall
govern this lease during the term hereof and for such further time as LESSEE
shall hold the leased premises.
1. RENT. LESSEE shall pay to LESSOR base rent at the rate of twenty
eight thousand six hundred twenty nine (28,629.00) U.S. dollars per year,
drawn on a U.S. bank, payable in advance in monthly installments of $2,385.75
on the first day in each calendar month in advance, the first monthly payment
to be made upon LESSEE's execution of this lease, including payment in
advance of appropriate fractions of a month payment for any portion of a month
at the commencement or end said lease term. All payments shall be made to
LESSOR or agent at 200 West Cummings Park, Woburn, Massachusetts 01801, or at
such other place as LESSOR shall from time to time in writing designate. If
the "Cost of Living" has increased as shown by the Consumer Price Index
(Boston, Massachusetts, all items, all urban consumers), U.S. Bureau of
Labor Statistics, the amount base rent due during each calendar year of this
lease and any extensions thereof shall be annually adjusted in proportion to
any increase in the Index such adjustments shall take place with the rent due
on January 1 of each year during the lease term. The base month from which to
determine the amount of each increase in the Index shall be January 1998,
which figure shall be compared with the figure for November 1998, and each
November thereafter to determine the percentage increase (if any) in the base
rent to be paid during the following calendar year. In the event that the
Consumer Price Index as presently computed is discontinued as a measure of
"Cost of Living" charges, any adjustment shall then be made on the basis of a
comparable Index then in general use.
2. SECURITY DEPOSIT. LESSEE shall pay to LESSOR a security deposit in
the amount of four thousand seven hundred (4,700.00) U.S. dollars upon the
execution of this lease by LESSEE, which shall be held as security for
LESSEE's performance as herein provided and refunded LESSEE without interest
at the end of this lease, subject to LESSEE's satisfactory compliance with
the conditions hereof. LESSEE may not apply security deposit to payment of
the last months rent. In the event of any default or breach of this lease by
LESSEE, LESSOR may immediately apply security deposit first to any
unamortized improvements completed for LESSEE's occupancy, then to offset any
outstanding invoice or other payment due LESSOR, with the balance applied to
outstanding rent. If ??? or any portion of line security deposit is applied to
cure a default or breach during the term of lease, LESSEE shall be
responsible for restoring said deposit forthwith, and failure to do so shall
be considered a substantial default under the lead LESSEE's failure to remit
the full security deposit or any portion thereof when due shall also
constitute a substantial lease default. Until such time LESSEE pays the
security deposit and first month's rent, LESSOR may declare the lease null
and void for failure of consideration.
3. USE OF PREMISES. LESSEE shall use the leased premises only for the
purpose of EXECUTIVE AND ADMINISTRATIVE OFFICE.
4. ADDITIONAL RENT. LESSEE shall pay to LESSOR as additional rent a
proportionate share (based on square footage leased by LESSEE compared with
the total leasable square footage of the building of which the leased
premises are a part) of any increase in the real estate taxes levied against
the land and building of which the leased premises are a part (hereinafter
called the building), whether such increase is caused by an increase in tax
rate, or the assessment on the property, or a change in the method of
determining real estate taxes. LESSEE shall make payment within thirty (30)
days of written notice from LESSOR that such increased taxes are payable, and
any additional rent shall be prorated should the lease terminate before the
end of any tax year. The base from which to determine the amount of any
increase in taxes shall be the rate and the assessment in effect as of July
1, 1997.
5. UTILITIES. LESSOR shall provide equipment per LESSOR's building
standard specifications to heat the leased premises in season and to cool
office areas between May 1 and November 1 LESSOR shall pay all charges for
utilities used on the leased premises, including electricity used during
normal business hours for office lighting, building standard air conditioning
equipment, and small office machines such as personal computers, typewriters,
calculators and postage meters (only), gas, oil, water, sewer. No plumbing,
construction or electrical work of any type shall be ??? without LESSOR's
prior written approval and LESSEE obtaining the appropriate municipal permit.
6. COMPLIANCE WITH LAWS. LESSEE acknowledges that no trade,
occupation, activity or work shall be conducted in the leased premises or
made thereof which may be unlawful, improper, noisy, offensive, or contrary
to any applicable statute, regulation, ordinance or bylaw. LESSEE shall keep
all employees working in the leased premises covered by Worker's Compensation
Insurance and shall obtain any licenses and permits necessary LESSEE's
occupancy. LESSEE shall be responsible for causing the leased premises and
any alterations by LESSEE which are allowed hereunder to be full compliance
with any applicable stature, regulation, ordinance or bylaw.
7. FIRE, CASUALTY, EMINENT DOMAIN. Should a substantial portion of the
leased premises, or of the property of which they are a part, be
substantially damaged by fire or other casualty, or be taken by eminent
domain, LESSOR may elect to terminate this lease. When such fire, casualty,
or taking renders the leased premises substantially unsuitable for their
intended use, a just and proportionate abatement of rent shall be made, and
LESSEE may elect to terminate this lease if (a) LESSOR fails to give written
notice within thirty (30) days of intention to restore the leased premises,
or (b) LESSOR fails to restore the leased premises to a condition
substantially suitable for their intended use within ninety (90) days of said
fire, casualty or taking. LESSOR reserves rights for damages or injury to the
leased premises for any taking by eminent domain, except for damage to
LESSEE's property or equipment.
8. FIRE INSURANCE. LESSEE shall not permit any use of the leased
premises which will adversely affect or make voidable any insurance on
property of which the leased premises are a part, or on the contents of said
property, or which shall be contrary to any law or regulation from time to
time established by the Insurance Services Office (or successor), local Fire
Department, LESSOR's Insurer, or any similar body. LESSEE shall on demand
reimburse LESSOR, and all other tenants, all extra Insurance premiums caused
by LESSEE's use of the leased premises. LESSEE shall not vacate leased
premises or permit same to be unoccupied other than during LESSEE's customary
non-business days or hours.
<PAGE>
9. MAINTENANCE OF PREMISES. LESSOR will be responsible for all
structural maintenance of the leased premises and for the normal daytime
maintenance of all space heating and cooling equipment, sprinklers, doors,
locks, plumbing, and electrical wiring, but specifically excluding damage
caused by the careless, malicious, willful, or negligent acts of LESSEE or
others, chemical, water or corrosion damage from any source, and maintenance
of any non "building standard" leasehold improvements. LESSEE agrees to
maintain at its expense all other aspects of the leases' premises in the same
condition as they are at the commencement of the term or as they may be put
in during the term of this lease, normal wear and lear and damage by fire or
other casualty only excepted, and whenever necessary, to replace light bulbs,
plate glass and other glass therein, acknowledging that the leased premises
are now in good order and the light bulbs and glass whole. LESSEE will
properly control or vent all solvents, degreasers, smoke, odors, etc. and
shall not cause the area surrounding the leased premises to be in anything
other than a neat and clean condition, depositing all waste in appropriate
receptacles. Lessee shall be solely responsible for any damage to plumbing
equipment, sanitary lines, or any other portion of the building which results
from the discharge or use of any acid or corrosive substance by LESSEE.
LESSEE shall not permit the leased premises to be overloaded, damaged,
stripped or defaced, nor suffer any waste, and will not keep animals within
the leased premises. If the leased premises include any wooden mezzanine type
space, the floor capacity of such space is suitable only for office use,
light storage or assembly work. LESSEE will protect any carpet with plastic
or masonite chair pads under any rolling chairs. Unless heat is provided at
LESSOR's expense, LESSEE shall maintain sufficient heat to prevent freezing
of pipes or other damage. Any increase in air conditioning equipment or
electrical capacity or any installation or maintenance of equipment which is
necessitated by some specific aspect of LESSEE's use of the leased premises
shall be LESSEE's sole responsibility, at LESSEE's expense and subject to
LESSOR's prior written consent. All maintenance provided by LESSOR shall be
during LESSOR's normal business hours.
10. ALTERATIONS. LESSEE shall not make structural alterations or
additions of any kind to the leased premises, but may make nonstructural
alterations provided LESSOR consents thereto in writing. All such allowed
alterations shall be at LESSEE's expense and shall conform with LESSOR's
construction specifications. If LESSOR or LESSOR's agent provides any
services or maintenance for LESSEE in connection with such alterations or
otherwise under this lease, any just invoice will be promptly paid. LESSEE
shall not permit any mechanics' liens, or similar liens, to remain upon the
leased premises in connection with work of any character performed or claimed
to have been performed at the direction of LESSEE and shall cause any such
lien to be released or removed forthwith without cost to Lessor. Any
alterations or additions shall become part of the leased premises and the
property of LESSOR. Any alterations completed by LESSOR or LESSEE shall be
LESSOR's "building standard" unless noted otherwise. LESSOR shall have the
right at any time change the arrangement of parking areas, stairs, walkways
or other common areas of the building.
11. ASSIGNMENT OR SUBLEASING. LESSEE shall not assign this lease or
sublet or allow any other firm or individual 10 occupy the whole or any part
of the lease premises without LESSOR's prior written consent. Notwithstanding
such assignment or subleasing, LESSEE and GUARANTOR shall remain liable to
LESSOR for the payment of all rent and for the full performance of the
covenants and conditions of this lease. LESSEE shall pay LESSOR promptly for
legal and administrative expenses incurred by LESSOR in connection with any
consent requested hereunder by LESSEE.
12. SUBORDINATION. This lease shall be subject end subordinate to any
and all mortgages and other instruments in the nature of a mortgage, now or
at any time hereafter, and LESSEE shall, when requested, promptly execute and
deliver such written instruments as shall be necessary to show the
subordination of this lease to said mortgages or other such instruments in
the nature of a mortgage.
13. LESSOR'S ACCESS. LESSOR or agents of LESSOR may at any reasonable
time enter to view the leases' premises, to make repairs and alterations as
LESSOR should elect to do for the leased premises, the common areas or any
other portions of the building, to make repairs which LESSEE is required but
has failed to do, and to show the leased premises to others.
14. SNOW REMOVAL. The plowing of snow from all roadways and
unobstructed parking areas shall be at the sole expense of LESSOR. The
control of snow and ice on all walkways, steps and loading areas serving the
leased premises and all other areas not readily accessible to plows shall be
the sole responsibility of LESSOR. Notwithstanding the foregoing, however,
LESSEE shall hold LESSOR and OWNER harmless from any and all claims by
LESSEE's agents, representatives, employees, callers or invitees for damage
or personal injury resulting in any way from snow or ice on any area serving
the leased premises.
15. ACCESS AND PARKING. LESSEE shall have the right right without
additional charge to use parking facilities provided for the leased premises
in common with others entitled to the use thereof. Said parking areas plus
any stairs, corridors, walkways, elevators or other common areas (hereinafter
collectively called the common areas) shall in all cases be considered & part
of the leased premises when they are used by LESSEE or LESSEE's employees,
agents callers or invitees. LESSEE will not obstruct in any manner any
portion of the building or the walkways or approaches to the building, and
will conform to all rules and regulations now or hereafter made by LESSOR for
parking, and for the care, use, or alteration of the building, its facilities
and approaches. LESSEE further warrants that LESSEE will not permit any
employee or visitor to violate this or any other covenant or obligation of
LESSEE. No unattended parking will be permitted between 7:00 PM and 7:00 AM
without LESSOR's prior written approval, and from December 1 through March
31 annually, such parking shall be permitted only in those areas specifically
designated for assigned overnight parking. Unregistered or disabled vehicles,
or storage trailers of any type, may not be parked at any time. LESSOR may
tow, at LESSEE's sole risk and expense, any misparked vehicle belonging to
LESSEE or of any type, may not be parked at any time. LESSOR may tow, at
LESSEE's sole risk and expense, any misparked vehicle belonging to LESSEE or
LESSEE's agents, employees, invitees or callers, at any time. Lessor shall
not be responsible for providing any security services for the leased
premises.
16. LIABILITY. LESSEE shall be solely responsible as between LESSOR and
LESSEE for deaths or personal injuries to all persons whomsoever occurring in
or on the leased premises (including any common areas that are considered
part of the leased premises hereunder) from whatever cause arising, and
damage to property to whomsoever belonging arising of the use, control,
condition or occupation of the leased premises by LESSEE; and LESSEE agrees
to indemnify and save harmless LESSOR and OWNER from any and all liability,
including but not limited to costs, expenses, damages causes of action,
claims, judgments and attorney's fees caused by or in any way growing out of
any matters aforesaid, except for death, personal injuries or property damage
directly resulting from the sole negligence of LESSOR.
17. INSURANCE. LESSEE will secure and carry at its own expense a
commercial general liability policy Insuring LESSEE, LESSOR and OWNER against
any claims based on bodily injury (including death) or property damage
arising out of the condition of the leased premises (including any common
areas that are considered part of the leased premises hereunder) or their use
by LESSEE, such policy to insure LESSEE, LESSOR and OWNER against any claim
up to One Million (1,000,000) Dollars in the case of any one accident
involving bodily injury (including death), and up to One Million (1,000,000)
Dollars against any claim for damage to property. LESSOR and OWNER shall be
included in each such policy as additional insureds using ISO Form CG 20 26
11 85 or some other form approved by LESSOR. LESSEE will file with Lessor
prior to occupancy certificates and any applicable riders or endorsements
showing that such insurance is in force, and thereafter will file renewal
certificates prior to the expiration of any such policies. All such insurance
certificates shall provide that such policies shall not be cancelled without
at least ten (10) days prior written notice to each insured. In the event
LESSEE shall fail to provide or maintain such insurance at any time during
the term of this lease, then LESSOR may elect to contract for such insurance
at LESSEE's expense.
18. SIGNS. LESSOR authorizes, and LESSEE at LESSEE's expense agrees to
erect promptly upon commencement of this lease, signage for the leases
premises in accordance with LESSOR's building standards for style, size,
location, etc. LESSEE shall obtain the prior written consent of LESSOR before
erecting any sign on the leased premises, which consent shall include
approval as to size, wording, design and location. LESSOR may remove and
dispose of any sign not approved erected or displayed in conformance with
this lease.
19. BROKERAGE. LESSEE warrants and represents to LESSOR that LESSEE
has dealt with no broker or third person with respect to this lease, and
LESSEE agrees to indemnity LESSOR against any brokerage claims arising by
virtue of this lease. Lessor warrants and represents to LESSEE the LESSOR has
employed no exclusive broker or agent in connection with the letting of the
leased premises.
<PAGE>
insolvency proceeding shall be made or instituted with respect to LESSEE or
LESSEE's property, (b) LESSEE shall default in the observance or performance
of any of LESSEE's covenants, agreements, or obligations hereunder other than
substantial monetary payments as provided below, and such default shall not
be corrected within ten (10) days after written notice thereof; or (c) LESSEE
vacates the leased premises, then LESSOR shall have the right thereafter
while such default continues and without demand or further notice, to
re-enter and take possession of the leased premises, to declare the term of
this lease ended, and to remove LESSEE's effects, without being guilty of any
manner of trespass, and without prejudice to any remedies which might be
otherwise used for arrears of rent or other default or breach of the lease.
If LESSEE shall default in the payment of the security deposit, rent, taxes,
substantial invoice from LESSOR or LESSOR's agent for goods and/or services
or other sum herein specified, and such default shall continue for ten (10)
days after written notice thereof, and, because both parties agree that
nonpayment of said sums when due is a substantial breach of the lease, and,
because the payment of rent in monthly installments is for the sole benefit
and convenience of LESSEE, then in addition to the foregoing remedies the
entire balance of rent which is due hereunder shall become immediately sue
and payable as liquidated damages. LESSOR, without being under any obligation
to do so end without thereby waiving any default, may remedy same for the
account and at the expense of Lessee. If Lessor pays or incurs any
obligations for the payment of money in connection therewith, such sums paid
or obligations incurred plus interest and costs, shall be paid to LESSOR by
LESSEE as additional rent. Any sums received by LESSOR from or on behalf of
LESSEE at any time shall be applied first to any unamortized improvements
completed for LESSEE occupancy, then to offset any outstanding invoice or
other payment due to LESSOR, with the balance applied to outstanding rent.
LESSEE agrees to pay reasonable attorney's fees and/or administrative costs
incurred by LESSOR in enforcing any or all obligations of LESSEE under this
lease at any time LESSEE shall pay LESSOR interest at the rate of eighteen
(18) percent per annum on any payment from LESSEE to LESSOR which is past due.
21. NOTICE. Any notice from LESSOR to LESSEE relating to the leased
premises or to the occupancy thereof shall be deemed duly served when let at
the leased premises addressed to LESSEE, or served by constable, or sent to
the leased premises by certified mail, return receipt requested, postage
prepaid, addressed to LESSEE. Any notice from LESSEE to LESSOR relating to
the leased premises or to the occupancy thereof shall be deemed duly served
when served by constable, or delivered to Lessor by certified mail, return
receipt requested, postage prepaid, addressed to LESSOR at 200 West Cummings
Park, Woburn, MA 01801 or at Lessor's last designated address. Not oral
notice or representation shall have any force or effect. Time is of the
essence in the service of any notice.
22. OCCUPANCY. In the event that LESSEE taken possession of said leased
premises prior to the start of the lease term, LESSEE will perform any
observe all of LESSEE's covenants from the date upon which LESSEE takes
possession except the obligation for the payment of extra rent for any period
of less than one month. Lessee shall not remove Lessee's goods or property
from the leased premises other than in the ordinary and usual course or
business, without having first paid and satisfied LESSOR for all rent which
may become due during the entire term of this lease. LESSOR may require
LESSEE to relocate to another similar facility upon prior written police to
LESSEE and on terms comparable to those herein. In the event that Lessee
continues to occupy or control all or any part of the leased premises after
the agreed termination of this lease without the written permission of Lessor
then Lessee shall be liable to LESSOR for any and all loss, damages or
expenses incurred by LESSOR, and all other terms of this lease shall continue
apply except that rent shall be due in full monthly installments at a rate of
one hundred fifty (150) percent of that which would otherwise be due under
the lease. It being understood between the parties that such extended
occupancy is as a tenant at sufferance and is solely for the benefit and
convenience of LESSEE and as such has greater rental value. Lessee's control
or occupancy of all or any paid part of the leased premises beyond noon on
the last day of any monthly rental period shall constitute LESSEE's occupancy
for an entire additional month, and increased rent as provided in this
section shall be due and payable immediately in advance. LESSOR's acceptance
of any payments from Lessee during such extended occupancy shall not alter
LESSEE's status as a tenant at sufferance.
23. FIRE PREVENTION. LESSEE agrees agrees to use every reasonable
precaution against fire and agrees to provide and maintain approved, labeled
fire extinguishers, emergency lighting equipment, and exit signs and complete
any other modifications within the leased premises as required or recommended
by the Insurance Services Office (or successor organization), OSHA, the local
Fire Department, or any similar body.
24. OUTSIDE AREA. Any goods, equipment, or things of any type or
description held or stored in any common area without LESSOR's prior written
consent shall be deemed abandoned and may be removed by LESSOR at LESSEE's
expense without notice. Lessee shall maintain a building standard size
dumpster in a location approved by Lessor, which dumpster shall be provided
and serviced at Lessee's expense by whichever disposal firm may form time to
time be designated by LESSOR. Alternatively, if a shared dumpster or
compactor is provided by LESSOR, LESSEE shall pay its proportional share of
any costs associated therewith.
25. ENVIRONMENT. Lessee will so conduct and operate the leased premises
as not to interfere in any way with the use and enjoyment of other portions
of the same or neighboring buildings by others by reason of odors, smoke,
exhaust, smells, noise, pets, accumulation of garbage or trash, vermin or
other pests, or otherwise, and will at its expense employ a professional pest
control service if necessary. LESSEE agrees to maintain efficient and
effective devices for preventing damage to heating equipment from solvents,
degreasers, cutting oils, propellants, etc, which may be present at the
leased premises. No hazardous materials or wastes shall be stored, disposed
of, or allowed to remain at the leased premises at any time, and LESSEE shall
be solely responsible for any and all corrosion or other damage associated
with the use, storage and/or disposal or same by Lessee.
26. RESPONSIBILITY. Neither LESSOR nor owner shall be held liable to
anyone for loss or damage caused in any way by the use, leakage, seepage
escape of water from any source, or for the cessation of any service rendered
customerally to said premises or buildings, or agreed to by the terms of this
lease, due to any accident, the making of repairs, alterations or
improvements, labor difficulties, weather conditions, mechanical breakdowns,
trouble or scarcity in obtaining fuel, electricity, service or supplies from
the sources from which they are usually obtained for said building, or any
cause beyond LESSOR's immediate control.
27. SURRENDER. LESSEE shall at the termination of this lease remove all
of LESSEE's goods and effects from the leased premises. LESSEE shall deliver
to LESSOR the leased premises and all keys and locks thereto, all fixtures
and equipment connected therewith, and all alterations, additions and
improvements made to or upon the leased premises, whether completed by
LESSEE, LESSOR or others, including but not limited to any offices,
particular window blinds, floor coverings (including computer floors),
plumbing and plumbing fixtures, air conditioning equipment and ductwork of
any type, exhaust fans or heaters, water coolers, burglar alarms, telephone
wiring, telephone equipment, air or gas distribution piping, compressors,
overhead cranes, hoist trolleys or converyors, counters, shelving or signs
attached to walls or floors, all electrical work, including but not limited
to lighting fixtures of any type, wiring conduit, EMT, transformers,
distribution panels, bus ducts, raceways, outlets and disconnects, and
furnishings or equipment which have been bolted weided, nailed, screwed,
glade or otherwise attached to any wall, floor, ceiling, roof, pavement or
ground, or which have been directly wired to any portion of the electrical
system or which have been plumbed to the water supply drainage or venting
systems serving the leased premises. LESSEE shall deliver the leased premises
sanitized from any chemicals or other contaminants, and broom clean and in
the same condition as they were at the commencing of this lease or any prior
lease between the parties for the leased premises, or as they were mortified
during said term with LESSOR's written consent reasonable wear and tear and
damage by fire or other casualty only excepted. In the event of LESSEE's
failure to remove by of LESSEE's property from the leased premises upon
termination of the lease, LESSOR is hereby authorized, without liability to
LESSEE for loss or damage thereto, and at the sole right of LESSEE, to remove
and store any such property at LESSEE's expense, or to retain same under
LESSOR's control, or to sell at public or private (without notice), any or
all of the property not so removed and to apply the net proceeds of such sale
to the payment of any sum due hereunder, or to destore such abandoned
property. In no case shall the leased premises be deemed surrendered to
LESSOR until the termination date provided herein or such other date as may
be specified in a written agreement between the parties, notwithstanding the
delivery of any keys to LESSOR.
<PAGE>
28. GENERAL. (a) The invalidity or unenforceability of any provision of
this lease shall not affect or render invalid or unenforceable any other
provision hereof. (b) The obligations of this lease shall run with the land,
and this lease shall be binding upon and inure to the benefit of the parties
hereto and their respective successors and assigns, except that LESSOR and
OWNER shall be liable only for obligations occurring while lessor, owner, or
master lessee the premises. (c) Any action or proceeding arising out of the
subject matter of this lease shall be brought by LESSEE within one year after
the cause of action has occurred and only in a court of the Commonwealth of
Massachusetts. (d) If LESSOR is acting under or as agent for any trust or
corporation, the obligations of LESSOR shall be binding upon the trust or
corporation, but not upon any trustee, officer, director, shareholder, or
beneficiary of the trust or corporation individually. (e) If LESSOR is not
the owner (OWNER) of the leased premises, LESSOR represents that said OWNER
has agreed to be bound by the terms of this lease unless LESSEE is in default
hereof. (f) This lease is made and delivered in the Commonwealth of
Massachusetts, and shall be interpreted, construed, and enforced in
accordance with the laws thereof. (g) This lease was the result of
negotiations between parties of equal bargaining strength, and when executed
by both parties shall constitute the entire agreement between the parties,
superseding all prior oral and written agreements, representations,
statements and negotiations relating in any way to the subject matter herein.
This lease may not be extended or amended except by written agreement signed
by both parties or as otherwise provided herein, and no other subsequent oral
or written representation shall have any effect hereof. (h) Notwithstanding
any other statements herein, LESSOR makes no warranty, express or implied,
concerning the suitability of the leased premises for LESSEE's intended use.
(i) LESSEE agrees that if LESSOR does not deliver possession of the leased
premises as herein provided for any reason, LESSOR shall not be liable for
any damages to LESSEE for such failure, but LESSOR agrees to use reasonable
efforts to deliver possession to LESSEE at the earliest possible date. A
proportionate abatement of rent, excluding the cost of any amortized
improvements to the leased premises, for such time as LESSEE may be deprived
of possession of the leased premises, except where a delay in delivery is
caused in any way by LESSEE, shall be LESSEE's sole remedy. (j) Neither the
submission of this lease form, nor the prospective acceptance of the security
deposit and/or rent shall constitute a reservation or option for the leased
premises, or an offer to lease it being expressly understood and agreed that
this lease shall not bind either party in any manner whatsoever until it has
been executed by both parties. (k) LESSEE shall not be entitled to exercise
any option contained herein if LESSEE is at that time in default of any terms
or conditions hereof. (l) Except as otherwise provided herein, LESSOR, OWNER
and LESSEE shall not be liable for any specific incidental, indirect or
consequential damages, including but not limited to lost profits or loss of
business, arising out of or in any manner connected with performance or
nonperformance under this lease, even if any party has knowledge of the
possibility of such damages. (m) The headings in this lease are for
convenience only and shall not be considered part of the terms hereof. (n) No
endorsement by LESSEE on any check shall bind LESSOR in any way. (o) LESSOR
and LESSEE hereby waive any and all rights to a JURY trial in any proceeding
in any way arising out of this lease.
29. SECURITY AGREEMENT. LESSEE hereby grants LESSOR a continuing security
interest in all existing or hereafter acquired property of LESSEE which is in
the leased premises to secure the payment of rent, the cost of leasehold
improvements, and the performance of any other obligations of LESSEE under
this lease. Default in the payment or performance of any of LESSEE's
obligations hereunder is a default under this security agreement, and shall
entitle LESSOR to immediately exercise all of the rights and remedies of a
secured party under the Uniform Commercial Code. LESSEE also agrees to
execute a UCC-1 Financing Statement and any other financing agreement
required by LESSOR in connection with this security interest.
30. WAIVERS, ETC. No consent or waiver, express or implied, by LESSOR, to
or of any breach of any covenant, condition or duty of LESSEE shall be
construed as a consent or waiver to or of any other breach of the same or any
other covenant, condition or duty. If LESSEE is several persons, several
corporations or a partnership, LESSEE's obligations are joint or partnership
and also several. Unless repugnant to the context, "LESSOR" and "LESSEE" mean
the person or persons, natural or corporate, named above as LESSOR and as
LESSEE respectively, and their respective heirs, executors, administrators,
successors and assigns.
31. AUTOMATIC FIVE-YEAR EXTENSIONS. This lease, including all terms,
conditions, escalations, etc. shall be automatically extended for additional
successive periods of five (5) years each unless LESSOR or LESSEE shall serve
written notice, either party to the other, of either party's desire not to so
extend the lease. The time for serving such written notice shall be not more
than twelve (12) months or less than six (6) months prior to the expiration
of the then current lease period. Time is of the essence.
32. ADDITIONAL PROVISIONS. (Continued on attached rider(s) if necessary.)
- See Attached Rider -
IN WITNESS WHEREOF, LESSOR AND LESSEE have hereunto set their hands and
common seals and intend to be legally bound hereby this ___________ day of
______________________________________.
LESSOR: CUMMINGS PROPERTIES LESSEE: WHOLESALE TELECOM &
MANAGEMENT, INC. ELECTRIC CORPORATION
By: By: /s/ Akhil Garland, President
---------------------------- ----------------------------
President
<PAGE>
298126-AWT
STANDARD FORM
RIDER TO LEASE
The following additional provisions are incorporated into and made a part of
the attached lease:
A. *LESSOR, at LESSOR's cost, shall modify the leased premises according to
a mutually agreed upon plan attached hereto before or about the time
LESSEE takes possession of the leased premises.
B. *LESSOR agrees to erect signage designating three parking spaces in front
of the leased premises for short term visitor parking. LESSOR shall have
no responsibility for enforcing said parking restriction.
C. *LESSOR, at no further cost to LESSEE, shall provide cubicles for
LESSEE's use at the leased premises during the term of this lease. LESSEE
acknowledges that said furniture is now in good condition and repair, and
LESSEE agrees to return said furniture to LESSOR in the same condition,
reasonable wear and tear (only) excepted, upon vacating the leased
premises.
D. *LESSEE may install and maintain at LESSEE's sole expense an exterior
sign on the north face of the building in a location to be designated by
LESSOR and in compliance with any and all ordinances, bylaws, and state
and local building codes. In addition, prior to commencement of
installation, LESSEE shall obtain all necessary permits and LESSOR's
written consent as to size, graphics, construction, etc.
LESSOR: CUMMINGS PROPERTIES LESSEE: WHOLESALE TELECOM &
MANAGEMENT, INC. ELECTRIC CORPORATION
By: By: /s/ Akhil Garland, President
---------------------------- ----------------------------
President
Date:
--------------------------
5/93
<PAGE>
[MAP]
<PAGE>
Exhibit 10.31
CUMMINGS PROPERTIES MANAGEMENT, INC.
STANDARD FORM
AMENDMENT TO LEASE #2
In connection with a lease currently in effect between the parties of
52-D Cummings Park, Woburn, Massachusetts, executed on February 23, 1998 and
terminating February 28, 2003, and in consideration of the mutual benefits
to be derived herefrom, Cummings Properties Management, Inc., LESSOR, and
Wholesale Telecom & Electric Corporation, LESSEE, hereby agree to amend said
lease as follows:
1. Notwithstanding the provisions of Section 5 to the contrary, LESSEE and
not LESSOR shall pay all charges for utilities used on the leased
premises, including electricity, gas, oil, water and sewer, LESSEE shall
pay the utility provider or LESSOR, as applicable, for all such utility
charges as determined by separate meters serving the leased premises
and/or as a proportionate share of the utility charges for the building
if not separately metered. LESSEE shall also pay LESSOR a proportionate
share of any other fees and charges relating in any way to utility use
at the building.
2. The parties acknowledge and agree that a portion of the adjacent suite,
52-A Cummings Park shares HVAC with the leased premises. LESSEE shall
pay all charges for electricity and gas for operation of the HVAC
serving said portion.
3. LESSOR, at a total charge to LESSEE of $350.00, to be paid upon LESSEE's
execution of this amendment, shall supply and install a low ambient
package on the HVAC unit serving the leased premises.
4. Etility.com (a DE corp.) is hereby added as LESSEE in addition to
Wholesale Telecom & Electric Corporation. "LESSEE" as used in the lease,
including any amendment thereto, shall refer to both corporations, and
their responsibility shall be joint and several pursuant to Section 30
of the lease.
All other terms, conditions and covenants of the present lease shall
continue to apply except that adjusted base rent shall be decreased by
$4,787.50 annually, from a total of $30,544.00 to a new annual total of
$25,756.50 or $2,146.37 per month. Annual base rent for purposes of computing
any future escalations thereon shall be $25,756.50. This amendment shall be
effective December 15, 1998 and shall continue through the balance of the
lease and any extensions thereof unless further modified by written
amendment(s).
In Witness Whereof, LESSOR and LESSEE have hereunto set their hands and
common seals this 23rd day of December, 1998.
LESSOR: CUMMINGS PROPERTIES LESSEE: WHOLESALE TELECOM &
MANAGEMENT, INC. ELECTRIC CORPORATION
By: /s/ Douglas Stephens By: /s/ Patrick Moran, VP
-------------------------------- ----------------------------
Executive Vice President Patrick Moran, V.P.
LESSEE: ETILITY.COM
By: /s/ Patrick Moran, VP
----------------------------
Patrick Moran, V.P.
<PAGE>
Exhibit 10.32
CONSENT TO SUBLEASE
Consent to Sublease, dated February 19, 1999, by and among Xenergy, Inc., a
Massachusetts corporation with a principal office at Three Burlington Woods
Drive, Burlington, Massachusetts 01803-4543 ("Sublandlord"), Etility.com,
Inc., a Delaware corporation with a principal office at 52-D Cummings Park,
Woburn, Massachusetts 01801 ("Subtenant"), and Three Burlington Woods LLC, a
Massachusetts limited liability company, with a principal office c/o Finard &
Company, LLC, Three Burlington Woods Drive, Burlington, MA 01803 ("Landlord").
Landlord is the owner of certain property located at Three Burlington Woods
Drive in Burlington, Massachusetts, a portion of which (the "Premises") has
been leased to Sublandlord under a lease (the "Lease") dated March 28, 1991.
Sublandlord wishes to sublease a portion of the Premises (the "Subleased
Premises") to Subtenant pursuant to a Sublease, dated February 15, 1999, a
true, accurate and complete copy of which is attached hereto as Exhibit A
(the "Sublease").
Pursuant to the Lease, Sublandlord, as the tenant thereunder, may not sublet
the Premises without first obtaining Landlord's written approval.
In consideration of their mutual covenants contained herein, and intending to
be bound hereby, the parties agree as follows:
1. Subtenant understands and agrees that the Sublease is in fact a
sublease of Sublandlord's interest in the Lease; and the Sublease is subject
to the provisions of the Lease and is subordinate thereto. In the event the
Lease shall be canceled or terminated for any reason, the term of the Sublease
shall automatically terminate as of the date of such cancellation or
termination.
2. Subtenant covenants that, notwithstanding any provisions of the
Sublease to the contrary, Subtenant shall not commit, or suffer to be
committed, any act or omission in violation of the provisions of the Lease,
and Subtenant agrees directly with Landlord to be bound by all the
obligations of the Sublandlord thereunder with respect to the subleased
Premises subleased by Subtenant, with the exception of rent and additional
rent which is governed by the Sublease.
3. The consent given by Landlord in this Consent shall not be deemed
to create any obligations on the part of Landlord with respect to the
Sublease or the Premises, or constitute any consent to any further sublease
or assignment, or relieve Sublandlord of its obligations under the Lease.
Sublandlord shall remain fully and primarily liable for the prompt and timely
payment of all rent, additional rent and other charges under the Lease and
for the timely performance of all of the tenant's obligations under the
Lease. Sublandlord shall be deemed to have waived any and all suretyship
defenses.
4. As a condition of Landlord's consent, Sublandlord shall reimburse
Landlord, within 30 days of receipt of Owner's invoice with supportive
evidence, for any reasonable costs (including all attorney's fees) that
Landlord incurred in connection with the consideration of the consent
contained herein.
5. Landlord hereby consents to the sublease of the Premises to
Subtenant pursuant to the Sublease.
6. This Consent is given and conditioned upon all of the following
additional terms, conditions and agreements:
(a) This Consent shall not be deemed Landlord's consent to any
work or alterations of the Subleased Premises or any signage, all
of which require the
-1-
<PAGE>
Landlord's prior written consent pursuant to the terms of the
Lease, except Landlord approves of the altercations described on
Exhibit B to the Sublease.
(b) Simultaneously with the execution of this consent, Subtenant
shall deliver to Landlord a certificate or certificates of
insurance confirming that the required insurance is in force and
all premiums are current, and naming Landlord and its managing
agent, Finard & Company, LLC, as additional insureds.
(c) Owner shall promptly be provided with copies of all written
notices given or received by either Sublandlord or Subtenant under
the Sublease.
(d) Except in the case of an emergency situation, all
communications or requests, written or oral, which Subtenant desires
to make to Landlord regarding the leases, the Premises or any
portion thereof, or services, operations and management of the
property, shall be communicated and made to Landlord solely by and
through Sublandlord.
(e) Sublandlord and Subtenant each hereby confirm and agree that
Subtenant does not have the right to sublet its interests in the
Subleased Premises or to assign its rights under the Sublease
without, in each such instance, first obtaining the Landlord's
prior written consent, which consent may be withheld at the
Landlord's sole and absolute discretion.
(f) Following the occurrence of a default under the Lease, Owner,
in addition to any other remedies provided hereunder or at law, may
at its option collect directly from Subtenant all rents becoming
due to the Sublandlord under the Sublease and apply such rent
against any amounts due Landlord by Sublandlord under the Lease;
and it is understood that no such election or collection or payment
shall be construed to constitute a novation of the Lease or a
release of Sublandlord hereunder, or to create any lease or
occupancy agreement between the Landlord and Subtenant or impose
any obligations on Landlord, or otherwise constitute the
recognition of the Sublease by Landlord for any purpose.
(g) Notwithstanding anything in the Sublease to the contrary, any
right under the Lease to extend the term may be exercised solely by
Sublandlord and solely in accordance with the terms and conditions
of the Lease.
7. Sublandlord hereby certifies that the Lease is in full force and
effect, that there have been no modifications or amendments thereto, that all
rent, additional rent and other payments due under the Lease as of the date
hereof have been paid by Sublandlord, and, as of the date hereof, to the
Sublandlord's knowledge, there exists no default under the Lease.
[see next page for signatures]
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<PAGE>
Executed under seal on the above-written date.
SUBTENANT: SUBLANDLORD:
ETILITY.COM, INC. XENERGY INC.
By: /s/ Akhil Garland By: /s/ John R. Graham
------------------------------------- -------------------------------
Name: Akhil Garland Name: John R. Graham
Title: President Title: Treasurer
Duly authorized Duly authorized
LANDLORD:
THREE BURLINGTON WOODS LLC
By: Burlington Woods Building III Joint Venture LLP
By: /s/ William G. Finard
---------------------------------------------
William G. Finard, as General Partner of
Finard Burlington Company Limited Partnership
By: /s/ Carolyn G. Mugar by Attorney in Fact
---------------------------------------------
Carolyn G. Mugar
By: /s/ David G. Mugar
---------------------------------------------
David G. Mugar
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<PAGE>
EXHIBIT A
SUBLEASE
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<PAGE>
SUBLEASE
SUBLEASE made as of February 15, 1999 by and between Xenergy Inc., a
Massachusetts corporation with a principal office at Three Burlington Woods
Drive, Burlington, Massachusetts 01803-4543 (the "Sublandlord"), and
Etility.com, Inc., a Delaware corporation, with a principal office at 52-D
Cummings Park, Woburn, Massachusetts 01801 (the "Subtenant").
WITNESSETH:
WHEREAS, pursuant to that certain Lease dated March 28, 1991 (the
"Master Lease"), a copy of which has been delivered to Subtenant, James S.
Hekiman and William G. Finard as Trustees of Burlington Woods Office Trust No.
III under Declaration of Trust dated March 1, 1984 and recorded with the
Middlesex South Registry of Deeds in Book 15673, Page 31, as amended (herein
referred to as "Original Landlord"), leased to Sublandlord, as Tenant, certain
premises located in the fourth floor of the building known as and numbered Three
Burlington Woods Drive, Burlington, Massachusetts, as more particularly
described in the Master Lease (the "Demised Premises") Three Burlington Woods
LLC (the "Landlord") is the successor to the Original Landlord as landlord under
the Master Lease; and
WHEREAS, subject to the agreements, covenants and conditions herein
contained Subtenant wishes to sublease from Sublandlord, and Sublandlord wishes
to sublease to Sublessee, a portion of the Demised Premises containing 9,731
square feet of rentable space, and being shown on the plan attached hereto as
Exhibit A (the "Subleased Premises");
NOW, THEREFORE, in consideration of the foregoing premises and other
good and valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, the parties hereto agree as follows:
1. DEMISE.
1.1 Sublandlord, in consideration of the rents herein reserved and of
the agreements, covenants and conditions herein contained and expressed on the
part of Subtenant to be kept, performed and observed, hereby demises and lets
unto Subtenant and Subtenant hereby leases from Sublandlord the Subleased
Premises. The Subleased Premises are leased in an "as is" condition.
The foregoing notwithstanding, Subtenant may, at its sole cost and expense,
make the alterations and improvements described in Exhibit B attached hereto
(the "Tenant Improvements"), using one or more responsible contractors, and
pursuant to plans and specifications, first approved by Sublandlord. All such
Tenant Improvements shall be made in a good and first class workmanlike manner
employing materials of good quality and so as to conform with all applicable
provisions of the Master Lease and applicable zoning, building, fire, health and
other codes, regulations, ordinances and laws. Subtenant shall pay promptly when
due the entire cost of such Tenant Improvements so that the Subleased Premises
shall at all times be free of liens for labor and materials. Any contractor or
other person undertaking such Tenant Improvements shall be covered by
<PAGE>
worker's compensation insurance and evidence thereof shall be furnished to
Sublandlord prior to the performance by such contractor or person of any such
work to the Subleased Premises.
Subject to the terms and conditions of Section 2.2 of the Master
Lease, Subtenant shall have available for its use and that of its employees and
invitees a number of parking spaces equal to 3.3 per 1,000 square feet of
rentable space included in the Subleased Premises. Such parking spaces shall be
used by Subtenant, its employees and invitees in common with others entitled
thereto.
Subject to Landlord's approval, Subtenant at its expense may install a
sign at the Building entrance and have its name and location placed in the
tenant directory in the Building lobby.
Sublandlord will also lease to Subtenant during the term hereof at no
additional charge certain office furniture, as more particularly described in
Exhibit C attached hereto, for use in the Subleased Premises during the term
hereof. Subtenant acknowledges that Sublandlord has made no representations or
warranties regarding any such furniture, and Subtenant shall be responsible for
any damages to such leased furniture, wear and tear excepted. The cost to
Subtenant for any such damage shall not exceed the fair market value of such
damaged furniture.
2. TENANCY-AT-WILL; TERM.
2.1 Subtenant hereby acknowledges and agrees that it shall be a tenant
at will of the Subleased Premises at all times from the Commencement Date until
the Conversion Date, as those terms are hereinafter defined. The "Commencement
Date" shall mean that date which is the earlier of (i) February 15, 1999; or
(ii) the date on which Subtenant takes occupancy of the Subleased Premises. The
"Conversion Date" shall mean that date on which Subtenant enters into a
financing arrangement with a commercial bank or other institutional lender for
greater than $2 millon and pays the Additional Deposit as provided in Section
4.1 hereof. Anything in this Sublease to the contrary notwithstanding, in the
event that Subtenant does not enter into such financing arrangement and does not
pay the Additional Deposit to Sublandlord on or before June 30, 1999, then this
Sublease shall be deemed to terminate automatically on such date without further
action or notice by Sublandlord, and Sublandlord shall have all rights and
remedies pursuant to the provisions of this Sublease and applicable law. The
period prior to the Conversion Date or termination of this Sublease pursuant to
the foregoing sentence shall be hereinafter referred to as the "Tenancy at
Will".
2.2 Provided that this Lease is not terminated pursuant to the
provisions of Section 2.1, on the Conversion Date the Tenancy at Will shall be
converted to a subleasehold having a term (the "Fixed Term") commencing on the
Conversion Date and ending on August 15, 2000, unless sooner terminated in
accordance with the terms hereof.
3. RENT.
3.1 Subtenant covenants and agrees to pay to Sublandlord, at its
address
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<PAGE>
first hereinabove written or at such other address as Sublandlord may by notice
in writing to Subtenant from time to time direct, on the Commencement Date and
thereafter, monthly, in advance, on the fifteenth day of each month during the
Tenancy at Will or the Fixed Term, as the case may be, fixed rent (the "Fixed
Rent") in a monthly amount equal to (i) $10,750.00 (the "Abated Rental Rate")
during the first six (6) months from and after the Commencement Date, it being
acknowledged that during such six (6) month period Subtenant shall pay rent at
the annual rate of $21.50 per square foot of rentable space with respect to a
portion of the Subleased Premises consisting of 6,000 square feet of rentable
space shown on Exhibit A, and that during such six (6) month period Subtenant
shall receive a rent abatement with respect to the remainder of the Subleased
Premises; and (ii) $17,434.71 (the "Full Rental Rate") during the remainder of
the term, representing annual rent in the amount of $21.50 per square foot of
rentable space with respect to the entire Subleased Premises.
Fixed Rent for any partial month shall be paid by Subtenant at such
rate on a pro rata basis, and if the Tenancy at Will or the Fixed Term commences
on a day other than the fifteenth day of a calendar month, the first payment
which Subtenant shall make shall be a payment equal to a proportionate part of
such monthly Fixed Rent for the partial month from the Commencement Date to the
fifteenth day of the succeeding calendar month, and the monthly Fixed Rent for
such succeeding calendar month.
3.2 The parties agree that the Fixed Rent payable by Subtenant
hereunder is intended to be gross rent inclusive of charges for daily
cleaning and gas furnished to the Subleased Premises, which are not
separately metered, and that Subtenant shall not be responsible for payment
of any portion of any Tax Amount Escalation Factor or any Operating Base
Escalation Factor (as those terms are defined in the Master Lease) which may
be payable by Sublandlord to Landlord pursuant to the Master Lease or any
other charges under the Master Lease not specifically identified herein.
Notwithstanding the foregoing, Subtenant shall be responsible for its pro
rata share (based on a ratio in which the rentable square foot area of the
Subleased Premises is the numerator and the rentable square foot area of the
Demised Premises is the denominator) of charges for electricity for lighting
and equipment utilized at the Demised Premises, currently estimated to be 85
CENTS per square foot of rentable space per year. Subtenant's share of such
electricity charges shall constitute additional rent ("Additional Rent")
hereunder, and shall be due and payable by Subtenant in each month on the
same date that Fixed Rent is due and payable. Sublandlord shall provide
Subtenant with monthly statements containing a calculation of Subtenant's pro
rata share of such electricity charges during each month in which Subtenant
occupies the subleased Premises. Subtenant also agrees that it shall be
responsible for all costs and expenses ("Overtime HVAC Expenses") associated
with the provision of HVAC services that Subtenant requests to be provided to
the Subleased Premises at times other than Normal Building Operating Hours,
which term is defined in the Master Lease to include the hours of 8:00 A.M.
to 6:00 P.M. Monday through Friday. Subtenant shall pay all such Overtime
HVAC Expenses as Additional Rent promptly upon receipt of Sublandlord's
invoice therefor.
3.3 All other costs and expenses which Subtenant is required to pay
under this Sublease, including without limitation costs for additional services
or additional utilities supplied to the Subleased Premises by Sublandlord or
Landlord, if any, together with all penalties that may accrue thereon in the
event of the Subtenant's failure to pay
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<PAGE>
such amounts, and all damages, costs and expenses which Sublandlord may incur by
reason of any failure by Subtenant to comply with the terms of this Sublease,
shall be deemed to be Additional Rent when due and payable. Sublandlord shall
have all rights and remedies with respect to such failure as Sublandlord has for
the non-payment of Fixed Rent.
3.4 Subtenant shall pay to Sublandlord a late charge of one percent
(1.0%) per month on all amounts due to Sublandlord under this Sublease which are
not paid within five (5) days from the date that the same shall become due and
payable.
4. SECURITY DEPOSIT.
4.1 In addition to the amount paid by Subtenant to Sublandlord
pursuant to Section 3.1 to be applied toward the first monthly rental payment
hereunder, Subtenant has this day deposited with Sublandlord the sum of
$10,750.00 (the "Initial Deposit") (representing one month's Fixed Rent at the
Abated Rental Rate) as security for the full and faithful observance, payment
and performance by Subtenant of all the terms, covenants and conditions of this
Sublease upon Subtenant's part to be performed. On the Conversion Date Subtenant
shall deposit with Sublandlord the additional sum of $21,500.00 (the "Additional
Deposit") (representing an additional two months' Fixed Rent at the Abated
Rental Rate). The Initial Deposit and the Additional Deposit shall be
collectively referred to hereinafter as the "Security Deposit". Such sums shall
be returned to Subtenant within a reasonable time, which shall not exceed thirty
(30) days, after the expiration of the term provided Subtenant shall have fully
and faithfully observed, paid and performed all of the said terms, covenants and
conditions. If all or any part of the Security Deposit is applied to an
obligation of Subtenant hereunder, Subtenant shall immediately upon request by
Sublandlord restore the Security Deposit to its original amount. Subtenant shall
not have the right to call upon Sublandlord to apply all or any part of the
Security Deposit to cure any default or fulfill any obligation of Subtenant, but
such use shall be solely in the discretion of Sublandlord. Provided that
Sublandlord gives Subtenant written notice of the name of such grantee or
transferee, upon any conveyance by Sublandlord of its interest under this
Sublease, the Security Deposit may be delivered by Sublandlord to Sublandlord's
grantee or transferee. Upon any such delivery, Subtenant hereby releases
Sublandlord herein named of any and all liability with respect to the Security
Deposit, its application and return, and Subtenant agrees to look solely to such
grantee or transferee, provided that such grantee or transferee agrees in
writing to be bound by all of the same terms and conditions by and between
Sublandlord and Subtenant contained in this Sublease and the Master Lease. It is
further understood that this provision shall also apply to subsequent grantees
and transferees.
5. PERMITTED USES.
5.1 Subtenant shall use the Subleased Premises for business office use
and other uses incidental thereto to the extent permitted by law and consistent
with the use of the Building as a so-called first-class office building and for
no other purposes.
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<PAGE>
6. NO ASSIGNMENT OR SUBLETTING.
6.1 Subtenant may not assign this Sublease or sublet any portion of
the Subleased Premises under any circumstances.
7. CONDITION OF THE PREMISES.
7.1 Subtenant acknowledges that except as otherwise expressly provided
herein, neither Sublandlord nor any person on behalf of the Sublandlord has made
any warranties or representations regarding the condition or suitability of the
Subleased Premises, and that Subtenant has inspected the Subleased Premises to
its satisfaction prior to the execution of this Sublease.
8. SURRENDER.
8.1 At the termination of this Sublease, Subtenant shall surrender the
Subleased Premises to Sublandlord, broom clean with all alterations, additions
and improvements thereto, in as good condition as on the date of delivery to
Subtenant or as the Subleased Premises may be put in during the term of the
Sublease, reasonable wear and tear and loss by fire and casualty excepted. For
each day after termination of the Tenancy at Will as provided in Section 2.1 or
the expiration of the term, as the case may be, or the earlier termination of
this Sublease, and prior to Subtenant's performance of its obligations to
surrender the Demised Premises under this Article 8, Subtenant shall (i) pay to
Sublandlord rent in two (2) times the Fixed Rent computed on a daily basis,
together with all Additional Rent payable with respect to each such day, and
(ii) defend, indemnify and hold harmless the Sublandlord from and against all
loss, claims, cost and damage resulting from Subtenant's delay in surrendering
the Subleased Premises as above provided.
9. INSURANCE.
9.1 Subtenant shall obtain prior to the Commencement Date, and shall
keep in force at all times thereafter, Comprehensive General Liability Insurance
in accordance with the broadest form of such coverage as is available from time
to time in the jurisdiction in which the Subleased Premises are located naming
Sublandlord and Landlord as additional insureds and insuring Subtenant against
liability for injury to persons and damage to property, covering all Subtenant's
obligations under this Sublease. The minimum limits of liability of such
insurance shall be $1 million per occurrence, Bodily Injury Liability (including
death) and Property Damage Liability, and shall be for such higher limits, if
directed by Landlord, as are customarily carried in that area in which the
Building is located upon property similar to the Building.
9.2 All insurance required under Section 9.1 above shall be written
with Subtenant's current insurance company or companies reasonably satisfactory
to Landlord and Sublandlord and in forms customarily in use from time to time
in the locality of the Subleased Premises. Subtenant shall, upon request,
furnish the Landlord and Sublandlord with duplicates of certificates of said
policies, and said policies shall provide that the coverage thereunder may not
lapse, be modified, cancelled, or its renewal be refused without ten (10) days
prior written notice to Landlord, Sublandlord and Subtenant and if required by
Sublandlord or Landlord, to holders of mortgages on the Subleased Premises.
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<PAGE>
10. INCORPORATION OF PROVISIONS OF
MASTER LEASE BY REFERENCE.
10.1 Except as otherwise expressly provided herein, all of the terms,
covenants and conditions of the Master Lease are incorporated herein by
reference and made a part hereof with the same force and effect as if set forth
herein in their entirety, it being understood and agreed that such terms and
conditions shall fix the obligations of Subtenant with the same effect as if
Subtenant were the tenant in the Master Lease; provided, however, that whenever
the terms and conditions of the Master Lease are contradictory to or
inconsistent with the terms and conditions hereof, the terms and conditions
hereof shall be controlling; provided further that (a) nothing herein contained
shall be construed to derogate from the obligations of the Sublandlord and
Subtenant to comply with the provisions of the Master Lease; and (b) those
incorporated provisions of the Master Lease which are protective and for the
benefit of the Landlord shall in this Sublease be deemed to be protective and
for the benefit of both the Landlord and Sublandlord, and those provisions of
the Master Lease which are protective and for the benefit of the Tenant shall be
deemed to be protective and for the benefit of the Tenant and Subtenant.
11. COVENANTS OF THE PARTIES.
11.1 Subtenant covenants and agrees to perform and observe all the
terms, covenants and conditions applicable to the Subleased Premises and
required to be performed by Sublandlord as Lessee under the Master Lease, except
for the obligation to make payments of rent (including additional rent) to
Landlord or as otherwise provided herein. Subtenant further agrees that
Subtenant's performance of all such obligations shall be performed by Subtenant
for the benefit of Sublandlord as well as for the benefit of Landlord, and that
Sublandlord shall have, with respect to Subtenant, this Sublease and the
Subleased Premises, all of the rights and benefits provided to the Landlord by
the Master Lease. Subtenant will exonerate, indemnify and hold harmless
Sublandlord from and against any and all claims, suits, obligations, liabilities
and damages, including without limitation reasonable attorneys' fees and
disbursements, resulting from the inaccuracy of Subtenant's representations
and warranties and the failure by Subtenant to perform, fulfill or observe
Subtenant's covenants and agreements set forth in this Sublease.
11.2 This Sublease and all of the terms, covenants, representations,
warranties, agreements and conditions hereof are in all respects subject and
subordinate to the Master Lease, and Subtenant covenants and agrees with
Sublandlord not to do or permit to be done any act of commission or omission
which would constitute a violation or default under the Master Lease if done or
permitted to be done by Sublandlord.
11.3 Sublandlord shall, upon written request by Subtenant, use
reasonable efforts to obtain from Landlord all permissions and consents needed
by Subtenant to perform any act permitted by this Sublease when such permissions
or consents are required by reason of the incorporation by reference of the
terms, covenants and conditions of the Master Lease. Subtenant shall reimburse
Sublandlord upon demand for the reasonable costs and expenses (including
reasonable attorney fees) incurred by
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<PAGE>
Sublandlord in obtaining or pursuing such permissions and consents provided that
such fees shall be shared by Sublandlord and Subtenant on a proportionate basis
in any instance in which Sublandlord is also seeking any such permission or
consent for its own benefit.
11.4 Provided that Subtenant is not in default hereunder, Subtenant
shall be entitled to the benefit of Landlord's obligations under the Master
Lease to the extent such obligations relate to the Subleased Premises.
Notwithstanding anything contained herein or in the Master Lease to the
contrary, however, but subject to Section 11.5 of this Sublease, Sublandlord
shall not be responsible for the performance of the Landlord's obligations under
the Master Lease, and Sublandlord shall not be liable in damages or otherwise
for any negligence of Landlord or for any damage or injury suffered by Subtenant
as a result of any act or failure to act by Landlord, or any default by Landlord
in the performance of its obligations under the Master Lease, nor shall any such
action, failure to act, or default by Landlord constitute a constructive
eviction or default by Sublandlord hereunder.
11.5 In the event of any breach of Landlord's obligations under the
Master Lease, Sublandlord hereby authorizes Subtenant to deal directly with
Landlord with respect to said breach. In the event that Landlord fails to remedy
such breach after such request from Subtenant, Sublandlord, upon the written
request of Subtenant shall, if necessary, commence and diligently prosecute
proceedings to enforce, in its own name and for the benefit of Subtenant, the
performance of any of Landlord's obligations under the Master Lease which
Landlord wrongfully fails or refuses to perform. Should Subtenant so request
Sublandlord and such enforcement of Landlord's obligations under the Master
Lease shall be for the sole benefit of Subtenant, then Subtenant shall indemnify
Sublandlord and save Sublandlord harmless from and against any and all
liabilities, obligations, claims, damages, fines, penalties, causes of action,
costs and expenses (including without limitation reasonable attorney fees and
disbursements) imposed upon or incurred by or asserted against Sublandlord by
reason of any action or inaction by Sublandlord and/or Subtenant to enforce any
obligations of Landlord under the Master Lease for the benefit of Subtenant.
Should Subtenant so request Sublandlord, and the enforcement of Landlord's
obligations under the Master Lease shall be of mutual benefit to Sublandlord and
Subtenant, then the costs and expenses of any such enforcement proceedings shall
be shared by Sublandlord and Subtenant in proportion to the benefit conferred.
Sublandlord shall promptly provide Subtenant with a copy of any notice by
Sublandlord to Landlord with respect to any matter materially affecting the
Subleased Premises.
11.6 Sublandlord shall not incur any liability whatsoever to Subtenant
for any injury, inconvenience, incidental or consequential damages incurred or
suffered by Subtenant as a result of the exercise by Landlord of any of the
rights reserved to Landlord under the Master Lease, nor shall such exercise
constitute a constructive eviction or a default by Sublandlord hereunder;
provided, however, that Sublandlord shall be liable for damages to Subtenant
arising from Sublandlord's breach of its covenant in Section 11.9 hereof to
perform and observe the terms of the Master Lease, and provided further that if
and so long as a recognition agreement between Landlord and Subtenant reasonably
acceptable to Subtenant is in effect, all damages under this Section 11.6
arising from and after the effective date of such recognition agreement shall be
deemed to have been
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<PAGE>
totally mitigated.
11.7 Sublandlord covenants that, subject to the terms and conditions
of the Master Lease and this Sublease, if and so long as Subtenant keeps and
performs each term and condition herein contained on its part to be kept and
performed, Subtenant shall not be disturbed in the enjoyment of the Subleased
Premises by Sublandlord or by anyone claiming by, through or under Sublandlord.
11.8 Sublandlord covenants and agrees that Sublandlord will not enter
into any amendment, modification or other agreement with respect to the Master
Lease which will prevent or adversely affect the use by Subtenant of the
Subleased Premises in accordance with the terms of this Sublease, or increase
the obligations of Subtenant, except as provided herein, or decrease its rights
under this Sublease, except as provided herein, or in any other way adversely
affect Subtenant, or shorten the term of this Sublease (unless acting in
accordance with the terms hereof), without the prior written consent of
Subtenant.
11.9 Sublandlord covenants and agrees to perform and observe all the
terms, covenants and conditions required to be performed by Sublandlord as
Tenant under the Master Lease, except for those obligations which Subtenant has
agreed to perform under the terms of this Sublease.
12. DEFAULTS BY SUBTENANT.
12.1 In the event that Subtenant shall default in the payment of Fixed
Rent or Additional Rent hereunder, or shall default in the performance or
observance of any of the terms, conditions and covenants of this Sublease,
Sublandlord, in addition to and not in limitation of any rights otherwise
available to it, shall have the same rights and remedies with respect to such
default as are provided to the Landlord under the Master Lease with respect to
defaults by the Tenant thereunder, with the same force and effect as though all
such provisions relating to any such default or defaults were set forth herein
in their entirety, and Subtenant shall perform with respect to the Subleased
Premises all of the obligations of the Tenant under the Master Lease with
respect to such default which are applicable thereto.
12.2 In the event of a default by Subtenant in the performance of any
of its non-monetary obligations hereunder, Sublandlord may, at its option, and
without waiving any other remedies for such default herein or at law or by
incorporation by reference of the Master Lease provided, at any time thereafter,
give written notice to Subtenant that if such default is not cured, or the cure
not commenced, within ten (10) days after receipt of such notice by Subtenant,
and if so commenced is not thereafter pursued diligently to completion,
Sublandlord may cure such default for the account of Subtenant, and any amount
paid or incurred by Sublandlord in so doing shall be deemed paid or incurred for
the account of Subtenant and Subtenant agrees to promptly reimburse Sublandlord
therefor and save Sublandlord harmless therefrom; provided, however, that
Sublandlord may cure any such default as aforesaid prior to the expiration of
any waiting period, upon 48 hours prior notice to Subtenant if reasonably
necessary to protect Sublandlord's interests under the Master Lease, or without
notice if required to prevent injury or damage to persons or property. If
Subtenant shall fail to reimburse Sublandlord upon demand for
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<PAGE>
any amount paid for the account of Subtenant hereunder, said amount shall be
added to, and become due as a part of, the next payment of Fixed Rent due
hereunder.
13. TERMINATION; DAMAGE, DESTRUCTION OR EMINENT DOMAIN.
13.1 This Sublease shall terminate upon any termination of the Master
Lease for any reason (subject, however, to the provisions of Section 11.8
hereof) whatsoever which deprives the Sublandlord, as Tenant under the Master
Lease, of possession of that portion of the Demised Premises which is the
Subleased Premises, without any liability therefor upon the part of Sublandlord
to Subtenant and with the same force and effect as if the date of such
termination had expressly been provided in this Sublease as the date of
termination hereof.
13.2 In the event that the rent due to Landlord from Sublandlord as
Tenant under the Master Lease shall be abated as a result of damage or
destruction to the Subleased Premises or as a result of eminent domain
proceedings affecting the Subleased Premises, the rent due to Sublandlord from
Subtenant hereunder shall be proportionately abated.
13.3 Subtenant shall not be entitled to any part of any damages
awarded to Sublandlord as the result of an eminent domain proceeding; provided,
however, that Subtenant may make a claim against the condemning authority for
the value of Subtenant's trade fixtures or other personalty which Subtenant
shall be entitled to remove upon termination of the Sublease, provided that such
separate award shall not reduce the award payable to Sublandlord.
14. MISCELLANEOUS.
14.1 ADDITIONAL REPRESENTATIONS OF SUBTENANT. Subtenant hereby
represents, warrants and covenants as follows:
(i) Subtenant is a corporation duly organized, validly existing and in
good standing under the laws of Delaware, and is qualified and in good standing
as a foreign corporation in Massachusetts and in any and all other jurisdictions
in which the failure to so qualify would have a material adverse effect on its
business or operations.
(ii) The execution, delivery and performance of this Sublease by
Subtenant has been duly and validly authorized by all necessary corporate action
of Subtenant. Subtenant has all requisite corporate power and authority to enter
into this Sublease.
(iii) The execution, delivery and performance of this Sublease by
Subtenant will not violate (a) any provision of its Articles of Organization or
By-Laws; (b) any law of any jurisdiction by which Subtenant is bound; or (c) any
provision of, or result in a default or acceleration of, or result in the
creation of any lien, charge
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or encumbrance upon any asset of Subtenant pursuant to any agreement,
instrument, order, judgment or decision to which Subtenant is a party or
by which it is bound.
(iv) There is no legal, administrative, arbitration or other action
or proceeding or governmental investigation pending or, to the knowledge
of Subtenant, threatened against Subtenant, or against any officer,
director or employee thereof, which, if adversely determined, might call
into question the validity of this Sublease or which might restrict
transactions contemplated by this Sublease.
14.2 RIGHT OF ENTRY. Sublandlord shall have the right to enter the
Subleased Premises at reasonable times and upon reasonable prior notice (which
need not be in writing), except in cases of emergency, for the purpose of
inspection, maintenance and repair, exhibiting the Subleased Premises to
prospective purchasers, lenders and tenants and for any other reasonable
purpose.
14.3 SUBTENANT ACCESS. At no additional charge to Subtenant,
Sublandlord shall furnish or cause Landlord to furnish to Subtenant for use by
its employees, access cards to the Subleased Premises as described in Section
2.2 of the Master Lease. Subtenant shall provide such access cards only to its
bona fide employees, a list of which shall be provided to Sublandlord on and as
of the Commencement Date. The aforesaid list shall be updated as may be
necessary to keep it current at all times.
14.4 NOTICES. All notices, demands or other communications to be
given, made or sent by either party to the other under this Sublease shall be
deemed to have been fully given, made or sent when made in writing and delivered
by hand, or when mailed, by registered or certified mail, return receipt
requested, postage prepaid, addressed to the party at its address first
hereinabove written, or in the case of Subtenant to the Subleased Premises, or
to such other address or addresses as may from time to time hereafter be
designated by the parties by like notice.
14.5 BINDING EFFECT. This Sublease shall be binding upon, and shall
inure to the benefit of, the parties hereto and their respective personal
representatives, successors and permitted assigns.
14.6 APPLICABLE LAW. This Sublease and the rights and obligations of
the parties hereunder shall be governed by and construed in accordance with the
laws of the Commonwealth of Massachusetts.
14.7 MODIFICATION. Neither this Sublease nor any provision hereof may
be waived, modified, amended, discharged or terminated, except by an instrument
in writing signed by the party against which the enforcement of such waiver,
modification, amendment, discharge or termination is sought, and then only to
the extent set forth in such instrument. Any such waiver, modification,
amendment, discharge or termination of this Sublease is subject to the prior
written approval of Landlord.
14.8 APPROVAL OF LANDLORD. The obligations of the parties hereto are
conditioned upon the written approval of Landlord of this Sublease.
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14.9 SEVERABILITY. If any term or provision of this Sublease or the
application thereof to any person or circumstance shall to any extent be held
invalid or unenforceable, the remainder of this Sublease or the application of
such term or provision to other persons or circumstances shall not be affected
thereby, and each term and provisions of this Sublease shall be valid and
enforceable to the fullest extent permitted by law.
14.10 BROKER. Each of Sublandlord and Subtenant represents and
warrants to the other that it has not dealt with any broker in connection with
the transactions contemplated by this Sublease, other than the Sublandlord's
broker, Lynch, Murphy, Walsh & Partners Incorporated (the "Broker"). Each party
agrees to indemnify and hold the other harmless from and against any and all
claims, demands, causes of action, losses, damages, liabilities, costs and
expenses (including, without limitation, reasonable attorney fees and
disbursements) asserted against or incurred by the other by reason of, or
arising out of, any claim for a commission or other fee by any person or firm
claiming to have dealt with the indemnifying party in connection with the
transactions contemplated by this Sublease or the negotiation hereof, it being
agreed that Sublandlord shall be solely for commissions due and payable to the
Broker with respect to such transactions.
IN WITNESS WHEREOF, the parties hereto have caused this Sublease to be
duly executed under seal as of the date first hereinabove written.
XENERGY INC.
By: /s/ John R. Graham
------------------------
, its Treasurer
ETILITY.COM, INC.
By: /s/ Akhil Garland
---------------------------
, its President
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EXHIBIT A
SUBLEASED PREMISES
SEE ATTACHED FLOOR PLAN
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EXHIBIT B
TENANT IMPROVEMENTS
Removal of approximately 4-5 simple drywalls
Carpet "patching"
"Almost to the ceiling" removal (one wall near
kitchenette and one near reception area)
ALL AS INDICATED ON THE ATTACHED FLOOR PLAN
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EXHIBIT C
LEASED FURNITURE
All Metal Desks
1-two right drawers
2-three right drawers
3-three left drawers
6-three drawers, L shaped, similar to desks in office
1-three left drawers, three right drawers with broken middle drawer
2-three left drawers, three right drawers with middle drawer
Wooden Topped Desks
1-middle drawer only
1-two right drawers, two left drawers
3-two right drawers, three left drawers
1-two left drawers, three right drawers
7-three left drawers, two right drawers with middle drawer
4-two left drawers, three right drawers with middle drawer
1-three right drawers, three left drawers with middle drawer
1-two left drawers, one right drawer with wooden drawers and.top
Wooden Desks
1-three left drawers, three right drawers
1-two right drawers, two left drawers with shelving above head
1-two right drawers with left arm, left arm contains drawers and
shelves
1-two left drawers, two right drawers
1-three left drawers, two right drawers
Cubical Desks
2
Wooden Tables
2-small
2-round
Conference Tables
1
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Folding Tables
14
Plant Stand
1-glass
Book Shelves
11-metal
1-tall wood
1-medium wood
File Cabinets
10 vertical four drawer
5-vertical two drawer
6-horizontal two drawer
2-horizontal four drawer
Cabinet
1-three drawer
Swivel Chairs
22-grey, high back with cloth arms
1-blue, medium back
1-grey, low back with cloth arms
2-grey, medium back with black arms
3-red, high back without arms
1-grey, high back with black arms
1-grey, medium, wide back with cloth arms
1-light blue, medium back without arms
4-green, medium back with black arms
1-dark green, medium back with black arms
Cloth Side Chairs
24-black and purple, low back with black arms
8-red, low, wide back with cloth arms
Plastic Side Chairs
14
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SUBORDINATED LOAN AND SECURITY AGREEMENT
THIS AGREEMENT (the "AGREEMENT"), dated as of September 24, 1999, is
entered into by and between essential.com, inc., a Delaware corporation, with
its chief executive office, and principal place of business located at 3
Burlington Woods Drive, 4th Floor, Burlington, MA 01803 (the "BORROWER") and
COMDISCO, INC., a Delaware corporation, with its principal place of business
located at 6111 North River Road, Rosemont, Illinois 60018 (the "LENDER" or
sometimes, "COMDISCO"). In consideration of the mutual agreements contained
herein, the parties hereto agree as follows:
RECITALS
WHEREAS, Borrower has requested Lender to make available to Borrower a
loan in the aggregate principal amount of FOUR MILLION and 00/100 DOLLARS
($4,000,000.00) in minimum installments of TWO HUNDRED FIFTY THOUSAND DOLLARS
($250,000.00) each (as the same may from time to time be amended, modified,
supplemented or revised, the "LOAN"), which would be evidenced by Subordinated
Promissory Note(s) executed by Borrower substantially in the form of EXHIBIT A
hereto (as the same may from time to time be amended, modified, supplemented or
restated the "Note(s)") as set forth in Section 2 herein.
WHEREAS, Lender is willing to make the Loan on the terms and conditions
set forth in this Agreement, and
WHEREAS, Lender and Borrower agree any Loan hereunder shall be
subordinate to Senior Debt (as defined herein) to the extent set forth in the
Subordination Agreement (as defined herein).
AGREEMENT
NOW, THEREFORE, in consideration of the premises and the mutual
agreements contained herein, Borrower and Lender hereby agree as follows:
SECTION 1. DEFINITIONS
Unless otherwise defined herein, the following capitalized terms shall
have the following meanings (such meanings being equally applicable to both the
singular and plural form of the terms defined);
1.1 "ACCOUNT" means any "account," as such term is defined in Section
9106 of the UCC, now owned or hereafter acquired by Borrower or in which
Borrower now holds or hereafter acquires any interest and, in any event, shall
include, without limitation, all accounts receivable, book debts and other forms
of obligations (other than forms of obligations evidenced by Chattel Paper,
Documents or Instruments) now owned or hereafter received or acquired by or
belonging or owing to Borrower (including, without limitation, under any trade
name, style or division thereof) whether arising out of goods sold or services
rendered by Borrower or from any other transaction, whether or not the same
involves the sale of goods or services by Borrower (including, without
limitation, any such obligation which may be characterized as an account or
contract right under the UCC) and all of Borrower's rights in, to and under all
purchase orders or receipts now owned or hereafter acquired by it for goods or
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services, and all of Borrower's rights to any goods represented by any of the
foregoing (including, without limitation, unpaid seller's rights of rescission,
replevin, reclamation and stoppage in transit and rights to returned, reclaimed
or repossessed goods), and all monies due or to become due to Borrower under all
purchase orders and contracts for the sale of goods or the performance of
services or both by Borrower (whether or not yet earned by performance on the
part of Borrower or in connection with any other transaction), now in existence
or hereafter occurring, including, without limitation, the right to receive the
proceeds of said purchase orders and contracts, and all collateral security and
guarantees of any kind given by any Person with respect to any of the foregoing.
1.2 "ACCOUNT DEBTOR" means any "account debtor," as such term is
defined in Section 9105(1)(a) of the UCC.
1.3 "ADVANCE" means each installment made by the Lender to Borrower
pursuant to the Loan to be evidenced by the Note(s) secured by the Collateral.
1.4 "ADVANCE DATE" means the funding date of any Advance of the Loan.
1.5. "ADVANCE REQUEST" means the request by Borrower for an Advance
under the Loan, each to be substantially in the form of EXHIBIT C attached
hereto, as submitted by Borrower to Lender from time to time.
1.6 "CHATTEL PAPER" means any "chattel paper," as such term is defined
in Section 9105(1)(b) of the UCC, now owned or hereafter acquired by Borrower or
in which Borrower now holds or hereafter acquires any interest.
1.7 "CLOSING DATE" means the date hereof.
1.8 "COLLATERAL" shall have the meaning assigned to such term in
Section 3 of this Agreement.
1.9 "CONTRACTS" means all contracts, undertakings, franchise agreements
or other agreements (other than rights evidenced by Chattel Paper, Documents or
Instruments) in or under which Borrower may now or hereafter have any right,
title or interest, including, without limitation, with respect to an Account,
any agreement relating to the terms of payment or the terms of performance
thereof.
1.10 "COPYRIGHTS" means all of the following now owned or hereafter
acquired by Borrower or in which Borrower now holds or hereafter acquires any
interest: (i) all copyrights, whether registered or unregistered, held pursuant
to the laws of the United States, any State thereof or of any other country;
(ii) registrations, applications and recordings in the United States Copyright
Office or in any similar office or agency of the United States, any state
thereof or any other country; (iii) any continuations, renewals or extensions
thereof, and (iv) any registrations to be issued in any pending applications.
1.11 "COPYRIGHT LICENSE" means any written agreement granting any right
to use any Copyright or Copyright registration now owned or hereafter acquired
by Borrower or in which Borrower now holds or hereafter acquires any interest.
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1.12 "DOCUMENTS" means any "documents," as such term is defined in
Section 9105(1)(f) of the UCC, now owned or hereafter acquired by Borrower or in
which Borrower now holds or hereafter acquires any interest.
1.13 "EQUIPMENT" means any "equipment," as such term is defined in
Section 9109(2) of the UCC, now or hereafter owned or acquired by Borrower or in
which Borrower now holds or hereafter acquires any interest and any and all
additions, substitutions and replacements of any of the foregoing, wherever
located, together with all attachments, components, parts, equipment and
accessories installed thereon or affixed thereto.
1.14 "EXCLUDED AGREEMENTS" means (i) any Warrant Agreement(s) executed
hereunder, and any other warrants (including without limitation, the warrant
agreement dated as of September 24, 1999) to acquire, or agreements governing
the rights of the holders of, any equity security of Borrower, (ii) any stock of
the Borrower issued or purchased pursuant to the Warrant Agreement, and (iii)
the Master Lease Agreement dated as of September 24, 1999 between Borrower, as
lessee, and Lender, as lessor, including, without limitation, any Equipment
Schedules and Summary Equipment Schedules to the Master Lease Agreement executed
or delivered by Borrower pursuant thereto and any other modifications or
amendments thereof, whereby Borrower (as lessee) leases equipment, software, or
goods from Lender (as lessor) to Borrower (as lessee).
1.15 "FACILITY FEE" means one percent (1.0%) of the principal amount
of the Loan due at the Closing Date, plus a transaction, due diligence fee in
the amount of $5,000.00.
1.16 "FIXTURES" means any "fixtures," as such term is defined in
Section 9313(1)(a) of the UCC, now or hereafter owned or acquired by Borrower or
in which Borrower now holds or hereafter acquires any interest and, now or
hereafter attached or affixed to or constituting a part of, or located in or
upon, real property wherever located, together with all right, title and
interest of Borrower in and to all extensions, improvements, betterments,
renewals, substitutes, and replacements of, and all additions and appurtenances
to any of the foregoing property, and all conversions of the security
constituted thereby, immediately upon any acquisition or release thereof or any
such conversion, as the case may be.
1.17 "GENERAL INTANGIBLES" means any "general intangibles," as such
term is defined in Section 9106 of the UCC, now owned or hereafter acquired by
Borrower or in which Borrower now holds or hereafter acquires any interest and,
in any event, shall include, without limitation, all right, title and interest
which Borrower may now or hereafter have in or under any contract, all customer
lists, Copyrights, Trademarks, Patents, rights to Intellectual Property,
interests in partnerships, joint ventures and other business associations,
Licenses, permits, trade secrets, proprietary or confidential information,
inventions (whether or not patented or patentable), technical information,
procedures, designs, knowledge, know-how, software, data bases, data, skill,
expertise, recipes, experience, processes, models, drawings, materials and
records, goodwill (including, without limitation, the goodwill associated with
any Trademark, Trademark registration or Trademark licensed under any Trademark
License), claims in or under insurance policies, including unearned premiums,
uncertificated securities, cash and other forms of money or currency, deposit
accounts (including as defined in Section 9105(e) of the UCC), rights to sue for
past, present and future infringement of Copyrights, Trademarks and patents,
rights to receive tax refunds and other payments and rights of indemnification.
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1.18 "INSTRUMENTS" means any "instrument," as such term is defined in
Section 9105(l)(i) of the UCC, now owned or hereafter acquired by Borrower or in
which Borrower now holds or hereafter acquires any interest.
1.19 "INTELLECTUAL PROPERTY" means all Copyrights, Trademarks,
Patents, trade secrets, source codes, customer lists, proprietary or
confidential information, inventions (whether or not patented or patentable),
technical information, procedures, designs, knowledge, know-how, software, data
bases, skill, expertise, experience, processes, models, drawings, materials and
records.
1.20 "INVENTORY" means any "inventory," as such term is defined in
Section 9109(4) of the UCC, wherever located, now or hereafter owned or acquired
by Borrower or in which Borrower now holds or hereafter acquires any interest,
and, in any event, shall include, without limitation, all inventory, goods and
other personal property which are held by or on behalf of Borrower for sale or
lease or are furnished or are to be furnished under a contract of service or
which constitute raw materials, work in process or materials used or consumed or
to be used or consumed in Borrower's business, or the processing, packaging,
promotion, delivery or shipping of the same, and all furnished goods whether or
not such inventory is listed on any schedules, assignments or reports furnished
to Lender from time to time and whether or not the same is in transit or in the
constructive, actual or exclusive occupancy or possession of Borrower or is held
by Borrower or by others for Borrower's account, including, without limitation,
all goods covered by purchase orders and contracts with suppliers and all goods
billed and held by suppliers and all inventory which may be located on premises
of Borrower or of any carriers, forwarding agents, truckers, warehousemen,
vendors, selling agents or other persons.
1.21 "LICENSE" means any Copyright License, Patent License, Trademark
License or other license of rights or interests now held or hereafter acquired
by Borrower or in which Borrower now holds or hereafter acquires any interest
and any renewals or extensions thereof.
1.22 "LIEN" means any mortgage, deed of trust, pledge, hypothecation,
assignment for security, security interest, encumbrance, levy, lien or charge of
any kind, whether voluntarily incurred or arising by operation of law or
otherwise, against any property, any conditional sale or other title retention
agreement, any lease in the nature of a security interest, and the filing of any
financing statement (other than a precautionary financing statement with respect
to a lease that is not in the nature of a security interest) under the UCC or
comparable law of any jurisdiction.
1.23 "LOAN DOCUMENTS" shall mean and include this Agreement, the
Note(s), and any other documents executed in connection with the Secured
Obligations or the transactions contemplated hereby, as the same may from time
to time be amended, modified, supplemented or restated, PROVIDED, that the Loan
Documents shall NOT include any of the Excluded Agreements.
1.24 "MATERIAL ADVERSE EFFECT" means a material adverse effect upon:
(i) the business, operations, properties, assets or conditions (financial or
otherwise) of Borrower; or (ii) the ability of Borrower to perform, or of Lender
to enforce, the Secured Obligations.
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1.25 "MATURITY DATE" means the date thirty-six (36) months from the
Advance Date of each installment of the Loan.
1.26 "PATENT LICENSE" means any written agreement granting any right
with respect to any invention on which a Patent is in existence now owned or
hereafter acquired by Borrower or in which Borrower now holds or hereafter
acquires any interest.
1.27 "PATENTS" means all of the following now owned or hereafter
acquired by Borrower or in which Borrower now holds or hereafter acquires any
interest: (a) letters patent of, or rights corresponding thereto in, the United
States or any other county, all registrations and recordings thereof, and all
applications for letters patent of, or rights corresponding thereto in the
United States or any other country, including, without limitation,
registrations, recordings and applications in the United States Patent and
Trademark Office or in any similar office or agency of the United States, any
State thereof or any other country; (b) all reissues, continuations,
continuations-in-part or extensions thereof; (c) all petty patents, divisionals,
and patents of addition; and (d) all patents to issue in any such applications.
1.28 "PERMITTED LIENS" means any and all of the following: (i) liens in
favor of Lender, (ii) liens related to, or arising in connection with, Senior
Debt, (iii) liens related to or arising in connection with Worldcom Network
Services, Inc. and AT&T Corp., (iv) purchase money liens (a) on Equipment
acquired or held by Borrower incurred for financing the acquisition of the
Equipment, (b) existing on Equipment when acquired, if the lien is confined to
the property and improvements and the proceeds of the Equipment, (v) Licenses
granted in the ordinary course of Borrowers business, and (vi) liens incurred in
connection with the extension, renewal or refinancing of the indebtedness
secured by liens of the type described in clauses (ii), (iii) and (iv) above,
provided, that any extension, renewal or replacement lien shall be limited to
the property encumbered by the existing lien and the principal amount of the
indebtedness being extended, renewed or refinanced does not increase.
1.29 "PROCEEDS" means "proceeds," as such term is defined in Section
9306(l) of the UCC and, in any event, shall include, without limitation, (a) any
and all Accounts, Chattel Paper, Instruments, cash or other forms of money or
currency or other proceeds payable to Borrower from time to time in respect of
the Collateral, (b) any and all proceeds of any insurance, indemnity, warranty
or guaranty payable to Borrower from time to time with respect to any of the
Collateral, (c) any and all payments (in any form whatsoever) made or due and
payable to Borrower from time to time in connection with any requisition,
confiscation, condemnation, seizure or forfeiture of all or any part of the
Collateral by any governmental authority (or any Person acting under color of
governmental authority), (d) any claim of Borrower against third parties (i) for
past, present or future infringement of any Copyright, Patent or Patent License
or (ii) for past, present or future infringement or dilution of any Trademark or
Trademark License or for injury to the goodwill associated with any Trademark,
Trademark registration or Trademark licensed under any Trademark License and (e)
any and all other amounts from time to time paid or payable under or in
connection with any of the Collateral.
1.30 "RECEIVABLES" shall mean and include all of the Borrowers
accounts, instruments, documents, chattel paper and general intangibles whether
secured or unsecured, whether now existing or hereafter created or arising, and
whether or not specifically sold or assigned to Lender hereunder.
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1.31 "SECURED OBLIGATIONS" shall mean and include all principal,
interest, fees, costs, or other liabilities or obligations for monetary amounts
owed by Borrower to Lender, whether due or to become due, matured or unmatured,
liquidated or unliquidated, contingent or non-contingent, and all covenants and
duties regarding such amounts, of any kind of nature, present or future, arising
under this Agreement, the Note(s), or any of the other Loan Documents, whether
or not evidenced by any Note(s), Agreement or other instrument, as the same may
from time to time be amended, modified, supplemented or restated, provided, that
the Secured Obligations shall not include any indebtedness or obligations of
Borrower arising under or in connection with the Excluded Agreements.
1.32 "SENIOR CREDITOR" means a bank, insurance company, pension fund,
or other accredited lender to be determined, or a syndication of such
institutional lenders that provides Senior Debt financing to Borrower; PROVIDED,
that Senior Creditor shall not include any officer, director, shareholder,
venture capital investor, or insider of Borrower, or any affiliate of the
foregoing persons, except upon the express written consent of Lender.
1.33 "SENIOR DEBT" means any and all indebtedness and obligations for
borrowed money at any time owing by Borrower to Senior Creditor under the Senior
Loan Documents, including, but not limited to such amounts as may accrue or be
incurred before or after default or workout or the commencement of any
liquidation, dissolution, bankruptcy, receivership or reorganization by or
against Borrower provided, that Senior Debt shall not include debt exceeding
Four Million Dollars ($4,000,000) outstanding at any one time, until the
successful close by the Borrower of its initial public offering, at which time
the Senior Debt ceiling shall be waived by Lender.
1.34 "SENIOR LOAN DOCUMENTS" means the loan agreement between Borrower
and Senior Creditor and any other agreement, security agreement, document,
promissory note, UCC financing statement, or instrument executed by Borrower in
favor of Senior Creditor pursuant to or in connection with the Senior Debt or
the loan agreement, as the same may from time to time be amended, modified,
supplemented, extended, renewed, restated or replaced.
1.35 "SUBORDINATION AGREEMENT" means the Subordination Agreement of
even date herewith, entered into between Borrower and Lender for the benefit of
Senior Creditor.
1.36 "TRADEMARK LICENSE" means any written agreement granting any
right to use any Trademark or Trademark registration now owned or hereafter
acquired by Borrower or in which Borrower now holds or hereafter acquires any
interest.
1.37 "TRADEMARKS" means any of the following now owned or hereafter
acquired by Borrower or in which Borrower now holds or hereafter acquires any
interest: (a) any and all trademarks, tradenames, corporate names, business
names, trade styles, service marks, logos, other source or business identifiers,
prints and labels on which any of the foregoing have appeared or appear, designs
and general intangibles of like nature, now existing or hereafter adopted or
acquired, all registrations and recordings thereof, and any applications in
connection therewith, including, without limitation, registrations, recordings
and applications in the United States Patent and Trademark Office or in any
similar office or agency of the United States, any State thereof or
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any other country or any political subdivision thereof and (b) any reissues,
extensions or renewals thereof.
1.38 "UCC" shall mean the Uniform Commercial Code as the same may, from
time to time, be in effect in the State of Illinois. Unless otherwise defined
herein, terms that are defined in the UCC and used herein shall have the
meanings given to them in the UCC.
1.39 "WARRANT AGREEMENT(S)" shall mean those agreements entered into in
connection with the Loan, substantially in the form attached hereto as Exhibit
I pursuant to which Borrower granted Lender the right to purchase that number of
shares of Series B Preferred Stock of Borrower as more particularly set forth
therein.
SECTION 2. THE LOAN
2.1 The outstanding principal amount of the Loan, together with
interest thereon precomputed at the rate of ten (10%) percent per annum, shall
be due and payable in six (6) equal monthly installments of interest only,
payable on the first day of each month, followed by thirty (30) equal monthly
installments of principal and interest, payable on the first day of each month ,
to and including the Maturity Date (each, a "PAYMENT DATE"); provided, however,
that such calculation shall be made such that in no event is interest thereon
prepaid by Borrower. If any payment under the Note(s) shall be payable on a day
other than a business day, then such payment shall be due and payable on the
next succeeding business day.
2.2 Borrower shall have the option to prepay the Loan, in whole or in
part, at any time after the Closing Date by paying the principal amount thereon
together with all accrued and unpaid interest with respect to such principal
amount, as of the date of such prepayment, without premium.
2.3 (a) Notwithstanding any provision in this Agreement, the Note(s),
or any other Loan Document, it is not the parties' intent to contract for,
charge or receive interest at a rate that is greater than the maximum rate
permissible by law which a court of competent jurisdiction shall deem applicable
hereto (which under the laws of the State of Illinois shall be deemed to be the
laws relating to permissible rates of interest on commercial loans) (the
"MAXIMUM RATE"). If the Borrower actually pays Lender an amount of interest,
chargeable on the total aggregate principal Secured Obligations of Borrower
under this Agreement and the Note(s) (as said rate is calculated over a period
of time from the date of this Agreement through the end of time that any
principal is outstanding on the Note(s)), which amount of interest exceeds
interest calculated at the Maximum Rate on said principal chargeable over said
period of time, then such excess interest actually paid by Borrower shall be
applied first, to the payment of principal outstanding on the Note(s); second,
after all principal is repaid, to the payment of Lender's out of pocket costs,
expenses, and professional fees which are owed by Borrower to Lender under this
Agreement or the Loan Documents; and third, after all principal, costs,
expenses, and professional fees owed by Borrower to Lender are repaid, the
excess (if any) shall be refunded to Borrower, and the effective rate of
interest will be automatically reduced to the Maximum Rate.
(b) Upon and during the continuation of an Event of Default
hereunder, all Secured Obligations, including principal, interest, compounded
interest, and professional fees,
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shall bear interest at a rate per annum equal to the rate set forth in Section
2.1. plus five percent (5%) per annum ("DEFAULT RATE").
2.4 If the Borrower has not repaid the outstanding principal amount
under the Loan in its entirety by the Maturity Date (as defined in the
applicable Note(s)), then for each additional month, or portion thereof,
thereafter that the outstanding principal is not paid, Lender shall have the
right to purchase from the Borrower, at the Exercise Price (adjusted, as set
forth and defined in the Warrant Agreement), an additional number of shares of
Preferred Stock which number shall be determined by (i) multiplying the
outstanding principal amount which is due but unpaid by 3% and (ii) dividing the
product thereof by the Exercise Price.
SECTION 3. SECURITY INTEREST
As security for the prompt, complete and indefeasible payment when due
(whether at stated payment dates or otherwise) of all the Secured Obligations
and in order to induce Lender to make the Loan upon the terms and subject to the
conditions of the Note(s), Borrower hereby assigns, conveys, mortgages, pledges,
hypothecates and transfers to Lender for security purposes only, and hereby
grants to Lender a security interest in, all of Borrower's right, title and
interest in, to and under each of the following (all of which being hereinafter
collectively called the "COLLATERAL"):
(a) All Receivables;
(b) All Equipment;
(c) All Fixtures;
(d) All General Intangibles;
(e) All Inventory;
(f) All other goods and personal property of Borrower whether
tangible or intangible and whether now or hereafter owned or
existing, leased, consigned by or to, or acquired by, Borrower
and wherever located; and
(g) To the extent not otherwise included, all Proceeds of each of
the foregoing and all accessions to, substitutions and
replacements for, and rents, profits and products of each of
the foregoing.
SECTION 4. REPRESENTATIONS AND WARRANTIES OF BORROWER
The Borrower represents, warrants and agrees that;
4.1 Borrower owns all right title and interest in and to the
Collateral, free of all liens, security interests, encumbrances and claims
whatsoever, except for Permitted Liens.
4.2 Borrower has the full power and authority to, and does hereby grant
and convey to the Lender, a perfected security interest in the Collateral as
security for the Secured Obligations, free of all liens, security interests,
encumbrances and claims, other than Permitted
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Liens and shall execute such Uniform Commercial Code financing statements in
connection herewith as the Lender may reasonably request. Except as set forth
herein, no other lien, security interest, adverse claim or encumbrance has been
created by Borrower or is known by Borrower to exist with respect to any
Collateral.
4.3 Borrower is a corporation duly organized, legally existing and in
good standing under the laws of the State of Delaware, and is duly qualified as
a foreign corporation in all jurisdictions in which the nature of its business
or location of its properties require such qualifications and where the failure
to be qualified would have a Material Adverse Effect.
4.4 Borrower's execution, delivery and performance of the Note(s), this
Agreement, all financing statements, all other Loan Documents required to be
delivered or executed in connection herewith, and the Warrant Agreement(s) have
been duly authorized by all necessary corporate action of Borrower, the
individual or individuals executing the Loan Documents and the Warrant
Agreement(s) were duly authorized to do so; and the Loan Documents and the
Warrant Agreement(s) constitute legal, valid and binding obligations of the
Borrower, enforceable in accordance with their respective terms, subject to
applicable bankruptcy, insolvency, reorganization or other similar laws
generally affecting the enforcement of the rights of creditors.
4.5 With the exception of utility and telecommunication laws, with
which the Borrower is not seeking compliance, which will not have a Material
Adverse Effect on the Company, this Agreement, the other Loan Documents and the
Warrant Agreement(s) do not and will not violate any provisions of Borrower's
Certificate of Incorporation, bylaws or any contract, agreement, law,
regulation, order, injunction, judgment, decree or writ to which the Borrower is
subject, or result in the creation or imposition of any lien, security interest
or other encumbrance upon the Collateral, other than those created by this
Agreement.
4.6 With the exception of utility and telecommunication laws with which
the Borrower is not seeking compliance, which will not have a Material Adverse
Effect on the Company, the execution, delivery and performance of this
Agreement, the other Loan Documents and the Warrant Agreement(s) do not require
the consent or approval of any other person or entity including, without
limitation, any regulatory authority or governmental body of the United States
or any state thereof or any political subdivision of the United States or any
state thereof.
4.7 No event which has had or could reasonably be expected to have a
Material Adverse Effect has occurred and is continuing.
4.8 No fact or condition exists that would (or would, with the passage
of time, the giving of notice, or both) constitute a default under the Loan
Agreement between Borrower and Senior Creditor.
4.9 With the exception of the 1997 state tax return for the State of
Connecticut and all 1998 state and federal tax returns, Borrower has filed and
will file all tax returns, federal, state and local, which it is required to
file and has duly paid or fully reserved for all taxes or installments thereof
(including any interest or penalties) as and when due, which have or may become
due pursuant to such returns or pursuant to any assessment received by Borrower
for the three (3) years preceding the Closing Date, if any (including any taxes
being contested in good faith and by appropriate proceedings).
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SECTION 5. INSURANCE
5.1 So long as there are any Secured Obligations outstanding,
Borrower shall cause to be carried and maintained commercial general
liability insurance against risks customarily insured against in Borrower's
line of business. Such risks shall include, without limitation, the risks of
death, bodily injury and property damage. So long as there are any Secured
Obligations outstanding, Borrower shall also cause to be carried and
maintained insurance upon the Collateral and Borrower's business, covering
casualty, hazard and such other property risks in amounts equal to the full
replacement cost of the Collateral. Borrower shall deliver to Lender lender's
loss payable endorsements (Form BFU 438 or equivalent) naming Lender as loss
payee and additional insured. Borrower shall use commercially reasonable
efforts to cause all policies evidencing such insurance to provide for at
least thirty (30) days prior written notice by the underwriter or insurance
company to Lender in the event of cancellation or expiration. Such policies
shall be issued by such insurers and in such amounts as are reasonably
acceptable to Lender.
5.2 Borrower shall and does hereby indemnify and hold Lender, its
agents and shareholders harmless from and against any and all claims, costs,
expenses, damages and liabilities (including, without limitation, such claims,
costs, expenses, damages and liabilities based on liability in tort, including
without limitation, strict liability in tort), including reasonable attorneys'
fees, arising out of the disposition or utilization of the Collateral, other
than claims arising at or caused by Lender's gross negligence or willful
misconduct.
SECTION 6. COVENANTS OF BORROWER
Borrower covenants and agrees as follows at all times while any of the
Secured Obligations remain outstanding:
6.1 Borrower shall furnish to Lender the financial statements listed
hereinafter, each prepared in accordance with generally accepted accounting
principles consistently applied (the "FINANCIAL STATEMENTS"):
(a) as soon as practicable (and in any event within thirty
(30) days) after the end of each month, unaudited interim financial
statements as of the end of such month (prepared on a consolidated and
consolidating basis, if applicable), including balance sheet and
related statements of income and cash flows accompanied by a report
detailing any material contingencies (including the commencement of any
material litigation by or against Borrower) or any other occurrence
that could reasonably be expected to have a Material Adverse Effect,
all certified by Borrower's Chief Executive Officer or Chief Financial
Officer to be true and correct;
(b) as soon as practicable (and in any event within ninety
(90) days) after the end of each fiscal year, audited financial
statements as of the end of such year (prepared on a consolidated and
consolidating basis, if applicable), including balance sheet and
related statements of income and cash flows, and setting forth in
comparative form the corresponding figures for the preceding fiscal
year, certified by a firm of independent certified public accountants
selected by borrower and reasonably
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acceptable to Lender, provided that Lender shall agree to the
engagement of any of the Big 5 firms selected by the Borrower,
accompanied by any management report from such accountants;
(c) promptly after the sending or filing thereof, as the case
may be, copies of any proxy statements, financial statements or reports
which Borrower has made available to its shareholders and copies of any
regular, periodic and special reports or registration statements which
Borrower files with the Securities and Exchange Commission or any
governmental authority which may be substituted therefor, or any
national securities exchange; and
(d) promptly, any additional information, financial or
otherwise (including, but not limited, to tax returns and names of
principal creditors) as Lender reasonably believes necessary to
evaluate Borrower's continuing ability to meet its financial
obligations.
6.2 Borrower shall permit any authorized representative of Lender and
its attorneys and accountants on reasonable prior notice to inspect, examine and
make copies and abstracts of the books of account and records of Borrower at
reasonable times during normal business hours. In addition, such representative
of Lender and its attorneys and accountants shall have the right to meet with
management and officers, of the Company for a reasonable period of time and on
reasonable prior notice to discuss such books of account and records.
6.3 Borrower will from time to time execute, deliver and file, alone or
with Lender, any financing statements, security agreements or other documents;
procure any instruments or documents as may be reasonably requested by Lender;
and take all further action that may be necessary or desirable, or that Lender
may reasonably request, to confirm, perfect, preserve and protect the security
interests intended to be granted hereby, and in addition, and for such purposes
only, Borrower hereby authorizes Lender to execute and deliver on behalf of
Borrower and to file such financing statements, security agreement and other
documents without the signature of Borrower either in Lender's name or in the
name of Borrower as agent and attorney-in-fact for Borrower. The parties agree
that a carbon, photographic or other reproduction of this Agreement shall be
sufficient as a financing statement and may be filed in any appropriate office
in lieu thereof.
6.4 With the exception of the Permitted Liens, Borrower shall protect
and defend Borrower's title as well as the interest of the Lender against all
persons claiming any interest adverse to Borrower or Lender and shall at all
times keep the Collateral free and clear from any legal process, liens or
encumbrances whatsoever (except any placed thereon by Lender) and shall give
Lender immediate written notice thereof.
6.5 Without Lender's prior written consent, Borrower shall not (a)
grant any material extension of the time of payment of any of the Receivables,
(b) to any material extent, compromise, compound or settle the same for less
than the full amount thereof, (c) release, wholly or partly, any Person liable
for the payment thereof, or allow any credit or discount whatsoever thereon, in
each case other than granted in the ordinary course of business of Borrower and
consistent with past practice.
6.6 Borrower shall maintain and protect its properties, assets and
facilities, including without limitation, its Equipment and Fixtures, in good
order and working repair and condition
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(taking into consideration ordinary wear and tear) and from time to time make or
cause to be made all necessary and proper repairs, renewals and replacements
thereto and shall competently manage and care for its property in accordance
with prudent industry practices.
6.7 Borrower shall not merge with and into any other entity; or sell or
convey all or substantially all of its assets or stock to any other person or
entity without notifying Lender a minimum of thirty (30) days prior to the
closing date and requesting Lender's consent to the assignment of all of
Borrower's Secured Obligations hereunder to the successor entity in form and
substance satisfactory to Lender. In the event Lender does not consent to such
assignment the parties agree Borrower shall prepay the Loan in accordance with
Section 2.2 hereof.
6.8 Borrower shall not, without the prior written consent of Lender,
such consent not to be unreasonably withheld, declare or pay any cash dividend
or make a distribution on any class of stock, other than pursuant to employee
repurchase plans upon an employee's death or termination of employment or
transfer, sell, lease, lend or in any other manner convey any equitable,
beneficial or legal interest in any material portion of the assets of Borrower
(except inventory sold in the normal course of business).
6.9 Upon the request of Lender, Borrower shall, during business hours,
make the Inventory and Equipment available to Lender for inspection at the place
where it is normally located and shall make Borrower's log and maintenance
records pertaining to the Inventory and Equipment available to Lender for
inspection. Borrower shall take all action necessary to maintain such logs and
maintenance records in a correct and complete fashion.
6.10 Borrower covenants and agrees to pay when due, all taxes, fees or
other charges of any nature whatsoever (together with any related interest or
penalties) now or hereafter imposed or assessed against Borrower, Lender or the
Collateral or upon Borrower's ownership, possession, use, operation or
disposition thereof or upon Borrower's rents, receipts or earnings arising
therefrom. Borrower shall file on or before the due date therefor all personal
property tax returns in respect of the Collateral. Notwithstanding the
foregoing, Borrower may contest, in good faith and by appropriate proceedings,
taxes for which Borrower maintains adequate reserves therefor.
6.11 Borrower shall not relocate any item of the Collateral (other than
sale of inventory in the ordinary course of business) except: (i) with the prior
written consent of the Lender not to be unreasonably withheld; and (ii) if such
relocation shall be within the continental United States. If permitted to
relocate Collateral pursuant to the foregoing sentence, unless otherwise agreed
in writing by Lender, Borrower shall first (a) cause to be filed and/or
delivered to the Lender all Uniform Commercial Code financing statements,
certificates or other documents or instruments necessary to continue in effect
the perfected security interest of the Lender in the Collateral, and (b) have
given the Lender no less than thirty (30) days prior written notice of such
relocation.
6.12 Borrower shall grant Lender the firm right to invest up to Five
Hundred Thousand Dollars ($500,000.00), at Lender's sole option, in Borrower's
Series B Preferred Stock Financing, under the same terms, conditions and pricing
as the other investors in the round within sixty (60) days of July 30, 1999,
unless otherwise waived by Borrower.
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SECTION 7. CONDITIONS PRECEDENT TO LOAN
The obligation of Lender to fund the Loan on each Advance Date shall be
subject to Lender's discretion and satisfactory completion of its due diligence
and approval process, and satisfaction by Borrower or waiver by Lender, in
Lender's sole discretion, of the following conditions:
7.1 (a) The Advance Date for any installment shall occur on or before
September 24, 2000.
(b) Borrower shall have entered into a Master Lease Agreement and
associated equipment schedules with Lender providing for an aggregate equipment
financing facility of One Million Dollars ($1,000,000), provided that Borrower
shall be under no obligation to utilize such Master Lease Agreement once
established.
7.2 Document Delivery. Borrower, on or prior to the Closing Date, shall
have delivered to Lender the following:
(a) executed originals of the Agreement, the Warrant
Agreement, and any documents reasonably required by Lender to
effectuate the liens of Lender, with respect to all Collateral;
(b) certified copy of resolutions of Borrower's board of
directors evidencing approval of the borrowing and other transactions
evidenced by the Loan Documents and the Warrant Agreement(s);
(c) certified copies of the Certificate of Incorporation and
the Bylaws, as amended through the Closing Date, of Borrower;
(d) certificate of good standing for Borrower from its state
of incorporation and similar certificates from all other jurisdictions
in which it does business and where the failure to be qualified would
have a Material Adverse Effect;
(e) payment of the Facility Fee;
(f) such other documents as Lender may reasonably request.
7.3 ADVANCE REQUEST. Borrower shall:
(a) deliver to Lender, at least five (5) business day prior to
the Advance Date, written notice in the form of an Advance Request, or as
otherwise specified by Lender from time to time, specifying the date and amount
of such Advance.
(b) deliver executed original Note(s) as set forth in Section
2, as applicable.
(c) such other documents as Lender may reasonably request.
7.4 PERFECTION OF SECURITY INTERESTS. Borrower shall have taken or
caused to be taken such actions requested by Lender to grant Lender a perfected
security interest in the
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Collateral, subject only to Permitted Liens. Such actions shall include, without
limitation, the delivery to Lender of all appropriate financing statements,
executed by Borrower, as to the Collateral granted by Borrower for all
jurisdictions as may be necessary or desirable to perfect the security interest
of Lender in such Collateral
7.5 ABSENCE OF EVENTS OF DEFAULTS. As of the Closing Date or the
Advance Date, no fact or condition exists that would (or would, with the passage
of time, the giving of notice, or both) constitute an Event of Default under
this Agreement or any of the Loan Documents and no fact or condition exists that
would (or would, with the passage of time, the giving of notice, or both)
constitute a default under the Senior Loan Documents between Borrower and Senior
Creditor.
7.6 MATERIAL ADVERSE EFFECT. As of the Closing Date or the Advance
Date, no event which has had or could reasonably be expected to have a Material
Adverse Effect has occurred and is continuing.
SECTION 8. DEFAULT
The occurrence of any one or more of the following events (herein
called "EVENTS OF DEFAULT") shall constitute a default hereunder and under the
Note(s) and other Loan Documents:
8.1 Borrower defaults in the payment of any principal, interest or
other Secured Obligation involving the payment of money under this Agreement,
the Note(s) or any of the other Loan Documents, and such default continues for
more than five (5) days after the due date thereof; or
8.2 Borrower defaults in the performance of any other covenant or
Secured Obligation of Borrower hereunder or under the Note(s) or any of the
other Loan Documents, and such default continues for more than thirty (30) days
after Lender has given notice of such default to Borrower.
8.3 Any representation or warranty made herein by Borrower shall prove
to have been false or misleading in any material respect when made; or
8.4 Borrower shall make an assignment for the benefit of creditors, or
shall admit in writing its inability to pay its debts as they become due, or
shall file a voluntary petition in bankruptcy, or shall file any petition or
answer seeking for itself any reorganization, arrangement, composition,
readjustment, liquidation, dissolution or similar relief under any present or
future statute, law or regulation pertinent to such circumstances, or shall seek
or consent to or acquiesce in the appointment of any trustee, receiver, or
liquidator of Borrower or of all or any substantial part (33-1/3% or more) of
the properties of Borrower; or Borrower or its directors or majority
shareholders shall take any action initiating the dissolution or liquidation of
Borrower; or
8.5 Sixty (60) days shall have expired after the commencement of an
action by or against Borrower seeking reorganization, arrangement, composition,
readjustment, liquidation, dissolution or similar relief under any present or
future statute, law or regulation, without such action being dismissed or all
orders or proceedings thereunder affecting the operations or the
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business of Borrower being stayed; or a stay of any such order or proceedings
shall thereafter be set aside and the action setting it aside shall not be
timely appealed; or Borrower shall file any answer admitting or not contesting
the material allegations of a petition filed against Borrower in any such
proceedings; or the court in which such proceedings are pending shall enter a
decree or order granting the relief sought in any such proceedings; or
8.6 Sixty (60) days shall have expired after the appointment, without
the consent or acquiescence of Borrower, of any trustee, receiver or liquidator
of Borrower or of all or any substantial part of the properties of Borrower
without such appointment being vacated; or
8.7 A payment Event of Default by Borrower under any Excluded
Agreement(s), any other promissory note or agreement for borrowed money, or any
other agreement between Borrower and Lender; or
8.8 The occurrence of any default relating to payment obligations
existing under any lease or other agreement or obligation of Borrower involving
an amount in excess of $100,000.00 or having a Material Adverse Effect; or the
entry of any judgment against Borrower involving an award in excess of
$100,000.00 that would have a Material Adverse Effect, that has not been bonded
or stayed on appeal within thirty (30) days; or
8.9 The occurrence and continuance of any material default relating to
payment obligations existing under the Senior Loan Documents; or
SECTION 9. REMEDIES
Upon the occurrence and the continuance of any one or more Events of
Default, Lender, at its option, may declare the Note and all of the other
Secured Obligations to be accelerated and immediately due and payable (PROVIDED,
that upon the occurrence of an Event of Default of the type described in
Sections 8.4 or 8.5, the Note(s) and all of the other Secured Obligations shall
automatically be accelerated and made due and payable without any further act),
whereupon the unpaid principal of and accrued interest on such Note(s) and all
other outstanding Secured Obligations shall become immediately due and payable,
and shall thereafter bear interest at the Default Rate set forth in, and
calculated according to, Section 2.3 (b) of this Agreement. Lender may exercise
all rights and remedies with respect to the Collateral under the Loan Documents
or otherwise available to it under applicable law, including the right to
release, hold or otherwise dispose of all or any part of the Collateral and the
right to occupy, utilize, process and commingle the Collateral.
Upon the happening and during the continuance of any Event of Default,
Lender may then, or at any time thereafter and from time to time, apply,
collect, sell in one or more sales, lease or otherwise dispose of, any or all of
the Collateral, in its then condition or following any commercially reasonable
preparation or processing, in such order as Lender may elect, and any such sale
may be made either at public or private sale at its place of business or
elsewhere. Borrower agrees that any such public or private sale may occur upon
ten (10) calendar days' prior written notice to Borrower. Lender may require
Borrower to assemble the Collateral and make it available to Lender at a place
designated by Lender which is reasonably convenient to Lender and Borrower. The
proceeds of any sale, disposition or other realization upon all or any part of
the Collateral shall be distributed by Lender in the following order of
priorities:
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First, to Lender in an amount sufficient to pay in full Lender's costs
and professionals' and advisors fees and expenses;
Second, to Lender in an amount equal to the then unpaid amount of the
Secured Obligations in such order and priority as Lender may choose in
its sole discretion; and
Finally, upon payment in full of all of the Secured Obligations, to
Borrower or its representatives or as a court of competent jurisdiction
may direct.
Lender shall be deemed to have acted reasonably in the custody,
preservation and disposition of any of the Collateral if it complies with the
obligations of a secured party under Section 9207 of the UCC.
Lender's rights and remedies hereunder are subject to the terms of the
Subordination Agreement.
SECTION 10. MISCELLANEOUS
10.1 CONTINUATION OF SECURITY INTEREST. This is a continuing Agreement
and the grant of a security interest hereunder shall remain in full force and
effect and all the rights, powers and remedies of Lender hereunder shall
continue to exist until the Secured Obligations are paid in full as the same
become due and payable and until Lender has executed a written termination
statement (which Lender shall execute within a reasonable time after full
payment of the Secured obligations hereunder), reassigning to Borrower, without
recourse, the Collateral and all rights conveyed hereby and returning possession
of the Collateral to Borrower. The rights, powers and remedies of Lender
hereunder shall be in addition to all rights, powers and remedies given by
statute or rule of law and are cumulative. The exercise of any one or more of
the rights, powers and remedies provided herein shall not be construed as a
waiver of or election of remedies with respect to any other rights, powers and
remedies of Lender.
10.2 SEVERABILITY. Whenever possible, each provision of this Agreement
shall be interpreted in such manner as to be effective and valid under
applicable law, but if any provision of this Agreement shall be prohibited by or
invalid under such law, such provision shall be ineffective only to the extent
and duration of such prohibition or invalidity, without invalidating the
remainder of such provision or the remaining provisions of this Agreement.
10.3 NOTICE. Except as otherwise provided herein, all notices and
service of process required, contemplated, or permitted hereunder or with
respect to the subject matter hereof shall be in writing, and shall be deemed to
have been validly served, given or delivered upon the earlier of: (i) the first
business day after transmission by facsimile or hand delivery or deposit with an
overnight express service or overnight mail delivery service; or (ii) the third
calendar day after deposit in the United States mails, with proper first class
postage prepaid, and shall be addressed to the party to be notified as follows:
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(a) IF TO LENDER:
COMDISCO, INC.
Legal Department
Attention: General Counsel
6111 North River Road
Rosemont, IL 60018
Facsimile: (847) 518-5088
WITH A COPY TO:
COMDISCO, INC./COMDISCO VENTURES
6111 North River Road
Rosemont, IL 60018
Facsimile: (847) 518-5465
(b) IF TO BORROWER:
ESSENTIAL.COM, INC.
Attention: Mr. Basil Pallone
3 Burlington Woods Drive, 4th Floor
Burlington, MA 01803
Facsimile: (781) 229-9599
Phone: (781) 229-9499
WITH A COPY TO:
TESTA, HURWITZ & THIBEAULT, LLP
Attention: Ms. Linda DeRenzo
125 High Street
Boston, MA 02110
Facsimile: (617) 248-7100
Phone: (617) 248-7000
or to such other address as each party may designate for itself by like notice.
10.4 ENTIRE AGREEMENT; AMENDMENTS. This Agreement, the Note(s), and the
other Loan Documents, and the Warrant Agreement(s) constitute the entire
agreement and understanding of the parties hereto in respect of the subject
matter hereof and thereof, and supersede and replace in their entirety any prior
proposals, term sheets, letters, negotiations or other documents or agreements,
whether written or oral, with respect to the subject matter hereof or thereof
(including, without limitation, Lender's proposal letter dated July 14, 1999,
all of which are merged herein and therein. None of the terms of this Agreement,
the Note(s), any of the other Loan Documents or Warrant Agreement(s) may be
amended except by an instrument executed by each of the parties hereto.
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10.5 HEADINGS. The various headings in this Agreement are inserted for
convenience only and shall not affect the meaning or interpretation of this
Agreement or any provisions hereof.
10.6 NO WAIVER. The powers conferred upon Lender by this Agreement are
solely to protect its interest in the Collateral and shall not impose any duty
upon Lender to exercise any such powers. No omission, or delay, by Lender at any
time to enforce any right or remedy reserved to it, or to require performance of
any of the terms, covenants or provisions hereof by Borrower at any time
designated, shall be a waiver of any such right or remedy to which Lender is
entitled, nor shall it in any way affect the right of Lender to enforce such
provisions thereafter.
10.7 SURVIVAL. All agreements, representations and warranties
contained in this Agreement, the Note(s), the other Loan Documents and the
Warrant Agreement(s) or in any document delivered pursuant hereto or thereto
shall be for the benefit of Lender and shall survive the execution and delivery
of this Agreement and the expiration or other termination of this Agreement.
10.8 SUCCESSOR AND ASSIGNS. The provisions of this Agreement, the
other Loan Documents and the Warrant Agreement(s) shall inure to the benefit of
and be binding on Borrower and its permitted assigns (if any). Borrower shall
not assign its obligations under this Agreement, the Note(s), any of the other
Loan Documents or the Warrant Agreement(s), without Lender's express written
consent, and any such attempted assignment shall be void and of no effect.
Lender may assign, transfer, or endorse its rights hereunder and under the other
Loan Documents or Warrant Agreement(s) without prior notice to Borrower, and all
of such rights shall inure to the benefit of Lender's successors and assigns.
10.9 FURTHER INDEMNIFICATION. Borrower agrees to pay, and to save
Lender harmless from, any and all liabilities with respect to, or resulting from
any delay in paying, any and all excise, sales or other similar taxes which may
be payable or determined to be payable with respect to any of the Collateral or
in connection with any of the transactions contemplated by this Agreement.
10.10 GOVERNING LAW. This Agreement, the Note(s), the other Loan
Documents and the Warrant Agreement(s) have been negotiated and delivered to
Lender in the State of Illinois, and shall not become effective until accepted
by Lender in the State of Illinois. Payment to Lender by Borrower of the Secured
Obligations is due in the State of Illinois. This Agreement, the Note(s), the
other Loan Documents and the Warrant Agreement(s) shall be governed by, and
construed and enforced in accordance with, the laws of the State of Illinois,
excluding conflict of laws principles that would cause the application of laws
of any other jurisdiction.
10.11 CONSENT TO JURISDICTION AND VENUE. All judicial proceedings
arising in or under or related to this Agreement, the Note(s), any of the other
Loan Documents or Warrant Agreement(s) may be brought in any state or federal
court of competent jurisdiction located in the State of Illinois. By execution
and delivery of this Agreement, each party hereto generally and unconditionally:
(a) consents to personal jurisdiction in Cook County, State of Illinois; (b)
waives any objection as to jurisdiction or venue in Cook County, State of
Illinois; (c) agrees not to assert any defense based on lack of jurisdiction or
venue in the aforesaid courts; and (d)
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irrevocably agrees to be bound by any judgment rendered thereby in connection
with this Agreement, the Note(s), the other Loan Documents or Warrant
Agreement(s). Service of process on any party hereto in any action arising out
of or relating to this agreement shall be effective if given in accordance with
the requirements for notice set forth in Section 10.3, above and shall be
deemed effective and received as set forth in Section 10.3, above. Nothing
herein shall affect the right to serve process in any other manner permitted by
law or shall limit the right of either party to bring proceedings in the courts
of any other jurisdiction.
10.12 MUTUAL WAIVER OF JURY TRIAL. Because disputes arising in
connection with complex financial transactions are most quickly and economically
resolved by an experienced and expert person and the parties wish applicable
state and federal laws to apply (rather than arbitration rules), the parties
desire that their disputes be resolved by a judge applying such applicable laws.
EACH OF BORROWER AND LENDER SPECIFICALLY WAIVES ANY RIGHT IT MAY HAVE TO TRIAL
BY JURY OF ANY CAUSE OF ACTION, CLAIM, CROSSCLAIM, COUNTERCLAIM, THIRD PARTY
CLAIM OR ANY OTHER CLAIM (COLLECTIVELY, "CLAIMS") ASSERTED BY BORROWER AGAINST
LENDER OR ITS ASSIGNEE AND/OR BY LENDER OR ITS ASSIGNEE AGAINST BORROWER. This
waiver extends to all such Claims, including, without limitation, Claims which
involve persons or entities other than Borrower and Lender; Claims which arise
out of or are in any way connected to the relationship between Borrower and
Lender; and any Claims for damages, breach of contract arising out of this
Agreement, any other Loan Document or any of the Excluded Agreements, specific
performance, or any equitable or legal relief of any kind.
10.13 CONFIDENTIALITY. Lender acknowledges that certain items of
Collateral, including, but not limited to trade secrets, source codes, customer
lists and certain other items of Intellectual Property, and any Financial
Statements provided pursuant to Section 6 hereof, constitute proprietary and
confidential information of the Borrower (the "CONFIDENTIAL INFORMATION").
Accordingly, Lender agrees that any Confidential Information it may obtain in
the course of acquiring, perfecting or foreclosing on the Collateral or
otherwise provided under this Agreement, provided such Confidential Information
is marked as confidential by Borrower at the time of disclosure, shall be
received in the strictest confidence and will not be disclosed to any other
person or entity in any manner whatsoever, in whole or in part, without the
prior written consent of the Borrower, unless and until Lender has acquired
indefeasible title thereto.
10.14 COUNTERPARTS. This Agreement and any amendments, waivers,
consents or supplements hereto may be executed in any number of counterparts,
and by different parties hereto in separate counterparts, each of which when so
delivered shall be deemed an original, but all of which counterparts shall
constitute but one and the same instrument.
REMAINDER OF PAGE LEFT INTENTIONALLY BLANK
19
<PAGE>
IN WITNESS WHEREOF, the Borrower and the Lender have duly executed and
delivered this Agreement as of the day and year first above written.
BORROWER: ESSENTIAL.COM, INC.
Signature: /s/ Akhil Garland
---------------------
Print Name: Akhil Garland
---------------------
Title: President
---------------------
ACCEPTED IN ROSEMONT, ILLINOIS:
LENDER: COMDISCO, INC.
Signature: /s/ James P. Labe
-----------------------------
James P. Labe, President
Print Name: Comdisco Ventures Division
-----------------------------
Title: -----------------------------
<PAGE>
EXHIBIT A
SUBORDINATED PROMISSORY NOTE
$________________ DATE:________________________
DUE: ________________________
FOR VALUE RECEIVED, essential.com, inc., a Delaware corporation (the
"Borrower") hereby promises to pay to the order of Comdisco, Inc., a Delaware
corporation (the "Lender") at P.O. Box 91744, Chicago, IL 60693 or such other
place of payment as the holder of this Secured Promissory Note (this "Note")
may specify from time to time in writing, in lawful money of the United
States of America, the principal amount of ____________________ and 00/100
Dollars ($___________) together with interest at ten percent (10%) per annum
from the date of this Note to maturity of each installment on the principal
hereof remaining from time to time unpaid, such principal and interest to be
paid in 36 monthly installments consisting of 6 equal monthly installments of
interest only in the amount of $_______________ each, commencing __________
and on the same day of each month thereafter to and including
________________, follow by 30 equal monthly installments of principal and
interest in the amount of $______________ each, commencing _____________ and
on the same day of each month thereafter to and including ________________,
such installments to be applied first to accrued and unpaid interest and the
balance to unpaid principal. Interest shall be computed on the basis of a
year consisting of twelve months of thirty days each.
This Note is the Note referred to in, and is executed and delivered in
connection with, that certain Subordinated Loan and Security Agreement dated
September 24, 1999 by and between Borrower and Lender (as the same may from time
to time be amended, modified or supplemented in accordance with its terms, the
"Loan Agreement"), and is entitled to the benefit and security of the Loan
Agreement and the other Loan Documents (as defined in the Loan Agreement), to
which reference is made for a statement of all of the terms and conditions
thereof. All terms defined in the Loan Agreement shall have the same definitions
when used herein, unless otherwise defined herein.
THIS NOTE IS EXPRESSLY SUBJECT TO THE TERMS OF THAT CERTAIN SUBORDINATION
AGREEMENT BY AND BETWEEN LENDER AND BORROWER FOR THE BENEFIT OF SENIOR CREDITOR.
IN THE EVENT OF ANY CONTRADICTION OR INCONSISTENCY BETWEEN THIS NOTE AND THE
SUBORDINATION AGREEMENT, THE TERMS OF THE SUBORDINATION AGREEMENT SHALL CONTROL.
The Borrower waives presentment and demand for payment, notice of dishonor,
protest and notice of protest and any other notice as permitted under the UCC or
any applicable law.
<PAGE>
This Note has been negotiated and delivered to Lender and is payable in the
State of Illinois, and shall not become effective until accepted by Lender in
the State of Illinois. This Note shall be governed by and construed and enforced
in accordance with, the laws of the State of Illinois, excluding any conflicts
of law rules or principles that would cause the application of the laws of any
other jurisdiction.
BORROWER: ESSENTIAL.COM, INC.
3 BURLINGTON WOODS DRIVE, 4th FLOOR
BURLINGTON, MA 01803
Signature:________________________________
Print Name:_______________________________
Title:____________________________________
<PAGE>
Exhibit C
ADVANCE REQUEST
To: Lender: Date:______________
Comdisco, Inc.
% Comdisco Ventures
100 Hamilton Avenue, Suite 104A
Palo Alto, CA 94301
Attention: Vika Tonga
(650) 473-0204 facsimile
Borrower hereby requests from Comdisco, Inc. ("LENDER") an Advance in
the amount of $_________________ on _____________, 1999 (the "ADVANCE DATE")
under that Subordinated Loan and Security Agreement between Borrower and Lender
dated September 24, 1999 (the "AGREEMENT").
Please:
(a) Issue a check payable to Borrower ______________________
or
(b) Wire Funds to Borrower's account ______________________
Bank:_______________________________
Address:____________________________
____________________________
ABA Number:_________________________
Account Number:_____________________
Account Name:_______________________
Borrower hereby affirms that all Representations and Warranties of
Borrower set forth in Section 4 and all Conditions Precedent to Loan set forth
in Section 7 of the Agreement remain true and correct as of the date hereof.
Executed this __________________ day of _______________, __________ by:
BORROWER: ESSENTIAL.COM, INC.
BY: _______________________________
TITLE: _______________________________
PRINT: _______________________________
21
<PAGE>
Exhibit 10.35
MASTER LEASE AGREEMENT
MASTER LEASE AGREEMENT (the "Master Lease") dated September 24, 1999 by and
between COMDISCO, INC. ("Lessor") and essential.com inc. ("Lessee").
IN CONSIDERATION of the mutual agreements described below, the parties agree as
follows (all capitalized terms are defined in Section 14.18):
1. Property Leased.
Lessor leases to Lessee all of the Equipment described on each Summary Equipment
Schedule. In the event of a conflict, the terms of the applicable Schedule
prevail over this Master Lease.
2. Term.
On the Commencement Date, Lessee will be deemed to accept the Equipment, will be
bound to its rental obligations for each item of Equipment and the term of a
Summary Equipment Schedule will begin and continue through the Initial Term and
thereafter until terminated by either party upon prior written notice received
during the Notice Period. No termination may be effective prior to the
expiration of the Initial Term.
3. Rent and Payment.
Rent is due and payable in advance on the first day of each Rent Interval at the
address specified in Lessor's invoice. Interim Rent is due and payable when
invoiced. If any payment is not made when due, Lessee will pay a Late Charge on
the overdue amount. Upon Lessee's execution of each Schedule, Lessee will pay
Lessor the Advance specified on the Schedule. The Advance will be credited
towards the final Rent payment if Lessee is not then in default. No interest
will be paid on the Advance
4. Selection; Warranty and Disclaimer of Warranties.
4.1 Selection. Lessee acknowledges that it has selected the Equipment and
disclaims any reliance upon statements made by the Lessor, other than as set
forth in the Schedule.
4.2 Warranty and Disclaimer of Warranties. Lessor warrants to Lessee that, so
long as Lessee is not in default. Lessor will not disturb Lessee's quiet and
peaceful possession, and unrestricted use of the Equipment. To the extent
permitted by the manufacturer, Lessor assigns to Lessee during the term of the
Summary Equipment Schedule any manufacturer's warranties for the Equipment.
LESSOR MAKES NO OTHER WARRANTY, EXPRESS OR IMPLIED AS TO ANY MATTER WHATSOEVER,
INCLUDING, WITHOUT LIMITATION, THE MERCHANTABILITY OF THE EQUIPMENT OR ITS
FITNESS FOR A PARTICULAR PURPOSE. Lessor is not responsible for any liability,
claim, loss, damage or expense of any kind (including strict liability in tort)
caused by the Equipment except for any loss or damage caused by the willful
misconduct or negligent acts of Lessor. In no event is Lessor responsible for
special, incidental or consequential damages.
5. Title; Relocation or Sublease; and Assignment.
5.1 Title. Lessee holds the Equipment subject and subordinate to the rights of
the Owner, Lessor, any Assignee and any Secured Party. Lessee authorizes Lessor,
as Lessee's agent, and at Lessor's expense, to prepare, execute and file in
Lessee's name precautionary Uniform Commercial Code financing statements showing
the interest of the Owner, Lessor, and any Assignee or Secured Party in the
Equipment and to insert serial numbers in Summary Equipment Schedules as
appropriate. Lessee will, at its expense, keep the Equipment free and clear from
any liens or encumbrances of any kind (except any caused by Lessor) and will
indemnify and hold the Owner, Lessor, any Assignee and Secured Party harmless
from and against any loss caused by Lessee's failure to do so, except where such
is caused by Lessor.
5.2 Relocation or Sublease. Upon prior written notice, Lessee may relocate
Equipment to any location within the continental United States provided (i) the
Equipment will not be used by an entity exempt from federal income tax, and (ii)
all additional costs (including any administrative fees, additional taxes and
insurance coverage) are reconciled and promptly paid by Lessee.
Lessee may sublease the Equipment upon the reasonable consent of the Lessor and
the Secured Party. Such consent to sublease will be granted if (i) Lessee meets
the relocation requirements set out above, (ii) the sublease is expressly
subject and subordinate to the terms of the Schedule, (iii) Lessee assigns its
rights in the sublease to Lessor and the Secured Party as additional collateral
and security, (iv) Lessee's obligation to maintain and insure the Equipment is
not altered, (v) all financing statements required to continue the Secured
Party's prior perfected security interest are filed, and (vi) Lessee executes
sublease documents acceptable to Lessor.
No relocation or sublease will relieve Lessee from any of its obligations under
this Master Lease and the relevant Schedule.
5.3 Assignment by Lessor. The terms and conditions of each Schedule have been
fixed by Lessor in order to permit Lessor to sell and/or assign or transfer its
interest or grant a security interest in each Schedule and/or the Equipment to a
Secured Party or Assignee. In that event, the term Lessor will mean the Assignee
and any Secured Party. However, any assignment, sale, or other transfer by
Lessor will not relieve Lessor of its obligations to Lessee and will not
materially change Lessee's duties or materially increase the burdens or risks
imposed on Lessee. The Lessee consents to and will acknowledge such assignments
in a written notice given to Lessee. Lessee also agrees that:
(a) The Secured Party will be entitled to exercise all of Lessor's rights, but
will not be obligated to perform any of the obligations of Lessor. The Secured
Party will not disturb Lessee's quiet and peaceful possession and unrestricted
use of the Equipment so long as Lessee is not in default and the Secured Party
continues to receive all Rent payable under the Schedule; and
(b) Lessee will pay all Rent and all other amounts payable to the Secured Party,
despite any defense or claim which it has against Lessor. Lessee reserves its
right to have recourse directly against Lessor for any defense or claim;
(c) Subject to and without impairment of Lessees leasehold rights in the
Equipment, Lessee holds the Equipment for the Secured Party to the extent of the
Secured Party's rights in that Equipment.
6. Net Lease; Taxes and Fees.
6.1 Net Lease. Each Summary Equipment Schedule constitutes a net lease. Lessee's
obligation to pay Rent and all other amounts due hereunder is absolute and
unconditional and is not subject to any abatement, reduction, set-off, defense,
counterclaim, interruption, deferment or recoupment for any reason whatsoever.
6.2 Taxes and Fees. Lessee will pay when due or reimburse Lessor for all taxes,
fees or any other charges (together with any related interest or penalties not
arising from the negligence of Lessor) accrued for or arising during the term of
each Summary Equipment Schedule against Lessor, Lessee or the Equipment by any
governmental authority (except only Federal, state, local and franchise taxes on
the capital or the net income of Lessor). Lessor will file all personal property
tax returns for the Equipment and pay all such property taxes due. Lessee will
reimburse Lessor for property taxes within thirty (30) days of receipt of an
invoice.
7. Care, Use and Maintenance; Inspection by Lessor.
7.1 Care, Use and Maintenance. Lessee will maintain the Equipment in good
operating order and appearance, protect the Equipment from deterioration, other
than normal wear and tear, and will not use the Equipment for any purpose other
than that for which it was designed. If commercially available and considered
common business practice for each item of Equipment, Lessee will maintain in
force a standard maintenance contract with the manufacturer of the Equipment, or
another party acceptable to Lessor, and will provide Lessor with a complete copy
of that contract. If Lessee has the Equipment maintained by a party other than
the manufacturer or self maintains, Lessee agrees to pay any costs necessary for
the manufacturer to bring the Equipment to then current release, revision and
engineering change levels, and to re-certify the Equipment as eligible for
manufacturer's maintenance at the expiration of the lease term, provided
re-certification is available and is required by Lessor. The lease term will
continue upon the same terms and conditions until recertification has been
obtained.
7.2 Inspection by Lessor. Upon reasonable advance notice. Lessee, during
reasonable business hours and subject to Lessee's security requirements, will
make the Equipment and its related log and maintenance records available to
Lessor for inspection.
8. Representations and Warranties of Lessee. Lessee hereby represents, warrants
and covenants that with respect to the Master Lease and each Schedule executed
hereunder:
(a) The Lessee is a corporation duly organized and validly existing in good
standing under the laws of the jurisdiction of its incorporation, is duly
qualified to do business in each jurisdiction (including the jurisdiction where
the Equipment is, or is to be, located) where its ownership or lease of property
or the conduct of its business requires such qualification, except for where
such lack of qualification would not have a material adverse effect on the
Company's business; and has full corporate power and authority to hold property
under the Master Lease and each Schedule and to enter into and perform its
obligations under the Master Lease and each Schedule.
(b) The execution and delivery by the Lessee of the Master Lease and each
Schedule and its performance thereunder have been duly authorized by all
necessary corporate action on the part of the Lessee, and the Master Lease and
each Schedule are not inconsistent with the Lessee's Articles of Incorporation
or Bylaws, do not contravene any law or governmental rule, regulation or order
applicable to it, do not and will not contravene any provision of, or constitute
a default under, any indenture, mortgage, contract or other instrument to which
it is a party or by which it is bound, and the Master Lease and each Schedule
constitute legal, valid and binding agreements of the Lessee, enforceable in
accordance with their terms, subject to the effect of applicable bankruptcy and
other similar laws affecting the rights of creditors generally and rules of law
concerning equitable remedies.
- 1 - 4/95
<PAGE>
(c) There are no actions, suits, proceedings or patent claims pending or, to the
knowledge of the Lessee, threatened against or affecting the Lessee in any court
or before any governmental commission, board or authority which, if adversely
determined, will have a material adverse effect on the ability of the Lessee to
perform its obligations under the Master Lease and each Schedule.
(d) The Equipment is personal property and when subjected to use by the Lessee
will not be or become fixtures under applicable law.
(e) The Lessee has no material liabilities or obligations, absolute or
contingent (individually or in the aggregate), except the liabilities and
obligations of the Lessee as set forth in the Financial Statements and
liabilities and obligations which have occurred in the ordinary course of
business, and which have not been, in any case or in the aggregate, materially
adverse to Lessee's ongoing business.
(f) To the best of the Lessee's knowledge, the Lessee owns, possesses, has
access to, or can become licensed on reasonable terms under all patents, patent
applications, trademarks, trade names, inventions, franchises, licenses,
permits, computer software and copyrights necessary for the operations of its
business as now conducted, with no known infringement of, or conflict with, the
rights of others.
(g) All material contracts, agreements and instruments to which the Lessee is a
party are in full force and effect in all material respects, and are valid,
binding and enforceable by the Lessee in accordance with their respective terms,
subject to the effect of applicable bankruptcy and other similar laws affecting
the rights of creditors generally, and rules of law concerning equitable
remedies.
9. Delivery and Return of Equipment.
Lessee hereby assumes the full expense of transportation and in-transit
insurance to Lessee's premises and installation thereat of the Equipment. Upon
termination (by expiration or otherwise) of each Summary Equipment Schedule,
Lessee shall, pursuant to Lessor's instructions and at Lessee's full expense
(including, without limitation, expenses of transportation and in-transit
insurance), return the Equipment to Lessor in the same operating order, repair,
condition and appearance as when received, less normal depreciation and wear and
tear. Lessee shall return the Equipment to Lessor at 6111 North River Road,
Rosemont, Illinois 60018 or at such other address within the continental United
States as directed by Lessor, provided, however, that Lessee's expense shall be
limited to the cost of returning the Equipment to Lessor's address as set forth
herein. During the period subsequent to receipt of a notice under Section 2,
Lessor may demonstrate the Equipment's operation in place and Lessee will supply
any of its personnel as may reasonably be required to assist in the
demonstrations.
10. Labeling.
Upon request, Lessee will mark the Equipment indicating Lessor's interest with
labels provided by Lessor. Lessee will keep all Equipment free from any other
marking or labeling which might be interpreted as a claim of ownership.
11. Indemnity.
With regard to bodily injury and property damage liability only, Lessee will
indemnify and hold Lessor, any Assignee and any Secured Party harmless from and
against any and all claims, costs, expenses, damages and liabilities, including
reasonable attorney's fees, arising out of the ownership (for strict liability
in tort only), selection, possession. leasing, operation, control, use,
maintenance, delivery, return or other disposition of the Equipment during the
term of this Master Lease or until Lessee's obligations under the Master Lease
terminate. However, Lessee is not responsible to a party indemnified hereunder
for any claims, costs, expenses, damages and liabilities occasioned by the
negligent acts of such indemnified party. Lessee agrees to carry bodily injury
and property damage liability insurance during the term of the Master Lease in
amounts and against risks customarily insured against by the Lessee on equipment
owned by it. Any amounts received by Lessor under that insurance will be
credited against Lessee's obligations under this Section.
12. Risk of Loss.
Effective upon delivery and until the Equipment is returned, Lessee relieves
Lessor of responsibility for all risks of physical damage to or loss or
destruction of the Equipment. Lessee will carry casualty insurance for each item
of Equipment in an amount not less than the Casualty Value. All policies for
such insurance will name the Lessor and any Secured Party as additional insured
and as loss payee, and will provide for at least thirty (30) days prior written
notice to the Lessor of cancellation or expiration, and will insure Lessor's
interests regardless of any breach or violation by Lessee of any representation,
warranty or condition contained in such polices and will be primary without
right of contribution from any insurance effected by Lessor. Upon the execution
of any Schedule, the Lessee will furnish appropriate evidence of such insurance
acceptable to Lessor.
Lessee will promptly repair any damaged item of Equipment unless such Equipment
has suffered a Casualty Loss. Within fifteen (15) days of a Casualty Loss,
Lessee will provide written notice of that loss to Lessor and Lessee will, at
Lessee's option, either (a) replace the item of Equipment with like Equipment
and marketable title to the Like Equipment will automatically vest in Lessor or
(b) pay the Casualty Value and after that payment and the payment of all other
amounts due and owing with respect to that item of Equipment, Lessee's
obligation to pay further Rent for the item of Equipment will cease.
13. Default, Remedies and Mitigation.
13.1 Default. The occurrence of any one or more of the following Events of
Default constitutes a default under a Summary Equipment Schedule:
(a) Lessee's failure to pay Rent or other amounts payable by Lessee when due if
that failure continues for five (5) business days after written notice; or
(b) Lessee's failure to perform any other term or condition of the Schedule or
the material inaccuracy of any representation or warranty made by the Lessee in
the Schedule or in any document or certificate furnished to the Lessor hereunder
if that failure or inaccuracy continues for ten (10) business days after written
notice; or
(c) An assignment by Lessee for the benefit of its creditors, the failure by
Lessee to pay its debts when due, the insolvency of Lessee, the filing by Lessee
or the filing against Lessee of any petition under any bankruptcy or insolvency
law or for the appointment of a trustee or other officer with similar powers,
the adjudication of Lessee as insolvent, the liquidation of Lessee, or the
taking of any action for the purpose of the foregoing; or
(d) The occurrence of an Event of Default under any Schedule, Summary Equipment
Schedule or other agreement between Lessee and Lessor or its Assignee or Secured
Party.
13.2 Remedies. Upon the occurrence of any of the above Events of Default,
Lessor, at its option, may:
(a) enforce Lessee's performance of the provisions of the applicable Schedule by
appropriate court action in law or in equity;
(b) recover from Lessee any damages and or expenses, including Default Costs;
(c) with notice and demand, recover all sums due and accelerate and recover the
present value of the remaining payment stream of all Rent due under the
defaulted Schedule (discounted at the same rate of interest at which such
defaulted Schedule was discounted with a Secured Party plus any prepayment fees
charged to Lessor by the Secured Party or, if there is no Secured Party, then
discounted at 6%) together with all Rent and other amounts currently due as
liquidated damages and not as a penalty;
(d) with notice and process of law and in compliance with Lessee's security
requirements, Lessor may enter on Lessee's premises to remove and repossess the
Equipment without being liable to Lessee for damages due to the repossession.
except those resulting from Lessor's, its assignees', agents' or
representatives' negligence; and
(e) pursue any other remedy permitted by law or equity.
The above remedies, in Lessor's discretion and to the extent permitted by law,
are cumulative and may be exercised successively or concurrently.
13.3 Mitigation. Upon return of the Equipment pursuant to the terms of Section
13.2, Lessor will use its best efforts in accordance with its normal business
procedures (and without obligation to give any priority to such Equipment) to
mitigate Lessor's damages as described below. EXCEPT AS SET FORTH IN THIS
SECTION, LESSEE HEREBY WAIVES ANY RIGHTS NOW OR HEREAFTER CONFERRED BY STATUTE
OR OTHERWISE WHICH MAY REQUIRE LESSOR TO MITIGATE ITS DAMAGES OR MODIFY ANY OF
LESSOR'S RIGHTS OR REMEDIES STATED HEREIN. Lessor may sell, lease or otherwise
dispose of all or any part of the Equipment at a public or private sale for cash
or credit with the privilege of purchasing the Equipment. The proceeds from any
sale, lease or other disposition of the Equipment are defined as either:
(a) if sold or otherwise disposed of, the cash proceeds less the Fair Market
Value of the Equipment at the expiration of the Initial Term less the Default
Costs; or
(b) if leased, the present value (discounted at 3 percent (3%) over the U.S.
Treasury Notes of comparable maturity to the term of the re-lease) of the
rentals for a term not to exceed the Initial Term, less the Default Costs.
Any proceeds will be applied against liquidated damages and any other sums due
to Lessor from Lessee. However, Lessee is liable to Lessor for, and Lessor may
recover, the amount by which the proceeds are less than the liquidated damages
and other sums due to Lessor from Lessee.
14. Additional Provisions.
14.1 Board Attendance. One representative of Lessor will have the right to
attend Lessee's corporate Board of Directors meetings and Lessee will give
Lessor reasonable notice in advance of any special Board of Directors meeting,
which notice will provide an agenda of the subject matter to be discussed at
such board meeting. Lessee will provide Lessor with a certified copy of the
minutes of each Board of
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<PAGE>
Directors meeting within thirty (30) days following the date of such meeting
held during the term of this Master Lease.
14.2 Financial Statements. As soon as practicable at the end of each month (and
in any event within thirty (30) days), Lessee will provide to Lessor the same
information which Lessee provides to its Board of Directors, but which will
include not less than a monthly income statement, balance sheet and statement of
cash flows prepared in accordance with generally accepted accounting principles,
consistently applied (the "Financial Statements"). As soon as practicable at the
end of each fiscal year, Lessee will provide to Lessor audited Financial
Statements setting forth in comparative form the corresponding figures for the
fiscal year (and in any event within ninety (90) days), and accompanied by an
audit report and opinion of the independent certified public accountants
selected by Lessee. Lessee will promptly furnish to Lessor any additional
information (including, but not limited to, tax returns, income statements,
balance sheets and names of principal creditors) as Lessor reasonably believes
necessary to evaluate Lessee's continuing ability to meet financial obligations.
After the effective date of the initial registration statement covering a public
offering of Lessee's securities, the term "Financial Statements" will be deemed
to refer to only those statements required by the Securities and Exchange
Commission.
14.3 Obligation to Lease Additional Equipment. Upon notice to Lessee, Lessor
will not be obligated to lease any Equipment which would have a Commencement
Date after said notice if: (i) Lessee is in default under this Master Lease or
any Schedule; (ii) Lessee is in default under any loan agreement, the result of
which would allow the lender or any secured party to demand immediate payment of
any material indebtedness; (iii) there is a material adverse change in Lessee's
credit standing; or (iv) Lessor determines (in reasonable good faith) that
Lessee will be unable to perform its obligations under this Master Lease or any
Schedule.
14.4 Merger and Sale Provisions. Lessee will notify Lessor of any proposed
Merger at least sixty (60) days prior to the closing date. Lessor may, in its
discretion, either (i) consent to the assignment of the Master Lease and all
relevant Schedules to the successor entity, or (ii) terminate the Lease and all
relevant Schedules. If Lessor elects to consent to the assignment, Lessee and
its successor will sign the assignment documentation provided by Lessor. If
Lessor elects to terminate the Master Lease and all relevant Schedules, then
Lessee will pay Lessor all amounts then due and owing and a termination fee
equal to the present value (discounted at 6%) of the remaining Rent for the
balance of the Initial Term(s) of all Schedules, and will return the Equipment
in accordance with Section 9. Lessor hereby consents to any Merger in which the
surviving entity has a Moody's Bond Rating of BA3 or better or a commercially
acceptable equivalent measure of creditworthiness as reasonably determined by
Lessor.
14.5 Entire Agreement. This Master Lease and associated Schedules and Summary
Equipment Schedules supersede all other oral or written agreements or
understandings between the parties concerning the Equipment including, for
example, purchase orders. ANY AMENDMENT OF THIS MASTER LEASE OR A SCHEDULE, MAY
ONLY BE ACCOMPLISHED BY A WRITING SIGNED BY THE PARTY AGAINST WHOM THE AMENDMENT
IS SOUGHT TO BE ENFORCED.
14.6 No Waiver. No action taken by Lessor or Lessee will be deemed to constitute
a waiver of compliance with any representation, warranty or covenant contained
in this Master Lease or a Schedule. The waiver by Lessor or Lessee of a breach
of any provision of this Master Lease or a Schedule will not operate or be
construed as a waiver of any subsequent breach.
14.7 Binding Nature. Each Schedule is binding upon, and inures to the benefit of
Lessor and its assigns. LESSEE MAY NOT ASSIGN ITS RIGHTS OR OBLIGATIONS.
14.8 Survival of Obligations. All agreements, obligations including, but not
limited to those arising under Section 6.2, representations and warranties
contained in this Master Lease, any Schedule, Summary Equipment Schedule or in
any document delivered in connection with those agreements are for the benefit
of Lessor and any Assignee or Secured Party and survive the execution, delivery,
expiration or termination of this Master Lease.
14.9 Notices. Any notice, request or other communication to either party by the
other will be given in writing and deemed received upon the earlier of (1)
actual receipt or (2) three days after mailing if mailed postage prepaid by
regular or airmail to Lessor (to the attention of "the Comdisco Venture Group")
or Lessee, at the address set out in the Schedule, (3) one day after it is sent
by courier or (4) on the same day as sent via facsimile transmission, provided
that the original is sent by personal delivery or mail by the sending party.
14.10 Applicable Law. THIS MASTER LEASE HAS BEEN, AND EACH SCHEDULE WILL HAVE
BEEN MADE, EXECUTED AND DELIVERED IN THE STATE OF ILLINOIS AND WILL BE GOVERNED
AND CONSTRUED FOR ALL PURPOSES IN ACCORDANCE WITH THE LAWS OF THE STATE OF
ILLINOIS WITHOUT GIVING EFFECT TO CONFLICT OF LAW PROVISIONS. NO RIGHTS OR
REMEDIES REFERRED TO IN ARTICLE 2A OF THE UNIFORM COMMERCIAL CODE WILL BE
CONFERRED ON LESSEE UNLESS EXPRESSLY GRANTED IN THIS MASTER LEASE OR A SCHEDULE.
14.11 Severability. If any one or more of the provisions of this Master Lease or
any Schedule is for any reason held invalid, illegal or unenforceable, the
remaining provisions of this Master Lease and any such Schedule will be
unimpaired, and the invalid, illegal or unenforceable provision replaced by a
mutually acceptable valid, legal and enforceable provision that is closest to
the original intention of the parties.
14.12 Counterparts. This Master Lease and any Schedule may be executed in any
number of counterparts, each of which will be deemed an original, but all such
counterparts together constitute one and the same instrument. If Lessor grants a
security interest in all or any part of a Schedule, the Equipment or sums
payable thereunder, only that counterpart Schedule marked "Secured Party's
Original" can transfer Lessor's rights and all other counterparts will be marked
"Duplicate."
14.13 Licensed Products. Lessee will obtain no title to Licensed Products which
will at all times remain the property of the owner of the Licensed Products. A
license from the owner may be required and it is Lessee's responsibility to
obtain any required license before the use of the Licensed Products. Lessee
agrees to treat the Licensed Products as confidential information of the owner,
to observe all copyright restrictions, and not to reproduce or sell the Licensed
Products.
14.14 Secretary's Certificate. Lessee will, upon execution of this Master Lease,
provide Lessor with a secretary's certificate of incumbency and authority. Upon
the execution of each Schedule with a purchase price in excess of $1,000,000,
Lessee will provide Lessor with an opinion from Lessee's counsel in a form
acceptable to Lessor regarding the representations and warranties in Section 8.
14.15 Electronic Communications. Each of the parties may communicate with the
other by electronic means under mutually agreeable terms.
14.16 Landlord/Mortgagee Waiver. Lessee agrees to provide Lessor with a
Landlord/Mortgagee Waiver with respect to the Equipment. Such waiver shall be in
a form satisfactory to Lessor.
14.17 Equipment Procurement Charges/Progress Payments. Lessee hereby agrees that
Lessor shall not, by virtue of its entering into this Master Lease, be required
to remit any payments to any manufacturer or other third party until Lessee
accepts the Equipment subject to this Master Lease.
14.18 Definitions.
Advance - means the amount due to Lessor by Lessee upon Lessee's execution of
each Schedule.
Assignee - means an entity to whom Lessor has sold or assigned its rights as
owner and Lessor of Equipment.
Casualty Loss - means the irreparable loss or destruction of Equipment.
Casualty Value - means the greater of the aggregate Rent remaining to be paid
for the balance of the lease term or the Fair Market Value of the Equipment
immediately prior to the Casualty Loss. However, if a Casualty Value Table is
attached to the relevant Schedule its terms will control.
Commencement Date -is defined in each Schedule.
Default Costs - means reasonable attorney's fees and remarketing costs resulting
from a Lessee default or Lessor's enforcement of its remedies.
Delivery Date - means date of delivery of Inventory Equipment to Lessee's
address.
Equipment - means the property described on a Summary Equipment Schedule and any
replacement for that property required or permitted by this Master Lease or a
Schedule.
Event of Default - means the events described in Subsection 13.1.
Fair market Value - means the aggregate amount which would be obtainable in an
arm's-length transaction between an informed and willing buyer/user and an
informed and willing seller under no compulsion to sell.
Initial Term - means the period of time beginning on the first day of the first
full Rent Interval following the Commencement Date for all items of Equipment
and continuing for the number of Rent Intervals indicated on a Schedule.
Interim Rent - means the pro-rata portion of Rent due for the period from the
Commencement Date through but not including the first day of the first full Rent
Interval included in the Initial Term.
Late Charge - means the lesser of five percent (5%) of the payment due or the
maximum amount permitted the law of the state where the Equipment is located.
Licensed Products - means any software or other licensed products attached to
the Equipment.
Like Equipment - means replacement Equipment which is lien free and of the same
model, type, configuration and manufacture as Equipment.
- 3 - 4/95
<PAGE>
Fair Market Value - means the aggregate amount which would be obtainable in an
arm's-length transaction between an informed and willing buyer/user and an
informed and willing seller under no compulsion to sell.
Initial Term - means the period of time beginning on the first day of the first
full Rent Interval following the Commencement Date for all items of Equipment
and continuing for the number of Rent Intervals indicated on a Schedule.
Interim Rent - means the pro-rata portion of Rent due for the period from the
Commencement Date through but not including the first day of the first full Rent
Interval included in the Initial Term.
Late Charge - means the lesser of five percent (5%) of the payment due or the
maximum amount permitted by the law of the state where the Equipment is located.
Licensed Products - means any software or other licensed products attached to
the Equipment.
Like Equipment - means replacement Equipment which is lien free and of the same
model, type, configuration and manufacture as Equipment.
Merger - means any consolidation or merger of the Lessee with or into any other
corporation or entity, any sale or conveyance of all or substantially all of the
assets or stock of the Lessee by or to any other person or entity in which
Lessee is not the surviving entity.
Notice Period - means not less than ninety (90) days nor more than twelve (12)
months prior to the expiration of the lease term.
Owner - means the owner of Equipment.
Rent - means the rent Lessee will pay for each item of Equipment expressed in a
Summary Equipment Schedule either as a specific amount or an amount equal to the
amount which Lessor pays for an item of Equipment multiplied by a lease rate
factor plus all other amounts due to Lessor under this Master Lease or a
Schedule.
Rent Interval - means a full calendar month or quarter as indicated on a
Schedule.
Schedule - means either an Equipment Schedule or a Licensed Products Schedule
which incorporates all of the terms and conditions of this Master Lease.
Secured Party - means an entity to whom Lessor has granted a security interest
for the purpose of securing a loan.
Summary Equipment Schedule - means a certificate provided by Lessor summarizing
all of the Equipment for which Lessor has received Lessee approved vendor
invoices, purchase documents and/or evidence of delivery during a calendar
quarter which will incorporate all of the terms and conditions of the related
Schedule and this Master Lease and will constitute a separate lease for the
equipment leased thereunder.
IN WITNESS WHEREOF, the parties hereto have executed this Master Lease on or as
of the day and year first above written.
ESSENTIAL,COM, INC., COMDISCO, INC.,
as Lessee as Lessor
By: /s/ Akhil Garland By: /s/ James P. Labe
---------------------------- ----------------------------
James P. Labe, President
Title: President Title: Comdisco Ventures Division
------------------------- ---------------------------
- 4 - 4/95
<PAGE>
ADDENDUM TO
MASTER LEASE AGREEMENT DATED AS OF SEPTEMBER 24, 1999
BETWEEN ESSENTIAL.COM, INC., AS LESSEE
AND COMDISCO, INC., AS LESSOR
The undersigned hereby agree that the terms and conditions of the
above-referenced Master Lease are hereby modified and amended as follows:
1) Section 5.2., "Relocation or Sublease"
Line 1, delete the words "Upon prior written notice" and insert "Provided
Lessee notifies Lessor within thirty (30) days of such action".
Second paragraph, line 1, after the word "Upon", insert "obtaining" and in
line 2 after the word "Party" insert "such consent not to be unreasonably
withheld, conditioned or delayed."
2) Section 5.3., "Assignment of Lessor"
Line 5 before the word "However", insert the phrase "Lessor agrees to
notify Lessee in advance in writing of any such assignment by Lessor."
3) Section 7.1., "Care, Use and Maintenance"
At the end of the paragraph insert the phrase "Notwithstanding the
foregoing, if the Equipment is of a type for which a maintenance contract
is not commercially available and considered common business practice,
nothing in this section shall be interpreted to require Lessee to obtain
upgrades for Licensed Products."
4) Section 8., "Representations and Warranties of Lessee"
Paragraph (b), line 4, delete the word "Article" and replace with
"Certificate", and at the end of the paragraph after the word "remedies"
insert "and general equitable principles."
Paragraph (g), at the end of the paragraph after the word "remedies"
insert "and general equitable principles."
5) Section 13.1., "Default"
Paragraph (b), line 4, delete the words "ten (10)" and replace with
"thirty (30)".
<PAGE>
Paragraph (d), line 1, after the word "occurrence" insert the words "and
continuance".
6) Section 13.2., "Remedies"
In the introductory paragraph, after the word "occurrence" insert the
words "and the continuance".
7) Section 14.1., "Board Attendance"
Delete this section in its entirety.
8) Section 14.2., "Financial Statements"
In line 2, delete the words "the same information which Lessee provides to
its Board of Directors, but which will include not less than a".
9) Section 14.4., "Merger and Sale Provisions"
Line 2, delete the words "sixty (60)" and replace with "forty-five (45)".
Line 10, after "Section 9" insert "or Lessee may elect to purchase the
Equipment for a price mutually agreed upon between Lessor and Lessee."
Except as amended hereby, all other terms and conditions of the Master Lease
Agreement remain in full force and effect.
ESSENTIAL,COM, INC., COMDISCO, INC.,
as LESSEE as LESSOR
By: /s/ Akhil Garland By: /s/ James P. Labe
---------------------------- -----------------------------
James P. Labe, President
Title: President Title: Comdisco Ventures Division
------------------------ --------------------------
Date: 9/20/99 Date:
------------------------- ---------------------------
<PAGE>
EQUIPMENT SCHEDULE VL-1
DATED AS OF SEPTEMBER 24, 1999
TO MASTER LEASE AGREEMENT
DATED AS OF SEPTEMBER 24, 1999 (THE "MASTER LEASE")
LESSEE: ESSENTIAL.COM, INC. LESSOR: COMDISCO, INC.
Admin. Contact/Phone No.: Address for all Notices:
Contact: _______________________ 6111 North River Road
Phone: (781) 229-9599 Rosemont, Illinois 60018
Fax: (781) 229-9499 Attn.: Venture Group
Address for Notices:
3 Burlington Woods Drive
4th Floor
Burlington, MA 01803
Central Billing Location: Rent Interval: Monthly
Same as above
Attn.:
Lessee Reference No.: _________________ Initial Term: 42 Months
(24 digits maximum) (Number of Rent Intervals)
Location of Equipment: Lease Rate Factor:
Months 1-12 = 1.5%
Months 13-42 = 3.312%
Same as above
Advance: Upon each Summary
Equipment Schedule
EQUIPMENT (as defined below): Interim Rent: Interest Only 8.5%
Equipment including prototypes, test equipment, workstations, desktop computers
portable computers, peripherals, office equipment, and other equipment
specifically approved by Lessor, which shall be delivered to and accepted by
Lessee during the period September 24, 1999 through September 24, 2000
("Equipment Delivery Period"), for which Lessor receives vendor invoices
approved for payment, up to an aggregate purchase price of $750,000.00
("Commitment Amount"); excluding custom use equipment, leasehold improvements,
installation costs and delivery costs, rolling stock, special tooling,
"stand-alone" software, application software bundled into computer hardware,
hand held items, molds and fungible items, So long as no Event of Default has
occurred and is continuing hereunder, Lessor agrees that Lessee may decrease the
Commitment Amount under Equipment Schedule No. VL-2 and increase the Commitment
Amount under VL-1 accordingly at any time during the Equipment Delivery period.
1
<PAGE>
1. Equipment Purchase
This Schedule contemplates Lessors acquisition of Equipment for lease to
Lessee, either by one of the first three categories listed below or by providing
Lessee with Equipment from the fourth category, in an aggregate value up to the
Commitment Amount referred to on the face of this Schedule. If the Equipment
acquired is of category (i), (ii) or (iii) below, the effectiveness of this
Schedule as it relates to those items of Equipment is contingent upon Lessee's
acknowledgment at the time Lessor acquires the Equipment that Lessee has either
received or approved the relevant purchase documentation between vendor and
Lessor for that Equipment.
(i) NEW ON-ORDER EQUIPMENT. Lessor will purchase new Equipment which is
obtained from a vendor by Lessee for its use subject to Lessor's
prior approval of the Equipment.
(ii) SALE-LEASEBACK EQUIPMENT. Any in-place Equipment installed at
Lessee's site and to which Lessee has clear title and ownership may
be considered by Lessor for inclusion under this Lease (the
"Sale-Leaseback Transaction"). Any request for a Sale-Leaseback
Transaction must be submitted to Lessor in writing (along with
accompanying evidence of Lessee's Equipment ownership satisfactory
to Lessor for all Equipment submitted) no later than October 24,
1999, Lessor will not perform a Sale-Leaseback Transaction for any
request or accompanying Equipment ownership documents which arrive
after the date marked above by an asterisk (*). Further, any
sale-leaseback Equipment will be placed on lease subject to: (1)
Lessor prior approval of the Equipment; and (2) if approved, at
Lessors actual net appraised Equipment value pursuant to the
schedule below:
PERCENT OF ORIGINAL
ORIGINAL EQUIPMENT INVOICE DATE MANUFACTURER'S
NET EQUIPMENT COST PAID BY LESSOR
-------------------------------------- ---------------------------------
Between 04/27/99 - 10/24/99 (180 days) 100%
(iii) USED ON-ORDER EQUIPMENT. Lessor will purchase used Equipment which
is obtained from a third party by Lessee for its use subject to
Lessors prior approval of the Equipment and at Lessor's appraised
value for such used Equipment.
(iv) 800 NUMBER EQUIPMENT. Upon Lessee's use of Comdisco's 1-800 Direct
Service, Lessor will purchase new or used Equipment from a third
party or Lessor will supply new or used Equipment from its inventory
for use by Lessee at rates provided by Lessor.
2. Commencement Date
The Commencement Date for each item of new on-order or used on-order
Equipment will be the install date as confirmed in writing by Lessee as set
forth on the vendor invoice of which a facsimile transmission will constitute an
original document. The Commencement Date for sale-leaseback Equipment shall be
the date Lessor tenders the purchase price. The Commencement Date for 800 Number
Equipment shall be fifteen (15) days from the ship date, such ship date to be
set forth on the vendor invoice or if unavailable on the vendor invoice the ship
date will be determined by Lessor upon other supporting Shipping documentation.
Lessor will summarize all approved invoices, purchase documentation and evidence
of delivery, as applicable, received in the same calendar month into a Summary
Equipment Schedule in the form attached to this Schedule as Exhibit 1, and the
Initial Term will begin the first day of the calendar month thereafter. Each
Summary Equipment Schedule will contain the Equipment location, description,
serial number(s) and cost and will incorporate the terms and conditions of the
Master Lease and this Schedule and will constitute a separate lease.
2
<PAGE>
3. Option to Extend
So long as no Event of Default has occurred and is continuing hereunder,
and upon written notice no earlier than twelve (12) months and no later than
ninety (90) days prior to the expiration of the Initial Term of a Summary
Equipment Schedule, Lessee will have the right to extend the Initial Term of
such Summary Equipment Schedule for a period of one (1) year. In such event, the
rent to be paid during said extended period shall be mutually agreed upon and if
the parties cannot mutually agree, then the Summary Equipment Schedule shall
continue in full force and effect pursuant to the existing terms and conditions
until terminated in accordance with its terms. The Summary Equipment Schedule
will continue in effect following said extended period until terminated by
either party upon not less than ninety (90) days prior written notice, which
notice shall be effective as of the date of receipt.
4. Purchase Option
So long as no Event of Default has occurred and is continuing hereunder,
and upon written notice no earlier than twelve (12) months and no later than
ninety (90) days prior to the expiration of the Initial Term or the extended
term of the applicable Summary Equipment Schedule, Lessee will have the option
at the expiration of the Initial Term of the Summary Equipment Schedule to
purchase all, but not less than all, of the Equipment listed therein for a
purchase price not to exceed fifteen percent (15%) of Equipment cost hereunder
and upon terms and conditions to be mutually agreed upon by the parties
following Lessee's written notice, plus any taxes applicable at time of
purchase. Said purchase price shall be paid to Lessor at least thirty (30) days
before the expiration date of the Initial Term or extended term. Title to the
Equipment shall automatically pass to Lessee upon payment in full of the
purchase price but, in no event, earlier than the expiration of the fixed
Initial Term or extended term, if applicable. If the parties are unable to agree
on the purchase price or the terms and conditions with respect to said purchase,
then the Summary Equipment Schedule with respect to this Equipment shall remain
in full force and effect. Notwithstanding the exercise by Lessee of this option
and payment of the purchase price, until all obligations under the applicable
Summary Equipment Schedule have been fulfilled, it is agreed and understood that
Lessor shall retain a purchase money security interest in the Equipment listed
therein and the Summary Equipment Schedule shall constitute a Security Agreement
under the Uniform Commercial Code of the state in which the Equipment is
located.
5. Technology Exchange Option
If Lessee is not in default, and there is no material adverse change in
Lessee's credit, on or after the expiration of the 12th month of any Summary
Equipment Schedule, Lessee shall have the option to replace any of the Equipment
subject to such Summary Equipment Schedule with new technology equipment ("New
Technology Equipment") utilizing the following guidelines:
A. Equipment being replaced with New Technology Equipment shall have an
aggregate original cost equal to or greater than $20,000 and be comprised of
full configurations of equipment.
B. This Technology Exchange Option shall be limited to a maximum in the
aggregate of fifty percent (50%) of the original equipment cost and shall not
apply to software or any soft costs financed hereunder including but not limited
to tenant improvements and custom equipment.
C. The cost of the New Technology Equipment must be equal to or greater
than the original equipment cost of the replaced equipment, but in no event
shall exceed one hundred fifty percent (150%) of the original equipment cost.
D. The remaining lease payments applicable to the equipment being replaced
by the New Technology Equipment will be discounted to present value at six
percent (6%).
The wholesale market value of the equipment being replaced will be established
by Comdisco based upon then current market conditions. Upon the return of the
replaced equipment, the wholesale price will be deducted from the present value
of the remaining rentals and the differential will be added to the cost of the
New Technology Equipment in calculating the new rental. The lease for the New
Technology Equipment will contain terms and conditions substantially similar to
those for the replaced equipment and will have an Initial Term not less than the
balance of the remaining Initial Term for the replaced equipment.
6. Special Terms
The terms and conditions of the Master Lease as they pertain to this
Schedule are hereby modified and amended as follows:
3
<PAGE>
(a) Section 14.18., Definitions
In the definition of "Casualty Value" after the words "lease term" insert
", discounted at three percent (3%)".
In the definition of Interim Rent", delete "the pro-rata portion" and
replace with "interest only portion of".
Master Lease: This Schedule is issued pursuant to the Master Lease identified on
page 1 of this Schedule. All of the terms and conditions of the Master Lease are
incorporated in and made a part of this Schedule as if they were expressly set
forth in this Schedule. The parties hereby reaffirm all of the terms and
conditions of the Master Lease (including, without limitation, the
representations and warranties set forth in Section 8) except as modified herein
by this Schedule. This Schedule may not be amended or rescinded except by a
writing signed by both parties.
ESSENTIAL,COM, INC., COMDISCO, INC.,
as Lessee as Lessor
By: /s/ Akhil Garland By: /s/ James P. Labe
---------------------------- -----------------------------
James P. Labe, President
Title: President Title: Comdisco Ventures Division
------------------------ --------------------------
Date: 9/20/99 Date:
------------------------- ---------------------------
4
<PAGE>
EXHIBIT 1
SUMMARY EQUIPMENT SCHEDULE
This Summary Equipment Schedule dated XXXX is executed pursuant to
Equipment Schedule No. X to the Master Lease Agreement dated XXXX between
Comdisco, Inc. ("Lessor") and XXXX ("Lessee"). All of the terms, conditions,
representations and warranties of the Master Lease Agreement and Equipment
Schedule No, X are incorporated herein and made a part hereof, and this Summary
Equipment Schedule constitutes a Schedule for the Equipment on the attached
invoices.
1. For Period Beginning: And Ending:
2. Initial Term Starts on: Initial Term:
(Number of Rent Intervals)
3. Total Summary Equipment Cost:
4. Lease Rate Factor:
5. Rent:
6. Acceptance Doc Type:
5
<PAGE>
EQUIPMENT SCHEDULE VL-2
DATED AS OF SEPTEMBER 24, 1999
TO MASTER LEASE AGREEMENT
DATED AS OF SEPTEMBER 24, 1999 (THE "MASTER LEASE")
LESSEE: ESSENTIAL.COM, INC. LESSOR: COMDISCO, INC.
Admin. Contact/Phone No.: Address for all Notices:
Contact: ____________________ 6111 North River Road
Phone: (781) 229-9599 Rosemont, Illinois 60018
Fax: (781) 229-9499 Attn.: Venture Group
Address for Notices:
3 Burlington Woods Drive
4th Floor
Burlington, MA 01803
Central Billing Location: Rent Interval: Monthly
same as above
Attn.:
Lessee Reference No.: ___________________
(24 digits maximum)
Location of Equipment: Initial Term: 42 months
same as above (Number of Rent Intervals)
Attn.: Lease Rate Factor:
Months 1-12 = 1.5%
Months 13-42 = 3.312%
Advance: Upon each Summary
Equipment Schedule
EQUIPMENT (as defined below): Interim Rent: Interest Only (8.5%)
Software and tenant improvements specifically approved by Lessor, which shall be
delivered to and accepted by Lessee during the period September 24, 1999 through
September 24, 2000 ("Equipment Delivery Period") for which Lessor receives
vendor invoices approved for payment, up to an aggregate purchase price of
$250,000.00 ("Commitment Amount"); excluding custom use equipment, installation
costs and delivery costs, rolling stock, special tooling, hand held items, molds
and fungible items. So long as no Event of Default has occurred and is
continuing hereunder, Lessor agrees that Lessee may decrease the Commitment
Amount under Equipment Schedule No. VL-2 and increase the Commitment Amount
under VL-1 accordingly at any time during the Equipment Delivery period.
1
<PAGE>
1. Equipment Purchase
This Schedule contemplates Lessor's acquisition of Equipment for lease to
Lessee, either by one of the first three categories listed below or by providing
Lessee with Equipment from the fourth category, in an aggregate value up to the
Commitment Amount referred to on the face of this Schedule. If the Equipment
acquired is of category (i), (ii) or (iii) below, the effectiveness of this
Schedule as it relates to those items of Equipment is contingent upon Lessee's
acknowledgment at the time Lessor acquires the Equipment that Lessee has either
received or approved the relevant purchase documentation between vendor and
Lessor for that Equipment.
(i) NEW ON-ORDER EQUIPMENT. Lessor will purchase new Equipment which is
obtained from a vendor by Lessee for its use subject to Lessor's
prior approval of the Equipment.
(ii) SALE-LEASEBACK EQUIPMENT. Any in-place Equipment installed at
Lessee's site and to which Lessee has clear title and ownership may
be considered by Lessor for inclusion under this Lease (the
"Sale-Leaseback Transaction"). Any request for a Sale-Leaseback
Transaction must be submitted to Lessor in writing (along with
accompanying evidence of Lessee's Equipment ownership satisfactory
to Lessor for all Equipment submitted) no later than October 24,
1999*. Lessor will not perform a Sale-Leaseback Transaction for any
request or accompanying Equipment ownership documents which arrive
after the date marked above by an asterisk (*) Further, any
sale-leaseback Equipment will be placed on lease subject to: (1)
Lessor prior approval of the Equipment; and (2) if approved, at
Lessor's actual net appraised Equipment value pursuant to the
schedule below:
PERCENT OF ORIGINAL MANUFACTURER'S
ORIGINAL EQUIPMENT INVOICE DATE NET EQUIPMENT COST PAID BY LESSOR
-------------------------------------- ----------------------------------
Between 04/27/99 - 10/24/99 (180 days) 100%
(iii) USED ON-ORDER EQUIPMENT. Lessor will purchase used Equipment which
is obtained from a third party by Lessee for its use subject to
Lessor's prior approval of the Equipment and at Lessor's appraised
value for such used Equipment.
(iv) 800 NUMBER EQUIPMENT. Upon Lessee's use of Comdisco's 1-800 Direct
Service, Lessor will purchase new or used Equipment from a third
party or Lessor will supply new or used Equipment from its inventory
for use by Lessee at rates provided by Lessor.
2. Commencement Date
The Commencement Date for each item of new on-order or used on-order
Equipment will be the install date as confirmed in writing by Lessee as set
forth on the vendor invoice of which a facsimile transmission will constitute an
original document. The Commencement Date for sale-leaseback Equipment shall be
the date Lessor tenders the purchase price. The Commencement Date for 800 Number
Equipment shall be fifteen (15) days from the ship date, such ship date to be
set forth on the vendor invoice or if unavailable on the vendor invoice the ship
date will be determined by Lessor upon other supporting shipping documentation.
Lessor will summarize all approved invoices, purchase documentation and evidence
of delivery, as applicable, received in the same calendar month into a Summary
Equipment Schedule in the form attached to this Schedule as Exhibit 1, and the
Initial Term will begin the first day of the calendar month thereafter. Each
Summary Equipment Schedule will contain the Equipment location, description,
serial number(s) and cost and will incorporate the terms and conditions of the
Master Lease and this Schedule and will constitute a separate lease.
3. Miscellaneous
In consideration of Lessor financing software and tenant improvements
hereunder, Lessee agrees in addition to its last Monthly Rent Payment to remit
to Lessor an amount equal to fifteen percent (15%) of Lessor's aggregate cost of
software and tenant improvements provided hereunder.
4. Special Terms
2
<PAGE>
Special Terms
The terms and conditions of the Master Lease as they pertain to this
Schedule are hereby modified and amended as follows:
(a) Section 7.1., Care. Use and Maintenance
For purposes of this Schedule, this section of the Master Lease shall not
apply.
(b) Section 14.18., Definitions
In the definition of "Casualty Value" after the words "lease term" insert
", discounted at three percent (3%)".
In the definition of "Interim Rent", delete "the pro-rata portion" and
replace with "interest only portion of".
(c) Section 9. Delivery and Return of Equipment
Delete second, third and fourth sentences in their entirety.
Master Lease: This Schedule is issued pursuant to the Master Lease identified on
page 1 of this Schedule. All of the terms and conditions of the Master Lease are
incorporated in and made a part of this Schedule as if they were expressly set
forth in this Schedule. The parties hereby reaffirm all of the terms and
conditions of the Master Lease (including, without limitation, the
representations and warranties set forth in Section 8) except as modified herein
by this Schedule. This Schedule may not be amended or rescinded except by a
writing signed by both parties.
ESSENTIAL,COM, INC., COMDISCO, INC.,
as Lessee as Lessor
By: /s/ Akhil Garland By: /s/ James P. Labe
---------------------------- -----------------------------
James P. Labe, President
Title: President Title: Comdisco Ventures Division
------------------------ --------------------------
Date: 9/20/99 Date:
------------------------- ---------------------------
3
<PAGE>
EXHIBIT 1
SUMMARY EQUIPMENT SCHEDULE
This Summary Equipment Schedule dated XXXX is executed pursuant to
Equipment Schedule No. X to the Master Lease Agreement dated XXXX between
Comdisco, Inc. ("Lessor") and XXXX ("Lessee"). All of the terms, conditions,
representations and warranties of the Master Lease Agreement and Equipment
Schedule No. X are incorporated herein and made a part hereof, and this Summary
Equipment Schedule constitutes a Schedule for the Equipment on the attached
invoices.
1. For Period Beginning: And Ending:
2. Initial Term Starts on: Initial Term:
(Number of Rent Intervals)
3. Total Summary Equipment Cost:
4. Lease Rate Factor:
5. Rent
6. Acceptance Doc Type:
4
<PAGE>
Exhibit 10.36
SCHEDULE I
This Schedule I is a part of and is incorporated into that certain
Agreement (together, the "Agreement") dated October 20, 1999 by and between
essential.com, inc. (the "Company"); and Donaldson, Lufkin & Jenrette
Securities Corporation ("DLJ").
The Company will indemnify and hold harmless Donaldson, Lufkin &
Jenrette Securities Corporation, its affiliates and its parent and its
affiliates, and the respective directors, officers, agents and employees of
DLJ, its affiliates and its parent and its affiliates (DLJ and each such
entity or person, an "Indemnified Person") from and against any losses,
claims, damages, judgments, assessments, costs and other liabilities
(collectively "Liabilities"), and will reimburse each Indemnified Person for
all fees and expenses(including the reasonable fees and expenses of counsel)
(collectively, "Expenses") as they are incurred in investigating, preparing,
pursuing or defending any claim, action, proceeding or investigation, whether
or not in connection with pending or threatened litigation and whether or not
any Indemnified Person is a party (collectively, "Actions"). (i) caused by,
or arising out of or in connection with, any untrue statement or alleged
untrue statement of a material fact contained in the Offering Materials
(including any amendments thereof and supplements thereto) or by any omission
or alleged omission to state therein a material fact necessary to make the
statements therein, in light of the circumstances under which they were made,
not misleading (other than untrue statements or alleged untrue statements in,
or omissions or alleged omissions from, information relating to an
Indemnified Person furnished in writing by or on behalf of such Indemnified
Person expressly for use in the Offering Materials) or (ii) otherwise arising
out of or in connection with advice or services rendered or to be rendered by
any Indemnified Person pursuant to this Agreement, the transactions
contemplated hereby or any Indemnified Person's actions or inactions in
connection with any such advice, services or transactions; provided that, in
the case of clause (ii) only, the Company will not be responsible for any
Liabilities or Expenses of any Indemnified Person that are determined by a
judgment of a court of competent jurisdiction which is no longer subject to
appeal or further review to have resulted solely from such Indemnified
Person's gross negligence, bad faith or willful misconduct in connection with
any of the advice, actions, inactions or services referred to above. The
Company also agrees to reimburse each Indemnified Person for all Expenses as
they are incurred in connection with enforcing such Indemnified Person's
rights under this Agreement (including, without limitation, its rights under
this Schedule I).
Upon receipt by an Indemnified Person of actual notice of an Action
against such Indemnified Person with respect to which indemnity may be sought
under this Agreement, such Indemnified Person shall promptly notify the
Company in writing; provided that failure so to notify the Company shall not
relieve the Company from any liability which the Company may have on account
of this indemnity or otherwise, except to the extent the Company shall have
been materially prejudiced by such failure. The Company shall, if requested
by DLJ, assume the defense of any such Action including the employment of
counsel reasonably satisfactory to DLJ. Any Indemnified Person shall have the
right to employ separate counsel in any such action and participate in the
defense thereof, but the fees and expenses of such counsel shall be at the
expense of such Indemnified Person, unless: (i) the Company has failed
promptly to assume the defense and employ counsel or (ii) the named parties
to any such Action (including any impleaded parties) include such Indemnified
Person and the Company, and such Indemnified Person shall have been advised
by counsel that there may be one or more legal defenses available to it which
are different from or in addition to those available to the Company; provided
that the Company shall not in such event be responsible hereunder for the
fees and expenses of more than one firm of separate counsel in connection
with any Action in the same jurisdiction, in addition to any local counsel.
The Company shall not be liable for any settlement of any Action effected
without its written consent (which shall
I-1
<PAGE>
not be unreasonably withheld). In addition, the Company will not, without
prior written consent of DLJ, settle, compromise or consent to the entry of
any judgment in or otherwise seek to terminate any pending or threatened
Action in respect of which indemnification or contribution may be sought
hereunder (whether or not any Indemnified Person is a party thereto) unless
such settlement, compromise, consent or termination includes an unconditional
release of each Indemnified Person from all Liabilities arising out of such
Action.
In the event that the foregoing indemnity is judicially determined to be
unavailable to an Indemnified Person (other than in accordance with the terms
hereof), the Company shall contribute to the Liabilities and Expenses paid or
payable by such Indemnified Person in such proportion as is appropriate to
reflect (i) the relative benefits to the Company and its shareholders, on the
one hand, and to DLJ, on the other hand, of the matters contemplated by this
Agreement or (ii) if the allocation provided by the immediately preceding
clause is not permitted by the applicable law, not only such relative
benefits but also the relative fault of the Company, on the one hand, and
DLJ, on the other hand, in connection with the matters as to which such
Liabilities or Expenses relate, as well as any other relevant equitable
considerations; provided that in no event shall the Company contribute less
than the amount necessary to ensure that all Indemnified Persons, in the
aggregate, are not liable for any Liabilities and Expenses in excess of the
amount of fees actually received by DLJ pursuant to this Agreement. For
purposes of this paragraph, the relative benefits to the Company and its
shareholders, on the one hand, and to DLJ, on the other hand of the matters
contemplated by this Agreement shall be deemed to be in the same proportion
as (a) the total value paid or contemplated to be paid or received or
contemplated to be received by the Company or the Company's shareholders, as
the case may be, in the transaction or transactions that are within the scope
of this Agreement, whether or not any such transaction is consummated, bears
to (b) the fees paid or to be paid to DLJ under this Agreement.
The Company also agrees that no Indemnified Person shall have any
liability (whether direct or indirect, in contract or tort or otherwise) to
the Company for or in connection with advice or services rendered or to be
rendered by any Indemnified Person pursuant to this Agreement, the
transactions contemplated hereby or any Indemnified Person's actions or
inactions in connection with any such advice, services or transactions except
for Liabilities (and related Expenses) of the Company that are determined by
a judgment of a court of competent jurisdiction which is no longer subject to
appeal or further review to have resulted solely from such Indemnified
Person's gross negligence, bad faith or willful misconduct in connection with
any such advice, actions, inactions or services.
If any term, provision, covenant or restriction contained in this
Schedule I is held by a court of competent jurisdiction or other authority
to be invalid, void, unenforceable or against its regulatory policy, the
remainder of the terms, provisions, covenants and restrictions contained in
this Agreement shall remain in full force and effect and shall in no way be
affected, impaired or invalidated.
The reimbursement, indemnity and contribution obligations of the Company
set forth herein shall apply to any modification of this Agreement and shall
remain in full force and effect regardless of any termination of, or the
completion of any Indemnified Person's services under or in connection with,
this Agreement.
I-2
<PAGE>
EXHIBIT 23.02
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the use of our
report (and to all references to our Firm) included in or made a part of this
Registration Statement.
/s/ Arthur Andersen LLP
Boston, Massachusetts
April 7, 2000
<TABLE> <S> <C>
<PAGE>
<ARTICLE> 5
<LEGEND>
THIS SCHEDULE CONTAINS SUMMARY FINANCIAL INFORMATION EXTRACTED FROM THE
COMPANY'S AUDITED FINANCIAL STATEMENTS FOR THE YEAR ENDED DECEMBER 31, 1999 AND
IS QUALIFIED IN ITS ENTIRETY BY REFERENCE TO SUCH FINANCIAL STATEMENTS.
</LEGEND>
<MULTIPLIER>1
<CURRENCY>U.S. DOLLAR
<S> <C>
<PERIOD-TYPE> 12-MOS
<FISCAL-YEAR-END> DEC-31-1999
<PERIOD-START> JAN-01-1999
<PERIOD-END> DEC-31-1999
<EXCHANGE-RATE> 1
<CASH> 3,341,033
<SECURITIES> 0
<RECEIVABLES> 314,937
<ALLOWANCES> (40,000)
<INVENTORY> 0
<CURRENT-ASSETS> 4,565,025
<PP&E> 863,065
<DEPRECIATION> 263,320
<TOTAL-ASSETS> 5,946,779
<CURRENT-LIABILITIES> 2,905,323
<BONDS> 0
15,342,486
0
<COMMON> 44,828
<OTHER-SE> (12,270,730)
<TOTAL-LIABILITY-AND-EQUITY> 5,946,779
<SALES> 526,985
<TOTAL-REVENUES> 526,985
<CGS> 421,451
<TOTAL-COSTS> 13,440,390
<OTHER-EXPENSES> 211,735
<LOSS-PROVISION> 0
<INTEREST-EXPENSE> (252,626)
<INCOME-PRETAX> (12,954,296)
<INCOME-TAX> 0
<INCOME-CONTINUING> (12,954,296)
<DISCONTINUED> 0
<EXTRAORDINARY> 0
<CHANGES> 0
<NET-INCOME> (12,954,296)
<EPS-BASIC> (3.03)
<EPS-DILUTED> (3.03)
</TABLE>
