<PAGE> 1
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON MAY 11, 2000
REGISTRATION NO. 333-34916
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
------------------------
AMENDMENT NO. 1
TO
FORM S-1
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
------------------------
ATG GROUP, INC.
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
<TABLE>
<S> <C> <C>
DELAWARE 4813 94-3344665
(STATE OR OTHER JURISDICTION OF (PRIMARY STANDARD INDUSTRIAL (I.R.S. EMPLOYER
INCORPORATION OR ORGANIZATION) CLASSIFICATION CODE NUMBER) IDENTIFICATION NUMBER)
</TABLE>
110 STONY POINT ROAD
SECOND FLOOR
SANTA ROSA, CALIFORNIA 95401
(707) 284-5000
(ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER, INCLUDING AREA CODE, OF
REGISTRANT'S PRINCIPAL EXECUTIVE OFFICES)
------------------------
CLIFFORD G. RUDOLPH
CHIEF EXECUTIVE OFFICER
ATG GROUP, INC.
110 STONY POINT ROAD
SECOND FLOOR
SANTA ROSA, CALIFORNIA 95401
(707) 284-5000
(NAME, ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER, INCLUDING AREA CODE,
OF AGENT FOR SERVICE)
------------------------
COPIES TO:
<TABLE>
<S> <C>
LARRY W. SONSINI, ESQ. THOMAS R. BROME, ESQ.
ANDREW J. HIRSCH, ESQ. CRAVATH, SWAINE & MOORE
DANIEL R. MITZ, ESQ. WORLDWIDE PLAZA
BRET M. DIMARCO, ESQ. 825 EIGHTH AVENUE
WILSON SONSINI GOODRICH & ROSATI NEW YORK, NEW YORK 10019
PROFESSIONAL CORPORATION (212) 474-1000
650 PAGE MILL ROAD
PALO ALTO, CA 94304
(650) 493-9300
</TABLE>
------------------------
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC: As soon as
practicable after the effective date of this Registration Statement.
If any of the securities being registered on this Form are to be offered on
a delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, 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, please check the following box
and list the Securities Act registration number of the earlier effective
registration statement for the same offering. [ ]
If this Form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. [ ]
If this Form is a post-effective amendment filed pursuant to Rule 462(d)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. [ ]
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. [ ]
------------------------
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
- ----------------------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------------------
PROPOSED MAXIMUM
TITLE OF EACH CLASS OF AGGREGATE AMOUNT OF
SECURITIES TO BE REGISTERED OFFERING PRICE(1) REGISTRATION FEE(2)
- ----------------------------------------------------------------------------------------------------------------------
<S> <C> <C>
Common Stock, $0.0001 par value per
share................................. $200,000,000 $52,800
- ----------------------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------------------
</TABLE>
(1) Estimated solely for the purpose of calculating the registration fee
pursuant to Rule 457(o) under the Securities Act of 1933.
(2) Previously paid.
------------------------
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 THE REGISTRATION STATEMENT SHALL BECOME
EFFECTIVE ON SUCH DATE AS THE SECURITIES AND EXCHANGE COMMISSION, ACTING
PURSUANT TO SAID SECTION 8(a) MAY DETERMINE.
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
<PAGE> 2
EXPLANATORY NOTE
The purpose of this Amendment No. 1 to the Registration Statement is solely
to file certain exhibits to the Registration Statement, as set forth below in
Item 16 of Part II.
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 13. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION
The following table sets forth the costs and expenses, other than
underwriting discounts and commissions, payable by ATG Group, Inc. in connection
with the sale of common stock being registered. All amounts are estimates except
the SEC registration fee and the NASD filing fee.
<TABLE>
<S> <C>
SEC registration fee........................................ 52,800
NASD filing fee............................................. 20,500
Nasdaq National Market listing fee.......................... *
Printing and engraving costs................................ *
Legal fees and expenses..................................... *
Accounting fees and expenses................................ *
Blue Sky fees and expenses.................................. 10,000
Transfer Agent and Registrar fees........................... *
Miscellaneous expenses...................................... *
------
Total............................................. *
======
</TABLE>
- ---------------
* To be provided by amendment.
------------------------
ITEM 14. INDEMNIFICATION OF DIRECTORS AND OFFICERS
Section 145 of the Delaware General Corporation Law permits a corporation
to include in its charter documents, and in agreements between the corporation
and its directors and officers, provisions expanding the scope of
indemnification beyond that specifically provided by the current law.
Our Restated Certificate of Incorporation will provide for the
indemnification of directors to the fullest extent permissible under Delaware
law.
Our Bylaws will provide for the indemnification of officers, directors and
third parties acting on our behalf if such person acted in good faith and in a
manner reasonably believed to be in and not opposed to the best interest of ATG,
and, with respect to any criminal action or proceeding, the indemnified party
had no reason to believe his or her conduct was unlawful.
We have entered into indemnification agreements with our directors and
executive officers, in addition to indemnification provided for in our Bylaws,
and intend to enter into indemnification agreements with any new directors and
executive officers in the future.
ITEM 15. RECENT SALES OF UNREGISTERED SECURITIES
During the past three years, we have issued unregistered securities to a
limited number of persons as described below.
- From December 1999 through April 2000, we sold an aggregate of 39,428,471
shares of Series D Preferred Stock to private investors at a purchase
price of $4.44 per share for an aggregate purchase price of
$175,062,411.20.
- In connection with our acquisition of NewComm Net, Inc., in September
1999, we issued 1,250,456 shares of our common stock to certain
shareholders of NewComm Net, Inc. in exchange for their shares of NewComm
Net, Inc.
II-1
<PAGE> 3
- From August 1999 through December 1999, we sold an aggregate of 1,503,880
shares of Series C Preferred Stock for $1.852 per share to private
investors for an aggregate purchase price of $2,784,964.70.
- From November 1998 through December 1999, we sold 67,500,000 shares of
Series B Preferred Stock for $1.482 per share to private investors for an
aggregate purchase price of $100,000,035.00.
- In July 1998, we sold 1,350,000 shares of Series A Preferred Stock for
$1.482 per share to private investors for an aggregate purchase price of
$2,000,000.00.
- In July 1998, we sold 3,650,050 shares of our common stock to certain of
our officers for an aggregate purchase price of $233,600.
- In April 2000, we issued 171,900 shares of our common stock in our
acquisition of all of the outstanding shares of Olympia Networking
Services, Inc.
None of the foregoing transactions involved any underwriters, underwriting
discounts or commissions, or any public offering, and we believe that each
transaction was exempt from the registration requirements of the Securities Act
by virtue of Section 4(2) thereof, Regulation D promulgated thereunder or Rule
701 pursuant to compensatory benefit plans and contracts relating to
compensation as provided under such Rule 701. The recipients in such transaction
represented their intention to acquire the securities for investment only and
not with a view to or for sale in connection with any distribution thereof, and
appropriate legends were affixed to the share certificates and instruments
issued in such transactions. All recipients had adequate access, through their
relationships with us to information about us.
ITEM 16. EXHIBITS AND FINANCIAL STATEMENT SCHEDULES
INDEX TO EXHIBITS
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION OF DOCUMENT
------- -----------------------
<C> <S>
1.1* Form of Underwriting Agreement.
3.1* Form of Amended and Restated Certificate of Incorporation of
the Registrant.
3.2* Form of Amended and Restated Bylaws of the Registrant.
4.1* Form of Registrant's Common Stock certificate.
4.2** Second Amended and Restated Registration Rights Agreement.
5.1* Opinion of Wilson Sonsini Goodrich & Rosati, P.C.
10.1* Form of Indemnification Agreement entered into by the
Registrant with each of its directors and executive
officers.
10.2* 1998 Stock Option Plan and forms of agreements thereunder.
10.3* 2000 Equity Incentive Plan and forms of agreements
thereunder.
10.4* 2000 Employee Stock Purchase Plan.
10.5** Employment Agreement with Clifford G. Rudolph, dated
November 24, 1999.
10.6** Employment Agreement with Robert T. Warstler, dated December
1, 1999.
10.7** Employment Agreement with Thomas A. Grina, dated December 1,
1999.
10.8** Employment Agreement with Curtis E. Wheeling, dated December
1, 1999.
10.9** Employment Agreement with Katharine S. Klein, dated December
1, 1999.
</TABLE>
II-2
<PAGE> 4
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION OF DOCUMENT
------- -----------------------
<C> <S>
10.10+ Carrier Service Agreement dated as of December 31, 1998 by
and between Qwest Communications Corporation and Shared
Communications Services, Inc.
10.11+ Carrier Agreement dated as of March 14, 1998 by and between
BellSouth Long Distance, Inc. and Shared Communications
Services, Inc., as amended.
10.12+ Switchless Reseller Agreement dated as of December 31, 1998
by and between Qwest Communications Corporation and Shared
Communications Services, Inc.
10.13 Master Service Agreement dated as of March 29, 1999 by and
between Illuminet, Inc. and Advanced TelCom Group, Inc.
10.14+ General Supply Agreement dated as of July 28, 1999 by and
between Lucent Technologies Inc. and Advanced TelCom Group,
Inc.
10.15+ Clearinghouse Services Agreement dated as of May 1999 by and
between SCC Communications Corp. and Advanced TelCom Group,
Inc.
10.16+ Lease dated as of April 26, 1999 by and between Stony Point
East and Advanced TelCom Group, Inc.
10.17+ Telecommunications Services Agreement dated as of March 11,
1999 by and between Qwest Communications Corporation and
Advanced TelCom Group, Inc., as amended.
10.18+ License Agreement dated as of September 8, 1999 by and
between the United States of America Department of Energy
and Advanced TelCom Group, Inc.
10.19+ Fiber Optic Private Network Agreement dated as of October 1,
1999 by and between Metromedia Fiber Network Services, Inc.
and Advanced TelCom Group, Inc.
10.20+ Network Service Agreement dated as of October 10, 1994 by
and between US West Communications, Inc. and Shared
Communications, Inc., as amended.
21.1** Subsidiaries of Registrant.
23.1** Consent of KPMG LLP.
23.2** Consent of Arthur Andersen LLP.
23.3* Consent of Wilson Sonsini Goodrich & Rosati, P.C. (included
in Exhibit 5.1).
24.1** Power of Attorney (see pages II-5 and II-6).
27.1** Financial Data Schedule.
</TABLE>
- ---------------
* To be filed by amendment.
** Previously filed.
+ Confidential treatment requested on portions of this exhibit. An unredacted
version of this exhibit has been filed separately with the Securities and
Exchange Commission.
(b) FINANCIAL STATEMENT SCHEDULES
Schedules have not been provided because the information required to be set
forth therein is not applicable or is shown in the financial statements or notes
thereto.
ITEM 17. UNDERTAKINGS
ATG 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.
Insofar as indemnification by ATG for liabilities arising under the
Securities Act may be permitted to directors, officers and controlling persons
of ATG pursuant to the provisions referenced in Item 14 of this Registration
Statement or otherwise, ATG has been advised that in the opinion of the
Securities and
II-3
<PAGE> 5
Exchange Commission 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 payment by
ATG of expenses incurred or paid by a director, officer, or controlling person
of ATG in the successful defense of any action, suit or proceeding) is asserted
by a director, officer or controlling person in connection with the securities
being registered hereunder, ATG 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.
ATG hereby undertakes that:
(1) For purposes of determining any liability under the Securities Act, the
information omitted from 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 ATG 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-4
<PAGE> 6
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 the city of Santa Rosa, State of
California, on May 11, 2000.
ATG GROUP, INC.
By: /s/ CLIFFORD G. RUDOLPH
------------------------------------
Clifford G. Rudolph, Chairman of the
Board, Chief Executive Officer and
Secretary
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on the dates indicated:
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
--------- ----- ----
<S> <C> <C>
/s/ CLIFFORD G. RUDOLPH Chairman of the Board, Chief May 11, 2000
- --------------------------------------------------- Executive Officer and Secretary
Clifford G. Rudolph (principal executive officer)
* Senior Vice President and Chief
- --------------------------------------------------- Financial Officer (principal
Thomas A. Grina financial officer)
* Vice President and Controller
- --------------------------------------------------- (principal accounting officer)
Eric E. Russell
* Director
- ---------------------------------------------------
Robert Benbow
* Director
- ---------------------------------------------------
William S. Price
* Director
- ---------------------------------------------------
John G. Puente
* Director
- ---------------------------------------------------
John Watkins
* Director
- ---------------------------------------------------
Blair P. Whitaker
*By: /s/ CLIFFORD G. RUDOLPH
-------------------------------------------
Clifford G. Rudolph
Attorney-in-Fact
</TABLE>
II-5
<PAGE> 7
INDEX TO EXHIBITS
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION OF DOCUMENT
------- -----------------------
<C> <S>
1.1* Form of Underwriting Agreement.
3.1* Form of Amended and Restated Certificate of Incorporation of
the Registrant.
3.2* Form of Amended and Restated Bylaws of the Registrant.
4.1* Form of Registrant's Common Stock certificate.
4.2** Second Amended and Restated Registration Rights Agreement.
5.1* Opinion of Wilson Sonsini Goodrich & Rosati, P.C.
10.1* Form of Indemnification Agreement entered into by the
Registrant with each of its directors and executive
officers.
10.2* 1998 Stock Option Plan and forms of agreements thereunder.
10.3* 2000 Equity Incentive Plan and forms of agreements
thereunder.
10.4* 2000 Employee Stock Purchase Plan.
10.5** Employment Agreement with Clifford G. Rudolph, dated
November 24, 1999.
10.6** Employment Agreement with Robert T. Warstler, dated December
1, 1999.
10.7** Employment Agreement with Thomas A. Grina, dated December 1,
1999.
10.8** Employment Agreement with Curtis E. Wheeling, dated December
1, 1999.
10.9** Employment Agreement with Katharine S. Klein, dated December
1, 1999.
10.10+ Carrier Service Agreement dated as of December 31, 1998 by
and between Qwest Communications Corporation and Shared
Communications Services, Inc.
10.11+ Carrier Agreement dated as of March 14, 1998 by and between
BellSouth Long Distance, Inc. and Shared Communications
Services, Inc., as amended.
10.12+ Switchless Reseller Agreement dated as of December 31, 1998
by and between Qwest Communications Corporation and Shared
Communications Services, Inc.
10.13 Master Service Agreement dated as of March 29, 1999 by and
between Illuminet, Inc. and Advanced TelCom Group, Inc.
10.14+ General Supply Agreement dated as of July 28, 1999 by and
between Lucent Technologies Inc. and Advanced TelCom Group,
Inc.
10.15+ Clearinghouse Services Agreement dated as of May 1999 by and
between SCC Communications Corp. and Advanced TelCom Group,
Inc.
10.16+ Lease dated as of April 26, 1999 by and between Stony Point
East and Advanced TelCom Group, Inc.
10.17+ Telecommunications Services Agreement dated as of March 11,
1999 by and between Qwest Communications Corporation and
Advanced TelCom Group, Inc., as amended.
10.18+ License Agreement dated as of September 8, 1999 by and
between the United States of America Department of Energy
and Advanced TelCom Group, Inc.
10.19+ Fiber Optic Private Network Agreement dated as of October 1,
1999 by and between Metromedia Fiber Network Services, Inc.
and Advanced TelCom Group, Inc.
10.20+ Network Service Agreement dated as of October 10, 1994 by
and between US West Communications, Inc. and Shared
Communications, Inc., as amended.
21.1** Subsidiaries of Registrant.
23.1** Consent of KPMG LLP.
23.2** Consent of Arthur Andersen LLP.
</TABLE>
<PAGE> 8
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION OF DOCUMENT
------- -----------------------
<C> <S>
23.3* Consent of Wilson Sonsini Goodrich & Rosati, P.C. (included
in Exhibit 5.1).
24.1** Power of Attorney (see pages II-5 and II-6).
27.1** Financial Data Schedule.
</TABLE>
- ---------------
* To be filed by amendment.
** Previously filed.
+ Confidential treatment requested on portions of this exhibit. An unredacted
version of this exhibit has been filed separately with the Securities and
Exchange Commission.
<PAGE> 1
Exhibit 10.10
QWEST
DECEMBER, 1998
- --------------------
[*] Information redacted pursuant to a confidential treatment request
throughout this exhibit.
<PAGE> 2
CARRIER SERVICE AGREEMENT
THIS CARRIER SERVICE AGREEMENT (the "Agreement") is entered into by and between
Qwest Communications Corporation ("Qwest") located at 4250 North Fairfax Drive,
Arlington, Virginia 22203, facsimile number (703) 363-3750 and Shared
Communications Services, Inc. (the "Customer") located at 3723 Fairview
Industrial Drive, S.E., Salem, Oregon 97302, facsimile number (503) 316-4467.
Qwest and Customer are sometimes referred to in this Agreement collectively as
the Parties and singularly as a "Party".
TERMS AND CONDITIONS
1. SCOPE OF AGREEMENT
Qwest agrees to provide and Customer agrees to purchase Qwest service(s)
for the price(s) and subject to the terms and conditions set forth herein
described in the exhibits attached hereto (the "Service" or "Services").
All Service is provided pursuant to Qwest/LCI Tariff F.C.C. No. 1,
Qwest/LCI Tariff F.C.C. No. 2 and applicable state tariffs (collectively,
the "Tariff(s)"), which are on file with the Federal Communications
Commission ("FCC") and applicable state regulatory bodies. The Tariffs may
be modified from time to time by Qwest in accordance with law and thereby
affect the Service(s) furnished Customer. To the extent applicable to the
furnishing of Qwest Services hereunder, the Tariff, as amended from time to
time, is hereby incorporated herein and made a part hereof, except that the
following terms and conditions shall supplement or, to the extent
inconsistent, supersede Tariff terms and conditions and shall remain in
effect throughout the service term; as hereinafter defined.
2. MONTHLY MINIMUM COMMITMENT
(A) Any monthly minimum usage commitments agreed upon by Qwest and
Customer shall be set forth in the attached Services Descriptions and rate
Exhibits, which such exhibits are specified in Section 3 of this Agreement
(the "Monthly Commitment"). Customer acknowledges and agrees that certain
rates and discounts may be being provided to Customer hereunder in
consideration of Customer's agreement to meet or exceed the Monthly
Commitment and that such rates and discounts would not be offered to
Customer without Customer's agreement to make such commitments.
(B) The minimum monthly usage required per DS-1 is [*] MOUs averaged
among all Qwest DS-1s used by Customer under this Agreement (the "Minimum
Facility Utilization"). In the event Customer fails to meet or exceed the
Minimum Facility Utilization average, Qwest shall give Customer five (5)
business days notice of the certain circuits that are not meeting such
commitment. Customer agrees, within such five (5) day period, either to (i)
bring usage up to such Minimum Facility Utilization average on such
circuits or (ii) release such circuits under the [*] to Qwest from use
by Customer. If Customer does not comply with the above requirement,
Customer will be assessed a monthly underutilization fee of [*] (the
"Underutilization Fee") for each DS-1 which was under the Minimum Facility
Utilization for such month.
(C) Qwest and Customer specifically agree that any underutilization fees,
deficiency charges or other relief, if any, provided for in this Agreement
or the Exhibits relating to any of the commitments in this Agreement or the
Exhibits represent mutual good faith estimates of, and bear reasonable
relationships to, the actual damages to Qwest in the event of Customer's
failure to meet such commitments or Customer's underutilization of such
circuits, and they do not represent a penalty of any kind. The Parties
further agree that such fees, charges and relief are obligations of
Customer, subject to specific performance.
QWEST CONFIDENTIAL AND PROPRIETARY
- --------------------
[*] Information redacted pursuant to a confidential treatment request
throughout this exhibit.
1
<PAGE> 3
CARRIER SERVICE AGREEMENT
3. SERVICE RATES AND TERMS
(A) Qwest service descriptions, rates and terms are shown and described
in the following Exhibits:
Exhibit A1 Qwest Express RBOC/ITC Terminating Switched Service
Description
Exhibit A2 Qwest Express RBOC/ITC Terminating Switched Service Rate
Schedule
Exhibit B1, B2, C1, C2, D1 Reserved for Future Use
Exhibit E1 Qwest Express 8XX RESP ORG and Originating Transport
Service Description
Exhibit E2 Qwest Express 8XX Originating Transport Service Rate
Schedule
Exhibit F1 Qwest Express Canada Terminating Service Description
Exhibit F2 Qwest Express Canada Terminating Rate Schedule
Exhibit G1 Qwest Express Mexico Terminating Service Description
Exhibit G2 Qwest Express Mexico Terminating Rate Schedule
Exhibit H1 Qwest Express International Terminating Service Description
Exhibit H2 Qwest Express International Terminating Service Rate
Schedule
Exhibit I1 Qwest Express Directory Assistance Service Description
Exhibit I2 Qwest Express Directory Assistance Service Rate Schedule
Qwest reserves the right to eliminate any Service offerings and/or
modify any charges for Service offerings upon written notice to
Customer as follows:
a) Rate decreases and additional services offered, if any, in
Qwest's sole discretion, shall be effective immediately upon
written notification to the Customer or upon an effective date
set forth by Qwest in such notification;
b) All rates and agreements specified in Exhibits and attachments
are subject to change immediately, with no prior notice to
Customer, in the event there are mandated surcharges imposed by
a federal, state or governmental agency. Further,
notwithstanding any statements to the contrary contained in the
Tariff, in the event that any regulatory agency, legislative
body or court of competent jurisdiction promulgates regulations
or modifies existing ones including, without limitation,
regulations regarding payphone compensation, access charges
and/or universal service (the "Regulatory Activity"), Qwest
reserves the right, at any time upon written notice, to: (i)
pass through to Customer all, or a portion of, any charges or
surcharges directly or indirectly related to such Regulatory
Activity; or (ii) modify the rates, including any rate
guarantees, and/or other terms and conditions contained in this
Agreement and/or the Tariff to reflect the impact of such
Regulatory Activity;
c) International rates and agreements specified in Exhibits and
attachments, including Canadian and Mexican services, are
subject to change upon five (5) calendar days written notice to
Customer;
d) All other rates and agreement specified in Exhibits and
attachments, excluding international, Canadian, and Mexican
services, are subject to change upon thirty (30) calendar days
written notice to Customer;
(B) Except as otherwise provided above, Qwest reserves the right to
change rates and Services described in the Exhibits at any time
upon thirty (30) calendar days prior written notice. Customer
shall have the right to terminate this Agreement, in whole or in
part, in the event of any material increase in rates for
Services utilized by Customer, without penalty or fee.
QWEST CONFIDENTIAL AND PROPRIETARY
2
<PAGE> 4
CARRIER SERVICE AGREEMENT
4. SYSTEM MAINTENANCE
Subject to Sections 7 and 12 hereof, Qwest expects, but does not
guarantee, that system maintenance normally will not result in service
interruptions. If system maintenance should result in the interruption of
Service, to the extent possible it shall be accomplished only after prior
notification to Customer and will be completed within a reasonable time.
5. CUSTOMER SERVICE
Customer acknowledges and agrees that it shall provide all billing,
inquiry, and customer service to Customer's end-users or customers (the
"End-Users").
6. REPRESENTATION
Customer shall not use any trademark, service mark, brand name or any
other intellectual property of Qwest or any Qwest affiliate without
Qwest's prior express written consent. Notwithstanding the foregoing,
Customer may disclose, during pre-sale activities, that Qwest is the
underlying carrier of its service. In no event shall Customer represent
or state to End Users or prospective End Users that it has any
relationship with Qwest other than an agreement to purchase Qwest's
services. Customer shall promptly and fully cooperate with Qwest to
address and resolve all issues, problems, administrative procedures, End
User complaints, regulatory investigations or inquiries or any other
circumstances arising from Customer's use of Qwest Services.
7. FINANCIAL RESPONSIBILITY, PAYMENT AND SECURITY
(A) Qwest shall use commercially reasonable efforts to provide accurate
billing and call detail records to Customer in accordance with Qwest's
then standard formats. Customer shall pay all Qwest invoices for Service
within thirty (30) calendar days from invoice date via cash, check or
wire transfer. All discounts and promotions, if any, and taxes, will be
included in the monthly invoice. Any payment received by Qwest later than
thirty (30) calendar days after the due date of the invoice shall be
subject to an interest charge on delinquent amounts at the rate of [*]
of the late payment per month or the maximum lawful rate allowable under
applicable state law, whichever is lower. Such interest charge shall be
applied on any late payments, commencing upon the invoice due date
through the actual date of receipt of payment. Any applicable federal,
state or local use, excise, sales or privilege taxes, duties or similar
liabilities, chargeable to or against Qwest because of the Service
provided Customer shall also be charged to and payable by Customer. If
full payment is not made when due, Qwest, in its sole discretion, shall
have the right, after Qwest has given written notice to Customer, to
suspend all or any part of the Service until such time as Customer has
paid all unpaid balances (including interest), or to terminate all or any
part of the Service. During any such suspension, and upon any such
termination, no service interruption shall be deemed to occur.
(B) Customer acknowledges that it may not withhold any sums invoiced by
Qwest for actual calls made by Customer including, without limitation,
calls made by Customer's End Users and/or unauthorized third parties
(e.g., fraudulent calls) and charges to Customer's Qwest account(s).
Customer will be responsible for full payment of all charges as reflected
on any Qwest billing statement. Independent of Customer's payment
obligations set forth in this section, Customer must notify Qwest within
sixty (60) calendar days of receipt of any contested or disputed amount
concerning charges as they appear on the Qwest billing statement.
Customer's notification of any contested or disputed amount must be in
writing and sent to: Credit & Collections Department, Qwest
Communications Corporation, 4650 Lakehurst Court, Dublin, Ohio 43017 or
to (614) 798-6460, by facsimile with duplicate notification to follow via
regular U.S. Mail or overnight delivery. Written notification must be
accompanied with a detailed written support, for any service interruption
credit or other credit to which Customer believes itself
QWEST CONFIDENTIAL AND PROPRIETARY
- --------------------
[*] Information redacted pursuant to a confidential treatment request
throughout this exhibit.
3
<PAGE> 5
CARRIER SERVICE AGREEMENT
entitled, and Qwest and Customer will promptly address and attempt to
resolve the claim. Qwest, in its sole discretion exercised in good faith,
may reject such documentation and/or explanation as inadequate. If Qwest so
rejects such documentation, Customer shall have an additional ten (10)
business days to provide additional supporting documentation to Qwest. If
Qwest rejects such additional documentation, Qwest shall so notify Customer
in which case the disputed portion of the bill shall be paid by Customer
within ten (10) business days of Customer's receipt of Qwest's final notice
of inadequacy. All Credits or adjustments for service outages will be made
pursuant to applicable provisions of Qwest/LCI's Tariff F.C.C. No. 1 and
Tariff F.C.C. No. 2 and applicable state tariffs which are on file with the
Federal Communications Commission and applicable state regulatory bodies
and which may be modified from time to time by Qwest in accordance with
law. In consideration of the discounts offered by Qwest pursuant to this
Agreement, with respect to any unpaid balance(s) owed by Customer to Qwest,
Qwest shall have the right to offset such unpaid balance(s) from any
amounts that Qwest owes to Customer and any of its affiliates.
(C) Customer acknowledges and agrees that Qwest may reasonably require
additional security and/or payment terms under this Agreement prior to the
commencement of Services hereunder, and Customer agrees to comply with
such request. Customer agrees to provide and/or execute any additional
collateral security documents, including, without limitation, an
irrevocable letter of credit, a cash deposit, a prepaid invoice amount, a
corporate guarantee, as may be reasonably required by Qwest, in Qwest's
sole judgment, if there is a material change in circumstances of
Customer's actual or anticipated usage hereunder or Customer's financial
condition during any time that Customer uses the Service.
8. TERM
The initial term of this Agreement (the "Initial Term") will begin on the
first day of the first billing cycle following the Effective Date (as
hereinafter defined) of this Agreement (the "Initial Service Date") and
will continue for a period of the longer of (i) twelve (12) calendar
months from the Initial Service Date, or (ii) as long as a term for a
Service attached to this Agreement (the "Service Term") is in effect;
provided, however, that, following Customer's execution of this Agreement,
Qwest shall execute this Agreement as soon as possible but in no event
later than thirty (30) calendar days after Customer's execution date. The
"Effective Date" is defined as the date this Agreement is signed by an
authorized officer of Qwest after having been signed by Customer.
Applicable Service rates and discounts, if any, shall be effective as of
their respective effective date in the applicable Service rate or discount
schedule. Following the Initial Term, the Agreement shall continue on a
monthly basis (each a "Renewal Term") until either party provides the
other party with at least thirty (30) calendar days prior written notice
of its intent to terminate this Agreement and the intended date of such
termination. The Initial Term and Renewal Terms are sometimes collectively
referred to herein as the "Term".
9. OBLIGATIONS UPON EXPIRATION OR TERMINATION OF TERM
Upon expiration or termination of this Agreement, Customer shall pay all
outstanding balances in accordance with Section 7 of this Agreement. Upon
expiration or termination of this Agreement, Customer shall be fully
subject to all terms and conditions, including standard tariffed rates,
set forth in the Qwest/LCI Tariff for Qwest services received by Customer
after such date.
10. EARLY TERMINATION
QWEST CONFIDENTIAL AND PROPRIETARY
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<PAGE> 6
CARRIER SERVICE AGREEMENT
(A) Customer may cancel this Agreement, without being subject to any
cancellation charge or other payment, by written notice of such
cancellation given to Qwest not less than (30) days prior to the date
of such cancellation, if the Service provided under this Agreement is
the subject of service outages or interruptions accumulating 120 hours
or more over any period of 180 consecutive calendar days.
(B) Either party may terminate this Agreement without liability or further
obligation, except for unpaid charges as of the effective date of such
termination, if Qwest is prohibited from furnishing the Service or if
any material rate or term contained herein is substantially changed by
order of the highest court of competent jurisdiction to which the
matter is appealed, the FCC, or any other federal, state or local
government authority.
(C) In addition, Customer represents, warrants and covenants that it
understands that Qwest may, at any time, and without notice to End
User(s), discontinue providing service to Customer in accordance with
the terms of the Qwest/LCI Tariff and that such discontinuance may
result in termination of service to the End User(s).
(D) Notwithstanding the foregoing, and without affecting Qwest's right to
compensation accrued prior to the termination date, Qwest, without
waiving any rights set forth in this Agreement or the Qwest/LCI
Tariff, retains the right to terminate this Agreement immediately and
without written notice, under any of the following circumstances:
(i) Customer becomes or is declared insolvent or bankrupt, is the
subject of any proceedings related to its liquidation,
insolvency or for the appointment of a receiver or similar
officer for it, makes an assignment for the benefit of all or
substantially all of its creditors, or enters into an agreement
for the composition, extension, or readjustment of all or
substantially all of its obligations;
(ii) Material change in Customer's ownership, except as otherwise
permitted; provided, however, that consent by Qwest to the
assignment of this Agreement after such change in ownership
shall not be unreasonably withheld; or
(iii) Customer's failure to abide by all terms of Section 7 hereof,
including, without limitation, Customer's failure or refusal to
provide additional security or payment upon Qwest's request, or
for any unethical or illegal acts on the part of Customer, its
officers, directors, employees, contractors, agents, or
servants, relating to the subject matter of this Agreement.
Termination of this Agreement shall not affect Qwest's right to
compensation accrued prior to the termination date; or
(iv) for any material breach of this Agreement.
(E) Customer shall be entitled to terminate this Agreement in whole or in
part, in the event of a material breach by Qwest of its obligations
under this Agreement, including without limitation, the provision of
accurate billing detail to Customer.
11. Default
Without regard to any other provisions of this Agreement or rights
hereunder, it shall be a default under this Agreement, if Customer fails to
pay Qwest in accordance with Section 7 of this Agreement; provided,
however, that Qwest has provided accurate billing detail to Customer.
QWEST CONFIDENTIAL AND PROPRIETARY
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CARRIER SERVICE AGREEMENT
Upon default under this Section 11, Qwest shall be entitled to all rights
and remedies under the Qwest/LCI Tariff and other applicable law.
12. Liability
QWEST'S LIABILITY ARISING OUT OF DELAYS IN INSTALLATION OR RESTORATION OF
THE SERVICE HEREUNDER OR OUT OF MISTAKES, ACCIDENTS, OMISSIONS,
INTERRUPTIONS, ERRORS OR DEFECTS IN THE ORDERING, PROCESSING, PROVISIONING,
OR TRANSMISSION OF SERVICE SHALL IN NO EVENT EXCEED [*]. WITHOUT LIMITING
THE FOREGOING, QWEST SHALL HAVE NO OBLIGATION TO PROVIDE ALTERNATIVE
ROUTING WITH RESPECT TO ANY SERVICE OR TRANSMISSION CAPACITY PROVIDED
PURSUANT TO THIS AGREEMENT. OTHER THAN AS SET FORTH IN QWEST/LCI F.C.C.
TARIFF NO. 1 AND NO. 2, IN NO EVENT SHALL QWEST BE LIABLE TO CUSTOMER OR
ANY OTHER PERSON, FIRM OR ENTITY IN ANY OTHER RESPECT, FOR ANY DIRECT,
INDIRECT, CONSEQUENTIAL, SPECIAL, INCIDENTAL, ACTUAL, OR PUNITIVE DAMAGES,
OR FOR ANY LOST PROFITS OF ANY KIND OR NATURE WHATSOEVER, EVEN IF
FORESEEABLE, ARISING OUT OF ANY MISTAKE, ACCIDENT, ERROR, OMISSION,
INTERRUPTION, OR DEFECT IN TRANSMISSION, OR DELAY ARISING OUT OF OR
RELATING TO THE SERVICES OR THE OBLIGATIONS OF QWEST PURSUANT TO THIS
AGREEMENT AND ANY EXHIBITS THERETO INCLUDING, WITHOUT LIMITATION, ANY
FAILURE TO PROVIDE BILLING TAPES WHICH ARE COMPATIBLE WITH CUSTOMER'S
BILLING SYSTEM(S), OR ANY FAILURE TO TIMELY OR ACCURATELY PROVISION OR
INSTALL ANY PORTION OF THE SERVICES, OR CONDITIONS WHICH MAY RESULT FROM
ACTIONS BY REGULATORY OR JUDICIAL AUTHORITIES OR OTHER CARRIERS THAT QWEST
RELIES ON TO PROVIDE SERVICE TO CUSTOMER. QWEST MAKES NO WARRANTY WHETHER
EXPRESS, IMPLIED OR STATUTORY, AS TO THE DESCRIPTION, QUALITY,
MERCHANTABILITY, COMPLETENESS OR FITNESS FOR ANY PURPOSE OF THE SERVICE OR
LOCAL ACCESS OR AS TO ANY OTHER MATTER, ALL OF WHICH WARRANTIES BY QWEST
ARE HEREBY EXCLUDED AND DISCLAIMED. FOR THE PURPOSE OF THIS SECTION, THE
TERM "QWEST" SHALL BE DEEMED TO INCLUDE QWEST, ITS EMPLOYEES, OFFICERS,
DIRECTORS, AND AFFILIATES AND ANY PERSON OR ENTITY ASSISTING QWEST IN ITS
PERFORMANCE OR OBLIGATIONS UNDER THIS AGREEMENT.
13. Relationship
Neither party shall have the authority to bind the other by contract or
otherwise make any representations or guarantees on behalf of the other.
Both parties acknowledge and agree that the relationship arising from this
Agreement does not constitute an agency, joint venture, partnership,
employee relationship or franchise. Customer acknowledges and agrees that
it is an independent contractor.
14. Assignment or Sale
This Agreement shall be binding on Customer and its respective affiliates,
successors, and assigns. Customer shall not assign, sell or transfer this
Agreement or the right to receive the Services provided hereunder, whether
by operation of law or otherwise, without the prior written consent of
Qwest, such consent shall not be unreasonably withheld by Qwest. Qwest may
terminate this
QWEST CONFIDENTIAL AND PROPRIETARY
- --------------------
[*] Information redacted pursuant to a confidential treatment request
throughout this exhibit.
6
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CARRIER SERVICE AGREEMENT
Agreement in the event of an actual or purported assignment, sale or
transfer of this Agreement by Customer without Qwest's prior written
consent.
15. REPORTING REQUIREMENTS
Where reporting obligations or requirements are imposed upon Qwest by any
third party or regulatory agency that are in accordance with the reporting
requirements for Customers and Carriers in the telecommunication industry,
Customer agrees to comply with such requirements and obligations and to
hold Qwest harmless for any failure of compliance with any such requirement
or obligation.
16. GOVERNING LAW, CERTIFICATIONS AND WARRANTIES
(A) Customer understands that Qwest, in conducting its business in the
manner set forth herein, is subject to the Communications Act of
1934, as amended, and as interpreted and applied by the Federal
Communications Commission. All terms of this Agreement not subject to
the Communications Act of 1934 as amended and as interpreted and
applied by the F.C.C. will be interpreted according to New York state
law.
(B) If service is provided solely within a single state in a manner which
subjects the Service to regulation by such state, then the terms and
conditions of such Service and of this Agreement shall be subject to
such regulations and to any addendum to this Agreement relating
thereto which is delivered by Qwest to Customer. Customer shall have
the right to terminate this Agreement within ten (10) business days
of receipt of such addendum without further liability hereunder.
(C) Customer certifies and warrants that it is in compliance with and
will continue to be in compliance with all international, federal,
state and local laws and regulations relating to its performance
under this Agreement. Customer is solely responsible for obtaining
all licenses, approvals, and regulatory authority for its operation
and the provision of services to its customers ("End Users"). Any
breach of the obligations of Customer under this Section shall be a
material breach of this Agreement. If Customer does not comply with
this Section, in addition to any remedies available to Qwest at law
or in equity, Qwest, in its sole discretion, may elect to decline to
accept additional orders under this Agreement or may immediately
terminate this Agreement without further liability or obligation to
Customer.
17. TERMS AND CONDITIONS SURVIVING TERMINATION OR EXPIRATION OF AGREEMENT
All warranties, representations, indemnities, covenants and other
agreements of the parties hereto shall survive the execution, delivery and
termination of this Agreement and shall, notwithstanding the execution,
delivery and termination of this Agreement, continue in full force and
effect. The terms and conditions of the Qwest/LCI Tariff along with
Section 6, 7, 9, 11, 12, 13, 15, 18, 23, 24 and any provision hereof,
which, by its context is intended to survive the termination or expiration
hereof, shall also survive. Additionally, any obligation to hold harmless
and indemnify a party hereunder shall survive the termination or
expiration of this Agreement.
18. INDEMNIFICATION
Customer shall indemnify, defend and hold harmless Qwest from and against
any claims, actions, damages, liabilities, costs, judgments or expenses
(including attorney fees) arising out of (i) the
QWEST CONFIDENTIAL AND PROPRIETARY
7
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CARRIER SERVICE AGREEMENT
resale or reselling of the Service, including but not limited to the
provision or termination of service by Customer to End Users and any
failure to provide service; and (ii) any breach by Customer of any
warranty, representation, or covenant hereunder.
19. NONDISCLOSURE
Neither Party shall disclose to any third party during the term of this
Agreement and during the two (2) year period immediately following
termination of this Agreement, any of the terms and conditions set forth in
this Agreement unless disclosure is required by any state or federal
governmental agency, is otherwise required to be disclosed by law, or is
necessary in any proceeding establishing rights or obligations under this
Agreement. Each Party reserves the right to terminate this Agreement, upon
written notification, upon discovery of any disclosure prohibited
hereunder.
20. AMENDMENTS
The Agreement, together with all Exhibits, represents the entire
understanding of the parties. Any and all prior offers, agreements,
representations and understandings made to Customer, whether oral or
written, shall be superseded by this Agreement. Exclusive of any Tariff
modifications initiated by Qwest, once this Agreement has been fully
executed, any amendment hereto must be made in writing and signed by
authorized representatives of both parties.
21. WAIVER
The terms, covenants, representations and warranties of this Agreement may
be waived only by a written instrument executed by the party waiving
compliance. The failure of either party at any time to require performance
of any provision hereof shall, in no manner, affect the right at a later
date to enforce the same. No waiver by either party of any breach of any
term, covenant, representation or warranty contained in this Agreement,
whether by conduct or otherwise, in any one or more instances, shall be
deemed to be construed as a further or continuing waiver of any such breach
or the breach of any other term, covenant, representation or warranty of
this Agreement.
22. SEVERABILITY
In the event that any one or more of the provisions contained in this
Agreement shall for any reason be held to be invalid, illegal or
unenforceable in any respect, such invalidity, illegality or
unenforceability shall not affect any other provision of this Agreement,
but this Agreement shall be construed as if such invalid, illegal or
unenforceable provision had never been contained herein. Further, in the
event that any provision of this Agreement shall be held to be invalid,
illegal or unenforceable by virtue of its scope or period of time, but may
be made enforceable by a limitation thereof, such provision shall be deemed
to be amended to the minimum extent necessary to render it valid, legal
and enforceable or in the alternative both parties shall negotiate in good
faith to substitute for such invalid, illegal, or unenforceable provision
a mutually acceptable provision that is consistent with the original
intent of the parties.
23. NOTICE
QWEST CONFIDENTIAL AND PROPRIETARY
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CARRIER SERVICE AGREEMENT
Except when actual receipt is expressly required by the terms hereof,
notice is considered given either (i) when delivered by facsimile service
to the phone number listed below with duplicate notification sent via
regular U.S. Mail or overnight delivery or; (ii) when delivered in person
to the recipient named below; or (iii) after deposit in the United States
mail in a sealed envelope or container, either registered or certified
mail, return receipt requested, postage prepaid, or via overnight courier
service, addressed by name and address to the party or person intended as
follows:
To Customer: Shared Communication Services, Inc.
3723 Fairview Industrial Drive, S.E.
Salem, Oregon 97302
Facsimile: (503) 316-4467
Attention: Mr. Lance Stapleton, Vice President
To Qwest: Qwest Communications Corporation
4250 North Fairfax Drive
Arlington, Virginia 22203
Facsimile #: (703) 363-3750
Attention: General Counsel
Any party may at any time change its address or facsimile number for
notification purposes by giving the other party prior written notice as
provided in this Section by setting forth the new address and the date on
which it will become effective. Either party may require, by prior written
notice given at any time or from time to time, subsequent notices to be
given to another individual person, whether a party or an officer or
representative, or to a different address, or both; provided, however,
that a P.O. Box shall not be considered to be an address for purposes of
this Agreement.
24. ARBITRATION OF DISPUTES
(A) Any dispute arising out of this Agreement relating to Qwest invoices
or balances owed by Customer to Qwest for Services rendered, which
cannot be resolved between the parties, shall be settled by binding
arbitration at the office of the American Arbitration Association
("AAA") located in Washington, D.C or Denver, Colorado, as the choice
of the Party bringing the arbitration. The arbitration shall be held
in accordance with the commercial Arbitration Rules of the American
Arbitration Association ("AAA Rules"), as amended by this Agreement.
Neither party may seek injunctive relief of any kind prior to the
confirmation of an arbitration award.
(B) Either Qwest or the Customer may initiate arbitration by providing
written demand for arbitration, a copy of this Agreement and the
administrative fee required by the AAA Rules to the AAA at its
Washington, D.C. or Denver office, as applicable. A copy of the
notice shall also be provided to the other party. The remaining cost
of the arbitration, including the fees and expenses of the
arbitrator, shall be shared equally by the parties unless the
arbitration award provides otherwise. Each party shall bear the cost
of preparing and presenting its case.
(C) One Arbitrator shall be appointed in accordance with the AAA Rules
within sixty (60) days of the submission of the demand for
arbitration, unless both parties otherwise agree in writing. The
Arbitrator shall designate the time and place in the Washington, DC
area for the hearing within thirty (30) days of his or her
appointment. Qwest and the Customer
QWEST CONFIDENTIAL AND PROPRIETARY
9
<PAGE> 11
CARRIER SERVICE AGREEMENT
agree that the Arbitrator's authority to grant relief shall
be subject to the provisions of this Agreement, the United
States Arbitration Act, ("USAA"), the ABA-AAA Code of Ethics
for Arbitrators in Commercial Disputes Qwest/LCI Tariffs,
substantive law, and the Communications Act of 1934, as
amended. The Arbitrator shall not be able to award, nor shall
any party be entitled to receive punitive, incidental,
consequential, exemplary, reliance or special damages,
including damages for lost profits. The Arbitrator's decision
shall follow the plain meaning of the relevant documents, and
shall be final, binding, and enforceable in a court of
competent jurisdiction. The decision of the Arbitrator is
appealable only for perceived mistakes or misapplication of
the law.
(D) Any dispute not outlined in Section 24(A) and arising out of
or related to this Agreement regardless of the form of action
whether in contract, indemnity, warranty, strict liability,
or tort, including negligence of any kind with regard to
Qwest Services or other conduct under this Agreement may be
subject to arbitration upon the written consent of both
parties.
25. ATTACHMENTS AND EXHIBITS
All Attachments and Exhibits annexed to this Agreement are expressly
made a part of this Agreement as fully as though completely set
forth in it. All references to this Agreement shall be deemed to
refer to and include this Agreement and all such Attachments and
Exhibits.
26. HEADINGS
The headings of sections and subsections used in this Agreement are
for convenience only and are not part of its operative language.
They shall not be used to affect the construction of any provisions
hereof.
27. THIRD-PARTIES
The representations, warranties, covenants and agreements of the
parties set forth in this Agreement are not intended for, nor shall
they be for the benefit of or enforceable by, any person not a
party hereto.
28. CUSTOMER AUTHORIZATION
Customer represents that the person executing this Agreement has
been duly authorized by Customer to execute and bind Customer to the
terms and conditions contained herein. Customer, with full knowledge
of all terms and conditions herein, does hereby warrant and
represent that the execution, delivery, and performance of this
Agreement are within Customer's corporate and/or partnership powers,
have been duly authorized, and are not in conflict with law or the
terms of any charter or bylaw or any agreement to which Customer is
a party or by which it is bound or affected.
QWEST CONFIDENTIAL AND PROPRIETARY
10
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CARRIER SERVICE AGREEMENT
IN WITNESS WHEREOF, an authorized representative of each party has
executed this Agreement effective as of the date of execution by Qwest as set
forth below.
QWEST COMMUNICATIONS CORPORATION
By: /s/ JOHN G. MUSCI Date 12/31/98
--------------------------------- ---------------
SHARED COMMUNICATIONS SERVICES, INC.
By: /s/ JEFF RAINES Date 12/17/98
--------------------------------- ---------------
QWEST CONFIDENTIAL AND PROPRIETARY
11
<PAGE> 13
EXHIBIT A1
QWEST EXPRESS RBOC/ITC TERMINATING SWITCHED SERVICE
CARRIER SERVICES AGREEMENT
GENERAL
Interstate rates are per Local Access and Transport Area ("LATA") and are for
LATA-wide termination. Regional Bell Operating Company ("RBOC") rates apply to
all traffic terminating in RBOC territories, and independent telephone company
("ITC") rates, or Non-Bell rates, apply to all traffic terminating in ITC
("Non-RBOC") territories. For the purposes of billing the appropriate
territory, the OCN number of the terminating carrier will be used. OCN numbers
of 9000 and above shall be classified as RBOC; and OCN numbers less than 9000
shall be classified as "ITC", or Non-RBOC.
Intrastate rates are per State and are for State-wide termination. For the
purposes of determining each call's jurisdiction, the originating and
terminating information present in the call stream will be evaluated. In the
event that either the originating or terminating information is not available
to Qwest's billing system, the classification of the call, for rating purposes,
will default to the Interstate classification. To the extent that calls are
defaulted to the Interstate classification, and to the extent Customer's
traffic of this nature includes intrastate traffic, Customer shall provide to
Qwest in writing, on a monthly basis, the "Percentage of Inter/Intra-state
Usage" on a state-by-state basis, by LEC, for the traffic terminated by Qwest
hereunder.
Rates shown in the Qwest Express RBOC/ITC Interstate and Intrastate Rate
Exhibits are shown in terms of full minutes and are billed in [*] second
increments. Qwest reserves the right to charge excessive quantities of short
duration calls (i.e., calls under [*] in length) [*]. Rates shown in the Qwest
Express RBOC/ITC Interstate and Intrastate Rate Exhibits are Base Rates.
Discounts, if any; pursuant to the below Discounts Section and Discount
Schedule.
ROUNDING
Currently, the Qwest Express RBOC/ITC Terminating Switched Service utilizes
"bulk rounding". For the purposes of this agreement, bulk rounding is defined as
carrying over the 3rd and 4th place amounts of a call charge to the next call,
and continuing to do so until one full cent ($.01) is accrued. When this has
occurred, the cent is applied to the next call. In addition, the Qwest Express
RBOC/ITC Terminating Switched Service employs [*], which means that all calls
are [*], as opposed to [*] (e.g. initial and incremental).
POINT(S) OF MEET
Customer is responsible for all access and related costs of DS-0, DS-1 or DS-3
dedicated facilities to connect to Qwest's nearest applicable meet point as
follows:
The "ATL", or Atlantic rates shown in the Qwest Express RBOC/ITC Interstate
Rate Exhibit will apply for all traffic that meets the Qwest network at
one of the following switch sites:
- 111 Pavonia Ave., 7th Floor, Suite 725, Jersey City, NJ 07310
- 111 Market Place, Suite 400, Baltimore, MD 21202
- 60 Hudson St., 11th Floor, New York City, NY 10013 (POP site
that receives "switch site pricing")
The "MW", or Midwest rates shown in the Qwest Express RBOC/ITC Interstate
Rate Exhibit will apply for all traffic that meets the Qwest network at
one of the following switch sites:
- Doral Plaza, Suite 222A, 155 N. Michigan Ave., Chicago, IL 60601
- NBC Tower, 455 North City Front Plaza, Suite 700, Chicago, IL
60611
- Prudential Town Center, 1000 Town Center, Suite 360, Southfield,
MI 48075
- 8793 Fulton County Road H, Delta, OH 43515
- 50 Public Square, Suite 640, Cleveland, OH 44113
QWEST CONFIDENTIAL AND PROPRIETARY
- --------------------
[*] Information redacted pursuant to a confidential treatment request
throughout this exhibit.
1
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EXHIBIT A1
QWEST EXPRESS RBOC/ITC TERMINATING SWITCHED SERVICE
CARRIER SERVICES AGREEMENT
- 180 E. Broad St., Suite B2, Columbus, OH 43215
The "NW", or Northwest rates shown in the Qwest Express RBOC/ITC Interstate
Rate Exhibit will apply for all traffic that meets the Qwest network at one of
the following switch sites:
- 2001 6th Avenue, Seattle, WA 98121
The "S", or South rates shown in the Qwest Express RBOC/ITC Interstate Rate
Exhibit will apply for all traffic that meets the Qwest network at one of the
following switch sites:
- 2323 Bryan Street, Suite 770, Dallas, TX
The "SE", or Southeast rates shown in the Qwest Express RBOC/ITC Interstate
Rate Exhibit will apply for all traffic that meets the Qwest network at one of
the following switch sites:
- Bank South Bldg., Suite 1910, 55 Marietta St., Atlanta, GA 30303
- 701 E. Trade Street, Suite D, Charlotte, NC 28202
- 4895 Outland Center Drive, Memphis, TN 38118
The "SW", or Southwest rates shown in the Qwest Express RBOC/ITC Interstate
Rate Exhibit will apply for all traffic that meets the Qwest network at one of
the following switch sites:
- 624 S. Grand Ave., Suite 315, Los Angeles, CA 90017
- 3040 Gold Camp Road, Sacramento, CA
- 910 15th Street, Suite 220, Denver, CO 80202
The "POP ATL", or Atlantic POP rates shown in the Qwest Express RBOC/ITC
Interstate Rate Exhibit will apply for all traffic that meets the Qwest network
at one of the following POP sites:
- 38th and Wyalusing Streets, Philadelphia, PA
- 1220 L Street N.W. Suite 1B, Washington, DC 20005
The "POP MW", or Midwest POP rates shown in the Qwest Express RBOC/ITC
Interstate Rate Exhibit will apply for all traffic that meets the Qwest network
at one of the following POP sites:
- 1125 Grand Avenue, Kansas City, MO
- 900 Walnut Street, Suite 400, St. Louis, MO
The "POP S", or South POP rates shown in the Qwest Express RBOC/ITC Interstate
Rate Exhibit will apply for all traffic that meets the Qwest network at one of
the following POP sites:
- 15 West 16th Street, Tulsa, OK
- 2112 East California Street, Oklahoma City, OK
- 777 Walker St. C-170, Houston, TX
The "POP SW", or Southwest POP rates shown in the Qwest Express Interstate
RBOC/ITC Rate Exhibit will apply for all traffic that meets the Qwest network
at one of the following POP sites:
- 4275 E. Sahara, Las Vegas, NV
- 136 East South Temple, Suite 1560, Salt Lake City, UT
- 2600 N. Central, Phoenix, AZ
QWEST CONFIDENTIAL AND PROPRIETARY
2
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EXHIBIT A1
QWEST EXPRESS RBOC/ITC TERMINATING SWITCHED SERVICE
CARRIER SERVICES AGREEMENT
The Base rates shown in the Qwest Express Intrastate RBOC/ITC Rate Exhibit
will apply for all traffic that meets the Qwest network any of the above
switch or POP sites.
[*]
QWEST CONFIDENTIAL AND PROPRIETARY
- --------------------
[*] Information redacted pursuant to a confidential treatment request
throughout this exhibit.
3
<PAGE> 16
EXHIBIT A1
QWEST EXPRESS RBOC/ITC TERMINATING SWITCHED SERVICE
CARRIER SERVICES AGREEMENT
[*]
QWEST CONFIDENTIAL AND PROPRIETARY
- --------------------
[*] Information redacted pursuant to a confidential treatment request
throughout this exhibit.
4
<PAGE> 17
EXHIBIT A1
QWEST EXPRESS RBOC/ITC TERMINATING SWITCHED SERVICE
CARRIER SERVICES AGREEMENT
[*]
QWEST CONFIDENTIAL AND PROPRIETARY
- --------------------
[*] Information redacted pursuant to a confidential treatment request
throughout this exhibit.
5
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[QWEST LOGO] EXHIBIT A2
QWEST EXPRESS - RBOC / ITC
INTERSTATE TERMINATION RATES
<TABLE>
<CAPTION>
- ------------------------------------------------------------------------------------------------------------------------------------
LATA STATE CLASS BASE RATES - SWITCH MEETPOINT BASE RATES - POP MEETPOINT
ATL MW NW S SE SW POP ATL POP MW POP S POP SE POP SW
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C>
---------------------------------------------------------- ------------------------------------------------
120 ME RBOC [*] [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
---------------------------------------------------------- ------------------------------------------------
120 ME NON-BELL [*] [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
---------------------------------------------------------- ------------------------------------------------
122 NH RBOC [*] [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
---------------------------------------------------------- ------------------------------------------------
122 NH NON-BELL [*] [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
---------------------------------------------------------- ------------------------------------------------
124 VT RBOC [*] [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
---------------------------------------------------------- ------------------------------------------------
124 VT NON-BELL [*] [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
---------------------------------------------------------- ------------------------------------------------
126 MA RBOC [*] [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
---------------------------------------------------------- ------------------------------------------------
126 MA NON-BELL [*] [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
---------------------------------------------------------- ------------------------------------------------
128 MA RBOC [*] [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
---------------------------------------------------------- ------------------------------------------------
128 MA NON-BELL [*] [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
---------------------------------------------------------- ------------------------------------------------
130 RI RBOC [*] [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
---------------------------------------------------------- ------------------------------------------------
130 RI NON-BELL [*] [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
---------------------------------------------------------- ------------------------------------------------
132 NY RBOC [*] [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
---------------------------------------------------------- ------------------------------------------------
132 NY NON-BELL [*] [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
---------------------------------------------------------- ------------------------------------------------
133 NY RBOC [*] [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
---------------------------------------------------------- ------------------------------------------------
133 NY NON-BELL [*] [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
---------------------------------------------------------- ------------------------------------------------
134 NY RBOC [*] [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
---------------------------------------------------------- ------------------------------------------------
134 NY NON-BELL [*] [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
---------------------------------------------------------- ------------------------------------------------
136 NY RBOC [*] [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
---------------------------------------------------------- ------------------------------------------------
136 NY NON-BELL [*] [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
---------------------------------------------------------- ------------------------------------------------
138 NY RBOC [*] [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
---------------------------------------------------------- ------------------------------------------------
138 NY NON-BELL [*] [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
---------------------------------------------------------- ------------------------------------------------
140 NY RBOC [*] [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
---------------------------------------------------------- ------------------------------------------------
140 NY NON-BELL [*] [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
---------------------------------------------------------- ------------------------------------------------
220 NJ RBOC [*] [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
---------------------------------------------------------- ------------------------------------------------
220 NJ NON-BELL [*] [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
---------------------------------------------------------- ------------------------------------------------
222 NJ RBOC [*] [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
---------------------------------------------------------- ------------------------------------------------
222 NJ NON-BELL [*] [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
---------------------------------------------------------- ------------------------------------------------
224 NJ RBOC [*] [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
---------------------------------------------------------- ------------------------------------------------
224 NJ NON-BELL [*] [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
---------------------------------------------------------- ------------------------------------------------
226 PA RBOC [*] [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
---------------------------------------------------------- ------------------------------------------------
226 PA NON-BELL [*] [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
---------------------------------------------------------- -----------------------------------------------
228 PA RBOC [*] [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
---------------------------------------------------------- ------------------------------------------------
228 PA NON-BELL [*] [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
---------------------------------------------------------- ------------------------------------------------
230 PA RBOC [*] [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
---------------------------------------------------------- ------------------------------------------------
230 PA NON-BELL [*] [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
---------------------------------------------------------- -----------------------------------------------
232 PA RBOC [*] [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
---------------------------------------------------------- ------------------------------------------------
</TABLE>
- --------------------
[*] Information redacted pursuant to a confidential treatment request
throughout this exhibit.
<PAGE> 19
[QWEST LOGO] EXHIBIT A2
QWEST EXPRESS - RBOC / ITC
INTERSTATE TERMINATION RATES
<TABLE>
<CAPTION>
LATA STATE CLASS BASE RATES -- SWITCH MEETPOINT BASE RATES -- POP MEETPOINT
ATL MW NW S SE SW POP ATL POP MW POP S POP SE POP SW
- ---- ----- ----- ------- ------- ------- ------- ------- ------- ------- ------- ------- ------- -------
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C>
232 PA NON-BELL [*] [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
--------------------------------------------------------- -----------------------------------------------
234 PA RBOC [*] [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
--------------------------------------------------------- -----------------------------------------------
234 PA NON-BELL [*] [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
--------------------------------------------------------- -----------------------------------------------
236 DC RBOC [*] [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
--------------------------------------------------------- -----------------------------------------------
236 DC NON-BELL [*] [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
--------------------------------------------------------- -----------------------------------------------
238 MD RBOC [*] [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
--------------------------------------------------------- -----------------------------------------------
238 MD NON-BELL [*] [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
--------------------------------------------------------- -----------------------------------------------
240 MD RBOC [*] [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
--------------------------------------------------------- -----------------------------------------------
240 MD NON-BELL [*] [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
--------------------------------------------------------- -----------------------------------------------
242 MD RBOC [*] [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
--------------------------------------------------------- -----------------------------------------------
242 MD NON-BELL [*] [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
--------------------------------------------------------- -----------------------------------------------
244 VA RBOC [*] [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
--------------------------------------------------------- -----------------------------------------------
244 VA NON-BELL [*] [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
--------------------------------------------------------- -----------------------------------------------
246 VA RBOC [*] [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
--------------------------------------------------------- -----------------------------------------------
246 VA NON-BELL [*] [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
--------------------------------------------------------- -----------------------------------------------
248 VA RBOC [*] [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
--------------------------------------------------------- -----------------------------------------------
248 VA NON-BELL [*] [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
--------------------------------------------------------- -----------------------------------------------
250 VA RBOC [*] [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
--------------------------------------------------------- -----------------------------------------------
250 VA NON-BELL [*] [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
--------------------------------------------------------- -----------------------------------------------
252 VA RBOC [*] [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
--------------------------------------------------------- -----------------------------------------------
252 VA NON-BELL [*] [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
--------------------------------------------------------- -----------------------------------------------
254 WV RBOC [*] [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
--------------------------------------------------------- -----------------------------------------------
254 WV NON-BELL [*] [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
--------------------------------------------------------- -----------------------------------------------
256 WV RBOC [*] [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
--------------------------------------------------------- -----------------------------------------------
256 WV NON-BELL [*] [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
--------------------------------------------------------- -----------------------------------------------
320 OH RBOC [*] [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
--------------------------------------------------------- -----------------------------------------------
320 OH NON-BELL [*] [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
--------------------------------------------------------- -----------------------------------------------
322 OH RBOC [*] [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
--------------------------------------------------------- -----------------------------------------------
322 OH NON-BELL [*] [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
--------------------------------------------------------- -----------------------------------------------
324 OH RBOC [*] [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
--------------------------------------------------------- -----------------------------------------------
324 OH NON-BELL [*] [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
--------------------------------------------------------- -----------------------------------------------
325 OH RBOC [*] [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
--------------------------------------------------------- -----------------------------------------------
325 OH NON-BELL [*] [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
--------------------------------------------------------- -----------------------------------------------
326 OH RBOC [*] [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
--------------------------------------------------------- -----------------------------------------------
326 OH NON-BELL [*] [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
--------------------------------------------------------- -----------------------------------------------
328 OH RBOC [*] [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
--------------------------------------------------------- -----------------------------------------------
328 OH NON-BELL [*] [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
--------------------------------------------------------- -----------------------------------------------
330 OH RBOC [*] [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
--------------------------------------------------------- -----------------------------------------------
</TABLE>
- --------------------
[*] Information redacted pursuant to a confidential treatment request
throughout this exhibit.
<PAGE> 20
[QWEST LOGO] EXHIBIT A2
QWEST EXPRESS - RBOC / ITC
INTERSTATE TERMINATION RATES
<TABLE>
<CAPTION>
- ------------------------------------------------------------------------------------------------------------------------------------
LATA STATE CLASS BASE RATES - SWITCH MEETPOINT BASE RATES - POP MEETPOINT
ATL MW NW S SE SW POP ATL POP MW POP S POP SE POP SW
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C>
---------------------------------------------------------- ------------------------------------------------
330 IN NON-BELL [*] [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
---------------------------------------------------------- ------------------------------------------------
332 IN RBOC [*] [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
---------------------------------------------------------- ------------------------------------------------
332 IN NON-BELL [*] [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
---------------------------------------------------------- ------------------------------------------------
334 IN RBOC [*] [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
---------------------------------------------------------- ------------------------------------------------
334 IN NON-BELL [*] [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
---------------------------------------------------------- ------------------------------------------------
336 IN RBOC [*] [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
---------------------------------------------------------- ------------------------------------------------
336 IN NON-BELL [*] [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
---------------------------------------------------------- ------------------------------------------------
338 IN RBOC [*] [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
---------------------------------------------------------- ------------------------------------------------
338 IN NON-BELL [*] [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
---------------------------------------------------------- ------------------------------------------------
340 MI RBOC [*] [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
---------------------------------------------------------- ------------------------------------------------
340 MI NON-BELL [*] [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
---------------------------------------------------------- ------------------------------------------------
342 MI RBOC [*] [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
---------------------------------------------------------- ------------------------------------------------
342 MI NON-BELL [*] [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
---------------------------------------------------------- ------------------------------------------------
344 MI RBOC [*] [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
---------------------------------------------------------- ------------------------------------------------
344 MI NON-BELL [*] [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
---------------------------------------------------------- ------------------------------------------------
346 MI RBOC [*] [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
---------------------------------------------------------- ------------------------------------------------
346 MI NON-BELL [*] [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
---------------------------------------------------------- ------------------------------------------------
348 MI RBOC [*] [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
---------------------------------------------------------- ------------------------------------------------
348 MI NON-BELL [*] [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
---------------------------------------------------------- ------------------------------------------------
350 WI RBOC [*] [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
---------------------------------------------------------- ------------------------------------------------
350 WI NON-BELL [*] [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
---------------------------------------------------------- ------------------------------------------------
352 WI RBOC [*] [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
---------------------------------------------------------- ------------------------------------------------
352 WI NON-BELL [*] [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
---------------------------------------------------------- ------------------------------------------------
354 WI RBOC [*] [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
---------------------------------------------------------- ------------------------------------------------
354 WI NON-BELL [*] [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
---------------------------------------------------------- ------------------------------------------------
356 WI RBOC [*] [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
---------------------------------------------------------- ------------------------------------------------
356 WI NON-BELL [*] [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
---------------------------------------------------------- ------------------------------------------------
358 IL RBOC [*] [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
---------------------------------------------------------- ------------------------------------------------
358 IL NON-BELL [*] [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
---------------------------------------------------------- ------------------------------------------------
360 IL RBOC [*] [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
---------------------------------------------------------- ------------------------------------------------
360 IL NON-BELL [*] [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
---------------------------------------------------------- ------------------------------------------------
362 IL RBOC [*] [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
---------------------------------------------------------- ------------------------------------------------
362 IL NON-BELL [*] [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
---------------------------------------------------------- ------------------------------------------------
364 IL RBOC [*] [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
---------------------------------------------------------- ------------------------------------------------
364 IL NON-BELL [*] [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
---------------------------------------------------------- ------------------------------------------------
366 IL RBOC [*] [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
---------------------------------------------------------- ------------------------------------------------
366 IL NON-BELL [*] [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
---------------------------------------------------------- ------------------------------------------------
368 IL RBOC [*] [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
---------------------------------------------------------- ------------------------------------------------
</TABLE>
- --------------------
[*] Information redacted pursuant to a confidential treatment request
throughout this exhibit.
<PAGE> 21
[QWEST LOGO] EXHIBIT A2
QWEST EXPRESS - RBOC / ITC
INTERSTATE TERMINATION RATES
<TABLE>
<CAPTION>
LATA STATE CLASS BASE RATES - SWITCH MEETPOINT BASE RATES - POP MEETPOINT
ATL MW NW S SE SW POP ATL POP MW POP S POP SE POP SW
--------------------------------------------------------- -----------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C>
368 IL NON-BELL [*] [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
--------------------------------------------------------- -----------------------------------------------
370 IL RBOC [*] [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
--------------------------------------------------------- -----------------------------------------------
370 IL NON-BELL [*] [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
--------------------------------------------------------- -----------------------------------------------
374 IL RBOC [*] [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
--------------------------------------------------------- -----------------------------------------------
374 IL NON-BELL [*] [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
--------------------------------------------------------- -----------------------------------------------
376 IL RBOC [*] [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
--------------------------------------------------------- -----------------------------------------------
376 IL NON-BELL [*] [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
--------------------------------------------------------- -----------------------------------------------
420 NC RBOC [*] [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
--------------------------------------------------------- -----------------------------------------------
420 NC NON-BELL [*] [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
--------------------------------------------------------- -----------------------------------------------
422 NC RBOC [*] [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
--------------------------------------------------------- -----------------------------------------------
422 NC NON-BELL [*] [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
--------------------------------------------------------- -----------------------------------------------
424 NC RBOC [*] [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
--------------------------------------------------------- -----------------------------------------------
424 NC NON-BELL [*] [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
--------------------------------------------------------- -----------------------------------------------
426 NC RBOC [*] [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
--------------------------------------------------------- -----------------------------------------------
426 NC NON-BELL [*] [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
--------------------------------------------------------- -----------------------------------------------
428 NC RBOC [*] [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
--------------------------------------------------------- -----------------------------------------------
428 NC NON-BELL [*] [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
--------------------------------------------------------- -----------------------------------------------
430 SC RBOC [*] [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
--------------------------------------------------------- -----------------------------------------------
430 SC NON-BELL [*] [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
--------------------------------------------------------- -----------------------------------------------
432 SC RBOC [*] [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
--------------------------------------------------------- -----------------------------------------------
432 SC NON-BELL [*] [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
--------------------------------------------------------- -----------------------------------------------
434 SC RBOC [*] [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
--------------------------------------------------------- -----------------------------------------------
434 SC NON-BELL [*] [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
--------------------------------------------------------- -----------------------------------------------
436 SC RBOC [*] [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
--------------------------------------------------------- -----------------------------------------------
436 SC NON-BELL [*] [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
--------------------------------------------------------- -----------------------------------------------
438 GA RBOC [*] [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
--------------------------------------------------------- -----------------------------------------------
438 GA NON-BELL [*] [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
--------------------------------------------------------- -----------------------------------------------
440 GA RBOC [*] [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
--------------------------------------------------------- -----------------------------------------------
440 GA NON-BELL [*] [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
--------------------------------------------------------- -----------------------------------------------
442 GA RBOC [*] [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
--------------------------------------------------------- -----------------------------------------------
442 GA NON-BELL [*] [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
--------------------------------------------------------- -----------------------------------------------
444 GA RBOC [*] [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
--------------------------------------------------------- -----------------------------------------------
444 GA NON-BELL [*] [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
--------------------------------------------------------- -----------------------------------------------
446 GA RBOC [*] [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
--------------------------------------------------------- -----------------------------------------------
446 GA NON-BELL [*] [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
--------------------------------------------------------- -----------------------------------------------
448 FL RBOC [*] [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
--------------------------------------------------------- -----------------------------------------------
448 FL NON-BELL [*] [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
--------------------------------------------------------- -----------------------------------------------
450 FL RBOC [*] [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
--------------------------------------------------------- -----------------------------------------------
</TABLE>
- --------------------
[*] Information redacted pursuant to a confidential treatment request
throughout this exhibit.
<PAGE> 22
[QWEST LOGO] EXHIBIT A2
QWEST EXPRESS - RBOC/ITC
INTERSTATE TERMINATION RATES
<TABLE>
<CAPTION>
- ------------------------------------------------------------------------------------------------------------------------------------
LATA STATE CLASS BASE RATES - SWITCH MEETPOINT BASE RATES - POP MEETPOINT
ATL MW NW S SE SW POP ATL POP MW POP S POP SE POP SW
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C>
---------------------------------------------------------- ------------------------------------------------
450 FL NON-BELL [*] [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
---------------------------------------------------------- ------------------------------------------------
452 FL RBOC [*] [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
---------------------------------------------------------- ------------------------------------------------
452 FL NON-BELL [*] [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
---------------------------------------------------------- ------------------------------------------------
454 FL RBOC [*] [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
---------------------------------------------------------- ------------------------------------------------
454 FL NON-BELL [*] [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
---------------------------------------------------------- ------------------------------------------------
456 FL RBOC [*] [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
---------------------------------------------------------- ------------------------------------------------
456 FL NON-BELL [*] [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
---------------------------------------------------------- ------------------------------------------------
458 FL RBOC [*] [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
---------------------------------------------------------- ------------------------------------------------
458 FL NON-BELL [*] [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
---------------------------------------------------------- ------------------------------------------------
460 FL RBOC [*] [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
---------------------------------------------------------- ------------------------------------------------
460 FL NON-BELL [*] [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
---------------------------------------------------------- ------------------------------------------------
462 KY RBOC [*] [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
---------------------------------------------------------- ------------------------------------------------
462 KY NON-BELL [*] [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
---------------------------------------------------------- ------------------------------------------------
464 KY RBOC [*] [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
---------------------------------------------------------- ------------------------------------------------
464 KY NON-BELL [*] [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
---------------------------------------------------------- ------------------------------------------------
466 KY RBOC [*] [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
---------------------------------------------------------- ------------------------------------------------
466 KY RBOC [*] [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
---------------------------------------------------------- ------------------------------------------------
468 TN RBOC [*] [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
---------------------------------------------------------- ------------------------------------------------
468 TN NON-BELL [*] [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
---------------------------------------------------------- ------------------------------------------------
470 TN RBOC [*] [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
---------------------------------------------------------- ------------------------------------------------
470 TN NON-BELL [*] [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
---------------------------------------------------------- ------------------------------------------------
472 TN RBOC [*] [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
---------------------------------------------------------- ------------------------------------------------
472 TN NON-BELL [*] [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
---------------------------------------------------------- ------------------------------------------------
474 TN RBOC [*] [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
---------------------------------------------------------- ------------------------------------------------
474 TN NON-BELL [*] [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
---------------------------------------------------------- ------------------------------------------------
476 AL RBOC [*] [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
---------------------------------------------------------- ------------------------------------------------
476 AL NON-BELL [*] [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
---------------------------------------------------------- ------------------------------------------------
477 AL RBOC [*] [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
---------------------------------------------------------- ------------------------------------------------
477 AL NON-BELL [*] [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
---------------------------------------------------------- ------------------------------------------------
478 AL RBOC [*] [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
---------------------------------------------------------- ------------------------------------------------
478 AL NON-BELL [*] [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
---------------------------------------------------------- ------------------------------------------------
480 AL RBOC [*] [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
---------------------------------------------------------- ------------------------------------------------
480 AL NON-BELL [*] [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
---------------------------------------------------------- ------------------------------------------------
482 MS RBOC [*] [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
---------------------------------------------------------- ------------------------------------------------
482 MS NON-BELL [*] [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
---------------------------------------------------------- ------------------------------------------------
484 MS RBOC [*] [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
---------------------------------------------------------- ------------------------------------------------
484 MS NON-BELL [*] [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
---------------------------------------------------------- ------------------------------------------------
486 LA RBOC [*] [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
---------------------------------------------------------- ------------------------------------------------
</TABLE>
- --------------------
[*] Information redacted pursuant to a confidential treatment request
throughout this exhibit.
<PAGE> 23
EXHIBIT A2
QWEST EXPRESS - RBOC/ITC
[QWEST LOGO] INTERSTATE TERMINATION RATES
<TABLE>
<CAPTION>
- ------------------------------------------------------------------------------------------------------------------------------------
LATA STATE CLASS BASE RATES - SWITCH MEETPOINT BASE RATES - POP MEETPOINT
ATL MW NW S SE SW POP ATL POP MW POP S POP SE POP SW
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C>
---------------------------------------------------------- ------------------------------------------------
486 LA NON-BELL [*] [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
---------------------------------------------------------- ------------------------------------------------
488 LA RBOC [*] [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
---------------------------------------------------------- ------------------------------------------------
488 LA NON-BELL [*] [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
---------------------------------------------------------- ------------------------------------------------
490 LA RBOC [*] [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
---------------------------------------------------------- ------------------------------------------------
490 LA NON-BELL [*] [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
---------------------------------------------------------- ------------------------------------------------
492 LA RBOC [*] [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
---------------------------------------------------------- ------------------------------------------------
492 LA NON-BELL [*] [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
---------------------------------------------------------- ------------------------------------------------
520 MO RBOC [*] [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
---------------------------------------------------------- ------------------------------------------------
520 MO NON-BELL [*] [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
---------------------------------------------------------- ------------------------------------------------
521 MO RBOC [*] [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
---------------------------------------------------------- ------------------------------------------------
521 MO NON-BELL [*] [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
---------------------------------------------------------- ------------------------------------------------
522 MO RBOC [*] [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
---------------------------------------------------------- ------------------------------------------------
522 MO NON-BELL [*] [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
---------------------------------------------------------- ------------------------------------------------
524 MO RBOC [*] [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
---------------------------------------------------------- ------------------------------------------------
524 MO NON-BELL [*] [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
---------------------------------------------------------- ------------------------------------------------
526 AR RBOC [*] [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
---------------------------------------------------------- ------------------------------------------------
526 AR NON-BELL [*] [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
---------------------------------------------------------- ------------------------------------------------
528 AR RBOC [*] [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
---------------------------------------------------------- ------------------------------------------------
528 AR NON-BELL [*] [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
---------------------------------------------------------- ------------------------------------------------
530 AR RBOC [*] [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
---------------------------------------------------------- ------------------------------------------------
530 AR NON-BELL [*] [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
---------------------------------------------------------- ------------------------------------------------
532 KS RBOC [*] [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
---------------------------------------------------------- ------------------------------------------------
532 KS NON-BELL [*] [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
---------------------------------------------------------- ------------------------------------------------
534 KS RBOC [*] [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
---------------------------------------------------------- ------------------------------------------------
534 KS NON-BELL [*] [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
---------------------------------------------------------- ------------------------------------------------
536 OK RBOC [*] [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
---------------------------------------------------------- ------------------------------------------------
536 OK NON-BELL [*] [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
---------------------------------------------------------- ------------------------------------------------
538 OK RBOC [*] [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
---------------------------------------------------------- ------------------------------------------------
538 OK NON-BELL [*] [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
---------------------------------------------------------- ------------------------------------------------
540 TX RBOC [*] [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
---------------------------------------------------------- ------------------------------------------------
540 TX NON-BELL [*] [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
---------------------------------------------------------- ------------------------------------------------
542 TX RBOC [*] [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
---------------------------------------------------------- ------------------------------------------------
542 TX NON-BELL [*] [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
---------------------------------------------------------- ------------------------------------------------
544 TX RBOC [*] [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
---------------------------------------------------------- ------------------------------------------------
544 TX NON-BELL [*] [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
---------------------------------------------------------- ------------------------------------------------
546 TX RBOC [*] [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
---------------------------------------------------------- ------------------------------------------------
546 TX NON-BELL [*] [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
---------------------------------------------------------- ------------------------------------------------
548 TX RBOC [*] [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
---------------------------------------------------------- ------------------------------------------------
</TABLE>
- --------------------
[*] Information redacted pursuant to a confidential treatment request
throughout this exhibit.
<PAGE> 24
[QWEST LOGO] EXHIBIT A2
QWEST EXPRESS - RBOC/ITC
INTERSTATE TERMINATION RATES
<TABLE>
<CAPTION>
LATA STATE CLASS BASE RATES -- SWITCH MEETPOINT BASE RATES -- POP MEETPOINT
ATL MW NW S SE SW POP ATL POP MW POP S POP SE POP SW
- ---- ----- ----- ------- ------- ------- ------- ------- ------- ------- ------- ------- ------- -------
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C>
548 TX NON-BELL [*] [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
------- ------- ------- ------- ------- ------- ------- ------- ------- ------- -------
550 TX RBOC [*] [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
------- ------- ------- ------- ------- ------- ------- ------- ------- ------- -------
550 TX NON-BELL [*] [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
------- ------- ------- ------- ------- ------- ------- ------- ------- ------- -------
552 TX RBOC [*] [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
------- ------- ------- ------- ------- ------- ------- ------- ------- ------- -------
552 TX NON-BELL [*] [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
------- ------- ------- ------- ------- ------- ------- ------- ------- ------- -------
554 TX RBOC [*] [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
------- ------- ------- ------- ------- ------- ------- ------- ------- ------- -------
554 TX NON-BELL [*] [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
------- ------- ------- ------- ------- ------- ------- ------- ------- ------- -------
556 TX RBOC [*] [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
------- ------- ------- ------- ------- ------- ------- ------- ------- ------- -------
556 TX NON-BELL [*] [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
------- ------- ------- ------- ------- ------- ------- ------- ------- ------- -------
558 TX RBOC [*] [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
------- ------- ------- ------- ------- ------- ------- ------- ------- ------- -------
558 TX NON-BELL [*] [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
------- ------- ------- ------- ------- ------- ------- ------- ------- ------- -------
560 TX RBOC [*] [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
------- ------- ------- ------- ------- ------- ------- ------- ------- ------- -------
560 TX NON-BELL [*] [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
------- ------- ------- ------- ------- ------- ------- ------- ------- ------- -------
562 TX RBOC [*] [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
------- ------- ------- ------- ------- ------- ------- ------- ------- ------- -------
562 TX NON-BELL [*] [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
------- ------- ------- ------- ------- ------- ------- ------- ------- ------- -------
564 TX RBOC [*] [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
------- ------- ------- ------- ------- ------- ------- ------- ------- ------- -------
564 TX NON-BELL [*] [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
------- ------- ------- ------- ------- ------- ------- ------- ------- ------- -------
566 TX RBOC [*] [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
------- ------- ------- ------- ------- ------- ------- ------- ------- ------- -------
566 TX NON-BELL [*] [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
------- ------- ------- ------- ------- ------- ------- ------- ------- ------- -------
568 TX RBOC [*] [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
------- ------- ------- ------- ------- ------- ------- ------- ------- ------- -------
568 TX NON-BELL [*] [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
------- ------- ------- ------- ------- ------- ------- ------- ------- ------- -------
570 TX RBOC [*] [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
------- ------- ------- ------- ------- ------- ------- ------- ------- ------- -------
570 TX NON-BELL [*] [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
------- ------- ------- ------- ------- ------- ------- ------- ------- ------- -------
620 MN RBOC [*] [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
------- ------- ------- ------- ------- ------- ------- ------- ------- ------- -------
620 MN NON-BELL [*] [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
------- ------- ------- ------- ------- ------- ------- ------- ------- ------- -------
624 MN RBOC [*] [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
------- ------- ------- ------- ------- ------- ------- ------- ------- ------- -------
624 MN NON-BELL [*] [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
------- ------- ------- ------- ------- ------- ------- ------- ------- ------- -------
626 MN RBOC [*] [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
------- ------- ------- ------- ------- ------- ------- ------- ------- ------- -------
626 MN NON-BELL [*] [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
------- ------- ------- ------- ------- ------- ------- ------- ------- ------- -------
628 MN RBOC [*] [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
------- ------- ------- ------- ------- ------- ------- ------- ------- ------- -------
628 MN NON-BELL [*] [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
------- ------- ------- ------- ------- ------- ------- ------- ------- ------- -------
630 IA RBOC [*] [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
------- ------- ------- ------- ------- ------- ------- ------- ------- ------- -------
630 IA NON-BELL [*] [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
------- ------- ------- ------- ------- ------- ------- ------- ------- ------- -------
632 IA RBOC [*] [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
------- ------- ------- ------- ------- ------- ------- ------- ------- ------- -------
632 IA NON-BELL [*] [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
------- ------- ------- ------- ------- ------- ------- ------- ------- ------- -------
634 IA RBOC [*] [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
------- ------- ------- ------- ------- ------- ------- ------- ------- ------- -------
634 IA NON-BELL [*] [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
------- ------- ------- ------- ------- ------- ------- ------- ------- ------- -------
635 IA RBOC [*] [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
</TABLE>
- --------------------
[*] Information redacted pursuant to a confidential treatment request
throughout this exhibit.
<PAGE> 25
EXHIBIT A2
[QWEST LOGO]
QWEST EXPRESS - RBOC / ITC
INTERSTATE TERMINATION RATES
<TABLE>
<CAPTION>
- ------------------------------------------------------------------------------------------------------------------------------------
LATA STATE CLASS BASE RATES - SWITCH MEETPOINT BASE RATES - POP MEETPOINT
ATL MW NW S SE SW POP ATL POP MW POP S POP SE POP SW
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C>
---------------------------------------------------------- ------------------------------------------------
625 IA NON-BELL [*] [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
---------------------------------------------------------- ------------------------------------------------
636 ND RBOC [*] [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
---------------------------------------------------------- ------------------------------------------------
636 ND NON-BELL [*] [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
---------------------------------------------------------- ------------------------------------------------
638 ND RBOC [*] [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
---------------------------------------------------------- ------------------------------------------------
638 ND NON-BELL [*] [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
---------------------------------------------------------- ------------------------------------------------
640 SD RBOC [*] [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
---------------------------------------------------------- ------------------------------------------------
640 SD NON-BELL [*] [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
---------------------------------------------------------- ------------------------------------------------
644 NE RBOC [*] [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
---------------------------------------------------------- ------------------------------------------------
644 NE NON-BELL [*] [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
---------------------------------------------------------- ------------------------------------------------
646 NE RBOC [*] [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
---------------------------------------------------------- ------------------------------------------------
646 NE NON-BELL [*] [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
---------------------------------------------------------- ------------------------------------------------
648 MT RBOC [*] [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
---------------------------------------------------------- ------------------------------------------------
648 MT NON-BELL [*] [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
---------------------------------------------------------- ------------------------------------------------
650 MT RBOC [*] [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
---------------------------------------------------------- ------------------------------------------------
650 MT NON-BELL [*] [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
---------------------------------------------------------- ------------------------------------------------
652 ID RBOC [*] [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
---------------------------------------------------------- ------------------------------------------------
652 ID NON-BELL [*] [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
---------------------------------------------------------- ------------------------------------------------
654 WY RBOC [*] [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
---------------------------------------------------------- ------------------------------------------------
654 WY NON-BELL [*] [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
---------------------------------------------------------- ------------------------------------------------
656 CO RBOC [*] [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
---------------------------------------------------------- ------------------------------------------------
658 CO NON-BELL [*] [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
---------------------------------------------------------- ------------------------------------------------
658 CO RBOC [*] [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
---------------------------------------------------------- ------------------------------------------------
658 CO NON-BELL [*] [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
---------------------------------------------------------- ------------------------------------------------
660 UT RBOC [*] [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
---------------------------------------------------------- ------------------------------------------------
660 UT NON-BELL [*] [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
---------------------------------------------------------- ------------------------------------------------
664 NM RBOC [*] [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
---------------------------------------------------------- ------------------------------------------------
664 NM NON-BELL [*] [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
---------------------------------------------------------- ------------------------------------------------
666 AZ RBOC [*] [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
---------------------------------------------------------- ------------------------------------------------
666 AZ NON-BELL [*] [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
---------------------------------------------------------- ------------------------------------------------
668 AZ RBOC [*] [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
---------------------------------------------------------- ------------------------------------------------
668 AX NON-BELL [*] [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
---------------------------------------------------------- ------------------------------------------------
670 OR RBOC [*] [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
---------------------------------------------------------- ------------------------------------------------
67O OR NON-BELL [*] [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
---------------------------------------------------------- ------------------------------------------------
672 OR RBOC [*] [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
---------------------------------------------------------- ------------------------------------------------
672 OR NON-BELL [*] [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
---------------------------------------------------------- ------------------------------------------------
674 WA RBOC [*] [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
---------------------------------------------------------- ------------------------------------------------
674 WA NON-BELL [*] [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
---------------------------------------------------------- ------------------------------------------------
676 WA RBOC [*] [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
---------------------------------------------------------- ------------------------------------------------
</TABLE>
- --------------------
[*] Information redacted pursuant to a confidential treatment request
throughout this exhibit.
<PAGE> 26
EXHIBIT A2
[QWEST LOGO]
QWEST EXPRESS - RBOC / ITC
INTERSTATE TERMINATION RATES
<TABLE>
<CAPTION>
- ------------------------------------------------------------------------------------------------------------------------------------
LATA STATE CLASS BASE RATES - SWITCH MEETPOINT BASE RATES - POP MEETPOINT
ATL MW NW S SE SW POP ATL POP MW POP S POP SE POP SW
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C>
---------------------------------------------------------- ------------------------------------------------
676 WA NON-BELL [*] [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
---------------------------------------------------------- ------------------------------------------------
720 NV RBOC [*] [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
---------------------------------------------------------- ------------------------------------------------
720 NV NON-BELL [*] [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
---------------------------------------------------------- ------------------------------------------------
721 NV RBOC [*] [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
---------------------------------------------------------- ------------------------------------------------
721 NV NON-BELL [*] [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
---------------------------------------------------------- ------------------------------------------------
722 CA RBOC [*] [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
---------------------------------------------------------- ------------------------------------------------
722 CA NON-BELL [*] [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
---------------------------------------------------------- ------------------------------------------------
724 CA RBOC [*] [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
---------------------------------------------------------- ------------------------------------------------
724 CA NON-BELL [*] [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
---------------------------------------------------------- ------------------------------------------------
726 CA RBOC [*] [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
---------------------------------------------------------- ------------------------------------------------
726 CA NON-BELL [*] [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
---------------------------------------------------------- ------------------------------------------------
728 CA RBOC [*] [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
---------------------------------------------------------- ------------------------------------------------
728 CA NON-BELL [*] [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
---------------------------------------------------------- ------------------------------------------------
730 CA RBOC [*] [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
---------------------------------------------------------- ------------------------------------------------
730 CA NON-BELL [*] [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
---------------------------------------------------------- ------------------------------------------------
732 CA RBOC [*] [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
---------------------------------------------------------- ------------------------------------------------
732 CA NON-BELL [*] [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
---------------------------------------------------------- ------------------------------------------------
734 CA RBOC [*] [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
---------------------------------------------------------- ------------------------------------------------
734 CA NON-BELL [*] [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
---------------------------------------------------------- ------------------------------------------------
736 CA RBOC [*] [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
---------------------------------------------------------- ------------------------------------------------
736 CA NON-BELL [*] [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
---------------------------------------------------------- ------------------------------------------------
738 CA RBOC [*] [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
---------------------------------------------------------- ------------------------------------------------
738 CA NON-BELL [*] [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
---------------------------------------------------------- ------------------------------------------------
740 CA RBOC [*] [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
---------------------------------------------------------- ------------------------------------------------
740 CA NON-BELL [*] [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
---------------------------------------------------------- ------------------------------------------------
820 PR N/A [*] [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
---------------------------------------------------------- ------------------------------------------------
822 USVI N/A [*] [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
---------------------------------------------------------- ------------------------------------------------
832 AK N/A [*] [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
---------------------------------------------------------- ------------------------------------------------
834 HI N/A [*] [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
---------------------------------------------------------- ------------------------------------------------
836 MID/WAKE N/A [*] [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
---------------------------------------------------------- ------------------------------------------------
920 CT RBOC [*] [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
---------------------------------------------------------- ------------------------------------------------
920 CT NON-BELL [*] [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
---------------------------------------------------------- ------------------------------------------------
921 NY RBOC [*] [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
---------------------------------------------------------- ------------------------------------------------
921 NY NON-BELL [*] [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
---------------------------------------------------------- ------------------------------------------------
922 OH RBOC [*] [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
---------------------------------------------------------- ------------------------------------------------
922 OH NON-BELL [*] [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
---------------------------------------------------------- ------------------------------------------------
923 OH RBOC [*] [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
---------------------------------------------------------- ------------------------------------------------
923 OH NON-BELL [*] [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
---------------------------------------------------------- ------------------------------------------------
</TABLE>
- --------------------
[*] Information redacted pursuant to a confidential treatment request
throughout this exhibit.
<PAGE> 27
EXHIBIT A2
[QWEST LOGO]
QWEST EXPRESS - RBOC / ITC
INTERSTATE TERMINATION RATES
<TABLE>
<CAPTION>
- ------------------------------------------------------------------------------------------------------------------------------------
LATA STATE CLASS BASE RATES - SWITCH MEETPOINT BASE RATES - POP MEETPOINT
ATL MW NW S SE SW POP ATL POP MW POP S POP SE POP SW
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C>
---------------------------------------------------------- ------------------------------------------------
924 PA RBOC [*] [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
---------------------------------------------------------- ------------------------------------------------
924 PA NON-BELL [*] [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
---------------------------------------------------------- ------------------------------------------------
927 VA RBOC [*] [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
---------------------------------------------------------- ------------------------------------------------
927 VA NON-BELL [*] [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
---------------------------------------------------------- ------------------------------------------------
928 VA RBOC [*] [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
---------------------------------------------------------- ------------------------------------------------
928 VA NON-BELL [*] [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
---------------------------------------------------------- ------------------------------------------------
929 VA RBOC [*] [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
---------------------------------------------------------- ------------------------------------------------
929 VA NON-BELL [*] [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
---------------------------------------------------------- ------------------------------------------------
930 VA RBOC [*] [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
---------------------------------------------------------- ------------------------------------------------
930 VA NON-BELL [*] [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
---------------------------------------------------------- ------------------------------------------------
932 WV RBOC [*] [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
---------------------------------------------------------- ------------------------------------------------
932 WV NON-BELL [*] [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
---------------------------------------------------------- ------------------------------------------------
937 IN RBOC [*] [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
---------------------------------------------------------- ------------------------------------------------
937 IN NON-BELL [*] [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
---------------------------------------------------------- ------------------------------------------------
938 IN RBOC [*] [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
---------------------------------------------------------- ------------------------------------------------
938 IN NON-BELL [*] [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
---------------------------------------------------------- ------------------------------------------------
939 FL RBOC [*] [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
---------------------------------------------------------- ------------------------------------------------
939 FL NON-BELL [*] [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
---------------------------------------------------------- ------------------------------------------------
949 NC RBOC [*] [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
---------------------------------------------------------- ------------------------------------------------
949 NC NON-BELL [*] [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
---------------------------------------------------------- ------------------------------------------------
951 NC RBOC [*] [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
---------------------------------------------------------- ------------------------------------------------
951 NC NON-BELL [*] [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
---------------------------------------------------------- ------------------------------------------------
952 FL RBOC [*] [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
---------------------------------------------------------- ------------------------------------------------
952 FL NON-BELL [*] [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
---------------------------------------------------------- ------------------------------------------------
953 FL RBOC [*] [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
---------------------------------------------------------- ------------------------------------------------
953 FL NON-BELL [*] [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
---------------------------------------------------------- ------------------------------------------------
955 AL RBOC [*] [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
---------------------------------------------------------- ------------------------------------------------
955 AL NON-BELL [*] [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
---------------------------------------------------------- ------------------------------------------------
956 TN RBOC [*] [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
---------------------------------------------------------- ------------------------------------------------
956 TN NON-BELL [*] [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
---------------------------------------------------------- ------------------------------------------------
958 NE RBOC [*] [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
---------------------------------------------------------- ------------------------------------------------
958 NE NON-BELL [*] [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
---------------------------------------------------------- ------------------------------------------------
960 ID RBOC [*] [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
---------------------------------------------------------- ------------------------------------------------
960 ID NON-BELL [*] [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
---------------------------------------------------------- ------------------------------------------------
961 TX RBOC [*] [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
---------------------------------------------------------- ------------------------------------------------
961 TX NON-BELL [*] [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
---------------------------------------------------------- ------------------------------------------------
963 MT RBOC [*] [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
---------------------------------------------------------- ------------------------------------------------
963 MT NON-BELL [*] [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
---------------------------------------------------------- ------------------------------------------------
</TABLE>
- --------------------
[*] Information redacted pursuant to a confidential treatment request
throughout this exhibit.
<PAGE> 28
EXHIBIT E1
QWEST EXPRESS 8XX RESPONSIBLE ORGANIZATION AND ORIGINATING
CARRIER SERVICE AGREEMENT
GENERAL
Interstate rates are per Local Access and Transport Area ("LATA") and are for
LATA-wide origination Rates shown in the attached Rate Exhibit are shown in
terms of full minutes and are billed in [*] second increments. All answered
calls will be billed a minimum of [*].
ROUNDING
The Qwest Express 8XX Originating Service utilizes "bulk rounding". For the
purposes of this agreement, bulk rounding is defined as carrying over the 3rd
and 4th place amounts of a call charge to the next call, and continuing to do so
until one full cent ($.01) is accrued. When this has occurred, the cent is
applied to the next call. In addition, the Qwest Express 8XX Originating Service
employs [*], which means that all calls are [*], as opposed to [*] (e.g. initial
and incremental).
"RBOC-ITC" SURCHARGE
Customer will maintain at least [*] of the traffic comprising Customers 8XX
Origination Service for origination in a Tandem owned and operated by a Regional
Bell Operating Company ("RBOC") and subject to such RBOC's tariffed access
charges. Qwest will have the right to apply a [*] per minute of use surcharge to
the number of minutes by which Non-RBOC Originating minutes exceed [*] of total
monthly Origination service minutes. for the purposes of automating the billing
of the surcharge, the OCN number of the originating carrier will be used. OCN
numbers of 9000 and above are classified as RBOC; and OCN numbers less than 9000
are classified as "ITC", or Non-RBOC.
QWEST AS RESPONSIBLE ORGANIZATION ("RESP ORG")
(A) Qwest agrees to act as RESP ORG, to manage and administer Customer's
records in the 8XX Service Management System. Qwest's responsibilities
shall be limited to coordinating data entry, record change, trouble
acceptance, referral and/or clearance. As RESP ORG, Qwest will also
provide coordination to provision, maintain, and test 8XX Data Base
("DB") service between various entities, such as: Local Exchange
Carriers ("LECs"), Interexchange Carriers ("IXCs"), Number
Administration and Service Center ("NASC"), and the Service Management
System "SMS").
(B) Qwest will provide Customer with a contact number for referrals of 8XX
troubles on a twenty-four (24) hour a day, seven (7) days a week
basis. Qwest will make reasonable best efforts to resolve troubles by
sectionalizing trouble to determine if the reported trouble is in its
translations or facilities or in another provider's service. If
necessary, Qwest will test cooperatively with other providers to
further identify and address a trouble when it has been sectionalized
to another provider's service. Qwest will keep Customer advised as to
the status of trouble clearance. Qwest's responsibilities shall be
limited to make a good faith effort to identify and coordinate trouble
resolution.
(C) As RESP ORG, Qwest is limited in the number of 8XX number reservations
it can hold; therefore, reservations will be available on a first come
first serve basis. Customer reservations may at no time exceed [*] of
its active 8XX numbers. Reservations cannot be held for more than
forty-five (45) calendar days. At the end of the reservation period
the 8XX number will be returned to the pool of numbers available for
general assignment.
QWEST CONFIDENTIAL AND PROPRIETARY
- --------------------
[*] Information redacted pursuant to a confidential treatment request
throughout this exhibit.
1
<PAGE> 29
EXHIBIT E1
QWEST EXPRESS 8XX RESPONSIBLE ORGANIZATION AND ORIGINATING
CARRIER SERVICE AGREEMENT
(D) For Qwest to properly fulfill its obligation as RESP ORG, Customer
shall make available to Qwest an 8XX number and personnel, on a
twenty-four (24) hour a day, seven (7) day a week basis, for trouble
reporting and resolution. The Customer further agrees that it shall
make its best effort to assist Qwest in the resolution of any end
user dispute involving an end user of the Customer.
LIABILITY
(A) Without limiting the Agreement, Qwest shall not be liable for any act
or omission of the Number Administration and Service Center (NASC),
other RESP ORGS, or any other carrier providing a portion of the
Service.
(B) Without limiting the Agreement, Qwest shall not be liable for any
loss or damage sustained by Customer, its 8XX subscriber or any third
party by reason of defects or malfunctions in the hardware or
software provided by NASC, or by reason of errors made by NASC in
connection with the SMS/8XX.
(C) Without limiting the Agreement, Qwest shall not be liable for any
loss or damage sustained by the Customer, its 8XX subscriber or any
third party by reason of defects or malfunctions in any Qwest Service
Management System ("LSMS"), Service Control Point ("SCP"), Service
Transfer Point ("STP"), or Service Switch Point ("SSP"), or any other
facilities, hardware or software not directly under Qwest's control.
(D) Without limiting the Agreement, Qwest is not liable for any loss of
revenue or profit by the Customer or its 8XX subscriber or for any
loss or damage arising out of this Agreement or out of the use of the
SMS/8XX or any of the services provided under this Agreement by any
person, whether arising in contract, tort (including, without
limitation, negligence or strict liability) or otherwise and whether
or not informed of the possibility of such damages in advance.
INDEMNIFICATION
Without limiting the Agreement, Customer hereby agrees to indemnify,
defend and hold harmless Qwest, its affiliates and their respective
directors, officers, employees and agents against any claim, loss or
damage arising from the use of Services offered under this Agreement,
involving: claims for libel, slander, invasion of privacy or infringement
of copyright arising from the Customer's or its 8XX subscriber's own
communications.
CUSTOMER AND QWEST OBLIGATIONS
(A) Customer hereby agrees that Qwest shall be Customer's sole provider
of Carrier 8XX Service for all 8XX numbers for which Qwest is
providing transport and/or Responsible Organization Services ("ROS"),
as such services are described herein, during the term hereof.
(B) Qwest agrees that Customer may, at its sole discretion, designate
itself as the 8XX carrier in selected LATAs. Customer's designation
is only applicable when used in conjunction with Qwest 8XX ROS and
transport and customer provides one hundred percent (100%) coverage
in the LATA(s).
QWEST CONFIDENTIAL AND PROPRIETARY
2
<PAGE> 30
EXHIBIT E1
QWEST EXPRESS 8XX RESPONSIBLE ORGANIZATION AND ORIGINATING
CARRIER SERVICE AGREEMENT
(C) Qwest will not provide ROS for 8XX numbers transported by other Common
Carriers ("OCCs").
(D) Qwest shall provide ROS as described herein consistent with the
Guidelines for 8XX Database, subject to the understanding that those
ROS and the terms and conditions of those services may be modified by
Qwest as a result of changes in said Guidelines, governmental action
or acts of third parties including but not limited to changes in LEC
tariffs that relate to ROS.
POINT(S) OF MEET
Customer is responsible for all access and related costs of DS-0, DS-1 or
DS-3 dedicated facilities to connect to Qwest's nearest applicable meet
point as follows:
The "ATL", or Atlantic rates shown in the Qwest Express 8XX Origination
Rate Exhibit will apply for all traffic that meets the Qwest network at one
of the following switch sites:
- 111 Pavonia Ave., 7th Floor, Suite 725, Jersey City, NJ 07310
- 111 Market Place, Suite 400, Baltimore, MD 21202
- 60 Hudson St., 11th Floor, New York City, NY 10013 (POP site that
receives "switch site pricing")
The "MW", or Midwest rates shown in the Qwest Express 8XX Origination Rate
Exhibit will apply for all traffic that meets the Qwest network at one of
the following switch sites:
- Doral Plaza, Suite 222A, 155 N. Michigan Ave., Chicago, IL 60601
- NBC Tower, 455 North City Front Plaza, Suite 700, Chicago, IL 60611
- Prudential Town Center, 1000 Town Center, Suite 360, Southfield, MI
48075
- 8793 Fulton County Road H, Delta, OH 43515
- 50 Public Square, Suite 640, Cleveland, OH 44113
- 180 E. Broad St., Suite B2, Columbia, OH 43215
The "NW", or Northwest rates shown in the Qwest Express 8XX Origination
Rate Exhibit will apply for all traffic that meets the Qwest network at
one of the following switch sites:
- 2001 6th Avenue, Seattle, WA 98121
The "S", or South rates shown in the Qwest Express 8XX Origination Rate
Exhibit will apply for all traffic that meets the Qwest network at one of
the following switch sites:
- 2323 Bryan Street, Suite 770, Dallas, TX
The "SE", or Southeast rates shown in the Qwest Express 8XX Origination
Rate Exhibit will apply for all traffic that meets the Qwest network at one
of the following switch sites:
- Bank South Bldg., Suite 1910, 55 Marietta St., Atlanta, GA 30303
- 701 E. Trade Street, Suite D, Charlotte, NC 28202
- 4895 Outland Center Drive, Memphis, TN 38118
QWEST CONFIDENTIAL AND PROPRIETARY
3
<PAGE> 31
EXHIBIT E1
QWEST EXPRESS 8XX RESPONSIBLE ORGANIZATION AND ORIGINATING
CARRIER SERVICE AGREEMENT
The "SW", or Southwest rates shown in the Qwest Express 8XX Origination
Rate Exhibit will apply for all traffic that meets the Qwest network at
one of the following switch sites:
- 624 S. Grand Ave., Suite 315, Los Angeles, CA 90017
- 3040 Gold Camp Road, Sacramento, CA
- 910 15th Street, Suite 220, Denver, CO 80202
The "POP ATL", or Atlantic POP rates shown in the Qwest Express 8XX
Origination Rate Exhibit will apply for all traffic that meets the Qwest
network at one of the following POP sites:
- 38th and Wyalusing Streets, Philadelphia, PA
- 1220 L Street N. W. Suite 1B, Washington, DC 20005
The "POP MW", or Midwest POP rates shown in the Qwest Express 8XX
Origination Rate Exhibit will apply for all traffic that meets the Qwest
network at one of the following POP sites:
- 1125 Grand Avenue, Kansas City, MO
- 900 Walnut Street, Suite 400, St. Louis, MO
The "POP S", or South POP rates shown in the Qwest Express 8XX Origination
Rate Exhibit will apply for all traffic that meets the Qwest network at one
of the following POP sites:
- 15 West 16th Street, Tulsa, OK
- 2112 East California Street, Oklahoma City, OK
- 777 Walker St. C-170, Houston, TX
The "POP SW", or Southwest POP rates shown in the Qwest Express 8XX
Origination Rate Exhibit will apply for all traffic that meets the Qwest
network at one of the following switch sites:
- 4275 E. Sahara, Las Vegas, NV
- 136 East South Temple, Suite 1560, Salt Lake City, UT
- 2600 N. Central, Phoenix, AZ
[*]
QWEST CONFIDENTIAL AND PROPRIETARY
4
- --------------------
[*] Information redacted pursuant to a confidential treatment request
throughout this exhibit.
<PAGE> 32
EXHIBIT E1
QWEST EXPRESS 8XX RESPONSIBLE ORGANIZATION AND ORIGINATING
CARRIER SERVICE AGREEMENT
[*]
QWEST CONFIDENTIAL AND PROPRIETARY
5
- --------------------
[*] Information redacted pursuant to a confidential treatment request
throughout this exhibit.
<PAGE> 33
EXHIBIT E1
QWEST EXPRESS 8XX RESPONSIBLE ORGANIZATION AND ORIGINATING
CARRIER SERVICE AGREEMENT
[*]
- --------------------
[*] Information redacted pursuant to a confidential treatment request
throughout this exhibit.
QWEST CONFIDENTIAL AND PROPRIETARY
6
<PAGE> 34
EXHIBIT E2
[QWEST LOGO]
QWEST EXPRESS 8XX ORIGINATION
<TABLE>
<CAPTION>
- --------------------------------------------------------------------------------------------------------------------------------
LATA STATE BASE RATES - SWITCH MEETPOINT BASE RATES - POP MEETPOINT
ATL MW NW S SE SW POP ATL POP MW POP S POP SE POP SW
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C>
--------------------------------------------------------- ------------------------------------------------
120 ME [*] [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
---------------------------------------------------------- ------------------------------------------------
122 NH [*] [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
---------------------------------------------------------- ------------------------------------------------
124 VT [*] [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
---------------------------------------------------------- ------------------------------------------------
126 MA [*] [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
---------------------------------------------------------- ------------------------------------------------
128 MA [*] [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
---------------------------------------------------------- ------------------------------------------------
130 RI [*] [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
---------------------------------------------------------- ------------------------------------------------
132 NY [*] [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
---------------------------------------------------------- ------------------------------------------------
133 NY [*] [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
---------------------------------------------------------- ------------------------------------------------
134 NY [*] [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
---------------------------------------------------------- ------------------------------------------------
136 NY [*] [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
---------------------------------------------------------- ------------------------------------------------
138 NY [*] [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
---------------------------------------------------------- ------------------------------------------------
140 NY [*] [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
---------------------------------------------------------- ------------------------------------------------
220 NJ [*] [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
---------------------------------------------------------- ------------------------------------------------
222 NJ [*] [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
---------------------------------------------------------- ------------------------------------------------
224 NJ [*] [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
---------------------------------------------------------- ------------------------------------------------
226 PA [*] [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
---------------------------------------------------------- ------------------------------------------------
228 PA [*] [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
---------------------------------------------------------- ------------------------------------------------
230 PA [*] [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
---------------------------------------------------------- ------------------------------------------------
232 PA [*] [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
---------------------------------------------------------- ------------------------------------------------
234 PA [*] [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
---------------------------------------------------------- ------------------------------------------------
236 DC [*] [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
---------------------------------------------------------- ------------------------------------------------
238 MD [*] [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
---------------------------------------------------------- ------------------------------------------------
240 MD [*] [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
---------------------------------------------------------- ------------------------------------------------
242 MD [*] [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
---------------------------------------------------------- ------------------------------------------------
244 VA [*] [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
---------------------------------------------------------- ------------------------------------------------
246 VA [*] [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
---------------------------------------------------------- ------------------------------------------------
248 VA [*] [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
---------------------------------------------------------- ------------------------------------------------
250 VA [*] [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
---------------------------------------------------------- ------------------------------------------------
252 VA [*] [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
---------------------------------------------------------- ------------------------------------------------
254 WV [*] [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
---------------------------------------------------------- ------------------------------------------------
256 WV [*] [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
---------------------------------------------------------- ------------------------------------------------
320 OH [*] [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
---------------------------------------------------------- ------------------------------------------------
322 OH [*] [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
---------------------------------------------------------- ------------------------------------------------
</TABLE>
- --------------------
[*] Information redacted pursuant to a confidential treatment request
throughout this exhibit.
<PAGE> 35
EXHIBIT E2
[QWEST LOGO]
QWEST EXPRESS 8XX ORIGINATION
<TABLE>
<CAPTION>
- --------------------------------------------------------------------------------------------------------------------------------
LATA STATE BASE RATES - SWITCH MEETPOINT BASE RATES - POP MEETPOINT
ATL MW NW S SE SW POP ATL POP MW POP S POP SE POP SW
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C>
--------------------------------------------------------- ------------------------------------------------
324 OH [*] [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
---------------------------------------------------------- ------------------------------------------------
325 OH [*] [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
---------------------------------------------------------- ------------------------------------------------
326 OH [*] [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
---------------------------------------------------------- ------------------------------------------------
328 OH [*] [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
---------------------------------------------------------- ------------------------------------------------
330 IN [*] [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
---------------------------------------------------------- ------------------------------------------------
332 IN [*] [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
---------------------------------------------------------- ------------------------------------------------
334 IN [*] [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
---------------------------------------------------------- ------------------------------------------------
336 IN [*] [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
---------------------------------------------------------- ------------------------------------------------
338 IN [*] [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
---------------------------------------------------------- ------------------------------------------------
340 MI [*] [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
---------------------------------------------------------- ------------------------------------------------
342 MI [*] [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
---------------------------------------------------------- ------------------------------------------------
344 MI [*] [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
---------------------------------------------------------- ------------------------------------------------
346 MI [*] [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
---------------------------------------------------------- ------------------------------------------------
348 MI [*] [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
---------------------------------------------------------- ------------------------------------------------
350 WI [*] [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
---------------------------------------------------------- ------------------------------------------------
352 WI [*] [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
---------------------------------------------------------- ------------------------------------------------
354 WI [*] [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
---------------------------------------------------------- ------------------------------------------------
356 WI [*] [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
---------------------------------------------------------- ------------------------------------------------
358 IL [*] [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
---------------------------------------------------------- ------------------------------------------------
360 IL [*] [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
---------------------------------------------------------- ------------------------------------------------
362 IL [*] [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
---------------------------------------------------------- ------------------------------------------------
364 IL [*] [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
---------------------------------------------------------- ------------------------------------------------
366 IL [*] [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
---------------------------------------------------------- ------------------------------------------------
368 IL [*] [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
---------------------------------------------------------- ------------------------------------------------
370 IL [*] [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
---------------------------------------------------------- ------------------------------------------------
374 IL [*] [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
---------------------------------------------------------- ------------------------------------------------
376 IL [*] [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
---------------------------------------------------------- ------------------------------------------------
420 NC [*] [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
---------------------------------------------------------- ------------------------------------------------
422 NC [*] [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
---------------------------------------------------------- ------------------------------------------------
424 NC [*] [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
---------------------------------------------------------- ------------------------------------------------
426 NC [*] [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
---------------------------------------------------------- ------------------------------------------------
428 NC [*] [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
---------------------------------------------------------- ------------------------------------------------
430 SC [*] [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
---------------------------------------------------------- ------------------------------------------------
432 SC [*] [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
---------------------------------------------------------- ------------------------------------------------
</TABLE>
- --------------------
[*] Information redacted pursuant to a confidential treatment request
throughout this exhibit.
<PAGE> 36
EXHIBIT E2
[QWEST LOGO]
QWEST EXPRESS 8XX ORIGINATION
<TABLE>
<CAPTION>
BASE RATES - SWITCH MEETPOINT BASE RATES - POP MEETPOINT
--------------------------------------------------------- -----------------------------------------------
LATA STATE ATL MW NW S SE SW POP ATL POP MW POP S POP SE POP SW
- ---- ----- ------- ------- ------- ------- ------- ------- ------- ------- ------- ------- -------
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C>
434 SC [*] [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
436 SC [*] [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
438 GA [*] [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
440 GA [*] [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
442 GA [*] [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
444 GA [*] [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
446 GA [*] [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
448 FL [*] [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
450 FL [*] [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
452 FL [*] [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
454 FL [*] [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
456 FL [*] [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
458 FL [*] [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
460 FL [*] [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
462 KY [*] [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
464 KY [*] [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
466 KY [*] [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
468 TN [*] [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
470 TN [*] [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
472 TN [*] [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
474 TN [*] [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
476 AL [*] [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
477 AL [*] [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
478 AL [*] [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
480 AL [*] [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
482 MS [*] [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
484 MS [*] [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
486 LA [*] [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
488 LA [*] [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
490 LA [*] [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
492 LA [*] [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
520 MO [*] [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
521 MO [*] [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
522 MO [*] [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
</TABLE>
- --------------------
[*] Information redacted pursuant to a confidential treatment request
throughout this exhibit.
<PAGE> 37
EXHIBIT E2
[QWEST LOGO]
QWEST EXPRESS 8XX ORIGINATION
<TABLE>
<CAPTION>
BASE RATES - SWITCH MEETPOINT BASE RATES - POP MEETPOINT
--------------------------------------------------------- -----------------------------------------------
LATA STATE ATL MW NW S SE SW POP ATL POP MW POP S POP SE POP SW
- ---- ----- ------- ------- ------- ------- ------- ------- ------- ------- ------- ------- -------
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C>
524 MO [*] [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
526 AR [*] [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
528 AR [*] [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
530 AR [*] [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
532 KS [*] [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
534 KS [*] [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
536 OK [*] [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
538 OK [*] [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
540 TX [*] [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
542 TX [*] [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
544 TX [*] [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
546 TX [*] [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
548 TX [*] [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
550 TX [*] [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
552 TX [*] [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
554 TX [*] [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
556 TX [*] [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
558 TX [*] [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
560 TX [*] [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
562 TX [*] [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
564 TX [*] [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
566 TX [*] [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
568 TX [*] [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
570 TX [*] [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
620 MN [*] [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
624 MN [*] [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
626 MN [*] [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
628 MN [*] [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
630 IA [*] [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
632 IA [*] [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
634 IA [*] [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
635 IA [*] [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
636 ND [*] [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
638 ND [*] [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
</TABLE>
- --------------------
[*] Information redacted pursuant to a confidential treatment request
throughout this exhibit.
<PAGE> 38
[QWEST LOGO] EXHIBIT E2
QWEST EXPRESS 8XX ORIGINATION
<TABLE>
<CAPTION>
LATA STATE BASE RATES - SWITCH MEETPOINT BASE RATES - POP MEETPOINT
- ---- ----- --------------------------------------------------------- ---------------------------------------------------
ATL MW NW S SE SW POP ATL POP MW POP S POP SE POP SW
------- ------- ------- ------- ------- ------- ------- ------- ------- ------- -------
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C>
640 SD [*] [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
644 NE [*] [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
646 NE [*] [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
648 MT [*] [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
650 MT [*] [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
652 ID [*] [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
654 WY [*] [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
656 CO [*] [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
658 CO [*] [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
660 UT [*] [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
664 NM [*] [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
666 AZ [*] [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
668 AZ [*] [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
670 OR [*] [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
672 OR [*] [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
674 WA [*] [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
676 WA [*] [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
720 NV [*] [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
721 NV [*] [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
722 CA [*] [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
724 CA [*] [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
726 CA [*] [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
728 CA [*] [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
730 CA [*] [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
732 CA [*] [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
734 CA [*] [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
736 CA [*] [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
738 CA [*] [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
740 CA [*] [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
820 PR [*] [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
822 USVI [*] [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
832 AK [*] [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
834 HI [*] [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
836 MID/WAKE [*] [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
</TABLE>
- --------------------
[*] Information redacted pursuant to a confidential treatment request
throughout this exhibit.
<PAGE> 39
[EQWEST LOGO] EXHIBIT E2
QWEST EXPRESS 8XX ORIGINATION
<TABLE>
<CAPTION>
LATA STATE BASE RATES - SWITCH MEETPOINT BASE RATES - POP MEETPOINT
ATL MW NW S SE SW POP ATL POP MW POP S POP SE POP SW
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C>
920 CT [*] [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
921 NY [*] [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
922 OH [*] [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
923 OH [*] [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
924 PA [*] [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
927 VA [*] [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
928 VA [*] [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
929 VA [*] [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
930 VA [*] [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
932 WV [*] [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
937 IN [*] [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
938 IN [*] [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
939 FL [*] [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
949 NC [*] [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
951 NC [*] [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
952 FL [*] [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
953 FL [*] [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
955 AL [*] [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
956 TN [*] [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
958 NE [*] [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
960 ID [*] [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
961 TX [*] [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
963 MT [*] [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
973 CA [*] [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
974 NY [*] [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
976 IL [*] [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
977 IL [*] [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
978 IL [*] [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
980 AZ [*] [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
981 UT [*] [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
CANADA N/A [*] [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
</TABLE>
- --------------------
[*] Information redacted pursuant to a confidential treatment request
throughout this exhibit.
<PAGE> 40
EXHIBIT F1
QWEST EXPRESS CANADIAN TERMINATING SERVICE DESCRIPTION
WHOLESALE SERVICES AGREEMENT
GENERAL
Carrier Canadian Terminating Service rates are per NPA and are for NPA-wide
termination. Rates shown in the Carrier Canadian Terminating Service Rate
Exhibit are shown in terms of full minutes and are billed in [*] increments with
an initial [*] increment. Carrier Canadian Terminating Service is available with
the following Qwest services: Qwest Express Domestic Terminating Service and
Qwest Express: RBOC-ITC Terminating Service. Rate period is determined using
standard Qwest holidays and rate periods. Qwest reserves the right to charge
excessive quantities of short duration calls (i.e. calls [*] in length) a
minimum of [*] per answered call. Rates are subject to change upon five (5)
calendar days prior written notice. Service availability is subject to the
availability of facilities to and in Canada.
ROUNDING
Canadian Terminating Service utilizes "bulk rounding". For the purposes of this
Agreement, bulk rounding is defined as carrying over the 3rd and 4th place
amounts of a call charge to the next call, and continuing to do so until one
full U.S. cent (U.S. $.01) is accrued. When this has occurred, the cent is
applied to the next call. In addition, the Canadian Terminating Service employs
[*], which means that all calls are [*], as opposed to [*] (e.g, initial and
incremental).
POINT(S) OF MEET
Customer is responsible for all access and related costs of DS-0, DS-1 or DS-3
dedicated facilities to connect to Qwest's nearest applicable meet point as
follows:
Qwest switch sites:
- 111 Pavonia Ave., 7th Floor, Suite 725, JERSEY CITY, NJ 07310
- 111 Market Place., Suite 400, BALTIMORE, MD 21202
- Doral Plaza, Suite 222A, 155 N. Michigan Ave., CHICAGO, IL 60601
- NBC Tower, 455 North City Front Plaza, Suite 700, CHICAGO, IL
60611
- Prudential Town Center, 1000 Town Center, Suite 360, SOUTHFIELD,
MI 48075
- 8793 Fulton County Road H, DELTA, OH 43515
- 50 Public Square, Suite 640, CLEVELAND, OH 44113
- 180 E. Broad St., Suite B2, COLUMBUS, OH 43215
- 2001 6th Avenue, SEATTLE, WA 98121
- 2323 Bryan Street, Suite 770, DALLAS, TX
- Bank South Bldg., Suite 1910, 55 Marietta St., ATLANTA, GA 30303
- 701 E. Trade Street, Suite D, CHARLOTTE, NC 28202
- 4895 Outland Center Drive, MEMPHIS, TN 38118
- 624 S. Grand Ave., Suite 315, LOS ANGELES, CA 90017
- 3040 Gold Camp Road, SACRAMENTO, CA
- 910 15th Street, Suite 220, DENVER, CO 80202
Qwest POP sites:
- 38th and Wyalusing Streets, PHILADELPHIA, PA
- 60 Hudson St., 11th Floor, NEW YORK CITY, NY l0013
- 1220 L Street N. W. Suite 1B, WASHINGTON, DC 20005
- 1125 Grand Avenue, KANSAS CITY, MO
- 900 Walnut Street, Suite 400, ST. LOUIS, MO
- 15 West 16th Street, TULSA, OK
- 2112 East California Street, OKLAHOMA CITY, OK
- 777 Walker St. C-170, HOUSTON, TX
- 4275 E. Sahara, LAS VEGAS, NV
- --------------------
[*] Information redacted pursuant to a confidential treatment request
throughout this exhibit.
QWEST CONFIDENTIAL AND PROPRIETARY
1
<PAGE> 41
EXHIBIT F1
QWEST EXPRESS CANADIAN TERMINATING SERVICE DESCRIPTION
WHOLESALE SERVICES AGREEMENT
- 136 East South Temple, Suite 1560, Salt Lake City, UT
- 2600 N. Central, Phoenix, AZ
QWEST CONFIDENTIAL AND PROPRIETARY
2
<PAGE> 42
[QWEST LOGO] EXHIBIT F2
Qwest Carrier Canadian Termination Rates
<TABLE>
<CAPTION>
NPA City Day Eve/Nit
- --- ---- --- -------
<S> <C> <C> <C>
204 Winnipeg, MT [*] [*]
250 [*] [*]
306 Regina, SK [*] [*]
403 Calgary, AL [*] [*]
416 Toronto, ON [*] [*]
418 Quebec City, QUE [*] [*]
450 Montreal, QUE [*] [*]
506 Frederiction, NB [*] [*]
514 Montreal, QUE [*] [*]
519 London, ON [*] [*]
604 Vancouver, BC [*] [*]
613 Ottawa, ON [*] [*]
705 Sudbury/Geo. Bay, ON [*] [*]
709 St. John's, NF [*] [*]
807 Thunder Bay, ON [*] [*]
819 St. Jovite, QUE [*] [*]
867 [*] [*]
902 Halifax, NS & PEI [*] [*]
905 Toronto, ON [*] [*]
</TABLE>
- --------------------
[*] Information redacted pursuant to a confidential treatment request
throughout this exhibit.
<PAGE> 43
EXHIBIT G1
QWEST EXPRESS MEXICAN TERMINATING SERVICE DESCRIPTION
WHOLESALE SERVICES AGREEMENT
GENERAL
Mexican rates are per Mexican Rate Step and are for Rate Step-wide termination.
Rates shown in the Mexican Terminating Service Rate Exhibit are shown in terms
of fill minutes and are billed in [*] increments. Mexican Terminating Service is
available with the following west services: Qwest Express Domestic Terminating
Service and Qwest Express: RBOC-ITC Terminating Service. Rate period is
determined using standard Qwest holidays and rate periods. Qwest reserves the
right to charge excessive quantities of short duration calls (i.e. calls under
[*] in length) a minimum of [*] per answered call. Rates are subject to change
upon five (5) calendar days notice. Service availability is subject to the
availability of facilities to and in Mexico.
ROUNDING
Currently, Mexican Terminating Service utilizes "bulk rounding". For the
purposes of this Agreement, bulk rounding is defined as carrying over the 3rd
and 4th place amounts of a call charge to the next call, and continuing to do so
until one full cent ($.O1) is accrued. When this has occurred, the cent is
applied to the next call. In addition, the Mexican Terminating Service employs
[*], which means that all calls are [*], as opposed to [*] (e.g. initial and
incremental).
POINT(S) OF MEET
Customer is responsible for all access and related costs of DS-0, DS-1 or DS-3
dedicated facilities to connect to Qwest's nearest applicable meet point as
follows:
Qwest switch sites:
- 111 Pavonia Ave., 7th Floor, Suite 725, JERSEY CITY, NJ 07310
- 111 Market Place., Suite 400, BALTIMORE, MD 21202
- Doral Plaza, Suite 222A, 155 N. Michigan Ave., CHICAGO, IL 60601
- NBC Tower, 455 North City Front Plaza, Suite 700, CHICAGO, IL
60611
- Prudential Town Center, 1000 Town Center, Suite 360, SOUTHFIELD,
MI 48075
- 8793 Fulton County Road H, DELTA, OH 43515
- 50 Public Square, Suite 640, CLEVELAND, OH 44113
- 180 E. Broad St., Suite B2, COLUMBUS, OH 43215
- 2001 6th Avenue, SEATTLE, WA 98121
- 2323 Bryan Street, Suite 770, DALLAS, TX
- Bank South Bldg., Suite 1910, 55 Marietta St., ATLANTA, GA 30303
- 701 E. Trade Street, Suite D, CHARLOTTE, NC 28202
- 4895 Outland Center Drive, MEMPHIS, TN 38118
- 624 S. Grand Ave., Suite 315, LOS ANGELES, CA 90017
- 3040 Gold Camp Road, SACRAMENTO, CA
- 910 15th Street, Suite 220, DENVER, CO 80202
Qwest POP sites:
- 38th and Wyalusing Streets, PHILADELPHIA, PA
- 60 Hudson St., l1th Floor NEW YORK CITY, NY 10013
- 1220 L Street N. W Suite 1B, WASHINGTON, DC 20005
- 1125 Grand Avenue, KANSAS CITY, MO
- 900 Walnut Street, Suite 400, ST. LOUIS, MO
- 15 West 16th Street, TULSA, OK
- 2112 East California Street, OKLAHOMA CITY, OK
- 777 Walker St. C-170, HOUSTON, TX
- 4275 E. Sahara, LAS VEGAS, NV
- 136 East South Temple, Suite 1560, SALT LAKE CITY, UT
- --------------------
[*] Information redacted pursuant to a confidential treatment request
throughout this exhibit.
QWEST CONFIDENTIAL AND PROPRIETARY
1
<PAGE> 44
EXHIBIT Gl
QWEST EXPRESS MEXICAN TERMINATING SERVICE DESCRIPTION
WHOLESALE SERVICES AGREEMENT
- 2600 N. Central, PHOENIX, AZ
QWEST CONFIDENTIAL AND PROPRIETARY
2
<PAGE> 45
EXHIBIT G2
Mexican Termination Rates
<TABLE>
<CAPTION>
Rate
Step Standard Economy
---- -------- -------
<S> <C> <C>
1 [*] [*]
2 [*] [*]
3 [*] [*]
4 [*] [*]
5 [*] [*]
6 [*] [*]
7 [*] [*]
8 [*] [*]
</TABLE>
- --------------------
[*] Information redacted pursuant to a confidential treatment request
throughout this exhibit.
<PAGE> 46
EXHIBIT H1
QWEST EXPRESS INTERNATIONAL TERMINATING SERVICE DESCRIPTION
WHOLESALE SERVICES AGREEMENT
GENERAL
International rates are per country and are for country-wide termination. Rates
shown in the Carrier International Termination Rate Exhibit are shown in terms
of full minutes and are billed in [*] increments with an initial [*] increment.
Carrier International Terminating Service is available with the following Qwest
services: Qwest Express Domestic Terminating Service and Qwest Express: RBOC-ITC
Terminating Rate period is determined using standard Qwest holidays and rate
periods. Qwest reserves the right to charge excessive quantities of short
duration calls (i.e. calls under [*] in length) a minimum of [*] per answered
call. Service is subject to the availability of facilities to the particular
countries.
ROUNDING
Currently, International Terminating Service utilizes "bulk rounding". For the
purposes of this Agreement, bulk rounding is defined as carrying over the 3(rd)
and 4(th) place amounts of a call charge to the next call, and continuing to do
so until one full cent ($.01) is accrued. When this has occurred, the cent is
applied to the next call. In addition, the International Terminating Service
employs [*], which means that all calls are [*], as opposed to [*] (e.g. initial
and incremental).
POINT(S) OF MEET
Customer is responsible for all access and related costs of DS-0, DS-1 or DS-3
dedicated facilities to connect to Qwest's nearest applicable meet point as
follows:
Qwest switch sites:
- 111 Pavonia Ave., 7th Floor, Suite 725, Jersey City, NJ 07310
- 111 Market Place., Suite 400, Baltimore, MD 21202
- Doral Plaza, Suite 222A, 155 N. Michigan Ave., Chicago, IL 60601
- NBC Tower, 455 North City Front Plaza, Suite 700, Chicago, IL
60611
- Prudential Town Center, 1000 Town Center, Suite 360, Southfield,
MI 48075
- 8793 Fulton County Road H, Delta, OH 43515
- 50 Public Square, Suite 640, Cleveland, OH 44113
- 180 E. Broad St., Suite B2, Columbus, OH 43215
- 2001 6th Avenue, Seattle, WA 98121
- 2323 Bryan Street, Suite 770, Dallas, TX
- Bank South Bldg., Suite 1910, 55 Marietta St., Atlanta, GA 30303
- 701 E. Trade Street, Suite D, Charlotte, NC 28202
- 4895 Outland Center Drive, Memphis, TN 38118
- 624 S. Grand Ave., Suite 315, Los Angeles, CA 90017
- 3040 Gold Camp Road, Sacramento, CA
- 910 15th Street, Suite 220, Denver, CO 80202
Qwest POP sites:
- 38th and Wyalusing Streets, Philadelphia, PA
- 60 Hudson St., 11(th) Floor, New York City, NY 10013
- 1220 L Street N. W. Suite 1B, Washington, DC 20005
- 1125 Grand Avenue, Kansas City, MO
- 900 Walnut Street, Suite 400, St. Louis, MO
- 15 West 16th Street, Tulsa, OK
- 2112 East California Street, Oklahoma City, OK
- 777 Walker St. C-170, Houston, TX
- 4275 E. Sahara, Las Vegas, NV
- 136 East South Temple, Street 1560, Salt Lake City, UT
- --------------------
[*] Information redacted pursuant to a confidential treatment request
throughout this exhibit.
QWEST CONFIDENTIAL AND PROPRIETARY
1
<PAGE> 47
EXHIBIT H1
QWEST EXPRESS INTERNATIONAL TERMINATING SERVICE DESCRIPTION
WHOLESALE SERVICES AGREEMENT
2600 N. Central, Phoenix, AZ
QWEST CONFIDENTIAL AND PROPRIETARY
2
<PAGE> 48
EXHIBIT H2
Carrier International Rates [QWEST LOGO]
<TABLE>
<CAPTION>
Country
Country Code Rate
------- ------- ----
<S> <C> <C>
Afghanistan 93 [*]
Albania 355 [*]
Algeria 213 [*]
American Samoa 684 [*]
Andorra 376 [*]
Angola 244 [*]
Anguilla NTPA 264 [*]
Antarctica (CASEY & SCOT 672 [*]
Antigua NPA 268 [*]
Argentina 54 [*]
Armenia 374 [*]
Aruba 297 [*]
Ascension Island 247 [*]
Australia 61 [*]
Austria 43 [*]
Azerbaijan 994 [*]
Azores 992 [*]
Bahamas NPA 242 [*]
Bahrain 973 [*]
Bangladesh, People's Republi 880 [*]
Barbados 809/246 [*]
Belarus 375 [*]
Belgium 32 [*]
Belize 501 [*]
Benin, People's Republic of 229 [*]
Bermuda 809/441 [*]
Bhutan 975 [*]
Bolivia 591 [*]
Bosnia & Herzegovina, Repu 387 [*]
Botswana 267 [*]
Brazil 55 [*]
British Virgin Islands 809/284 [*]
Brunei 673 [*]
Bulgaria 359 [*]
Burkina Faso 226 [*]
</TABLE>
- --------------------
[*] Information redacted pursuant to a confidential treatment request
throughout this exhibit.
<PAGE> 49
EXHIBIT H2
Carrier International Rates [QWEST LOGO]
<TABLE>
<CAPTION>
Country
Country Code Rate
------- ------- ----
<S> <C> <C>
Burundi 257 [*]
Cambodia 855 [*]
Cameroon; United Republic o 237 [*]
Cape Verde Islands 238 [*]
Cayman Islands 809/345 [*]
Central African Republic 236 [*]
Chad 235 [*]
Chile 56 [*]
China, People's Republic of 86 [*]
Christmas & Cocos Islands 672 [*]
Colombia 57 [*]
Comoros, Federal Islamic Re 269 [*]
Congo, Republic of 242 [*]
Cook Islands 682 [*]
Costa Rica 506 [*]
Croatia, Republic of 385 [*]
Cuba 53 [*]
Cyprus 357 [*]
Czech Republic 420 [*]
Denmark 45 [*]
Diego Garcia 246 [*]
Djibouti, Republic of 253 [*]
Dominica 809/767 [*]
Dominican Republic 809 [*]
Ecuador 593 [*]
Egypt, Arab Republic of 20 [*]
El Salvador 503 [*]
Equatorial Guinea, Republic 240 [*]
Eritrea 291 [*]
Estonia 372 [*]
Ethiopia 251 [*]
Faeroe Islands 298 [*]
Falkland Islands 500 [*]
Fiji Islands 679 [*]
Finland 358 [*]
</TABLE>
- --------------------
[*] Information redacted pursuant to a confidential treatment request
throughout this exhibit.
<PAGE> 50
EXHIBIT H2
Carrier International Rates [QWEST LOGO]
<TABLE>
<CAPTION>
Country
Country Code Rate
------- ------- ----
<S> <C> <C>
France 33 [*]
French Antilles (includes Ma 596 [*]
French Guiana 594 [*]
French Polynesia 689 [*]
Gabon Republic 241 [*]
Gambia 220 [*]
Georgia 995 [*]
Germany, Fed Republic of 49 [*]
Ghana 233 [*]
Gibraltar 350 [*]
Greece 30 [*]
Greenland 299 [*]
Grenada 809/473 [*]
Guadeloupe 590 [*]
Guam 671 [*]
Guantanamo Bay 5399 [*]
Guatemala 502 [*]
Guinea, Peoples Rev. Rep. 224 [*]
Guinea-Bissau 245 [*]
Guyana 592 [*]
Haiti 509 [*]
Honduras 504 [*]
Hong Kong 852 [*]
Hungary 36 [*]
Iceland 354 [*]
India 91 [*]
Indonesia 62 [*]
INMARSAT - Atlantic Ocean 871 [*]
INMARSAT - Atlantic Ocean 874 [*]
INMARSAT - Indian Ocean 873 [*]
INMARSAT - Pacific Ocean 872 [*]
Iran 98 [*]
Iraq 964 [*]
Ireland, Republic of 353 [*]
Israel 972 [*]
</TABLE>
- --------------------
[*] Information redacted pursuant to a confidential treatment request
throughout this exhibit.
<PAGE> 51
EXHIBIT H2
Carrier International Rates [QWEST LOGO]
<TABLE>
<CAPTION>
Country
Country Code Rate
------- ------- ----
<S> <C> <C>
Italy 39 [*]
Ivory Coast, Republic of 225 [*]
Jamaica 809/867 [*]
Japan 81 [*]
Jordan 962 [*]
Kazakhstan 7 [*]
Kenya, Republic of 254 [*]
Kiribati 686 [*]
Korea, Dem. People's Rep of 850 [*]
Korea, Republic of (South) 82 [*]
Kuwait 965 [*]
Kyrgyzstan/ Krygyz Republic .7 [*]
Laos 856 [*]
Latvia 371 [*]
Lebanon 961 [*]
Lesotho 266 [*]
Liberia 231 [*]
Libyan Arab Peoples Socialis 218 [*]
Liechtenstein 41 [*]
Lithuania 370 [*]
Luxembourg 352 [*]
Macau 853 [*]
Macedonia, The Former Yug 389 [*]
Madagascar, Democratic Rep 261 [*]
Malawi 265 [*]
Malaysia 60 [*]
Maldives, Republic of 960 [*]
Mali Republic 223 [*]
Malta 356 [*]
Marshall Islands 692 [*]
Mauritania, Islamic Republic 222 [*]
Mauritius 230 [*]
Mayotte Island (combined wi 269 [*]
Micronesia, Federal States of 691 [*]
Moldova 373 [*]
</TABLE>
- --------------------
[*] Information redacted pursuant to a confidential treatment request
throughout this exhibit.
<PAGE> 52
EXHIBIT H2
Carrier International Rates [QWEST LOGO]
<TABLE>
<CAPTION>
Country
Country Code Rate
------- ------- ----
<S> <C> <C>
Monaco 377 [*]
Mongolian People's Republic 976 [*]
Montserrat 809/664 [*]
Morocco 212 [*]
Mozambique 258 [*]
Myanmar (Formerly Burma) 95 [*]
Nakhodka 7 [*]
Namibia 264 [*]
Nauru 674 [*]
Nepal 977 [*]
Netherlands 31 [*]
Netherlands Antilles 599 [*]
Nevis NPA 869 [*]
New Caledonia 687 [*]
New Zealand 64 [*]
Nicaragua 505 [*]
Niger Republic 227 [*]
Nigeria, Federal Republic of 234 [*]
Niue 683 [*]
Norfolk Island 672 [*]
Northern Mariana Islands (inc 670 [*]
Norway 47 [*]
Oman 968 [*]
Pakistan 92 [*]
Palau, Republic of 680 [*]
Panama, Republic of 507 [*]
Papua New Guinea 675 [*]
Paraguay 595 [*]
Peru 51 [*]
Philippines 63 [*]
Poland, Republic of 48 [*]
Portugal 351 [*]
Qatar 974 [*]
Reunion Island 262 [*]
Romania, Socialist Republic 40 [*]
</TABLE>
- --------------------
[*] Information redacted pursuant to a confidential treatment request
throughout this exhibit.
<PAGE> 53
EXHIBIT H2
Carrier International Rates [QWEST LOGO]
<TABLE>
<CAPTION>
Country
Country Code Rate
------- ------- ----
<S> <C> <C>
Russian Federation 7 [*]
Rwanda 250 [*]
Sakhalin 7 [*]
San Marino 378 [*]
Sao Tome 239 [*]
Saudi Arabia 966 [*]
Senegal Republic 221 [*]
Seychelles Islands 248 [*]
Sierra Leone 232 [*]
Singapore, Republic of 65 [*]
Slovakia 421 [*]
Slovenia, Republic of 386 [*]
Solomon Islands 677 [*]
Somalia 252 [*]
South Africa, Republic of 27 [*]
Spain 34 [*]
Sri Lanka, Democratic Social 94 [*]
St. Helena 290 [*]
St. Kitts NPA 869 [*]
St. Lucia 809/758 [*]
St. Pierre/Miquelon 508 [*]
St. Vincent/Grenadines 809 [*]
Sudan 249 [*]
Suriname, Republic of 597 [*]
Swaziland 268 [*]
Sweden 46 [*]
Switzerland 41 [*]
Syrian Arab Republic 963 [*]
Taiwan, Republic of China 886 [*]
Tajikistan 7 [*]
Tanzania 255 [*]
Thailand 66 [*]
Togo, Republic of 228 [*]
Tokelau 690 [*]
Tonga Islands 676 [*]
</TABLE>
- --------------------
[*] Information redacted pursuant to a confidential treatment request
throughout this exhibit.
<PAGE> 54
EXHIBIT H2
Carrier International Rates [QWEST LOGO]
<TABLE>
<CAPTION>
Country
Country Code Rate
------- ------- ----
<S> <C> <C>
Trinidad & Tobago, Democra 809/868 [*]
Tunisia 216 [*]
Turkey 90 [*]
Turkmenistan 7 [*]
Turks & Caicos 809 [*]
Tuvalu 688 [*]
Uganda 256 [*]
Ukraine 380 [*]
United Arab Emirates 971 [*]
United Kingdom 44 [*]
Uruguay 598 [*]
Uzbekistan .7 [*]
Vanuatu, Republic of 678 [*]
Vatican City 39 [*]
Venezuela 58 [*]
Vietnam 84 [*]
Wallis & Futuna Islands 681 [*]
Western Samoa 685 [*]
Yemen Arab Republic 967 [*]
Yemen Democratic Republic 969 [*]
Yugoslavia, Federal Republic 381 [*]
Zaire, Republic of 243 [*]
Zambia 260 [*]
Zimbabwe 263 [*]
</TABLE>
International Rates are effective for all Time Periods
Billing Increment: [*]
- --------------------
[*] Information redacted pursuant to a confidential treatment request
throughout this exhibit.
<PAGE> 55
EXHIBIT I1
QWEST EXPRESS DIRECTORY ASSISTANCE TERMINATING
SERVICE DESCRIPTION
WHOLESALE SERVICES AGREEMENT
GENERAL
Directory Assistance rates are per NPA and are valid NPA-wide. Rates shown in
the Carrier Directory Assistance Termination Rate Exhibit are shown on a per
call basis and are billed per call.
POINT(S) OF MEET
Customer is responsible for all access and related costs of DS-0, DS-1 or DS-3
dedicated facilities to connect to Qwest's nearest applicable meet point as
follows:
Qwest switch sites:
- 111 Pavonia Ave., 7th Floor, Suite 725, Jersey City, NJ 07310
- 111 Market Place., Suite 400, Baltimore, MD 21202
- Doral Plaza, Suite 222A, 155 N. Michigan Ave., Chicago, IL 60601
- NBC Tower, 455 North City Front Plaza, Suite 700, Chicago, IL
60611
- Prudential Town Center, 1000 Town Center, Suite 360, Southfield,
MI 48075
- 8793 Fulton County Road H, Delta, OH 43515
- 50 Public Square, Suite 640, Cleveland, OH 44113
- 180 E. Broad St., Suite B2, Columbus, OH 43215
- 2001 6th Avenue, Seattle, WA 98121
- 2323 Bryan Street, Suite 770, Dallas, TX
- Bank South Bldg., Suite 1910, 55 Marietta St., Atlanta, GA 30303
- 701 E. Trade Street, Suite D, Charlotte, NC 28202
- 4895 Outland Center Drive, Memphis, TN 38118
- 624 S. Grand Ave., Suite 315, Los Angeles, CA 90017
- 3040 Gold Camp Road, Sacramento, CA
- 910 15th Street, Suite 220, Denver, CO 80202
Qwest POP sites:
- 38th and Wyalusing Streets, Philadelphia, PA
- 60 Hudson St., 11th Floor, New York City, NY 10013
- 1220 L Street N. W. Suite 1B, Washington, DC 20005
- 1125 Grand Avenue, Kansas City, MO
- 900 Walnut Street, Suite 400, St. Louis, MO
- 15 West 16th Street, Tulsa, OK
- 2112 East California Street, Oklahoma City, OK
- 777 Walker St. C-170, Houston, TX
- 4275 E. Sahara, Las Vegas, NV
- 136 East South Temple, Street 1560, Salt Lake City, UT
- 2600 N. Central, Phoenix, AZ
QWEST CONFIDENTIAL AND PROPRIETARY
1
<PAGE> 56
EXHIBIT I2
Carrier Directory Assistance Rates
[QWEST LOGO]
<TABLE>
<CAPTION>
Serving Price to Serving Price to Serving Price to
NPA LEC Carrier NPA LEC Carrier NPA LEC Carrier
- --- ------- -------- --- ------- -------- --- ------- --------
<S> <C> <C> <C> <C> <C> <C> <C> <C>
201 BELL AT [*] 417 S W BELL [*] 715 AMERITECH [*]
202 BELL AT [*] 418 BELL CANADA [*] 716 NY TEL [*]
203 S NEW ENG. [*] 419 AMERITECH [*] 717 BELL AT [*]
204 BELL CANADA [*] 423 BELL SOUTH [*] 718 NY TEL [*]
205 BELL SOUTH [*] 425 PACIFIC BELL [*] 719 US WEST [*]
206 PACIFIC BELL [*] 440 AMERITECH [*] 724 BELL AT [*]
207 NEW ENGLAND [*] 441 PUERTO RICO [*] 732 BELL AT [*]
208 US WEST [*] 443 NEW ENGLAND [*] 734 AMERITECH [*]
209 PACIFIC BELL [*] 473 GRENADA [*] 757 BELL AT [*]
210 S W BELL [*] 501 S W BELL [*] 758 ST. LUCIA [*]
212 NY TEL [*] 502 BELL SOUTH [*] 760 PACIFIC BELL [*]
213 PACIFIC BELL [*] 503 PACIFIC BELL [*] 765 AMERITECH [*]
214 S W BELL [*] 504 BELL SOUTH [*] 767 DOMINICA [*]
215 BELL AT [*] 505 US WEST [*] 770 BELL SOUTH [*]
216 AMERITECH [*] 506 BELL CANADA [*] 773 AMERITECH [*]
217 AMERITECH [*] 507 US WEST [*] 784 ST. VINCENT/GRE [*]
218 US WEST [*] 508 NEW ENGLAND [*] 787 PUERTO RICO [*]
219 AMERITECH [*] 509 US WEST [*] 801 US WEST [*]
240 BELL AT [*] 510 PACIFIC BELL [*] 802 NY TEL [*]
242 BAHAMAS [*] 512 S W BELL [*] 803 BELL SOUTH [*]
246 BARBADOS [*] 513 AMERITECH [*] 804 BELL AT [*]
248 AMERITECH [*] 514 BELL CANADA [*] 805 PACIFIC BELL [*]
250 BELL CANADA [*] 515 US WEST [*] 806 S W BELL [*]
253 PACIFIC BELL [*] 516 NY TEL [*] 807 BELL CANADA [*]
264 ANGUILLA [*] 517 AMERITECH [*] 808 HAWAII [*]
268 ANTIGUA/BARBUD [*] 518 NY TEL [*] 809 PUERTO RICO [*]
281 S W BELL [*] 519 BELL CANADA [*] 810 AMERITECH [*]
284 BRITISH VIRGIN [*] 520 US WEST [*] 812 AMERITECH [*]
301 BELL AT [*] 530 PACIFIC BELL [*] 813 GTE [*]
302 BELL AT [*] 540 BELL AT [*] 814 BELL AT [*]
303 US WEST [*] 541 PACIFIC BELL [*] 815 AMERITECH [*]
304 BELL AT [*] 561 BELL SOUTH [*] 816 S W BELL [*]
305 BELL SOUTH [*] 562 PACIFIC BELL [*] 817 S W BELL [*]
306 BELL CANADA [*] 573 S W BELL [*] 818 PACIFIC BELL [*]
307 US WEST [*] 601 BELL SOUTH [*] 819 BELL CANADA [*]
308 US WEST [*] 602 US WEST [*] 847 AMERITECH [*]
309 AMERITECH [*] 603 NEW ENGLAND [*] 860 S NEW ENG. [*]
310 PACIFIC BELL [*] 604 BELL CANADA [*] 864 BELL SOUTH [*]
312 AMERITECH [*] 605 US WEST [*] 867 BELL CANADA [*]
313 AMERITECH [*] 606 BELL SOUTH [*] 868 TRINIDAD/TOBAG [*]
314 S W BELL [*] 607 NY TEL [*] 869 ST. KITTS/NEVIS [*]
315 NY TEL [*] 608 AMERITECH [*] 876 JAMAICA [*]
316 S W BELL [*] 609 BELL AT [*] 901 BELL SOUTH [*]
317 AMERITECH [*] 610 BELL AT [*] 902 BELL CANADA [*]
318 BELL SOUTH [*] 612 US WEST [*] 903 S W BELL [*]
319 US WEST [*] 613 BELL CANADA [*] 904 BELL SOUTH [*]
320 US WEST [*] 614 AMERITECH [*] 905 BELL CANADA [*]
330 AMERITECH [*] 615 BELL SOUTH [*] 906 AMERITECH [*]
334 BELL SOUTH [*] 616 AMERITECH [*] 907 ALASKA [*]
345 CAYMAN ISL [*] 617 NEW ENGLAND [*] 908 BELL AT [*]
352 BELL SOUTH [*] 618 AMERITECH [*] 909 PACIFIC BELL [*]
360 PACIFIC BELL [*] 619 PACIFIC BELL [*] 910 BELL SOUTH [*]
401 NEW ENGLAND [*] 630 AMERITECH [*] 912 BELL SOUTH [*]
402 US WEST [*] 650 PACIFIC BELL [*] 913 S W BELL [*]
403 BELL CANADA [*] 664 MONTSERRAT [*] 914 NY TEL [*]
404 BELL SOUTH [*] 701 US WEST [*] 915 S W BELL [*]
405 S W BELL [*] 702 PACIFIC BELL [*] 916 PACIFIC BELL [*]
406 US WEST [*] 703 BELL AT [*] 917 NY TEL [*]
407 BELL SOUTH [*] 704 BELL SOUTH [*] 918 S W BELL [*]
408 PACIFIC BELL [*] 705 BELL CANADA [*] 919 BELL SOUTH [*]
409 S W BELL [*] 706 BELL SOUTH [*] 937 AMERITECH [*]
410 BELL AT [*] 707 PACIFIC BELL [*] 940 S W BELL [*]
412 BELL AT [*] 708 AMERITECH [*] 941 GTE [*]
413 NEW ENGLAND [*] 709 BELL CANADA [*] 954 BELL SOUTH [*]
414 AMERITECH [*] 712 US WEST [*] 956 S W BELL [*]
415 PACIFIC BELL [*] 713 S W BELL [*] 970 US WEST [*]
416 BELL CANADA [*] 714 PACIFIC BELL [*] 972 S W BELL [*]
973 BELL AT [*]
</TABLE>
- --------------------
[*] Information redacted pursuant to a confidential treatment request
throughout this exhibit.
<PAGE> 1
EXHIBIT 10.11
[SHARED COMMUNICATIONS SERVICES, INC. LETTERHEAD]
BELL SOUTH
- --------------------
[*] Information redacted pursuant to a confidential treatment request
throughout this exhibit.
98
<PAGE> 2
AMENDMENT TO MASTER CARRIER AGREEMENT
Amendment No. 4 Log Number: 990905
The following is Amendment No. 4 to the Master Carrier Agreement effective
March 11th, 1998 ("Agreement") between BellSouth Long Distance, Inc. ("BSLD")
and Shared Communication Services, Inc. ("Customer"). The Parties further agree
that all terms and conditions of the Master Carrier Agreement shall remain
unchanged, except as amended herein, and that this Amendment is incorporated
into the Master Carrier Agreement.
NOW THEREFORE, BSLD and CUSTOMER agree to amend the Master Carrier Agreement as
follows:
1. Replace Exhibit 5 Interstate Outbound pricing section of the Master
Carrier Agreement with the attached pricing for domestic interstate
dedicated outbound services. No discounts from Master Carrier Agreement or
previous Amendments will apply to the Interstate Outbound rates in this
Amendment.
2. Replace Exhibit 3, A.13.1 - MINIMUM USAGE COMMITMENT to the following:
<TABLE>
<CAPTION>
Minimum Monthly
Months Usage Commitment
------ ----------------
<S> <C>
[*] [*]
</TABLE>
3. Term of the Agreement shall be twelve (12) months beginning with the
execution of this amendment.
4. Except as expressly amended herein, the Master Carrier Agreement shall
remain in full force and effect.
5. The parties hereto acknowledge that they have read this Amendment,
understand it, and agree to be bound by its terms and conditions. They
further agree that the Agreement and Amendment 1 together with this
Amendment No. 4 constitute the entire Agreement between the parties hereto
with respect to the subject matter hereof.
6. This Amendment will be void and will not become part of the Agreement if
both parties do not execute it by September 25, 1999. Rates will be
effective 9/13/99.
IN WITNESS WHEREOF, the Parties hereto have executed this Amendment on the
dates indicated below.
BellSouth Long Distance, Inc. Shared Communication Services, Inc.
By: /s/ BOB ARNOLD By: /s/ JEFF RAINES
------------------------------- ------------------------------------
Name: Bob Arnold Name: Jeff Raines
Title: Senior Vice President, Title: President
Marketing
Date: 9/25/99 Date: 9-17-99
Address: 32 Perimeter Center East 3723 Fairview Industrial Drive
Suite A
Atlanta, Georgia 30346 Salem, Oregon 97302
PROPRIETARY/CONFIDENTIAL
- --------------------
[*] Information redacted pursuant to a confidential treatment request
throughout this exhibit.
<PAGE> 3
EXHIBIT 3 -- DOMESTIC DEDICATED OUTBOUND
A. INTERSTATE PRICING -- DOMESTIC DEDICATED OUTBOUND
Per Minute Rates for Dedicated Interstate Outbound Service.
<TABLE>
<CAPTION>
DEDICATED
TERMINATING OUTBOUND
STATE ACCESS LOCATION RATE
----- --------------- ---------
<S> <C> <C>
AK ANCHORAGE TEL UTIL [*]
TEL UT OF NORTHLAND [*]
AT&T WIRELESS SVCS [*]
PACIFIC TEL CELL WI [*]
PTI COMM OF ALASKA [*]
GTE ALASKA INC [*]
Other [*]
AL SOUTH CENTRAL BELL [*]
GTE SOUTH INC. -- AL [*]
AL CELLULAR SVCS [*]
CONTEL SO DBA GTE SO [*]
GULF TELEPHONE CO [*]
Other [*]
AR SOUTHWESTERN BELL [*]
CONTEL AR DBA GTE AR [*]
ALLTEL ARKANSAS INC [*]
CENTURY TEL OF AR [*]
GTE SOUTHWEST -- AR [*]
Other [*]
AZ US WEST MTN BELL [*]
CITIZENS UTIL RURAL [*]
GST NET -- AZ [*]
AT&T WIRELESS SVCS [*]
CITIZENS TEL WHT MTN [*]
Other [*]
CA PACIFIC BELL [*]
GTE CO OF CA [*]
SAN DIEGO PAGING [*]
CITIZENS TELECOM CA [*]
ROSEVILLE TEL CO [*]
Other [*]
CO US WEST MTN BELL [*]
AT&T WIRELESS SVCS [*]
EAGLE TELECOM INC [*]
TELEPORT COMM GRP CO [*]
ICG TELECOM GROUP CO [*]
Other [*]
CT SO NEW ENGLAND [*]
BELL ATLANTIC N -- NY [*]
TCI TEL SVCS OF CT [*]
WOODBURY TEL CO [*]
SPRINT SPECTRUM LP [*]
Other [*]
DC BELL ATLANTIC DC INC [*]
SW BELL MOB CELL ONE [*]
MCIMETRO ATS INC [*]
BELL ATLANTIC MBL DC [*]
NEXTEL COMM [*]
Other [*]
DE BELL ATLANTIC DE INC [*]
CONECTIV COMM -- PA [*]
COMCAST CELLULAR DE [*]
CONECTIV COMM -- DE [*]
NEXTEL COMM [*]
Other [*]
FL SOUTHERN BELL TEL CO [*]
GTE FLORIDA INC [*]
SPRINT METRO NTWKS [*]
SPRINT UNITED TEL FL [*]
AT&T WIRELESS SVCS [*]
Other [*]
GA SOUTHERN BELL TEL CO [*]
MCIMETRO ATS INC [*]
ALLTEL GA COMM CORP [*]
AT&T WIRELESS SVCS [*]
CONTACT COMM GA [*]
Other [*]
HI GTE HAWAIIAN TELCO [*]
RAM PAGING OF HI [*]
WESTERN PCS CORP [*]
PCS PRIMECO HI [*]
POCKET COMM [*]
Other [*]
IA US WEST NW BELL [*]
CONTEL IA DBA GTE IA [*]
GTE NORTH INC -- IA [*]
FRONTIER CM IA [*]
CONTEL KS DBA GTE IA [*]
Other [*]
ID US WEST MTN BELL [*]
GTE NORTHWEST -- ID [*]
CITIZENS TELECOM ID [*]
USWST PNW BELL [*]
</TABLE>
BSLD Proprietary Information
RESTRICTED
<PAGE> 4
EXHIBIT 3 -- DOMESTIC DEDICATED OUTBOUND
A. INTERSTATE PRICING -- DOMESTIC DEDICATED OUTBOUND
Per Minute Rates for Dedicated Interstate Outbound Service.
<TABLE>
<CAPTION>
DEDICATED
TERMINATING OUTBOUND
STATE ACCESS LOCATION RATE
----- --------------- ---------
<S> <C> <C>
FARMERS MUTUAL TELCO [*]
Other [*]
IL AMERITECH ILLINOIS [*]
GTE OF IL [*]
GTE NORTH INC -- IL [*]
ILL CONSOLIDATED TEL [*]
AT&T WIRELESS SVCS [*]
Teleport Comm.Group -- IL [*]
SPRINT CENTEL IL [*]
Other [*]
IN AMERITECH INDIANA [*]
GTE OF IN [*]
UNITED TEL CO OF IN [*]
GTE NORTH INC -- IN [*]
360 COMMUNICATION IN [*]
Other [*]
KS SOUTHWESTERN BELL [*]
UNITED TELCO OF KS [*]
UNITED TEL CO OF KS [*]
RURAL TEL SERV CO [*]
SOUTHERN KANSAS TEL [*]
Other [*]
KY SOUTH CENTRAL BELL [*]
GTE SOUTH INC -- KY [*]
CINCINNATI BELL [*]
USA MOBILE COMM [*]
HYPERION L'VILLE CLC [*]
Other [*]
LA SOUTH CENTRAL BELL [*]
E ASCENSION TEL CO [*]
AT&T WIRELESS SVCS [*]
CENTURY TEL EVANGALN [*]
CENTURY TEL SE LA [*]
Other [*]
MA BELL ATLANTIC N -- NE [*]
TELEPORT COMM BOSTON [*]
AT&T WIRELESS SVCS [*]
GLOBAL NAPS, INC. [*]
BELL ATLANTIC MBL MA [*]
Other [*]
MD BELL ATLANTIC MD INC [*]
MCIMETRO ATS INC [*]
AT&T WIRELESS SVCS [*]
COMCAST TEL COMM MD [*]
BELL ATLANTIC MBL MD [*]
Other [*]
ME BELL ATLANTIC N -- NE [*]
NORTHLAND TEL OF ME [*]
SACO RIV TEL&TEL CO [*]
TIDEWATER TEL INC [*]
SOMERSET TEL CO [*]
Other [*]
MI AMERITECH MICHIGAN [*]
GTE OF MI [*]
CONTEL/GTE SO -- MI [*]
CENTURY TEL OF MI [*]
CENTURY TEL WIRELESS [*]
Other [*]
MN US WEST NW BELL [*]
UNITED TEL CO OF MN [*]
FRONTIER CM MN [*]
CONTEL MN DBA GTE MN [*]
AT&T WIRELESS SVCS [*]
GTE Nort Inc. - Minnesota [*]
Other [*]
MO SOUTHWESTERN BELL [*]
GTE MIDWEST, INC. IA [*]
UNITED STATES CEL MO [*]
UNITED TEL CO OF MO [*]
GTE NORTH INC -- MO [*]
Other [*]
MS SOUTH CENTRAL BELL [*]
CENTURY TEL OF NO MS [*]
ALLTEL MISSISSIPPI [*]
DIGIPH PCS, INC. [*]
FULTON TEL CO [*]
Other [*]
MT US WEST MTN BELL [*]
NW TEL SYSTEMS INC [*]
THREE RIVERS TEL [*]
CLARK FORK TELECOM [*]
CITIZENS TELECOM MT [*]
Other [*]
</TABLE>
BSLD Proprietary Information
RESTRICTED
<PAGE> 5
EXHIBIT 3 -- DOMESTIC DEDICATED OUTBOUND
A. INTERSTATE PRICING -- DOMESTIC DEDICATED OUTBOUND
Per Minute Rates for Dedicated Interstate Outbound Service.
<TABLE>
<CAPTION>
DEDICATED
TERMINATING OUTBOUND
STATE ACCESS LOCATION RATE
----- --------------- ---------
<S> <C> <C>
NC SOUTHERN BELL TEL CO [*]
SPRING MID ATLANTIC [*]
GTE SOUTH INC -- NC [*]
CONTACT COMM NC [*]
NORTH STATE TEL CO [*]
AllTel Carolina Inc. -- NC [*]
Other [*]
ND US WEST NW BELL [*]
SRT COMMUNICATIONS [*]
SOURIS RIVER TEL COM [*]
NORTH DAKOTA TEL CO [*]
DICKEY RURL TEL COOP [*]
Other [*]
NE US WEST NW BELL [*]
ALIANT COMMUNICATION [*]
THE WESTLINK COMPANY [*]
GTE NORTH INC -- NE [*]
UNITED TELCO WEST [*]
Other [*]
NH BELL ATLANTIC N -- NE [*]
KEARSARGE TEL CO [*]
FREEDOM RING LLC CLC [*]
WILTON TEL CO [*]
GLOBAL NAPS, INC. [*]
Other [*]
NJ BELL ATLANTIC NJ INC [*]
UNITED TEL CO OF NJ [*]
MCIMETRO ATS INC [*]
TC NEW YORK NJ [*]
AT&T WIRELESS SVCS [*]
Other [*]
NM US WEST MTN BELL [*]
CONTEL DBA GTE WEST [*]
GTE SOUTHWEST - NM [*]
ROOSEVELT CO RURAL [*]
E N M R TEL COOP INC [*]
Other [*]
NV NEVADA BELL [*]
CENTRAL TEL CO NV [*]
CONTEL CA DBA GTE CA [*]
COMM EQUIP AND SVCS [*]
360 COMMUNICATION NV [*]
Other [*]
NY BELL ATLANTIC N - NY [*]
FRONTIER ROCHESTER [*]
CITIZENS TELECOM NY [*]
TELEPORT COMM N Y [*]
ALLTEL NY INC FLTN [*]
Other [*]
OH AMERITECH OHIO [*]
CINCINNATI BELL [*]
GTE NORTH INC - OH [*]
UNITED TELCO OF OHIO [*]
WESTERN RESERVE TEL [*]
Century Tel of Ohio [*]
Other [*]
OK SOUTHWESTERN BELL [*]
GTE SOUTHWEST - OK [*]
TOTAL COMM SERVICES [*]
AT&T WIRELESS SVCS [*]
ALLTEL OKLAHOMA INC [*]
Other [*]
OR US WEST PNW BELL [*]
GTE NORTHWEST - OR [*]
UNITED TEL CO OF NW [*]
TEL UTIL OF OREGON [*]
TEL UTIL OF E OREGON [*]
AT&T WIRELESS SVCS [*]
CONTEL NW DBA GTE NW [*]
PIONEER TEL COOP [*]
CITIZENS TELECOM OR [*]
AIRTOUCH CELLULAR [*]
Other [*]
PA BELL ATLANTIC PA INC [*]
GTE OF PA [*]
UNITED TEL CO OF PA [*]
COMMONWEALTH TEL ENT [*]
ALLTEL PENNA INC [*]
Other [*]
RI BELL ATLANTIC N - NE [*]
BROOKS FIBER COM RI [*]
BELL ATLANTIC MBL RI [*]
TCG RHODE ISLAND [*]
</TABLE>
BSLD Proprietary Information
RESTRICTED
- --------------------
[*] Information redacted pursuant to a confidential treatment request
throughout this exhibit.
<PAGE> 6
Exhibit 3 - Domestic Dedicated Outbound
A. Interstate Pricing - Domestic Dedicated Outbound
Per Minute Rates for for Dedicated Interstate Outbound Service
<TABLE>
<CAPTION>
Dedicated
Terminating Outbound
State Access Location Rate
- ----- --------------- ---------
<S> <C> <C>
NEXTEL COMM [*]
Other [*]
SC SOUTHERN BELL TEL CO [*]
GTE SOUTH INC. - SC [*]
FORT MILL TEL CO [*]
ALLTEL MOBILE COM SC [*]
HORRY TEL COOP INC [*]
United Tel Co. CAROL [*]
Other [*]
SD US WEST NW BELL [*]
CTY BRKNGS MUNICIPAL [*]
HEARTLAND TELECOM IA [*]
VIVIAN TELEPHONE CO [*]
GOLDEN WEST TEL COOP [*]
Other [*]
TN SOUTH CENTRAL BELL [*]
TENNESSEE TEL CO [*]
UNITED INTER-MTN TEL [*]
PRO PAGE PARTNERS [*]
GTE WIRELESS MIDSO [*]
Other [*]
TX SOUTHWESTERN BELL [*]
GTE SOUTHWEST - TX [*]
LUFKIN TEL EXEC INC [*]
CENTRAL TEL CO TX [*]
SUGAR LAND TEL CO [*]
United Tel Co. of Texas [*]
Other [*]
UT US WEST MTN BELL [*]
AT&T WIRELESS SVCS [*]
CITIZENS TELECOM UT [*]
AIRTOUCH CELLULAR [*]
S CEN UTAH TEL ASSN [*]
Other [*]
VA BELL ATLANTIC VA INC [*]
GTE SOUTH INC - VA [*]
CENTRAL TEL OF VA [*]
UNITED INTER-MTN TEL [*]
TELEPORT COMM GRP DC [*]
Other [*]
VT BELL ATLANTIC N - NE [*]
LUDLOW TEL CO [*]
CHAMPLAIN VLY TELECO [*]
VERMONT TEL CO INC. [*]
WAITSFLD-FAYS TEL CO [*]
Other [*]
WA US WEST PNW BELL [*]
GTE NORTHWEST - WA [*]
TEL UTILITIES OF WA [*]
UNITED TEL CO OF NW [*]
ELECTRIC LIGHTWVE WA [*]
CONTEL NW DBA GTE NW [*]
AT&T WIRELESS SVCS [*]
Other [*]
WI AMERITECH WISCONSIN [*]
GTE OF WI [*]
PEOPLES TEL CO - WI [*]
United States CEL WI [*]
TC MILWAUKEE [*]
Century Tel of Wisconsin [*]
Other [*]
WV BELL ATLANTIC WV INC [*]
CITIZENS TELECOM WV [*]
MTN ST TEL DBA CITZ [*]
UNITED STATES CEL WV [*]
SPRUCE KB SENECA RK [*]
Other [*]
WY US WEST MTN BELL [*]
RT COMMUNICATIONS [*]
US WEST NW BELL [*]
UNITED TELCO WEST [*]
TEL UTILITIES OF WY [*]
Other [*]
</TABLE>
- --------------------
[*] Information redacted pursuant to a confidential treatment request
throughout this exhibit.
BSLD Proprietary Information
RESTRICTED
<PAGE> 7
AMENDMENT TO MASTER CARRIER AGREEMENT
AMENDMENT NO. 3
The following is Amendment No. 3 to the Master Carrier Agreement effective March
11th, 1998 ("Agreement") between BellSouth Long Distance, Inc. ("BSLD") and
Shared Communications Services, Inc., ("Customer"). The Parties further agree
that all terms and conditions of the Master Carrier Agreement shall remain
unchanged, except as amended herein, and that this Amendment is incorporated
into the Master Carrier Agreement.
NOW THEREFORE, BSLD and CUSTOMER agree to amend the Master Carrier Agreement as
follows:
1. Replace Exhibit 3, A.13.1 - MINIMUM USAGE COMMITMENT to the following:
<TABLE>
<CAPTION>
Minimum Monthly
Months Usage Commitment
------ ----------------
<S> <C>
[*] [*]
</TABLE>
2. Replace Exhibit 5 - PRICING of the Master Carrier Agreement with the
attached pricing for domestic interstate and intrastate dedicated
outbound services.
[*]
[*]
3. Term of the Agreement shall be twelve (12) months beginning with the
execution of this amendment.
4. Except as expressly amended herein, the Master Carrier Agreement shall
remain in full force and effect.
5. The parties hereto acknowledge that they have read this Amendment,
understand it, and agree to be bound by its terms and conditions. They
further agree that the Agreement and Amendment 1 together with this
Amendment No. 3 constitute the entire Agreement between the parties
hereto with respect to the subject matter hereof.
6. This Amendment will be void and will not become part of the Agreement if
both parties do not execute it by June 1st, 1999.
IN WITNESS WHEREOF, the Parties hereto have executed this Amendment on the
dates indicated below.
BellSouth Long Distance, Inc. Shared Communications Services, Inc.
By: /s/ BOB ARNOLD By: /s/ JEFF RAINES
-------------------------------- --------------------------------
Name: Bob Arnold Name: /s/ Jeff Raines
------------------------------
Title: Senior Vice President, Marketing Title: President
-----------------------------
Date: 5/27/99 Date: 5-12-99
------------------------------ -----------------------------
Address: 32 Perimeter Center East, 3723 Fairview Industrial Drive
Suite A Salem, Oregon 97302
Atlanta, Georgia 30346
- --------------------
[*] Information redacted pursuant to a confidential treatment request
throughout this exhibit.
<PAGE> 8
Exhibit 5 - Pricing
INTERSTATE AND INTRASTATE CHARGES FOR DEDICATED OUTBOUND SERVICE
SHARED COMMUNICATIONS SERVICES PRICING SUMMARY
DEDICATED OUTBOUND PER MINUTE BASE RATES
<TABLE>
<CAPTION>
BASE RATES
STATE GROUP VENDOR NAME INTERSTATE INTRASTATE
- ----- ----- ------------------------ ---------- ----------
<S> <C> <C> <C> <C>
AK 2 GTE ALASKA INC. [*] [*]
AK 1 ALL OTHER LEC's [*] [*]
- -----------------------------------------------------------------------
AL 2 SOUTH CENTRAL BELL [*] [*]
AL 3 GTE SOUTH INC. - AL [*] [*]
AL 1 ALL OTHER LEC'S [*] [*]
- -----------------------------------------------------------------------
AR 2 SOUTHWESTERN BELL [*] [*]
AR 3 GTE SOUTHWEST - AR [*] [*]
AR 1 ALL OTHER LEC'S [*] [*]
- -----------------------------------------------------------------------
AZ 2 US WEST MTN BELL [*] [*]
AZ 3 CONTEL CA DBA GTE CA [*] [*]
AZ 1 ALL OTHER LEC'S [*] [*]
- -----------------------------------------------------------------------
CA 2 PACIFIC BELL [*] [*]
CA 3 GTE CO OF CA [*] [*]
CA 1 ALL OTHER LEC'S [*] [*]
- -----------------------------------------------------------------------
CO 2 US WEST MTN BELL [*] [*]
CO 1 ALL OTHER LEC'S [*] [*]
- -----------------------------------------------------------------------
CT 2 SO NE ENGLAND TEL [*] [*]
CT 3 NYNEX NEW YORK [*] [*]
CT 1 ALL OTHER LEC'S [*] [*]
- -----------------------------------------------------------------------
DC 2 BELL ATLANTIC DC INC. [*] [*]
DC 1 ALL OTHER LEC'S [*] [*]
- -----------------------------------------------------------------------
DE 2 BELL ATLANTIC DE INC. [*] [*]
DE 1 ALL OTHER LEC'S [*] [*]
- -----------------------------------------------------------------------
FL 2 SOUTHERN BELL TEL CO [*] [*]
FL 3 GTE FLORIDA INC. [*] [*]
FL 4 SPRINT UNITED TEL FL [*] [*]
FL 1 ALL OTHER LEC'S [*] [*]
- -----------------------------------------------------------------------
GA 2 SOUTH CENTRAL BELL [*] [*]
GA 1 ALL OTHER LEC'S [*] [*]
- -----------------------------------------------------------------------
GU 1 GUAM TEL AUTHORITY [*] [*]
- -----------------------------------------------------------------------
HI 2 GTE HAWAIIAN TEL CO [*] [*]
HI 1 ALL OTHER LEC'S [*] [*]
- -----------------------------------------------------------------------
IA 2 US WEST NW BELL [*] [*]
IA 3 CONTEL IA DBA GTE IA [*] [*]
IA 1 ALL OTHER LEC'S [*] [*]
- -----------------------------------------------------------------------
ID 2 US WEST MTN BELL [*] [*]
ID 3 GTE NORTHWEST INC - ID [*] [*]
ID 1 ALL OTHER LEC'S [*] [*]
- -----------------------------------------------------------------------
IL 2 AMERITECH ILLINOIS [*] [*]
IL 3 GTE OF IL [*] [*]
IL 4 SPRINT CENTEL IL [*] [*]
IL 1 ALL OTHER LEC'S [*] [*]
- -----------------------------------------------------------------------
IN 2 AMERITECH INDIANA [*] [*]
IN 3 GTE OF IN [*] [*]
IN 1 ALL OTHER LEC'S [*] [*]
- -----------------------------------------------------------------------
KS 2 SOUTHWESTERN BELL [*] [*]
KS 1 ALL OTHER LEC'S [*] [*]
- -----------------------------------------------------------------------
KY 2 SOUTH CENTRAL BELL [*] [*]
KY 3 CINCINNATI BELL [*] [*]
KY 1 ALL OTHER LEC'S [*] [*]
- -----------------------------------------------------------------------
LA 2 SOUTH CENTRAL BELL [*] [*]
LA 1 ALL OTHER LEC'S [*] [*]
- -----------------------------------------------------------------------
MA 2 BELL ATLANTIC NE (NYNEX) [*] [*]
MA 1 ALL OTHER LEC'S [*] [*]
- -----------------------------------------------------------------------
MD 2 BELL ATLANTIC MD INC [*] [*]
MD 1 ALL OTHER LEC'S [*] [*]
- -----------------------------------------------------------------------
ME 2 BELL ATLANTIC NE (NYNEX) [*] [*]
ME 1 ALL OTHER LEC'S [*] [*]
- -----------------------------------------------------------------------
MI 2 AMERITECH MICHIGAN [*] [*]
- -----------------------------------------------------------------------
MI 3 GTE OF MI [*] [*]
MI 1 ALL OTHER LEC'S [*] [*]
- -----------------------------------------------------------------------
MN 2 US WEST NW BELL [*] [*]
MN 3 GTE NORTH INC - MN [*] [*]
MN 1 ALL OTHER LEC'S [*] [*]
- -----------------------------------------------------------------------
MO 2 SOUTHWESTERN BELL [*] [*]
MO 3 CINCINNATI BELL [*] [*]
MO 1 ALL OTHER LEC'S [*] [*]
- -----------------------------------------------------------------------
</TABLE>
- --------------------
[*] Information redacted pursuant to a confidential treatment request
throughout this exhibit.
BSLD Proprietary Information
RESTRICTED
<PAGE> 9
Exhibit 5 - Pricing
INTERSTATE AND INTRASTATE CHARGES FOR DEDICATED OUTBOUND SERVICE
SHARED COMMUNICATIONS SERVICES PRICING SUMMARY
DEDICATED OUTBOUND PER MINUTE BASE RATES
<TABLE>
<CAPTION>
BASE RATES
STATE GROUP VENDOR NAME INTERSTATE INTRASTATE
- ----- ----- ------------------------ ---------- ----------
<S> <C> <C> <C> <C>
MS 2 SOUTH CENTRAL BELL [*] [*]
MS 1 ALL OTHER LEC'S [*] [*]
- -----------------------------------------------------------------------
MT 2 US WEST MTN BELL [*] [*]
MT 3 CITIZENS TELECOM MT [*] [*]
MT 1 ALL OTHER LEC'S [*] [*]
- -----------------------------------------------------------------------
NC 2 SOUTH CENTRAL BELL [*] [*]
NC 3 GTE SOUTH INC - NC [*] [*]
NC 1 SPRINT MID ATLANTIC [*] [*]
NC 1 ALL OTHER LEC'S [*] [*]
- -----------------------------------------------------------------------
ND 2 US WEST MTN BELL [*] [*]
ND 1 ALL OTHER LEC'S [*] [*]
- -----------------------------------------------------------------------
NE 2 US WEST MTN BELL [*] [*]
NE 3 GTE NORTH INC - NE [*] [*]
NE 1 ALL OTHER LEC'S [*] [*]
- -----------------------------------------------------------------------
NH 2 NYNEX NEW ENGLAND [*] [*]
NH 1 ALL OTHER LEC'S [*] [*]
- -----------------------------------------------------------------------
NJ 2 BELL ATLANTIC NJ INC [*] [*]
NJ 1 ALL OTHER LEC'S [*] [*]
- -----------------------------------------------------------------------
NM 2 US WEST MTN BELL [*] [*]
NM 3 GTE SOUTHWEST - NM [*] [*]
NM 1 ALL OTHER LEC'S [*] [*]
- -----------------------------------------------------------------------
NV 2 NEVADA BELL [*] [*]
NV 3 CONTEL CA DBA GTE CA [*] [*]
NV 1 ALL OTHER LEC'S [*] [*]
- -----------------------------------------------------------------------
NY 2 NYNEX NEW YORK [*] [*]
NY 3 CITIZENS TELECOM NY [*] [*]
NY 1 ALL OTHER LEC'S [*] [*]
- -----------------------------------------------------------------------
OH 2 AMERITECH OHIO [*] [*]
OH 3 GTE NORTH INC - OH [*] [*]
OH 1 ALL OTHER LEC'S [*] [*]
- -----------------------------------------------------------------------
OK 2 SOUTHWESTERN BELL [*] [*]
OK 3 GTE SOUTHWEST - OK [*] [*]
OK 1 ALL OTHER LEC'S [*] [*]
- -----------------------------------------------------------------------
OR 2 US WEST PNW BELL [*] [*]
OR 3 GTE NORTHWEST INC - OR [*] [*]
OR 1 ALL OTHER LEC'S [*] [*]
- -----------------------------------------------------------------------
PA 2 BELL ATLANTIC PA INC [*] [*]
PA 3 GTE OF PA INC [*] [*]
PA 1 ALL OTHER LEC'S [*] [*]
- -----------------------------------------------------------------------
PR 1 ALL OTHER LEC'S [*] [*]
- -----------------------------------------------------------------------
RI 2 NYNEX NEW ENGLAND [*] [*]
RI 1 ALL OTHER LEC'S [*] [*]
- -----------------------------------------------------------------------
SAIPAN 1 MICRONESIA TELECOMM [*] [*]
- -----------------------------------------------------------------------
SC 2 SOUTHERN BELL TEL CO [*] [*]
SC 3 GTE SOUTH, INC. - SC [*] [*]
SC 4 UNITED TEL CO CAROL [*] [*]
SC 1 ALL OTHER LEC'S [*] [*]
- -----------------------------------------------------------------------
SD 2 US WEST NW BELL [*] [*]
SD 1 ALL OTHER LEC'S [*] [*]
- -----------------------------------------------------------------------
TN 2 SOUTH CENTRAL BELL [*] [*]
TN 1 ALL OTHER LEC'S [*] [*]
- -----------------------------------------------------------------------
TX 2 SOUTHWESTERN BELL [*] [*]
TX 3 GTE SOUTHWEST - TX [*] [*]
TX 1 ALL OTHER LEC'S [*] [*]
- -----------------------------------------------------------------------
UT 2 US WEST MTN BELL [*] [*]
UT 1 ALL OTHER LEC'S [*] [*]
- -----------------------------------------------------------------------
VA 2 BELL ATLANTIC VA INC [*] [*]
VA 3 GTE SOUTH, INC. - VA [*] [*]
VA 1 ALL OTHER LEC'S [*] [*]
- -----------------------------------------------------------------------
VI 1 ALL OTHER LEC'S [*] [*]
- -----------------------------------------------------------------------
VT 2 NYNEX NEW ENGLAND [*] [*]
VT 1 ALL OTHER LEC'S [*] [*]
- -----------------------------------------------------------------------
WA 2 US WEST PNW BELL [*] [*]
WA 3 GTE NORTHWEST INC - WA [*] [*]
WA 1 ALL OTHER LEC'S [*] [*]
- -----------------------------------------------------------------------
WI 2 AMERITECH WISCONSIN [*] [*]
WI 3 GTE OF WI [*] [*]
</TABLE>
BSLD Proprietary Information
RESTRICTED
- --------------------
[*] Information redacted pursuant to a confidential treatment request
throughout this exhibit.
<PAGE> 10
Exhibit 5 - Pricing
INTERSTATE AND INTRASTATE CHARGES FOR DEDICATED OUTBOUND SERVICE
SHARED COMMUNICATIONS SERVICES PRICING SUMMARY
DEDICATED OUTBOUND PER MINUTE BASE RATES
<TABLE>
<CAPTION>
BASE RATES
STATE GROUP VENDOR NAME INTERSTATE INTRASTATE
- ----- ----- ------------------------ ---------- ----------
<S> <C> <C> <C> <C>
WI 1 ALL OTHER LEC'S [*] [*]
- -----------------------------------------------------------------------
WV 2 BELL ATLANTIC WV INC [*] [*]
WV 1 ALL OTHER LEC'S [*] [*]
- -----------------------------------------------------------------------
WY 2 US WEST MTN BELL [*] [*]
WY 1 ALL OTHER LEC'S [*] [*]
- -----------------------------------------------------------------------
</TABLE>
BSLD Proprietary Information
RESTRICTED
- --------------------
[*] Information redacted pursuant to a confidential treatment request
throughout this exhibit.
<PAGE> 11
BELLSOUTH LONG DISTANCE, INC.
AMENDMENT NO. 2 TO MASTER CARRIER AGREEMENT
The following is Amendment No. 2 to the Master Carrier Agreement effective
Sept. 15, 1997 ("Agreement") between BellSouth Long Distance, Inc. ("BSLD") and
Shared Communication Services, Inc. ("CUSTOMER"). The Parties further agree
that all terms and conditions of the Master Carrier Agreement shall remain
unchanged, except as amended herein, and that this Amendment is incorporated
into the Master Carrier Agreement.
1. The following paragraphs are hereby added to the Agreement and are fully
incorporated therein by this reference:
13.3 Noncomplete Call Surcharge. Any month Customer exceeds the Maximum
Noncomplete Toll Free Call Percentage for interstate Dedicated Toll
Free, and/or interstate Switched Toll Free traffic as stated on
Exhibit 4, Customer shall pay BSLD a surcharge equal to the amount
state in Exhibit 4 for each Noncomplete Toll Free Call in excess of
the Maximum Noncomplete Toll Free Call Percentage. This surcharge
shall be calculated at each Subinvoice Hierarchy Level.
13.5 Other Surcharges. BSLD may include in charges to Customer certain
charges and surcharges newly imposed after the execution date that are
levied upon and paid by BSLD with respect to the services. To be
eligible, or inclusion under this Section, the charges or surcharges
must be imposed by a governmental authority that is imposing the
charges or surcharges specifically on telecommunications services, and
the governing law must not prohibit BSLD from passing the charges or
surcharges to Customer.
13.6 Forward Pricing. As a transition to the pricing hereunder, discounts
may be based for a period of time on the greater of Customer's actual
Discount Monthly Volume of Service or a specified Forward Pricing
Volume of Service. The Forward Pricing Volume of Service and the
period during which it may be applied are specified in Exhibit 3.
33. Fraud. Customer is responsible and liable for all fraud incidents,
maintenance and management, unless caused by BSLD network personnel or
facilities.
34. Responsible Organization. BSLD will be the Responsible Organization,
(Resp. Org.), for Toll Free services provided under this Agreement and
will be designated as the Resp. Org. in the SMS Database.
2. The following definitions are hereby added to Exhibit 1 to the Agreement,
DEFINITIONS, and are fully incorporated therein by this reference:
"BELLSOUTH NINE STATE REGION" consists of the following states: Alabama,
Florida, Georgia, Kentucky, Louisiana, Mississippi, North Carolina, South
Carolina, and Tennessee.
"MAXIMUM NONCOMPLETE TOLL FREE CALL PERCENTAGE" means, for each month, for
each Service type, the ratio, expressed as a percentage, of (i) the
aggregate number of Noncomplete Toll Free Calls during such period divided
by (ii) the aggregate number of Toll Free calls during such period. This
percentage shall be calculated at each Subinvoice Hierarchy Level.
"PAYPHONE SURCHARGE" means compensation to payphone service providers for
all non-coin calls completed from their payphones on a per call basis. This
compensation will be paid by the carriers that transport these calls and
then passed through to the Toll Free customers. Any interstate calls from
payphones, including remote access and calling card calls will incur this
per call charge.
BSLD Proprietary Information
RESTRICTED
1
<PAGE> 12
BELLSOUTH LONG DISTANCE, INC.
AMENDMENT NO. 2 TO MASTER CARRIER AGREEMENT
3. The following paragraphs are hereby added to Exhibit 2 to the Agreement,
SERVICES, and are fully incorporated therein by this reference:
3. TOLL FREE SERVICE.
3.1. DEDICATED TOLL FREE. Dedicated Toll free is provided hereunder for
Customer switched inbound traffic with interstate origination that
terminates over dedicated special access (T1.5 or T45) circuits. BSLD
shall provide the Services contemplated by this Agreement, as set forth in
this paragraph 3.1 of Exhibit 2, only where the said Service originates
and terminates in a state in which BSLD has all necessary legal authority
to provide said Services. Accordingly, BSLD will not offer any Services
that originate or terminate, or both, in any of BellSouth's Nine State
Region prior to receiving full legal authority, including authority
granted under 47 U.S.C. 271 (d)(3) to offer in a state non-incidental
originating interLATA wireline service to residential and business
customer.
3.2. TOLL-FREE DIRECTORY LISTINGS. Customer's Toll Free numbers shall
not be eligible for any Toll-free directory listing at BSLD's expense.
However, any inclusion of Directory Assistance listings may be
accomplished at SCS's expense.
The following additional paragraphs are hereby added to Exhibit 3 to the
Agreement, GENERAL TERMS, and are fully incorporated therein by this reference:
A.4. TERM OF AGREEMENT: Twelve (12) months
A.13.1. Minimum Usage Commitment:
Minimum Monthly Minimum Monthly
Outbound Toll-free
Months Usage Commitment Usage Commitment
------ ---------------- ----------------
[*] [*] [*]
[*] [*] [*]
4.13.6. Forward Pricing - Forward Pricing Volume of Service
The Forward Pricing Volume of Service for Toll Free Service applicable for
discounts shall be the [*] level beginning the effective date of the
Agreement and ending the last day of month six (6) of the Term.
- --------------------
[*] Information redacted pursuant to a confidential treatment request
throughout this exhibit.
BSLD Proprietary Information
RESTRICTED
2
<PAGE> 13
BELLSOUTH LONG DISTANCE, INC.
AMENDMENT NO. 2 TO MASTER CARRIER AGREEMENT
5. The following paragraphs are hereby added to Exhibit 4 to the Agreement,
BILLING INCREMENTS, and are fully incorporated by this reference:
B.12.4. Billing Increments/Usage Periods for Per Minute Charges for additional
service.
Service will be invoiced based on Per Minute Charges utilizing Rate Periods and
Billing Increments set forth below:
<TABLE>
<CAPTION>
Initial Additional
Billing Billing
Service Type/ Increment Increment
Rate Element (seconds) (seconds)
- ------------ --------- ----------
<S> <C> <C>
Interstate Dedicated Toll Free [*] [*]
Canada Orig. Dedicated Toll Free [*] [*]
</TABLE>
MONTHLY RECURRING TOLL FREE CHARGES:
Customer's Monthly Recurring Switched Toll Free service charge will be [*] per
Switched Toll Free account per month.
Customer's Toll Free numbers (Switched Toll Free, Dedicated Toll Free) requiring
Toll Free Toll-free Directory Assistance Listings will be charged an additional
Monthly Recurring Charge of [*] per month per Toll Free number requiring
such listing.
B.13.2. Minimum Average Call Duration: Minimum Average Time Requirement (MATR)
shall not apply unless specifically set forth below:
<TABLE>
<CAPTION>
Service Type MATR MATR Surcharge
- ------------ ----------- ---------------
<S> <C> <C>
Dedicated Inbound (Toll Free) [*] [*]
</TABLE>
13.3. MAXIMUM NONCOMPLETE CALL PERCENTAGE.
<TABLE>
<CAPTION>
Maximum
Noncomplete
Dedicated Toll Free, and Switched Toll Free Toll Free Call Per Call
Usage Type (Rate Element) Percentage Surcharge
- ------------------------------------------- -------------- ---------
<S> <C> <C>
Intrastate/Interstate [*] [*]
International/Canadian [*] [*]
</TABLE>
LEC CAP SURCHARGE:
BSLD will assess a per minute surcharge in the amount of [*] on the total
number of minutes originating from Non-Bell territories in excess of the
following threshold:
<TABLE>
<CAPTION>
---------- Total Customer MOU ----------
Minimum Percent Bell Maximum Percent Non-Bell
Originating MOU Originating MOU
<S> <C>
[*] [*]
</TABLE>
6. The following paragraphs are hereby added to Exhibit 5 to the Agreement,
PRICING, and are fully incorporated by this reference:
- --------------------
[*] Information redacted pursuant to a confidential treatment request
throughout this exhibit.
BSLD Proprietary Information
RESTRICTED
<PAGE> 14
BELLSOUTH LONG DISTANCE, INC.
AMENDMENT NO. 2 TO MASTER CARRIER AGREEMENT
* For Toll Free applications add [*] per call for Data Base Query charge.
Peak Off Peak
------- --------
Canada Dedicated Toll Free per minute rate: [*] [*]
Interstate payphone surcharge (pass through): [*] per call (amount subject
to change by FCC ruling)
Toll Free installation charges:
Administration - [*]
T45 Access - [*]
Installation Charges applied on pro-rated basis upon cancellation within the
1 year term
INTERSTATE AND INTRASTATE PER MINUTE CHARGES FOR DEDICATED INBOUND (TOLL FREE)
SERVICE:
<TABLE>
<CAPTION>
Interstate
------------Total Toll Free Monthly Revenue Commitment------------
Originating $0 (Base Rate) $5,000 $10,000 $15,000
State Peak & Off Peak Peak & Off Peak Peak & Off Peak Peak & Off Peak
- ----------- --------------- --------------- --------------- ---------------
<S> <C> <C> <C> <C>
AK,HA,PR, USVI [*] [*] [*] [*]
All Other [*] [*] [*] [*]
</TABLE>
<TABLE>
<CAPTION>
Intrastate
------------Total Toll Free Monthly Revenue Commitment------------
$0 (Base Rates) $5,000 $10,000 $15,000
Originating Peak & Off Peak Peak & Off Peak Peak & Off Peak Peak & Off Peak
State Intrastate Intrastate Intrastate Intrastate
- ----------- --------------- --------------- --------------- ---------------
<S> <C> <C> <C> <C>
AK [*] [*] [*] [*]
AL [*] [*] [*] [*]
AR [*] [*] [*] [*]
AZ [*] [*] [*] [*]
CA [*] [*] [*] [*]
CO [*] [*] [*] [*]
CT [*] [*] [*] [*]
DC [*] [*] [*] [*]
DE [*] [*] [*] [*]
FL [*] [*] [*] [*]
GA [*] [*] [*] [*]
HI [*] [*] [*] [*]
IA [*] [*] [*] [*]
ID [*] [*] [*] [*]
IL [*] [*] [*] [*]
IN [*] [*] [*] [*]
KS [*] [*] [*] [*]
KY [*] [*] [*] [*]
LA [*] [*] [*] [*]
MA [*] [*] [*] [*]
MD [*] [*] [*] [*]
ME [*] [*] [*] [*]
MI [*] [*] [*] [*]
MN [*] [*] [*] [*]
MO [*] [*] [*] [*]
MS [*] [*] [*] [*]
MT [*] [*] [*] [*]
NC [*] [*] [*] [*]
ND [*] [*] [*] [*]
NE [*] [*] [*] [*]
NH [*] [*] [*] [*]
NJ [*] [*] [*] [*]
NM [*] [*] [*] [*]
</TABLE>
- --------------------
[*] Information redacted pursuant to a confidential treatment request
throughout this exhibit.
BSLD Proprietary Information
RESTRICTED
4
<PAGE> 15
BELLSOUTH LONG DISTANCE, INC.
AMENDMENT NO. 2 TO MASTER CARRIER AGREEMENT
<TABLE>
<S> <C> <C> <C> <C>
NV [*] [*] [*] [*]
NY [*] [*] [*] [*]
OH [*] [*] [*] [*]
OK [*] [*] [*] [*]
OR [*] [*] [*] [*]
PA [*] [*] [*] [*]
RI [*] [*] [*] [*]
SC [*] [*] [*] [*]
SD [*] [*] [*] [*]
TN [*] [*] [*] [*]
TX [*] [*] [*] [*]
UT [*] [*] [*] [*]
VA [*] [*] [*] [*]
VI [*] [*] [*] [*]
VT [*] [*] [*] [*]
WA [*] [*] [*] [*]
WV [*] [*] [*] [*]
WY [*] [*] [*] [*]
</TABLE>
In all other respects, the Agreement shall remain unchanged and in full force
and effect.
This Amendment shall be effective on 2/17/98.
The parties hereto acknowledge that they have read this Amendment, understand
it, and agree to be bound by its terms and conditions. They further agree that
the Master Carrier Amendment together with Amendment No. 1 and this Amendment
No. 2 constitute the entire agreement between the parties hereto with respect
to the subject matter hereof.
IN WITNESS WHEREOF, the Parties hereto have executed this Amendment by their
duly authorized representatives in duplicate, each of which shall constitute an
original, on the effective date specified above.
BellSouth Long Distance, Inc. Shared Communications Services Inc.
By: /s/ DAVE ABRAHAMSON By: /s/ JEFF RAINES
------------------------ ------------------------------
Name: Dave Abrahamson Name: Jeff Raines
Title: Vice President, Marketing Title: President
Address: 32 Perimeter Center East Address: P.O. Box 12039
Atlanta, GA 30346 Salem, OR 92309
Date: 2-24-98 Date: 2-18-98
- --------------------
[*] Information redacted pursuant to a confidential treatment request
throughout this exhibit.
BSLD Proprietary Information
RESTRICTED
5
<PAGE> 16
AMENDMENT TO MASTER CARRIER AGREEMENT
AMENDMENT NO. 1
The following is Amendment No. 1 to the Merger Carrier Agreement effective
March 11th, 1998 ("Agreement") between BellSouth Long Distance, Inc. ("BSLD")
and Shared Communications Services, Inc., ("Customer"). The Parties further
agree that all terms and conditions of the Master Carrier Agreement shall
remain unchanged, except as amended herein, and that this Amendment is
incorporated into the Master Carrier Agreement.
NOW THEREFORE, BSLD and CUSTOMER agree to amend the Master Carrier Agreement as
follows:
1. Replace Exhibit 5 - PRICING of the Master Carrier Agreement with the
attached pricing for domestic interstate, intrastate and international
dedicated outbound services.
3. Except as expressly amended herein, the Master Carrier Agreement shall
remain in full force and effect.
4. The parties hereto acknowledge that they have read this Amendment,
understand it, and agree to be bound by its terms and conditions. They
further agree that the Agreement together with this Amendment No. 1
constitute the entire Agreement between the parties hereto with respect to
the subject matter hereof.
5. This Amendment will be void and will not become part of the Agreement if
both parties do not execute it by July 31st, 1998.
IN WITNESS WHEREOF, the Parties hereto have executed this Amendment on the
dates indicated below.
BellSouth Long Distance, Inc. Shared Communications
Services, Inc.
By: By: /s/ JEFF RAINES
-------------------------- -----------------------------
Name: Name: Jeff Raines
------------------------ ---------------------------
Title: Title: PRESIDENT
----------------------- --------------------------
Date: Date: 7-30-98
------------------------ --------------------------
Address: 32 Perimeter Center East, Suite A 1095 25th St. S.E.
Atlanta, Georgia 30346 Salem, Oregon 97302
PROPRIETARY/CONFIDENTIAL
<PAGE> 17
BELLSOUTH LONG DISTANCE, INC.
AMENDMENT NO. 1 TO THE MASTER CARRIER AGREEMENT
The following is Amendment No. 1 to the Master Carrier Agreement ("Agreement")
between BellSouth Long Distance, Inc. ("BSLD") and Shared Communications
Services, Inc. ("SCS"). The Agreement is hereby amended as follows:
The attached Exhibit 6, SWITCH PORT LICENSE AGREEMENT, including all attachments
thereto, effective Sept. 15, 1997, is hereby added to the Agreement and fully
incorporated therein by this reference.
This Amendment shall be effective on 2/17/98, 1998.
The parties hereto acknowledge that they have read this Amendment, understand
it, and agree to be bound by its terms and conditions. They further agree that
The Master Carrier Amendment together with this Amendments No. 1 & 2
constitute the entire agreement between the parties hereto with respect to the
subject matter hereof.
IN WITNESS WHEREOF, the parties have executed this Amendment by their duly
authorized representatives in one or more counterparts, each of which shall
constitute an original, on the effective date specified above.
BellSouth Long Distance, Inc. Shared Communications Services, Inc.
By: /s/ DAVID ABRAHAMSON By: /s/ JEFF RAINES
---------------------------------- ----------------------------------
David Abrahamson Jeff Raines
- ------------------------------------- -------------------------------------
Printed or Typed Name Printed or Typed Name
Senior Vice President - Marketing President
- ------------------------------------- -------------------------------------
Title Title
2-24-98 2-18-98
- ------------------------------------- -------------------------------------
Date Date
Bell South Long Distance
BSLD Proprietary Information
RESTRICTED
<PAGE> 18
AMENDMENT TO MASTER CARRIER AGREEMENT
AMENDMENT NO. 1
The following is Amendment No. 1 to the Master Carrier Agreement effective
Sept. 15, 1997 ("Agreement") between BellSouth Long Distance, Inc. ("BSLD") and
Shared Communication Services, Inc. ("CUSTOMER"). The Parties further agree
that all terms and conditions of the Master Carrier Agreement shall remain
unchanged, except as amended herein, and that this Amendment is incorporated
into the Master Carrier Agreement.
NOW THEREFORE, BSLD and CUSTOMER agree to amend the Master Carrier Agreement as
follows:
1. The Parties hereby agree that the following Listed City Pairs and
specified ICX Monthly Recurring Charges for DS3 service ordered for a twelve
(12) month term will be added to the Master Carrier Agreement.
<TABLE>
<CAPTION>
Additional City Pairs
---------------------
POP City Pair Locations Quantity Miles IXC Monthly Recurring Charge
- ----------------------- -------- ----- ----------------------------
<S> <C> <C> <C>
Portland, OR to San Francisco, CA [*] 540 [*]
</TABLE>
1.25(a) Amount of deposits required: NONE
1.25(b) Customer shall be required to make prepayments for services
purchased pursuant to this Agreement in the amount of [*]
immediately upon execution of this Agreement.
2. The effective date of this Amendment is after execution by BSLD,
provided CUSTOMER executes and returns to BSLD within 30 days, BSLD
has the option to declare the Amendment null and void.
3. Except as expressly amended herein, the Master Carrier Agreement
shall remain in full force and effect.
4. The parties hereto acknowledge that they have read this Amendment,
understand it, and agree to be bound by its terms and conditions.
They further agree that the Agreement, together with this Amendment
No. 1 constitute the entire Agreement between the parties hereto
with respect to the subject matter hereof.
5. BSLD reserves the right to request additional security for any
circuits ordered under this Amendment.
IN WITNESS WHEREOF, the Parties hereto have executed this Amendment on the
dates indicated below.
BellSouth Long Distance, Inc. Shared Communications Services, Inc.
By: /s/ DAVE ABRAHAMSON By: /s/ JEFF RAINES
--------------------------------- ---------------------------------
Name: Dave Abrahamson Name: Jeff Raines
------------------------------- -------------------------------
Title: Vice President, Marketing Title: President
Address: 32 Perimeter Center East Address: P.O. Box 12039
Atlanta, GA 30346 ----------------------------
SALEM, OREGON 97309
------------------------------------
Date: 12-24-97 Date: 12-15-97
------------------------------- -------------------------------
BSLD PROPRIETARY INFORMATION - RESTRICTED
- --------------------
[*] Information redacted pursuant to a confidential treatment request
throughout this exhibit.
<PAGE> 19
AMENDMENT 1 TO MASTER CARRIER AGREEMENT
Exhibit 5 - PRICING
Interstate and Intrastate Charges for Dedicated Outbound Service
<TABLE>
<CAPTION>
Per minute Rates
State Group Vendor Name Interstate Intrastate
- ----- ----- ----------- ---------- ----------
<S> <C> <C> <C> <C>
AK 1 GTE ALASKA INC [*] [*]
AK 2 ALL OTHER LEC's [*] [*]
- --------------------------------------------------------------------------------
AL 1 SOUTH CENTRAL BELL [*] [*]
AL 2 GTE SOUTH INC - AL [*] [*]
AL 3 ALL OTHER LEC's [*] [*]
- --------------------------------------------------------------------------------
AR 1 SOUTHWESTERN BELL [*] [*]
AR 2 GTE MIDWEST, INC. IA [*] [*]
AR 3 ALLTEL ARKANSAS INC [*] [*]
AR 4 CENTURY TEL OF AK [*] [*]
AR 5 ALL OTHER LEC's [*] [*]
- --------------------------------------------------------------------------------
AZ 1 US WEST MTN BELL [*] [*]
AZ 2 CITIZENS TELECOM AZ [*] [*]
AZ 3 ALL OTHER LEC's [*] [*]
- --------------------------------------------------------------------------------
CA 1 PACIFIC BELL [*] [*]
CA 2 GTE CO OF CA [*] [*]
CA 3 ALL OTHER LEC's [*] [*]
- --------------------------------------------------------------------------------
CO 1 US WEST MTN BELL [*] [*]
CO 2 ALL OTHER LEC's [*] [*]
- --------------------------------------------------------------------------------
CT 1 SO NEW ENGLAND TEL [*] [*]
CT 2 NYNEX NEW YORK [*] [*]
CT 3 ALL OTHER LEC's [*] [*]
- --------------------------------------------------------------------------------
DC 1 BELL ATLANTIC DC INC [*] [*]
DC 2 ALL OTHER LEC's [*] [*]
- --------------------------------------------------------------------------------
DE 1 BELL ATLANTIC DE INC [*] [*]
DE 2 ALL OTHER LEC's [*] [*]
- --------------------------------------------------------------------------------
FL 1 SOUTHERN BELL TEL CO [*] [*]
FL 2 SPRINT UNITED TEL FL [*] [*]
FL 3 GTE FLORIDA INC [*] [*]
FL 4 ALL OTHER LEC's [*] [*]
- --------------------------------------------------------------------------------
GA 1 SOUTH CENTRAL BELL [*] [*]
GA 2 ALLTEL GA INC [*] [*]
GA 3 ALL OTHER LEC's [*] [*]
- --------------------------------------------------------------------------------
GU 1 GUAM TEL AUTHORITY [*] [*]
- --------------------------------------------------------------------------------
HI 1 GTE HAWAIIAN TELCO [*] [*]
HI 2 ALL OTHER LEC's [*] [*]
- --------------------------------------------------------------------------------
IA 1 US WEST NW BELL [*] [*]
IA 2 GTE NORTH INC - IA [*] [*]
IA 3 ALL OTHER LEC's [*] [*]
- --------------------------------------------------------------------------------
ID 1 US WEST MTN BELL [*] [*]
ID 2 GTE NORTHWEST INC-ID [*] [*]
ID 3 CITIZENS TELECOM ID [*] [*]
ID 4 CENTURY TEL OF ID [*] [*]
ID 5 ALL OTHER LEC's [*] [*]
- --------------------------------------------------------------------------------
IL 1 AMERITECH ILLINOIS [*] [*]
IL 2 SPRINT CENTER IL [*] [*]
IL 3 GTE OF IL [*] [*]
IL 4 TELEPORT COMM GROUP [*] [*]
IL 5 ALL OTHER LEC's [*] [*]
- --------------------------------------------------------------------------------
IN 1 AMERITECH INDIANA [*] [*]
</TABLE>
BSLD Proprietary Information
RESTRICTED
- -----------------------
[*] Information redacted pursuant to a confidential treatment request
throughout this exhibit.
<PAGE> 20
AMENDMENT 1 TO MASTER CARRIER AGREEMENT
Exhibit 5 - PRICING
Interstate and Intrastate Charges for Dedicated Outbound Service
<TABLE>
<CAPTION>
Per minute rates
---------------------------------
State Group Vendor Name Interstate Intrastate
- ----- ----- ----------- ---------- ----------
<S> <C> <C> <C> <C>
IN 2 UNITED TEL CO OF IN [*] [*]
IN 3 GTE OF IN [*] [*]
IN 4 ALL OTHER LEC'S [*] [*]
- -----------------------------------------------------------------------------------------
KS 1 SOUTHWESTERN BELL [*] [*]
KS 2 UNITED TELCO OF KS [*] [*]
KS 3 ALL OTHER LEC'S [*] [*]
- -----------------------------------------------------------------------------------------
KY 1 SOUTH CENTRAL BELL [*] [*]
KY 2 CINCINNATI BELL [*] [*]
KY 3 ALL OTHER LEC'S [*] [*]
- -----------------------------------------------------------------------------------------
LA 1 SOUTH CENTRAL BELL [*] [*]
LA 2 CENTURY TEL LA [*] [*]
LA 3 ALL OTHER LEC'S [*] [*]
- -----------------------------------------------------------------------------------------
MA 1 NYNEX NEW ENGLAND [*] [*]
MA 2 GRANBY TEL & TEL CO [*] [*]
MA 3 RICHMOND TEL CO [*] [*]
MA 4 MFS INTELENET - MA [*] [*]
MA 5 ALL OTHER LEC'S [*] [*]
- -----------------------------------------------------------------------------------------
MD 1 BELL ATLANTIC MD INC [*] [*]
MD 2 MFS INTELENET - MD [*] [*]
MD 3 ALL OTHER LEC'S [*] [*]
- -----------------------------------------------------------------------------------------
ME 1 NYNEX NEW ENGLAND [*] [*]
ME 2 ALL OTHER LEC'S [*] [*]
- -----------------------------------------------------------------------------------------
MI 1 AMERITECH MICHIGAN [*] [*]
MI 2 GTE OF MI [*] [*]
MI 3 CENTURY TEL MIDWEST [*] [*]
ME 4 ALL OTHER LEC'S [*] [*]
- -----------------------------------------------------------------------------------------
MN 1 US WEST NW BELL [*] [*]
MN 2 UNITED TEL CO OF MN [*] [*]
MN 3 GTE NORTH INC - MN [*] [*]
MN 4 ALL OTHER LEC'S [*] [*]
- -----------------------------------------------------------------------------------------
MO 1 SOUTHWESTERN BELL [*] [*]
MO 2 GTE NORTH INC - MO [*] [*]
MO 3 ALLTEL MISSOURI INC [*] [*]
MO 4 ALL OTHER LEC'S [*] [*]
- -----------------------------------------------------------------------------------------
MS 1 SOUTH CENTRAL BELL [*] [*]
MS 2 CENTURY TEL OF NO MS [*] [*]
MS 3 ALL OTHER LEC'S [*] [*]
- -----------------------------------------------------------------------------------------
MT 1 US WEST MTN BELL [*] [*]
MT 2 CITIZENS TELECOM MT [*] [*]
MT 3 ALL OTHER LEC'S [*] [*]
- -----------------------------------------------------------------------------------------
NC 1 SOUTH CENTRAL BELL [*] [*]
NC 2 SPRINT MID ATLANTIC [*] [*]
NC 3 GTE SOUTH INC - NC [*] [*]
NC 4 ALLTEL CAROLINA INC [*] [*]
NC 5 ALL OTHER LEC'S [*] [*]
- -----------------------------------------------------------------------------------------
ND 1 US WEST MTN BELL [*] [*]
ND 2 ALL OTHER LEC'S [*] [*]
- -----------------------------------------------------------------------------------------
NE 1 US WEST MTN BELL [*] [*]
NE 2 UNITED TELCO WEST [*] [*]
</TABLE>
BSLD Proprietary Information
RESTRICTED
- -----------------------
[*] Information redacted pursuant to a confidential treatment request
throughout this exhibit.
<PAGE> 21
AMENDMENT 1 TO MASTER CARRIER AGREEMENT
Exhibit 5 - PRICING
Interstate and Intrastate Charges for Dedicated Outbound Service
<TABLE>
<CAPTION>
Per minute Rates
State Group Vendor Name Interstate Intrastate
- ----- ----- ----------- ---------- ----------
<S> <C> <C> <C> <C>
NE 3 GTE NORTH INC - NE [*] [*]
NE 4 ALL OTHER LEC's [*] [*]
- ------------------------------------------------------------------------------
NH 1 NYNEX NEW ENGLAND [*] [*]
NH 2 ALL OTHER LEC's [*] [*]
- ------------------------------------------------------------------------------
NJ 1 BELL ATLANTIC NJ INC [*] [*]
NJ 2 ALL OTHER LEC's [*] [*]
- ------------------------------------------------------------------------------
NM 1 US WEST MTN BELL [*] [*]
NM 2 GTE SOUTHWEST - NM [*] [*]
NM 3 ALL OTHER LEC's [*] [*]
- ------------------------------------------------------------------------------
NV 1 NEVADA BELL [*] [*]
NV 2 CONTEL CA DBA GTE CA [*] [*]
NV 3 ALL OTHER LEC's [*] [*]
- ------------------------------------------------------------------------------
NY 1 NYNEX NEW YORK [*] [*]
NY 2 TELEPORT COMM GROUP [*] [*]
NY 3 ROCHESTER TEL CORP [*] [*]
NY 4 CITIZEN'S TELECOM NY [*] [*]
NY 5 ALL OTHER LEC's [*] [*]
- ------------------------------------------------------------------------------
OH 1 AMERITECH OHIO [*] [*]
OH 2 UNITED TELCO OF OHIO [*] [*]
OH 3 GTE NORTH INC - OH [*] [*]
OH 4 CINCINNATI BELL [*] [*]
OH 5 ALLTEL OH, INC. [*] [*]
OH 6 CENTURY TEL OF OHIO [*] [*]
OH 7 ALL OTHER LEC's [*] [*]
- ------------------------------------------------------------------------------
OK 1 SOUTHWESTERN BELL [*] [*]
OK 2 GTE SOUTHWEST - OK [*] [*]
OK 3 ALLTEL OKLAHOMA INC [*] [*]
OK 4 ALL OTHER LEC's [*] [*]
- ------------------------------------------------------------------------------
OR 1 US WEST PNW BELL [*] [*]
OR 2 UNITED TEL CO OF NW [*] [*]
OR 3 GTE NORTHWEST INC-OR [*] [*]
OR 4 ALL OTHER LEC's [*] [*]
- ------------------------------------------------------------------------------
PA 1 BELL ATLANTIC PA INC [*] [*]
PA 2 UNITED TEL CO OF PA [*] [*]
PA 3 GTE OF PA INC [*] [*]
PA 4 ALLTEL PENNA INC [*] [*]
PA 5 ALL OTHER LEC's [*] [*]
- ------------------------------------------------------------------------------
PR 1 ALL OTHER LEC's [*] [*]
- ------------------------------------------------------------------------------
RI 1 NYNEX NEW ENGLAND [*] [*]
RI 2 ALL OTHER LEC's [*] [*]
- ------------------------------------------------------------------------------
SAIPAN 1 MICRONESIA TELECOMM [*] [*]
- ------------------------------------------------------------------------------
SC 1 SOUTHERN BELL TEL CO [*] [*]
SC 2 UNITED TEL CO CAROL [*] [*]
SC 3 GTE SOUTH, INC. - SC [*] [*]
SC 4 ALLTEL SO CAROLINA [*] [*]
SC 5 ALL OTHER LEC's [*] [*]
- ------------------------------------------------------------------------------
SD 1 US WEST NW BELL [*] [*]
SD 2 ALL OTHER LEC's [*] [*]
- ------------------------------------------------------------------------------
TN 1 SOUTH CENTRAL BELL [*] [*]
</TABLE>
BSLD Proprietary Information
RESTRICTED
- --------------------
[*] Information redacted pursuant to a confidential treatment request
throughout this exhibit.
<PAGE> 22
AMENDMENT 1 TO MASTER CARRIER AGREEMENT
Exhibit 5 - PRICING
Interstate and Intrastate Charges for Dedicated Outbound Service
<TABLE>
<CAPTION>
Per minute Rates
State Group Vendor Name Interstate Intrastate
- ----- ----- ----------- ---------- ----------
<S> <C> <C> <C> <C>
TN 2 UNITED TEL CO INC [*] [*]
TN 3 CITIZENS TELECOM TN [*] [*]
TN 4 ALL OTHER LEC's [*] [*]
- --------------------------------------------------------------------------------
TX 1 SOUTHWESTERN BELL [*] [*]
TX 2 UNITED TEL CO OF TX [*] [*]
TX 3 GTE SOUTHWEST - TX [*] [*]
TX 4 ALL OTHER LEC's [*] [*]
- --------------------------------------------------------------------------------
UT 1 US WEST MTN BELL [*] [*]
UT 2 CITIZENS TELECOM UT [*] [*]
UT 5 ALL OTHER LEC's [*] [*]
- --------------------------------------------------------------------------------
VA 1 BELL ATLANTIC VA INC [*] [*]
VA 2 UNITED INTER-MTN TEL [*] [*]
VA 3 GTE SOUTH, INC. - VA [*] [*]
VA 3 ALL OTHER LEC's [*] [*]
- --------------------------------------------------------------------------------
VI 1 ALL OTHER LEC's [*] [*]
- --------------------------------------------------------------------------------
VT 1 NYNEX NEW ENGLAND [*] [*]
VT 2 HYPERION TELECOM VT [*] [*]
VT 3 ALL OTHER LEC's [*] [*]
- --------------------------------------------------------------------------------
WA 1 US WEST PNW BELL [*] [*]
WA 2 UNITED TEL CO OF NW [*] [*]
WA 3 GTE NORTHWEST INC - WA [*] [*]
WA 4 ALL OTHER LEC's [*] [*]
- --------------------------------------------------------------------------------
WI 1 AMERITECH WISCONSIN [*] [*]
WI 2 GTE OF WI [*] [*]
WI 3 CENTURY TEL OF WI I [*] [*]
WI 4 ALL OTHER LEC's [*] [*]
- --------------------------------------------------------------------------------
WV 1 BELL ATLANTIC WV INC [*] [*]
WV 2 CITIZENS TELECOM WV [*] [*]
WV 3 ALL OTHER LEC's [*] [*]
- --------------------------------------------------------------------------------
WY 1 US WEST MTN BELL [*] [*]
WY 2 UNITED TELCO WEST [*] [*]
WY 3 ALL OTHER LEC's [*] [*]
</TABLE>
BSLD Proprietary Information
RESTRICTED
- --------------------
[*] Information redacted pursuant to a confidential treatment request
throughout this exhibit.
<PAGE> 23
Exhibit 5 - PRICING
International Dedicated Outbound Charges
(Via BSLD leased port location)
<TABLE>
<CAPTION>
Flat Rate
COUNTRY Per Minute
- ----------------- ----------
<S> <C>
AFGHANISTAN [*]
ALBANIA [*]
ALGERIA [*]
AM SAMOA [*]
ANDORRA [*]
ANGOLA [*]
ANGUILLA [*]
ANTARCTICA (Casey) [*]
ANTARCTICA (Scott) [*]
ANTIGUA [*]
ARGENTINA [*]
ARMENIA [*]
ARUBA [*]
ASCENSION ISLD [*]
AUSTRALIA [*]
AUSTRIA [*]
AZERBAIJAN [*]
BAHAMAS [*]
BAHRAIN [*]
BANGLADESH [*]
BARBADOS [*]
BELARUS [*]
BELGIUM [*]
BELIZE [*]
BENIN [*]
BERMUDA [*]
BHUTAN [*]
BOLIVIA [*]
BOSNIA/HERZEGOVINA [*]
BOTSWANA [*]
B. VIRGIN ISLAND [*]
BRAZIL [*]
BRUNEI [*]
BULGARIA [*]
BURKINA FASSO [*]
BURMA (MYANMAR) [*]
BURUNDI [*]
CAMBODIA [*]
CAMEROON [*]
CANADA [*]
CAPE VERDE ISLAND [*]
CAYMAN ISLANDS [*]
CENTRAL AFRICAN REP [*]
CHAD [*]
CHILE [*]
CHINA [*]
CHRISTMAS COCOS ISLDS [*]
COLOMBIA [*]
COMOROS, FED [*]
CONGO REP [*]
COOK ISLANDS [*]
COSTA RICA [*]
CROATIA, REPUB OF [*]
CUBA [*]
CYPRUS [*]
CZECH REPUBLIC [*]
DENMARK [*]
DIEGO GARCIA [*]
DJIBOUTI [*]
DOMINICA [*]
DOMINICAN REPUBLIC [*]
</TABLE>
BSLD Proprietary Information
RESTRICTED
- --------------------
[*] Information redacted pursuant to a confidential treatment request
throughout this exhibit.
<PAGE> 24
Exhibit 5 - PRICING
International Dedicated Outbound Charges
(Via BSLD leased port location)
<TABLE>
<CAPTION>
Flat Rate
COUNTRY Per Minute
- ------- ----------
<S> <C>
ECUADOR [*]
EGYPT [*]
EL SALVADOR [*]
EQUATORIAL GUINEA [*]
ERITREA [*]
ESTONIA [*]
ETHIOPIA [*]
FAEROE ISLDS [*]
FALKAND ISLD [*]
FIJI [*]
FINLAND [*]
FRANCE [*]
FRENCH ANTILLES [*]
FRENCH GUIANA [*]
FRENCH POLYNESIA [*]
GABON [*]
GAMBIA [*]
GEORGIA [*]
GERMANY [*]
GHANA [*]
GIBRALTAR [*]
GREECE [*]
GREENLAND [*]
GRENADA [*]
GUANTANAMO BAY [*]
GUATEMALA [*]
GUINEA BISSAU [*]
GUINEA PEOPLES REPUBLIC [*]
GUYANA [*]
HAITI [*]
HONDURAS [*]
HONG KONG [*]
HUNGARY [*]
ICELAND [*]
INDIA [*]
INDONESIA [*]
IRAN [*]
IRAQ [*]
IRELAND [*]
ISRAEL [*]
ITALY [*]
IVORY COAST [*]
JAMAICA [*]
JAPAN [*]
JORDAN [*]
KAZAKHSTAN [*]
KENYA [*]
KIRIBATI [*]
KOREA (SOUTH) [*]
KUWAIT [*]
KYRGYZSTAN [*]
LAOS [*]
LATVIA [*]
LEBANON [*]
LESOTHO [*]
LIBERIA [*]
LIBYA APSJ [*]
LIECHTENSTEIN [*]
LITHUANIA [*]
LUXEMBOURG [*]
MACAO [*]
</TABLE>
BSLD Proprietary Information
RESTRICTED
<PAGE> 25
Exhibit 5 - PRICING
International Dedicated Outbound Charges
(Via BSLD leased port location)
<TABLE>
<CAPTION>
Flat Rate
COUNTRY Per Minute
------- ----------
<S> <C>
MACEDONIA [*]
MADAGASCAR [*]
MALAWI [*]
MALAYSIA [*]
MALDIVES REP [*]
MALI REP [*]
MALTA REP [*]
MARSHALL ISLDS [*]
MAURITANIA [*]
MAURITIUS [*]
MAYOTTE ISLD. [*]
MEXICO BAND 1 - Std. [*]
MEXICO BAND 2 - Std. [*]
MEXICO BAND 3 - Std. [*]
MEXICO BAND 4 - Std. [*]
MEXICO BAND 5 - Std. [*]
MEXICO BAND 6 - Std. [*]
MEXICO BAND 7 - Std. [*]
MEXICO BAND 8 - Std. [*]
MEXICO BAND 1 - Econ. [*]
MEXICO BAND 2 - Econ. [*]
MEXICO BAND 3 - Econ. [*]
MEXICO BAND 4 - Econ. [*]
MEXICO BAND 5 - Econ. [*]
MEXICO BAND 6 - Econ. [*]
MEXICO BAND 7 - Econ. [*]
MEXICO BAND 8 - Econ. [*]
MICRONESIA [*]
MOLDOVA [*]
MONACO [*]
MONGOLIA [*]
MONTSERRAT [*]
MOROCCO [*]
MOZAMBIQUE [*]
NAMIBIA [*]
NAURU [*]
NEPAL [*]
NETHERLANDS [*]
NETHERLANDS ANTIL [*]
NEW CALEDONIA [*]
NEW ZEALAND [*]
NICARAGUA [*]
NIGER REPUBLIC [*]
NIGERIA [*]
NIUE [*]
NORFOLK ISLD. [*]
NORWAY [*]
OMAN [*]
PAKISTAN [*]
PALAU, REP. [*]
PANAMA [*]
PAPUA N. GUINEA [*]
PARAGUAY [*]
PERU [*]
PHILIPPINES [*]
POLAND [*]
PORTUGAL [*]
QATAR [*]
REUNION ISLAND [*]
ROMANIA [*]
RUSSIA [*]
</TABLE>
BSLD Proprietary Information
RESTRICTED
<PAGE> 26
Exhibit 5 - PRICING
International Dedicated Outbound Charges
(Via BSLD leased port location)
<TABLE>
<CAPTION>
Flat Rate
COUNTRY Per Minute
- ----------------- ----------
<S> <C>
RWANDA [*]
SAN MARINO [*]
SAO TOME [*]
SAUDI ARABIA [*]
SENEGAL [*]
SERBIA/YUGOSLAV. [*]
SEYCHELLES ISLDS. [*]
SIERRE LEONE [*]
SINGAPORE [*]
SLOVAKIA [*]
SLOVENIA [*]
SOLOMON ISLDS. [*]
SOMALIA [*]
SOUTH AFRICA [*]
SPAIN [*]
SRI LANKA [*]
ST. HELEN [*]
ST. PIERRE [*]
ST. KITTS [*]
ST. LUCIA [*]
ST. VINCENT [*]
SUDAN [*]
SURINAME [*]
SWAZILAND [*]
SWEDEN [*]
SWITZERLAND [*]
SYRIAN ARABREP [*]
TAIWAN [*]
TAJIKISTAN [*]
TANZANIA [*]
THAILAND [*]
TOGO [*]
TONGA [*]
TRINIDAD & TOBAGO [*]
TUNISIA [*]
TURKEY [*]
TURKMENISTAN [*]
TURKS CAICOS [*]
TUVALU [*]
UGANDA [*]
UKRAINE [*]
UNITED A.E. [*]
UNITED KINGDOM [*]
URUGUAY [*]
UZBEKISTAN [*]
VANUATU REP [*]
VATICAN CITY [*]
VENEZUELA [*]
VIETNAM [*]
WALLIS & FORNTUNA ISLD. [*]
WESTERN SAMOA [*]
YEMEN REP. [*]
ZAIRE REP. [*]
ZAMBIA [*]
ZIMBABWE [*]
</TABLE>
Canadian Toll-Free Origination:
<TABLE>
<CAPTION>
Peak Off Peak
- ------ --------
<C> <C>
[*] [*]
</TABLE>
- --------------------
[*] Information redacted pursuant to a confidential treatment request
throughout this exhibit.
BSLD Proprietary Information
RESTRICTED
<PAGE> 27
[BELLSOUTH LETTERHEAD]
June 12, 1998
Lance Stapleton
Shared Communications Services, Inc.
3723 Airview Industrial Dr. SE
Salem, OR 97302
Dear Lance:
This correspondence confirms the start dates of the agreement between BellSouth
Long Distance and Shared Communications Services. The term of the Agreement at
specified in Paragraph 4 and Exhibit 3 Section A.4. shall be 12 months
commencing July 1, 1998. The Minimum Usage Commitment specified in Exhibit 3
Section A.13.1 shall be amended as follows:
<TABLE>
<CAPTION>
Minimum
Months Usage Commitment
- ------ ----------------
<S> <C>
[*] [*]
[*] [*]
</TABLE>
Sincerely,
/s/ MARK DOBIE
- --------------
Mark Dobie
cc:
<PAGE> 28
BELLSOUTH LONG DISTANCE, INC.
CARRIER AGREEMENT
THIS CARRIER AGREEMENT ("Agreement") is made and entered into by and between
Shared Communications Services, Inc. ("Customer") and BellSouth Long Distance,
Inc., a corporation with offices at 32 Perimeter Center East, Atlanta, Georgia
30346 ("BSLD"), for the sale by BSLD and the purchase by Customer of various
regulated and non-regulated telecommunications services as described in this
Agreement and the Exhibits hereto upon the rates, terms and conditions set forth
therein. BSLD and Customer are sometimes referred to as "parties" or
individually as "a party."
1. DEFINITIONS. Capitalized terms appearing in bold print are defined in
Exhibit 1.
2. SERVICES. Services provided hereunder are those described in Exhibit 2 and
priced in Exhibit 5. Subject to its Correspondent Agreements and regulations by
Federal and state authorities, BSLD shall provide the Services specified in
Exhibit 2 to this Agreement in accordance with standard BSLD practices and
procedures for the operation of its network. Services may be provided to
Customer through BSLD's purchase of underlying network capacity from one or more
network providers. The terms and conditions of any agreement between BSLD and an
underlying network provider, including the identity of the network provider, are
confidential. In the event that BSLD provisions Services through an underlying
network provider, BSLD, at its sole discretion, shall determine the network
provider in which to provision such Services. All Services pursuant to this
Agreement are offered subject to the availability of the service components
required.
3. CONFIDENTIALITY.
3.1 The terms, conditions, and rates contained in this Agreement and the
Annexes hereto are confidential, and shall remain so. If it shall be determined
by BSLD or Customer that legal requirements, including the Communications Act of
1934 (or any subsequent legislation) and the regulations promulgated thereunder
require the filing of this Agreement with the Federal Communications Commission
("Commission"), or if the Commission (or a state regulatory entity with
applicable jurisdiction) order the filing of this Agreement pursuant to
authority granted by law or regulation the party charged with such filing shall
file the Agreement with a request for confidential treatment. If such
confidential treatment is denied or removed by the Commission or other
governmental authority, BSLD if it is charged with such filing, shall make its
best efforts to keep the identity of the Customer confidential unless required
by law, regulation or the Commission to disclose such identity. Absent such a
filing requirement, neither party shall disclose the terms or conditions of this
Agreement to any third party, nor issue any public statements relating to this
Agreement without the written consent of the other party, unless such disclosure
or statement is reasonably believed by the party to be compelled by governmental
authority. A disclosing party shall furnish reasonable prior notice to the other
party before making the statement or disclosure unless prohibited by law from
doing so.
3.2 Each party shall preserve CONFIDENTIAL INFORMATION received from the other
party in confidence for the duration of this Agreement and for a period of three
(3) years subsequent to its termination, except that any CONFIDENTIAL
INFORMATION that constitutes a trade secret shall be held in confidence in
perpetuity. The receiving party shall restrict disclosure of such CONFIDENTIAL
INFORMATION solely to its employees and employees of its affiliated companies
with a need to know. During any pertinent period hereunder, each receiving party
shall refrain from disclosing such CONFIDENTIAL INFORMATION to any third party,
and shall take such other reasonable measures as are necessary for a prudent
business person to protect its own CONFIDENTIAL INFORMATION.
3.3 Each party shall use CONFIDENTIAL INFORMATION received from the other party
solely in furtherance of the matters contemplated by this Agreement and related
to either party's performance of this Agreement.
3.4 This Agreement shall not restrict disclosure or use of CONFIDENTIAL
INFORMATION that is:
- - known to the receiving party without restriction when received, or thereafter
developed independently by the receiving party; or
- - obtained from a source other than the originating party through no breach of
confidence by the receiving party; or
- - in the public domain when received, or thereafter enters the public domain
through no fault of the receiving party; or
- - disclosed by the originating party to a third party without restriction;
- - lawfully in the possession of the receiving party at the time of receipt from
the other party;
- - disclosed in response to an order or request from a court, the FCC or other
regulatory body; provided, however, that before making such disclosure, a
party shall first give the other party reasonable notice and opportunity to
object to the order or request and/or to obtain a protective order covering
the CONFIDENTIAL INFORMATION to be disclosed; or
- - approved for release by written authorization of the disclosing party.
3.5 Either party may disclose CONFIDENTIAL INFORMATION to a person (other than
a direct competitor of the other party) retained by either party to provide
advice, consultation, analysis, legal counsel, or any other services in
connection with this Agreement or the service provided hereunder
BSLD Proprietary Information
RESTRICTED
1
<PAGE> 29
BellSouth Long Distance, Inc.
Carrier Agreement
(hereinafter "Consultant") only after the party wishing to disclose CONFIDENTIAL
INFORMATION provides to the other party a copy of a written agreement by such
Consultant (i) to use such CONFIDENTIAL INFORMATION only for he purpose of
providing such services to the disclosing party, and (ii) to be bound by the
obligations of a receiving party under this Agreement with respect to such
CONFIDENTIAL INFORMATION.
BSLD may disclose the identity of Customer to the FCC without the prior
consent of but with prior written notice to Customer provided that the FCC
requires such disclosure.
3.7 Upon termination of this Agreement, each party shall cease use of
CONFIDENTIAL INFORMATION received from the other party and shall use best
efforts to destroy all such CONFIDENTIAL INFORMATION, including copies thereof,
then in its possession or control, promptly furnishing the originating party
with written certification of such destruction. Alternatively, at the request
of the originating party, the receiving party shall use best efforts to return
all such CONFIDENTIAL INFORMATION and copies to the originating party; provided
that CONFIDENTIAL INFORMATION contained in BSLD databases and/or mechanized
systems that cannot be reasonably isolated for destruction or return shall
continue to be safeguarded by BSLD pursuant to the provisions of this
Agreement. The rights and obligations of the parties under this Agreement shall
survive any such return of CONFIDENTIAL INFORMATION.
3.8 Rights and obligations provided by this Section shall take precedence over
specific legends or statements associated with information when received.
3.9 The parties agree that in the event of a breach or threatened breach of the
terms of this Section, the non-breaching party shall be entitled to seek an
injunction prohibiting or halting any such breach. Any such relief shall be in
addition to and not in lieu of any appropriate relief in the way of money
damages. The parties acknowledge that the CONFIDENTIAL INFORMATION is valuable
and unique, and that disclosure in breach of this will result in irreparable
injury to the originating party.
4. TERM. The TERM shall commence on the first day of the following month in
which it is executed by BSLD. The TERM will continue after commencement for the
period specified in EXHIBIT 3 unless terminated earlier in accordance with the
terms and conditions of this Agreement and the Exhibits hereto. The parties
shall continue their respective performance of this Agreement on a
month-to-month basis after expiration of the term until either provides sixty
(60) days written notice of termination to other. The Effective Date shall be
the first day following completion of execution of this Agreement by both
parties. There is no renewal option.
5. TERMINATION FOR CAUSE.
A Party may terminate this Agreement upon the other Party's failure to
cure any of the following within 30 days following written notice thereof: (a)
the (i) insolvency, corporate reorganization, arrangement with creditors,
receivership or dissolution of the other Party; or (ii) institution of
bankruptcy proceedings by or against the other Party; (b) assignment or
attempted assignment of the Agreement or any interest therein, except as
permitted by Paragraph 22 hereof; (c) change in control of the defaulting
Party without the other Party's prior written consent, which consent shall not
be unreasonably withheld; (d) a final order by a government entity with
appropriate jurisdiction that a SERVICE or the relationship hereunder is
contrary to law or regulation; or (e) breach of any provision herein not
otherwise referred to in Paragraph 5.
5.2. BSLD may terminate this Agreement immediately and without notice if
Customer fails to cure a breach as provided in Paragraph 8 or breaches a
provision of Paragraph 15 or 16.
5.3. Upon termination of this Agreement Party may recover from the other all
sums it is owed at the time of termination.
6. TERMINATION WITHOUT CAUSE; EARLY TERMINATION CHARGE.
6.1. Customer may terminate this Agreement at any time without cause upon 90
days prior written notice to BSLD and payment to BSLD of the EARLY TERMINATION
CHARGE in Subparagraph 6.2. SERVICE will be discontinued the first business day
of the fourth month after such notice of termination.
6.2. Base Rates and Promotional Discounts are based on Customer's agreement to
purchase SERVICE for the entire TERM. It is difficult if not impossible to
calculate BSLD's loss if Customer terminates the Agreement pursuant to
Subparagraph 5.1 prior to the end of the TERM. Therefore, to compensate BSLD for
such loss, and not as a penalty. Customer shall pay BSLD an EARLY TERMINATION
CHARGE in the event of such termination. The EARLY TERMINATION CHARGE shall
equal [*] for each month remaining in the TERM when SERVICE is discontinued
pursuant to Subparagraph 5.1. The EARLY TERMINATION CHARGE shall be paid within
30 days after the notice provided pursuant to Subparagraph 6.1.
7. Relationship of the Parties. The relationship established by this
Agreement shall in no way constitute BSLD (or its agents or employees) as a
partner, agent or fiduciary of Customer. The relationship established by this
Agreement shall in no way constitute Customer (or its agents or employees) as a
partner, agent or fiduciary of BSLD. The provision of SERVICE described in this
agreement does not establish any joint undertaking, joint venture, ??????
arrangement, partnership, agency, fiduciary relationship or formal business
organization of any kind. Customer and BSLD shall be independent
BSLD Proprietary Information
RESTRICTED
- --------------------
[*] Information redacted pursuant to a confidential treatment request
throughout this exhibit.
2
<PAGE> 30
BellSouth Long Distance, Inc.
CARRIER AGREEMENT
contractors with each other for all purposes at all times and neither party
shall act as or hold itself out as agent for the other or create or attempt to
create liabilities for the other party.
Trade Names. Trademarks. Service Marks and Registered Marks. Neither
Customer nor BSLD shall use the other's trade names, trademarks or service marks
("Marks") without the prior written approval of the other party. Neither shall
display or use the other's Marks, nor permit the same to be displayed or used by
third parties. Nothing in this Agreement creates in a party rights in the marks
of the other. In the event that Customer resells the Service provided hereunder,
it will do so only under its own names, trade names, logos, trademarks or
service marks. Customer will not publish or use any advertising, sales
promotions, press release, or other publicity matters which use BSLD's corporate
or trade names, logos trademarks, serve marks, trade dress, or other symbols
that serve to identify and distinguish BSLD from its competitors (or which use
confusingly similar corporate or trade names, logos, trademarks, service marks,
trade dress or other symbols), and will not conduct business under BSLD's
corporate or trade names, logos, trademarks, service marks, trade dress, or
other symbols that serve to identify and distinguish BSLD from its competitors
(or under any confusingly similar corporate or trade names, logos, trademarks,
service marks, trade dress or other symbols). Customer (including its agents,
representatives and independent contractors) will not indicate or imply to any
person or entity that it is BSLD which is selling or providing service to
Customer's end-users, or that it is affiliated or authorized by BSLD to sell or
provide such service to them or that it is selling or providing such service to
them jointly or in collaboration or partnership with BSLD, or as the agent of
BSLD. BSLD shall provide Customer written notice of a breach of this paragraph.
Customer shall use its best efforts to immediately cure such breach advising
BSLD of its actions. If, in BSLD's opinion, Customer fails to effect a cure
within 30 days of BSLD's notice, then BSLD may, at its option, terminate the
Agreement pursuant to Subparagraph 5.2.
9. LEGAL COMPLIANCE: REMEDIES FOR NON-COMPLIANCE.
9.1. Each party is responsible for its own compliance with all laws and
regulations affecting its business, including but not limited to the collection
and remittance of all taxes and other levies imposed by law. Customer certifies
that it has obtained the required operating authority in all states in which it
conducts business, as well as all authority required by the FCC for resale of
telecommunications services, including but not limited to authority required
pursuant to Section 214 of the Communications Act of 1934, 47 U.S.C. Section
214, and that it complies and will continue to comply at all times with all
federal and state laws and regulations applicable to the sale and provision of
service to its customers.
9.2. If, in BSLD's opinion, Customer breaches this paragraph, BSLD may (a)
terminate this Agreement pursuant to Subparagraph 5.1(e), and/or (b)
discontinue PROMOTIONAL DISCOUNTS. If BSLD elects option (b), it will resume
and/or reinstate PROMOTIONAL DISCOUNTS only after Customer produces evidence
satisfactory to BSLD that it has cured its breach.
CUSTOMER RESPONSIBILITIES.
10.1. Customer shall not be relieved of any obligation hereunder by virtue
of the fact that Service is ultimately used by END USERS.
10.2. Interfacing and communicating with END-USERS shall be the sole
responsibility of Customer with respect to any use that Customer may make of
the service provided pursuant to this Agreement to in turn provide service to
other persons or entities. Customer shall be solely responsible for END USER
solicitation, service requests, credit worthiness, customer service, account
systems and support, billing and collection.
10.3. Customer shall be solely liable for amounts it cannot collect from
END USERS, and billing adjustments it grants END USERS, including adjustments
for fraudulent charges, directory assistance or any other form of credit.
10.4. Customer shall comply with BSLD's network interface procedures when
it orders its own access facilities.
11. SERVICE ACTIVATION. BSLD will use reasonable efforts to provide dedicated
SERVICE within thirty (30) days, following Customer's order, or the requested
delivery date, whichever is later. These deadlines will be extended by the time
it takes to address activation errors or obtain from Customer a complete and
accurate order. Customer shall reimburse BSLD for LEC imposed fees resulting
from a request to expedite SERVICE.
12. PRICING; GENERAL CONDITIONS.
12.1. Pricing. BASE RATES and PROMOTIONAL DISCOUNTS are contained in the
Exhibits hereto.
12.2. Prices in Lieu of Other Discounts. BASE RATES and PROMOTIONAL
DISCOUNTS are extended in lieu of any other Tariff or contractual discount,
special pricing or discount term plan. Discounts upon discounts are only
permitted if expressly provided for herein.
12.3. Prices Contingent on Performance. BASE RATES and PROMOTIONAL
DISCOUNTS are contingent on Customer's full performance of all terms of the
Agreement. If Customer fails to pay the undisputed portion of an invoice
pursuant to Paragraph 15, all SERVICE for which payment is past due may, at
BSLD's option, be priced at BASE RATES.
BSLD Proprietary Information
RESTRICTED
3
<PAGE> 31
BELLSOUTH LONG DISTANCE, INC.
CARRIER AGREEMENT
12.4. Per Minute Charges. BASE RATES are invoiced based on PER MINUTE CHARGES
utilizing the BILLING INCREMENTS in EXHIBIT 4.
12.5. Promotional Pricing Levels. Customer will receive discounts applied only
to RATE ELEMENTS as provided in EXHIBIT 5.
12.6. Pricing Contingent on Primary Carrier Status. Pricing hereunder is
contingent on Customer utilizing BSLD as its PRIMARY CARRIER for the PRIMARY
CARRIER SERVICES listed in EXHIBIT 3. If Dedicated Outbound Services is a
PRIMARY CARRIER SERVICE then 90% of all Dedicated Access End Users under
Customer's control shall be placed on the BSLD network during the TERM. Customer
shall produce, within 30 days following BSLD's request, evidence acceptable to
BSLD that it is in compliance with this subparagraph. Failure to maintain BSLD
as PRIMARY CARRIER on any PRIMARY CARRIER SERVICE will result in SERVICE being
provided hereunder at BASE RATES for the remainder of the TERM. Customer may
select a temporary back-up carrier for any period during which it is affected by
a BSLD network outage.
12.7. Pricing Contingent on Tax Compliance. The price of SERVICE is exclusive of
applicable taxes. BASE RATES and PROMOTIONAL DISCOUNTS are contingent on
Customer providing BSLD with certificates from appropriate taxing authorities
exempting Customer from taxes that would otherwise be invoice hereunder.
13. SURCHARGES.
13.1. Minimum Commitment Surcharge. Any month Customer fails to meet the MINIMUM
USAGE COMMITMENT stated on EXHIBIT 3, Customer shall pay a surcharge for Service
provided during such month equal to [*] of the difference between the MINIMUM
USAGE COMMITMENT and Customer's Net Usage. The MINIMUM COMMITMENT shall not
relieve Customer of any credit or security obligation hereunder.
13.2. Minimum Average Time Requirement Surcharge. Any month Customer fails to
equal or exceed the MINIMUM AVERAGE TIME REQUIREMENT specified in EXHIBIT 4 for
PRICING specified in EXHIBIT 5, then Customer shall pay BSLD a per minute
surcharge on such usage equal to [*].
13.4. Minimum Port Usage Surcharge. Any month Customer fails to equal or exceed
the MINIMUM PORT USAGE per ACTIVE DEDICATED PORT as stated on EXHIBIT 3,
Customer shall pay BSLD a surcharge on its Dedicated Service usage equal to the
difference between (a) [*] (b) the MINIMUM PORT USAGE multiplied by the total
number of ACTIVE DEDICATED PORTS. This surcharge shall be calculated in each
PRODUCT HIERARCHY LEVEL.
14. SPECIAL RATE ADJUSTMENTS
14.1. BSLD may, after 30 days notice to Customer, adjust the price of
International SERVICE.
14.2. Every six months during the Term, BSLD will adjust the price of Service
provided in Paragraph 12.5 to reflect changes in statewide average per-minute
Terminating interstate LEC access charges imposed on BSLD.
15. PAYMENT FOR SERVICE.
15.1. Payment Obligation. Customer shall pay BSLD for SERVICE pursuant to the
terms of this Agreement.
15.2. Call Detail. BSLD may, at its option, and without liability to Customer,
modify the format of the call detail media following 30 days written notice to
Customer.
15.3. Payment Procedure. BSLD will invoice Customer monthly for SERVICE provided
hereunder. All amounts for Services billed to Customer as stated in each monthly
invoice shall be due and payable by Customer upon receipt. The cost of Services
is exclusive of any applicable sales, use, excise and like taxes, which shall be
separately stated and included on each monthly invoice. Undisputed charges for
Service that remain unpaid by Customer for a period of fifteen (15) days or more
after the date of the invoice shall be subject to interest thereon from the date
of the invoice at a rate equal to the lesser of [*] per annum ([*] per month),
or the maximum rate allowed by law. If Customer fails to pay for Services in
accordance with this Section. Customer shall not be eligible to receive any
discounts, concessions, waivers or credits.
15.4. Billing Disputes. In the event that Customer, in good faith, disputes any
invoiced amount, Customer must submit full payment of the undisputed portion of
the invoice according to the payment terms set forth in this section. In
addition, Customer must submit written documentation identifying and
substantiating any disputed amounts within thirty (30) days of the date of the
invoice for which an amount is in dispute. All disputed amounts are payable
immediately by Customer upon BellSouth Long Distance written denial of a
disputed amount. If the Parties, in good faith, cannot resolve the dispute
within a reasonable period of time, then the dispute shall be settled by
mediation, arbitration or court proceeding pursuant to Paragraph 18.
15.5. Payment Terms. Payment terms may be modified by BellSouth Long Distance
based on a Customer's credit rating, credit risk, prior payment history, letters
of credit, deposits or other demonstrations of credit-worthiness by the
Customer.
BSLD Proprietary Information
RESTRICTED
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[*] Information redacted pursuant to a confidential treatment request
throughout this exhibit.
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15.6 Payment Security. BSLD may require Customer, prior to or during the
provision of Services pursuant to this Agreement, to tender a reasonable deposit
in an amount to be determined by BSLD in its reasonable discretion to be held by
BSLD as a guarantee for the payment of charges set forth in this Agreement. To
determine the financial responsibility of Customer and/or the specific amount of
any deposit required, BSLD may rely upon commercially reasonable factors to
assess and manage the risk the non-payment, including but not limited to payment
history for telecommunications service (including such service purchased from
BSLD), number of years in business, bankruptcy or insolvency history, current
BSLD account treatment status, financial statement analysis, and commercial
credit bureau rating. It shall be Customer's responsibility to provide to BSLD
upon request such information as is necessary for BSLD to determine the
financial responsibility of Customer, including but not limited to Customer's
tax returns, audited or unaudited financial statements and loan applications. A
deposit does not relieve Customer of the responsibility for the prompt payment
of bills on presentation or the due date appearing in the face of the bills.
Interest will be paid to Customer for the period that a cash deposit is held by
BSLD. The interest rate used will be simple interest at the rate of six percent
annually unless a different rate has been established by the appropriate legal
authority in the state where the Service offering is located. The failure of
Customer to pose a deposit as required by BSLD pursuant to this paragraph shall
constitute a material breach of this Agreement by Customer which shall entitle
BSLD to terminate this Agreement and the service provided hereunder upon five
(5) days written notice to Customer. When the service for which the deposit has
been required is discontinued, the deposit will be applied to the final bill and
any credit balance will be refunded to Customer with applicable interest
accrued.
16. PAYMENT OF TAXES. BSLD shall apply all applicable taxes for each
jurisdiction. It is understood between the parties that the Services provided by
BSLD pursuant to this Agreement are tax-free sales to the extent that Customer
purchases these services for resale and to the extent that sales for resale are
tax exempt within a jurisdiction; it shall be Customer's responsibility to
provide to BSLD for each such jurisdiction a valid resale tax exemption
certificate prior to the first bill for services provided pursuant to this
Agreement. Customer shall be solely responsible for the payment of any local,
state and federal taxes, duties, levies and other similar charges (and any
related interest and penalties), however, designated, which may be levied upon
the sale, transfer of ownership, installation, license, use or provision of
service by Customer to its customers. Customer shall not be liable for taxes on
BSLD's net income.
17. LIMITATIONS OF LIABILITY, EXCLUSIVE REMEDIES AND INDEMNIFICATION
The limitations of liability, exclusive remedies and rights of
indemnification shall be as set forth in this Section shall apply to all
services furnished pursuant to this Agreement and the Annexes hereto except to
the extent that they may be varied by the specific terms of any of the Annexes
hereto for specific services, in which event the terms of the Annexes shall
control.
Definitions. For purposes of the exclusive remedies and limitations of
liability set forth in this Agreement and the Annexes hereto, the term:
- - "BSLD" shall be defined as BSLD, its subsidiaries and their affiliates, and
their employees, agents, representatives, subcontractors, interconnection
service providers and suppliers;
- - "DAMAGES" will refer collectively to all injury, damage, loss or expense
incurred.
17.2 LIABILITY LIMITATIONS. EXCEPT AS MAY OTHERWISE BE PROVIDED HEREIN, BSLD
(INCLUDING ITS SUBSIDIARIES, AFFILIATES, PREDECESSORS, SUCCESSORS AND ASSIGNS)
MAKES NO WARRANTIES, EXPRESS OR IMPLIED, AND SPECIFICALLY DISCLAIMS ANY WARRANTY
OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, WITH RESPECT TO SERVICES
OR PRODUCTS PROVIDED PURSUANT TO THIS AGREEMENT. BSLD SHALL NOT BE LIABLE FOR
SERVICE IMPAIRMENTS CAUSED BY ACTS WITHIN THE CONTROL OF CUSTOMER, ITS AGENTS,
EMPLOYEES OR LICENSEES OR INTEROPERABILITY OF SPECIFIC CUSTOMER APPLICATIONS.
CUSTOMER SHALL BE SOLELY RESPONSIBLE FOR THE CONTENT OF COMMUNICATIONS
TRANSMITTED BY CUSTOMER USING THE SERVICES PROVIDED PURSUANT TO THIS AGREEMENT.
BSLD SHALL HAVE NO LIABILITY TO CUSTOMER FOR DAMAGES CAUSED BY ACTS OR EVENTS
BEYOND BSLD'S CONTROL, INCLUDING THE ACTS OR OMISSIONS OF OTHER
TELECOMMUNICATIONS SERVICES OR INTERCONNECTION WITH OTHER SERVICES PROVIDERS.
BSLD SHALL HAVE NO LIABILITY FOR DAMAGES CAUSED BY CUSTOMER'S FAILURE TO PERFORM
ITS RESPONSIBILITIES UNDER THIS AGREEMENT OR THE ANNEXES HERETO, OR FOR THE ACT
OF THIRD PARTIES (INCLUDING BUT NOT LIMITED TO CUSTOMER'S END-USERS). BSLD DOES
NOT GUARANTEE OR MAKE ANY WARRANTY WITH RESPECT TO THE SERVICES PROVIDED BY BSLD
WHEN SUCH SERVICES ARE USED IN AN EXPLOSIVE ATMOSPHERE. BSLD SHALL BE
INDEMNIFIED, DEFENDED, AND HELD HARMLESS BY CUSTOMER AGAINST ALL CLAIMS,
LOSSES, OR DAMAGES, BY ANY PERSON RELATING TO THE SERVICES PROVIDED PURSUANT TO
THIS AGREEMENT OR THE ANNEXES HERETO WHEN USED IN AN EXPLOSIVE ATMOSPHERE. IN
ALL OTHER RESPECT, BSLD'S ENTIRE LIABILITY AND CUSTOMER'S EXCLUSIVE REMEDIES
AGAINST BSLD FOR ANY DAMAGES ARISING FROM ANY ACT OR OMISSION RELATING TO THIS
AGREEMENT, REGARDLESS OF THE FORM OF ACTION, WHETHER BASED ON CONTRACT, TORT,
INCLUDING NEGLIGENCE, STRICT LIABILITY, STATUTE OR OTHERWISE SHALL BE LIMITED TO
THE FOLLOWING:
BSLD Proprietary Information
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o ACTS OR OMISSIONS. BSLD'S LIABILITY TO CUSTOMER ON ACCOUNT OF ANY ACTS OR
OMISSIONS RELATING TO THIS AGREEMENT OR THE ANNEXES HERETO SHALL BE
LIMITED TO [*].
o SERVICE IMPAIRMENT. BSLD'S LIABILITY FOR SERVICE IMPAIRMENTS SHALL NOT
EXCEED AN AMOUNT EQUAL TO [*].
o PROPERTY DAMAGES. BSLD'S LIABILITY TO CUSTOMER FOR DAMAGES TO REAL OR
TANGIBLE PERSONAL PROPERTY PROXIMATELY CAUSED BY BSLD'S NEGLIGENCE IN THE
COURSE OF ITS PERFORMANCE OF THIS AGREEMENT SHALL BE LIMITED TO CUSTOMER'S
PROVEN DAMAGES OF SUCH PROPERTY.
o PERSONAL INJURY OR DEATH. BSLD'S LIABILITY TO CUSTOMER FOR BODILY INJURY OR
DEATH TO ANY PERSON PROXIMATELY CAUSED BY BSLD NEGLIGENCE IN THE COURSE OF
ITS PERFORMANCE OF THIS AGREEMENT SHALL BE LIMITED TO CUSTOMER'S PROVEN
DAMAGES TO PERSON.
o THIRD-PARTY PATENT INFRINGEMENT CLAIMS. NO LICENSE UNDER PATENTS (OTHER
THAN THE LIMITED LICENSE TO USE) IS GRANTED BY BSLD OR SHALL BE IMPLIED OR
ARISE BY ESTOPPEL, WITH RESPECT TO ANY SERVICE OFFERED PURSUANT TO THIS
AGREEMENT OR THE ANNEXES HERETO. BSLD WILL DEFEND CUSTOMER AGAINST CLAIMS
OF PATENT INFRINGEMENT ARISING SOLELY FROM THE USE BY CUSTOMER OF THE
SERVICES PROVIDED BY BSLD PURSUANT TO THIS AGREEMENT OR ANY APPLICABLE
TARIFF AND WILL INDEMNIFY CUSTOMER FOR ANY DAMAGES AWARDED BASED ON SUCH
CLAIMS.
17.3 NON-DIRECT DAMAGES. NOTWITHSTANDING SECTION 19.2, BELOW, NEITHER PARTY HAS
ANY LIABILITY TO THE OTHER RELATED TO ITS PERFORMANCE OF THIS AGREEMENT OR THE
ANNEXES HERETO FOR INCIDENTAL, INDIRECT, PUNITIVE OR CONSEQUENTIAL DAMAGES, OR
FOR LOST PROFITS, SAVINGS OR REVENUES, WHETHER IN AN ACTION BASED ON CONTRACT,
PRODUCT LIABILITY, TORT INCLUDING NEGLIGENCE, STRICT LIABILITY, STATUTE OR
OTHERWISE, WHETHER OR NOT BSLD HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH
DAMAGES.
17.4 Failure of Exclusive Remedy. The limitations of liability set forth in
this Agreement and in the Annexes hereto shall survive failure of an exclusive
remedy.
17.5 Duty to Indemnify and Defend. Customer shall indemnify, defend, and hold
harmless BSLD and its directors, officers, employees, agents, parent,
subsidiaries, successors, and assigns from all thirty-party claims, actions, and
causes of action for damages and expenses (including reasonable attorneys' fees)
arising out of or resulting from, in whole or in part, the actions or omissions
of Customer, its End-Users, their employees, agents or contractors affiliated
companies and their employees, agents or contractors, including but not limited
to claims for libel, slander, invasion of privacy, or infringement of copyright
arising from any communication and claims for patent infringement arising from
combining or using services or equipment furnished by BSLD in connection with
facilities or equipment furnished by others. Customer shall also indemnify,
defend and hold BSLD harmless from and against all liabilities and costs
(including reasonable attorneys' fees) arising from any and all claims by any
person based on the content of any communication transmitted by Customer using
the services provided pursuant to this Agreement. Customer shall also indemnify,
defend and hold BSLD harmless for all causes of action, claims, liabilities or
expenses asserted or incurred by any of Customer's End-Users arising out of any
failure, breakdown, or interruption of service provided to Customer by BSLD or
to End-Users by Customer. Customer shall indemnify, defend and hold BSLD
harmless for all causes of action, claims, liabilities or expenses asserted or
incurred by Customer's End-Users due to Customer's marketing efforts, including
but not limited to Customer's violation of laws and regulations applicable to
the authorization and proof of authorization necessary to convert an End-User's
former service to Customer's service as the End-User's Primary Interexchange
Carrier. BSLD shall be indemnified, defended, and held harmless by Customer,
Users and End-Users against all claims, losses or damages by any person relating
to such Service when used in an explosive atmosphere.
17.6 Notice to Indemnify and Defend. In the event that either party is entitled
to indemnification and defense from the other party pursuant to this Agreement,
the Indemnified Party shall notify the Indemnifying Party promptly, in writing,
of any claims, lawsuits or demand by third parties for which the Indemnified
Party alleges that the Indemnifying Party is responsible under this paragraph
and tender the defense of such claim, lawsuit, or demand to the Indemnifying
Party. The Indemnified Party shall also cooperate in every reasonable manner
with the defense or settlement of such claim, lawsuit, or demand. The
Indemnifying Party shall not be liable under this subparagraph for settlements
by the Indemnified Party of any claim, demand, or lawsuit unless the
Indemnifying Party has approved the settlement in advance or unless the defense
of the claim, demand, or lawsuit has been tendered to the Indemnifying Party, in
writing, and the Indemnifying Party has failed promptly to undertake the
defense.
17.7 Limitation of Actions. Neither party may bring a claim or action arising
out of or related to this Agreement or the Annexes hereto, including any claim
of fraud or misrepresentation, more than two (2) years after the cause of
action has accrued or the termination of this Agreement, which occurs later.
The Parties hereby waive the right to invoke any different limitation on the
bringing of actions provided under state law.
BSLD Proprietary Information
RESTRICTED
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[*] Information redacted pursuant to a confidential treatment request
throughout this exhibit.
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18. DISPUTE RESOLUTION
18.1 Mediation. The parties agree to use good faith efforts to resolve any
Dispute promptly and fairly. If the parties are unable to resolve a Dispute
Negotiation, both parties agree to submit it to mediation conducted by a
mutually selected mediator or, at the option of either party, by the Center for
Public Resources (CPR). The parties, their representatives, other participants
and the mediator shall hold the existence, content and result of the mediation
in confidence.
18.2 Arbitration. If a Dispute submitted to mediation is not successfully
resolved, it shall be subject to binding arbitration under the then-current
rules and supervision of the CPR. The Federal Arbitration Act, 9 U.S.C. Section
1 to 16, not Georgia law, will govern the arbitrability of all claims. A single
arbitrator who is knowledgeable in business information, commercial matters or
the telecommunications field, as applicable, will conduct the arbitration. The
arbitrator's decision and award will be final and binding, and either party may
enter it in any court with jurisdiction. The arbitrator will not have authority
to award punitive or other non-compensatory damages to either party. The
arbitration will be held in Atlanta. Each party will bear its own attorney's
fees and related costs associated with the arbitration. The parties will pay all
other costs and expenses of the arbitration as the rules of the CPR provide. The
parties, their representatives, other participants and the arbitrator shall hold
the existence, content and result of the arbitration in confidence except that
the prevailing party shall have the right to enter the arbitration award in a
court of competent jurisdiction if such entry is necessary to enforce the terms
of the award.
18.3 Court Proceeding. Except as permitted in this Section, neither party may
bring a case in court in connection with a Dispute. If a party disregards this
restrictions, files a court case and fails to dismiss it promptly upon being
notified of this provision, that party will pay the other party's costs and
expenses, including attorney's fees, incurred after the notice in defending the
court case. Each party retains the right to obtain an injunction in court to
prevent the other party's misuse of its intellectual property or Confidential
Information.
19. Acknowledgement of Right to Compete. Customer acknowledges and understands
that it remains at all times solely responsible for the success and profits of
its business, and that BSLD makes no promises, warranties or representations
regarding Customer's business success or prospects of business success in
connection with the provision of service pursuant to this Agreement. Customer
acknowledges and understands that BSLD will continue to market BSLD services
directly to the public and that such marketing may from time to time bring BSLD
into direct or indirect competition with Customer, and that BSLD may also market
its services to competitors of Customer. Customer acknowledges and understands
that nothing in this Agreement diminishes or restricts in any way the rights of
Customer to engage in competition with Customer or to market its services to
competitors of Customer.
20. Lawful Use of Service. Customer may use the services provided under this
Agreement for any lawful purpose consistent with the transmission ??? switching
parameters of the telecommunications network, and may resell its use (or the use
of any part thereof) to a third party in the normal course of Customer's
business, except as specifically prohibited or limited in any Annex hereto. In
any instance in which any of the services provided pursuant to this Agreement
are being used in an unlawful manner, BSLD may, immediately and upon written
notice to Customer, and without liability, restrict, suspend or discontinue
providing such service.
21. NOTICES. Notices, requests or other communications (excluding invoices)
hereunder shall be in writing and sent by certified mail addressed as follows:
If to BSLD: BellSouth Long Distance, Inc.
32 Perimeter Center East, Suite A
Atlanta, Georgia 30046
Attention: Bob Arnold, Sr. Director Marketing
If to Customer: Shared Communications Services, Inc.
1095 25th St. S.E.
Salem, Oregon 97302
Attention: Lance Stapleton
22. ASSIGNMENT. Neither this Agreement nor any right or obligation hereunder
may be assigned or delegated to any other entity without the prior written
consent of the other Party, which consent shall not be unreasonably withheld.
23. EXCUSABLE DELAY. In the event of an Excusable Delay the performance
obligations of the Parties hereunder shall be suspended and the Term shall be
extended for a period of time equal to the length of such delay; provided,
however, the affected Party shall promptly notify the other Party of the nature
of the delay and the estimated time that it will continue. If an Excusable Delay
continues for more than 90 days and has a material adverse
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impact on the other Party, such other Party may, at its option and upon written
notice to the other Party, terminate this Agreement without liability other
than payment for Services provided prior to termination. Notwithstanding the
foregoing, neither Party may invoke this paragraph with regard to any xxxxt
listed in Paragraph 5 or to delay performance of Paragraphs 15 or 16.
24. CAPTIONS. Captions of the paragraphs and subparagraphs herein are for
convenience only, are not part of the Agreement and shall not define or limit
any of the Agreement's terms.
25. CHOICE OF LAW. This Agreement shall be construed in accordance with, and
governed by, the laws of the State of Georgia.
26. RULES OF CONSTRUCTION. No rule of construction requiring interpretation
against the draftsman shall apply in the interpretation of this Agreement.
27. ENTIRE AGREEMENT. This Agreement, together with the attached Exhibits,
represents the entire agreement of the Parties with respect to the subject
matter hereof and supersedes all prior written or oral agreements, proposals,
representations, statements or understandings. No subsequent agreement between
CUSTOMER and BSLD concerning the services provided pursuant to this Agreement
shall be effective or binding unless it is made in writing by an authorized
representative of CUSTOMER and an authorized representative of BSLD, and no
representation, promise, inducement or statement of intention has been made by
either party with is not embodied herein relating to the Service.
28. MODIFICATION OF AGREEMENT. This Agreement, including its Exhibits, may be
amended, modified or supplemented only by a separate written document executed
by both Parties with the formality of this Agreement.
29. WAIVER OF TERMS. No term or provision herein shall be waived, and no
breach or default excused, unless such waiver or consent is in writing and
signed by the Party to which it is attributed. No consent by a Party to, or
waiver of, a breach or default by the other, whether express or implied, shall
constitute a consent to, or waiver of, any subsequent breach or default.
30. PARTIAL INVALIDITY. If any provision of this Agreement shall be invalid
or unenforceable, such invalidity or unenforceability shall not invalidate or
render the Agreement unenforceable, but rather the Agreement shall be construed
as if not containing the invalid or unenforceable provision. However, if such
provision is an essential element of this Agreement, the Parties shall promptly
attempt to negotiate a substitute therefor.
31. CUMULATIVE REMEDIES. Except as otherwise provided herein, the remedies
provided for in this Agreement are in addition to any other remedies available
or at law or in equity.
32. EXPIRATION OF OFFER. BSLD's offer to enter into this Agreement shall be
withdrawn if the Agreement is not executed by both Parties within 45 days after
the Proposal Date stated on Exhibit 3.
EXECUTED and made effective as provided herein.
Shared Communications Services, Inc. BellSouth Long Distance, Inc.
(Customer)
By: /s/ JEFF RAINES By: /s/ DAVE ABRAHAMSON
------------------------------ ------------------------------
Dave Abrahamson
Title: President Vice President Marketing
--------------------------- ---------------------------
Date: 11-25-97 Date: 3/14/98
--------------------------- ---------------------------
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EXHIBIT 1
DEFINITIONS
Capitalized Terms appearing in bold print in the Agreement, its Exhibits and
Attachments are defined as follows:
"ACF" Access Coordination Fee
"ACTIVE DEDICATED PORT" means a Customer access port (DS-0 equivalent) connected
to BSLD and activated as Dedicated Service.
"ANI" means a calling telephone number identification which is forwarded to an
IXC by a LEC as a call is placed.
"AFFILIATED LOCATION" means a physical premise to or from which BSLD provides
Service which is: (a) owned or leased by Customer; (b) occupied by a business in
which Customer has an equity interest of at least a 25%; or (c) occupied by a
franchisee of Customer.
"ATTACHMENT" means a supplement attached to, and a part of, the Agreement.
"BASE RATES" means prediscounted rates associated with the lowest net monthly
volume of service level specified in Exhibit 5.
"BILLING INCREMENT" means billing increment stated in Exhibit 4.
"BILLING HIERARCHY" means the level in which the billing system has accumulated
information for billing and reporting purposes. A hierarchy will in summarize
information at its level and roll it up to the next highest hierarchy level for
additional reporting purposes.
"CARRIER BASE RATES" means the prices provided herein for CARRIER SERVICE.
"CARRIER SERVICE" means switched Service purchased under the Agreement and
invoiced under BSLD's BILLING HIERARCHY.
"CLC" means an IXC carrier identification code.
"CONFIDENTIAL INFORMATION" means any information which relates to the Agreement
or any of the Annexes hereto, including but not limited to proposals,
specifications, drawings, models, samples, data, network designs, pricing
information, reports, research, strategic plans, computer programs, software and
documentation, prototypes, and related technical or business information, the
terms and conditions of this Agreement (and all written or oral discussions,
negotiations, and other communications related thereto and in contemplation
thereof) and which is exchanged under this Agreement, provided that, when
exchanged, such information is written or in other permanent form (including,
without limitation, information incorporated in computer software or held in
electronic storage media) and is identified as confidential and/or proprietary
to the originating party by clear and conspicuous markings. Any CONFIDENTIAL
INFORMATION which is not in writing or other permanent form when exchanged shall
be considered CONFIDENTIAL INFORMATION hereunder only to the extent the original
disclosure of the information is accompanied by a statement that the information
is confidential and/or proprietary, and information so disclosed is reduced to
writing by the originating party, in detail reasonably sufficient to describe
such information, and transmitted, with such information, to the receiving party
within thirty (30) days of such original disclosure.
"COC" Central Office Connection.
"DISCOUNT" means a RATE ELEMENT specific discount that [*].
"DISCOUNT MONTHLY VOLUME OF SERVICE" means [*].
"DISCOUNT RATE PERIOD" means the initial international rate period unless
otherwise specified herein.
"EFC" Entrance Facility Charge.
"EARLY TERMINATION CHARGE" means the charge imposed for terminating the
Agreement prior to expiration of the Term as provided in Paragraph 5 thereof.
"ECONOMY RATE PERIOD" means the Tariff international economy rate period.
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[*] Information redacted pursuant to a confidential treatment request
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"END USER" means a customer of Customer to whom BSLD extends Network Service at
a NON-AFFILIATED LOCATION.
"END USER SERVICE" means SERVICE that BSLD extends to the NON-AFFILIATED
LOCATION of an END USER.
"EXCUSABLE DELAY" means any event that prevents a Party from performing its
obligations hereunder and that is beyond the reasonable control and without the
fault or negligence of such Party.
"EXHIBIT" means a supplement attached to, and a part of, the Agreement.
"INVOICE HIERARCHY LEVEL" means the second billing hierarchy, level, and is
directly above the PRODUCT HIERARCHY LEVEL and directly below the MASTER
HIERARCHY LEVEL.
"IXC" means interexchange carrier.
"LEC" means local exchange carrier.
"MASTER HIERARCHY LEVEL" means the first and highest billing hierarchy, level 1.
"MINIMUM AVERAGE TIME REQUIREMENT" means the minimum average call duration,
expressed in minutes, for SERVICES as specified in Exhibit 4. Such calculations
will be made at each PRODUCT HIERARCHY LEVEL.
"MINIMUM USAGE COMMITMENT" means the minimum monthly usage commitment stated on
Exhibit 3. The calculation to determine whether Customer has met the MINIMUM
USAGE COMMITMENT shall be based on Customer's invoiced NET USAGE.
"MINIMUM PORT USAGE" means the NET USAGE for DEDICATED SERVICE stated on
Exhibit 3 that Customer shall generate per ACTIVE DEDICATED PORT.
"MONTHLY VOLUME OF SERVICE DISCOUNT" means the volume of Customer's monthly
usage, at the MASTER HIERARCHY LEVEL, of all CARRIER SERVICES, including
directory assistance SERVICES, priced after the application of discounts.
MONTHLY VOLUME OF SERVICE DISCOUNT does not include CARRIER SERVICE charges
that are not based on usage, such as Private Line charges, any charge
associated with access (dedicated or non-dedicated), facilities charges, any
usage related fixed charge, any non-recurring charge such as installation
charges, taxes, surcharges, transfer fees, or interest.
"NET USAGE" means the monthly amount invoiced for use of a SERVICE net of
discounts. NET USAGE includes the following as they apply to particular
SERVICES: monthly per-minute usage charges invoiced under the Agreement; route
advance charges; real time ANI charges; switched origination and termination
charges; directory assistance charges; MINIMUM AVERAGE TIME REQUIREMENT
Surcharges; and Noncomplete Call Surcharges.
"NON-BELL SERVICE AREA" means an area in which a Regional Bell Operating
Company is not providing local access. An alternate Local Exchange Carrier may
provide service.
"NON-AFFILIATED LOCATION" means any physical premise to or from which BSLD
provides SERVICE that is not an AFFILIATED LOCATION.
"OFF PEAK RATE PERIOD" means (a) the EVENING RATE PERIOD and the NIGHT/WEEKEND
RATE PERIOD for interstate traffic which is all other hours than the PEAK RATE
PERIOD and (b) the DISCOUNT RATE PERIOD and ECONOMY RATE PERIOD for
international traffic.
"PEAK RATE PERIOD" means (a) the DAY RATE PERIOD for interstate traffic which is
between the hours of 8:00 AM and 5:00 PM Monday through Friday and (b) the
STANDARD RATE PERIOD for international traffic.
"PER MINUTE CHARGE" means the per minute charge for SERVICE as set forth in
Exhibit 5 based on RATE PERIODS and BILLING INCREMENTS stated in Exhibit 4.
"PRIMARY CARRIER" means the IXC designated by Customer as its first routing
choice and primary overflow carrier.
"PRIMARY CARRIER SERVICE" means the SERVICE specified in Exhibit 3 for which
BSLD shall be Customer's PRIMARY CARRIER.
"PROMOTIONAL DISCOUNTS" is a collective reference to all DISCOUNTS.
"PROPOSAL DATE" means the date indicated on Exhibit 3 that the Agreement is
offered by BSLD to Customer.
"RATE ELEMENT" means a jurisdiction element of the rate for a particular
SERVICE. For example. Dedicated rates consist of separate RATE ELEMENTS
interstate, intrastate, Canada, Mexico domestic. Mexico international, other
international, and directory assistance usage.
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"Rate Periods" is a collective reference to the DAY RATE PERIOD, DISCOUNT RATE
PERIOD, ECONOMY RATE PERIOD, EVENING RATE PERIOD, ????/WEEKEND RATE PERIOD, OFF
PEAK RATE PERIOD, PEAK RATE PERIOD, and STANDARD RATE PERIOD.
"Service" means the service identified in the EXHIBITS that BSLD shall provide
and Customer shall purchase hereunder.
"Service Hierarchy Level" means the fourth and lowest level in the Customer's
billing hierarchy.
"Standard Rate Period" means the TARIFF standard rate period for international
SERVICE unless otherwise specified herein.
"Product Hierarchy Level" means the third level in the Customer billing
hierarchy, and is directly above the SERVICE HIERARCHY LEVEL which ties like
SERVICES together for purposes of reporting. Each PRODUCT HIERARCHY LEVEL is
considered independently for calculation and application of Discounts. LEC Cap
Surcharges, MINIMUM AVERAGE TIME REQUIREMENTS Surcharges, and MINIMUM PORT USAGE
Surcharges.
"Tariff(s)" means any applicable tariff filed by BSLD with the Federal
Communications Commission for interstate or international SERVICE (including
TARIFF revisions) and/or any applicable tariff filed with a state regulatory
commission for intrastate SERVICE. Should BSLD no longer file TARIFFS in order
to provide SERVICE, then TARIFF shall mean the standard rate tables and terms
and conditions that replace such TARIFFS.
"Term" means the term of the Agreement as provided in Paragraph 3 thereof.
BSLD Proprietary Information
RESTRICTED
11
<PAGE> 39
BELLSOUTH LONG DISTANCE, INC.
CARRIER AGREEMENT
EXHIBIT 2
SERVICES
The following SERVICES are provided pursuant to the Agreement:
1. OUTBOUND SERVICE.
1.1. DEDICATED. Dedicated service is provided hereunder for outbound traffic
with domestic or international termination that originates over dedicated
special access (T1.5 or T45) circuits.
2. DIRECTORY ASSISTANCE.
2.1. DOMESTIC. Interstate and intrastate directory assistance provided
hereunder must have a domestic origination over Customer's circuits. BSLD may
modify directory assistance prices provided in the Agreement to reflect changes
in directory assistance charges.
BSLD Proprietary Information
RESTRICTED
12
<PAGE> 40
BELLSOUTH LONG DISTANCE, INC.
CARRIER AGREEMENT
EXHIBIT 3
GENERAL TERMS
A.4. TERM OF AGREEMENT: Twelve (12) months.
A.12.7. PRIMARY CARRIER REQUIREMENT. Customer shall utilize BSLD as its
PRIMARY CARRIER for the following PRIMARY CARRIER SERVICES.
- Not Applicable -
A.13.1. MINIMUM USAGE COMMITMENT:
<TABLE>
<CAPTION>
Minimum Monthly
Months Usage Commitment
------ ----------------
<S> <C>
[*] [*]
[*] [*]
[*] [*]
[*] [*]
</TABLE>
A.13.4. MINIMUM PORT USAGE: $100 Minimum Dedicated Usage Per Port
PROMOTIONAL ACF/COC/EFC CHARGES
Waive all ACF Charges
Monthly recurring COC charges will be [*] per port.
Monthly recurring EFC charges will be [*] per port when Customer
utilizes BSLD's entrance facilities.
A.32. PROPOSAL DATE: October 21, 1997
- --------------------
[*] Information redacted pursuant to a confidential treatment request
throughout this exhibit.
BSLD Proprietary Information
RESTRICTED
13
<PAGE> 41
BELLSOUTH LONG DISTANCE, INC.
CARRIER AGREEMENT
EXHIBIT 4
BILLING INCREMENTS
B.12.4. Billing Increments/Usage Periods for Per Minute Charges.
Service will be invoiced based on Per Minute Charges utilizing Rate
Period and Billing Increments set forth below:
<TABLE>
<CAPTION>
Initial Additional
Billing Billing
Service Type/ Increment Increment
Rate Element (seconds) (seconds)
- ------------ --------- ----------
<S> <C> <C>
Domestic Interstate Dedicated [*] [*]
Canada Term. Dedicated [*] [*]
Mexico Term. Dedicated [*] [*]
Other International Locations Dedicated [*] [*]
</TABLE>
B.13.2. Minimum Call Duration: Minimum Average Time Requirement (MATR)
shall not apply unless specifically set forth below:
<TABLE>
<CAPTION>
Service Type MATR MATR Surcharge
- ------------ ---- --------------
<S> <C> <C>
N/A N/A N/A
</TABLE>
- --------------------
[*] Information redacted pursuant to a confidential treatment request
throughout this exhibit.
BSLD Proprietary Information
RESTRICTED
14
<PAGE> 42
BELLSOUTH LONG DISTANCE, INC.
CARRIER AGREEMENT
EXHIBIT 5 - PRICING
Interstate and Intrastate Charges for Dedicated Outbound Service:
<TABLE>
<CAPTION>
Per minute Base Rates
-----------------------
State Group Vendor Name Interstate Intrastate
<S> <C> <C> <C> <C>
AK 1 ALL OTHER LEC's [*] [*]
- --------------------------------------------------------------------------------
AL 1 SOUTH CENTRAL BELL [*] [*]
AL 2 GTE SOUTH INC - AL [*] [*]
AL 3 ALL OTHER LEC's [*] [*]
- --------------------------------------------------------------------------------
AR 1 SOUTHWESTERN BELL [*] [*]
AR 2 GTE MIDWEST, INC. IA [*] [*]
AR 3 ALLTEL COMM - AR [*] [*]
AR 4 CENTURY CELLUNET INC. [*] [*]
AR 5 ALL OTHER LEC's [*] [*]
- --------------------------------------------------------------------------------
AZ 1 US WEST MTN BELL [*] [*]
AZ 2 CITIZENS MOHAVE CELL [*] [*]
AZ 3 ALL OTHER LEC's [*] [*]
- --------------------------------------------------------------------------------
CA 1 PAC-WEST TELECOMM [*] [*]
CA 2 GTE CO OF CA [*] [*]
CA 3 ALL OTHER LEC's [*] [*]
- --------------------------------------------------------------------------------
CO 1 US WEST NW BELL [*] [*]
CO 2 ALL OTHER LEC's [*] [*]
- --------------------------------------------------------------------------------
CT 1 SO NEW ENGLAND TEL [*] [*]
CT 2 NYNEX NEW YORK [*] [*]
CT 3 ALL OTHER LEC's [*] [*]
- --------------------------------------------------------------------------------
DC 1 BELL ATLANTIC DC INC [*] [*]
DC 2 ALL OTHER LEC's [*] [*]
- --------------------------------------------------------------------------------
DE 1 BELL ATLANTIC DE INC [*] [*]
DE 2 ALL OTHER LEC's [*] [*]
- --------------------------------------------------------------------------------
FL 1 SOUTHERN BELL TEL CO [*] [*]
FL 2 SPRINT UNITED TEL FL [*] [*]
FL 3 GTE FLORIDA INC [*] [*]
FL 4 ALL OTHER LEC's [*] [*]
- --------------------------------------------------------------------------------
GA 1 SOUTH CENTRAL BELL [*] [*]
GA 2 ALLTEL GA INC [*] [*]
GA 3 ALL OTHER LEC's [*] [*]
- --------------------------------------------------------------------------------
HI 1 GTE HAWAIIAN TELCO [*] [*]
HI 2 ALL OTHER LEC's [*] [*]
- --------------------------------------------------------------------------------
IA 1 US WEST NW BELL [*] [*]
IA 2 GTE NORTH INC - IA [*] [*]
IA 3 ALL OTHER LEC's [*] [*]
- --------------------------------------------------------------------------------
ID 1 US WEST MTN BELL [*] [*]
ID 2 GTE NORTHWEST INC-ID [*] [*]
ID 3 CITIZENS TELECOM ID [*] [*]
ID 4 ALL OTHER LEC's [*] [*]
- --------------------------------------------------------------------------------
IL 1 AMERITECH ILLINOIS [*] [*]
IL 2 SPRINT CENTEL IL [*] [*]
IL 3 GTE OF IL [*] [*]
IL 4 TELEPORT COMM GROUP [*] [*]
IL 5 ALL OTHER LEC's [*] [*]
- --------------------------------------------------------------------------------
IN 1 AMERITECH INDIANA [*] [*]
IN 2 UNITED TEL CO OF IN [*] [*]
IN 3 GTE OF IN [*] [*]
IN 4 ALL OTHER LEC's [*] [*]
- --------------------------------------------------------------------------------
KS 1 SOUTHWESTERN BELL [*] [*]
KS 2 UNITED TELCO OF KS [*] [*]
KS 3 ALL OTHER LEC's [*] [*]
- --------------------------------------------------------------------------------
KY 1 SOUTH CENTRAL BELL [*] [*]
KY 2 CINCINNATI BELL [*] [*]
</TABLE>
- --------------------
[*] Information redacted pursuant to a confidential treatment request
throughout this exhibit.
BSLD Proprietary Information
RESTRICTED
15
<PAGE> 43
BELLSOUTH LONG DISTANCE, INC.
CARRIER AGREEMENT
EXHIBIT 5 - PRICING
Interstate and Intrastate Charges for Dedicated Outbound Service:
<TABLE>
<CAPTION>
Per minute Base Rates
-----------------------
State Group Vendor Name Interstate Intrastate
<S> <C> <C> <C> <C>
KY 1 ALL OTHER LEC's [*] [*]
- --------------------------------------------------------------------------------
LA 1 SOUTH CENTRAL BELL [*] [*]
LA 2 CENTURY TEL LA [*] [*]
LA 3 ALL OTHER LEC's [*] [*]
- --------------------------------------------------------------------------------
MA 1 NYNEX NEW ENGLAND [*] [*]
MA 2 GRANBY TEL & TEL CO [*] [*]
MA 3 RICHMOND TEL CO [*] [*]
MA 4 MFS INTELENET - MA [*] [*]
MA 5 ALL OTHER LEC's [*] [*]
- --------------------------------------------------------------------------------
MD 1 BELL ATLANTIC MD INC [*] [*]
MD 2 MFS INTELENET - MD [*] [*]
MD 3 ARMSTRONG TEL CO MD [*] [*]
MD 4 ALL OTHER LEC's [*] [*]
- --------------------------------------------------------------------------------
ME 1 NYNEX NEW ENGLAND [*] [*]
ME 2 ALL OTHER LEC's [*] [*]
- --------------------------------------------------------------------------------
MI 1 AMERITECH MICHIGAN [*] [*]
MI 2 GTE OF MI [*] [*]
MI 3 CENTURY TEL MIDWEST [*] [*]
MI 4 ALL OTHER LEC's [*] [*]
- --------------------------------------------------------------------------------
MN 1 US WEST NW BELL [*] [*]
MN 2 UNITED TEL CO OF MN [*] [*]
MN 3 GTE NORTH INC - MN [*] [*]
MN 4 ALL OTHER LEC's [*] [*]
- --------------------------------------------------------------------------------
MO 1 SOUTHWESTERN BELL [*] [*]
MO 2 GTE NORTH INC - MO [*] [*]
MO 3 ALLTEL MISSOURI INC [*] [*]
MO 4 ALL OTHER LEC's [*] [*]
- --------------------------------------------------------------------------------
MS 1 SOUTH CENTRAL BELL [*] [*]
MS 2 CENTURY TEL OF NO MS [*] [*]
MS 3 ALL OTHER LEC's [*] [*]
- --------------------------------------------------------------------------------
MT 1 US WEST MTN BELL [*] [*]
MT 2 CITIZENS TELECOM MT [*] [*]
MT 3 ALL OTHER LEC's [*] [*]
- --------------------------------------------------------------------------------
NC 1 SOUTH CENTRAL BELL [*] [*]
NC 2 SPRINT MID ATLANTIC [*] [*]
NC 3 GTE SOUTH INC - NC [*] [*]
NC 4 ALLTEL CAROLINA INC [*] [*]
NC 5 ALL OTHER LEC's [*] [*]
- --------------------------------------------------------------------------------
ND 1 US WEST MTN BELL [*] [*]
ND 2 ALL OTHER LEC's [*] [*]
- --------------------------------------------------------------------------------
NE 1 US WEST MTN BELL [*] [*]
NE 2 UNITED TELCO WEST [*] [*]
NE 3 GTE NORTH INC - NE [*] [*]
NE 4 ALL OTHER LEC's [*] [*]
- --------------------------------------------------------------------------------
NH 1 NYNEX NEW ENGLAND [*] [*]
NH 2 ALL OTHER LEC's [*] [*]
- --------------------------------------------------------------------------------
NJ 1 BELL ATLANTIC NJ INC [*] [*]
NJ 2 ALL OTHER LEC's [*] [*]
- --------------------------------------------------------------------------------
NM 1 US WEST MTN BELL [*] [*]
NM 2 GTE SOUTHWEST - NM [*] [*]
NM 3 ALL OTHER LEC's [*] [*]
- --------------------------------------------------------------------------------
NV 1 NEVADA BELL [*] [*]
NV 2 CONTEL CA DBA GTE CA [*] [*]
NV 3 ALL OTHER LEC's [*] [*]
- --------------------------------------------------------------------------------
</TABLE>
BSLD Proprietary Information
RESTRICTED
- --------------------
[*] Information redacted pursuant to a confidential treatment request
throughout this exhibit.
16
<PAGE> 44
BELLSOUTH LONG DISTANCE, INC.
CARRIER AGREEMENT
EXHIBIT 5 - PRICING
Interstate and Intrastate Charges for Dedicated Outbound Service:
<TABLE>
<CAPTION>
Per minute Base Rates
-----------------------
State Group Vendor Name Interstate Intrastate
<S> <C> <C> <C> <C>
NY 1 NYNEX NEW YORK [*] [*]
NY 2 TELEPORT COMM GROUP [*] [*]
NY 3 ROCHESTER TEL CORP [*] [*]
NY 4 CITIZENS TELECOM NY [*] [*]
NY 5 ALL OTHER LEC's [*] [*]
- --------------------------------------------------------------------------------
OH 1 AMERITECH OHIO [*] [*]
OH 2 UNITED TELCO OF OHIO [*] [*]
OH 3 GTE NORTH INC - OH [*] [*]
OH 4 CINCINNATI BELL [*] [*]
OH 5 ALLTEL OH INC [*] [*]
OH 6 CENTURY TEL OF OHIO [*] [*]
OH 7 ALL OTHER LEC's [*] [*]
- --------------------------------------------------------------------------------
OK 1 SOUTHWESTERN BELL [*] [*]
OK 2 GTE SOUTHWEST - OK [*] [*]
OK 3 ALLTEL OKLAHOMA INC [*] [*]
OK 4 ALL OTHER LEC's [*] [*]
- --------------------------------------------------------------------------------
OR 1 US WEST PNW BELL [*] [*]
OR 2 UNITED TEL CO OF NW [*] [*]
OR 3 GTE NORTHWEST INC - OR [*] [*]
OR 4 ALL OTHER LEC's [*] [*]
- --------------------------------------------------------------------------------
PA 1 BELL ATLANTIC PA INC [*] [*]
PA 2 UNITED TEL CO OF PA [*] [*]
PA 3 GTE OF PA INC [*] [*]
PA 4 ALLTEL PENNA INC [*] [*]
PA 5 ALL OTHER LEC's [*] [*]
- --------------------------------------------------------------------------------
RI 1 NYNEX NEW ENGLAND [*] [*]
RI 2 ALL OTHER LEC's [*] [*]
- --------------------------------------------------------------------------------
SC 1 SOUTHERN BELL TEL CO [*] [*]
SC 2 UNITED TEL CO CAROL [*] [*]
SC 3 GTE SOUTH, INC. - SC [*] [*]
SC 4 ALLTEL SO CAROLINA [*] [*]
SC 5 ALL OTHER LEC's [*] [*]
- --------------------------------------------------------------------------------
SD 1 US WEST NW BELL [*] [*]
SD 2 ALL OTHER LEC's [*] [*]
- --------------------------------------------------------------------------------
TN 1 SOUTH CENTRAL BELL [*] [*]
TN 2 UNITED TEL CO INC [*] [*]
TN 3 CITIZENS TELECOM TN [*] [*]
TN 4 ALL OTHER LEC's [*] [*]
- --------------------------------------------------------------------------------
TX 1 SOUTHWESTERN BELL [*] [*]
TX 2 UNITED TEL CO OF TX [*] [*]
TX 3 GTE SOUTHWEST - TX [*] [*]
TX 4 ALL OTHER LEC's [*] [*]
- --------------------------------------------------------------------------------
UT 1 US WEST MTN BELL [*] [*]
UT 2 CITIZENS TELECOM UT [*] [*]
UT 3 ALL OTHER LEC's [*] [*]
- --------------------------------------------------------------------------------
VA 1 BELL ATLANTIC VA INC [*] [*]
VA 2 UNITED INTER-MTN TEL [*] [*]
VA 3 GTE SOUTH INC - VA [*] [*]
VA 4 ALL OTHER LEC's [*] [*]
- --------------------------------------------------------------------------------
VI 1 ALL OTHER LEC's [*] [*]
- --------------------------------------------------------------------------------
VT 1 NYNEX NEW ENGLAND [*] [*]
VT 2 HYPERION TELECOM VT [*] [*]
VT 3 ALL OTHER LEC's [*] [*]
- --------------------------------------------------------------------------------
WA 1 US WEST PNW BELL [*] [*]
</TABLE>
BSLD Proprietary Information
RESTRICTED
- --------------------
[*] Information redacted pursuant to a confidential treatment request
throughout this exhibit.
17
<PAGE> 45
BELLSOUTH LONG DISTANCE, INC.
CARRIER AGREEMENT
EXHIBIT 5 - PRICING
Interstate and Intrastate Charges for Dedicated Outbound Service:
<TABLE>
<CAPTION>
Per minute Base Rates
-----------------------
State Group Vendor Name Interstate Intrastate
<S> <C> <C> <C> <C>
WA 2 UNITED TEL CO OF NW [*] [*]
WA 3 GTE NORTHWEST INC - WA [*] [*]
WA 4 ALL OTHER LEC's [*] [*]
- --------------------------------------------------------------------------------
WI 1 AMERITECH WISCONSIN [*] [*]
WI 2 GTE OF WI [*] [*]
WI 3 CENTURY TEL OF WII [*] [*]
WI 4 ALL OTHER LEC's [*] [*]
- --------------------------------------------------------------------------------
WV 1 BELL ATLANTIC WV INC [*] [*]
WV 2 CITIZENS TELECOM WV [*] [*]
WV 3 ALL OTHER LEC's [*] [*]
- --------------------------------------------------------------------------------
WY 1 US WEST MTN BELL [*] [*]
WY 2 UNITED TELCO WEST [*] [*]
WY 3 ALL OTHER LEC's [*] [*]
- --------------------------------------------------------------------------------
</TABLE>
Domestic Directory Assistance:
Dedicated Access:
Interstate Base Rate: [*] per call
-------------
Intrastate Base Rate: [*] per call
-------------
- --------------------
[*] Information redacted pursuant to a confidential treatment request
throughout this exhibit.
BSLD Proprietary Information
RESTRICTED
18
<PAGE> 46
BellSouth Long Distance, Inc.
Carrier Agreement
Exhibit 5 - PRICING
International dedicated Outbound Base Rates:
(Via BSLD switch location)
<TABLE>
<CAPTION>
Flat Rate
COUNTRY Per Minute
------- ----------
<S> <C>
EL SALVADOR [*]
EQUATORIAL GUINEA [*]
ERITREA [*]
ESTONIA [*]
ETHIOPIA [*]
FAEROE ISLDS [*]
FALKAND ISLD [*]
FIJI [*]
FINLAND [*]
FRANCE [*]
FRENCH ANTILLES [*]
FRENCH GUIANA [*]
FRENCH POLYNESIA [*]
GABON [*]
GAMBIA [*]
GEORGIA [*]
GERMANY [*]
GHANA [*]
GIBRALTAR [*]
GREECE [*]
GREENLAND [*]
GRENADA [*]
GUADALOUPE [*]
GUAM [*]
GUANTANAMO BAY [*]
GUATEMALA [*]
GUINEA BISSAU [*]
GUINEA PEOPLES REPUBLIC [*]
GUYANA [*]
HAITI [*]
HONDURAS [*]
HONG KONG [*]
HUNGARY [*]
ICELAND [*]
INDIA [*]
India-Medras [*]
India-New Delhi [*]
INDONESIA [*]
IRAN [*]
IRAQ [*]
IRELAND [*]
ISRAEL [*]
ITALY [*]
IVORY COAST [*]
JAMAICA [*]
JAPAN [*]
JORDAN [*]
KAZAKHSTAN [*]
KENYA [*]
KIRIBATI [*]
KOREA (SOUTH) [*]
KUWAIT [*]
KYRGYZSTAN [*]
LAOS [*]
LATVIA [*]
LEBANON [*]
LESOTHO [*]
LIBERIA [*]
LIBYA APSI [*]
LIECHTEDNSTEIN [*]
LITHUANIA [*]
LUXEMBOURG [*]
MACAO [*]
MACEDONIA [*]
MADAGASCAR [*]
MALAWI [*]
MALAYSIA [*]
MALDIVES REP [*]
</TABLE>
- --------------------
[*] Information redacted pursuant to a confidential treatment request
throughout this exhibit.
BSLD Proprietary Information
RESTRICTED
20
<PAGE> 47
BELL SOUTH LONG DISTANCE, INC.
CARRIER AGREEMENT
EXHIBIT 5 - PRICING
International dedicated Outbound Base Rates:
(Via BSLD switch location)
<TABLE>
<CAPTION>
FLAT RATE
COUNTRY PER MINUTE
- ------- ----------
<S> <C>
MALI REP [*]
MALTA REP [*]
MARSHALL ISLDS [*]
MAURITANIA [*]
MAURITIUS [*]
MAYOTTE ISLD. [*]
MEXICO BAND 1 - Std. [*]
MEXICO BAND 2 - Std. [*]
MEXICO BAND 3 - Std. [*]
MEXICO BAND 4 - Std. [*]
MEXICO BAND 5 - Std. [*]
MEXICO BAND 6 - Std. [*]
MEXICO BAND 7 - Std. [*]
MEXICO BAND 8 - Std. [*]
MEXICO BAND 1 - Econ. [*]
MEXICO BAND 2 - Econ. [*]
MEXICO BAND 3 - Econ. [*]
MEXICO BAND 4 - Econ. [*]
MEXICO BAND 5 - Econ. [*]
MEXICO BAND 6 - Econ. [*]
MEXICO BAND 7 - Econ. [*]
MEXICO BAND 8 - Econ. [*]
Mexico City only [*]
MICRONESIA [*]
MOLDOVA [*]
MONACO [*]
MONGOLIA [*]
MONTSERRAT [*]
MOROCCO [*]
MOZAMBIQUE [*]
NAMIBIA [*]
MAURU [*]
NEPAL [*]
NETHERLANDS [*]
NETHERLANDS ANTIL [*]
NEW CALEDONIA [*]
NEW ZEALAND [*]
NICARAGUA [*]
NIGER REPUBLIC [*]
NIGERIA [*]
NIUE [*]
NORFOLK ISLD. [*]
NORWAY [*]
OMAN [*]
PAKISTAN [*]
PALAU. REP. [*]
PANAMA [*]
PAPUA N. GUINEA [*]
PARAGUAY [*]
PERU [*]
PHILIPPINES [*]
POLAND [*]
PORTUGAL [*]
QATAR [*]
REUNION ISLAND [*]
ROMANIA [*]
RUSSIA [*]
RWANDA [*]
SAIPAN [*]
SAN MARINO [*]
SAO TOME [*]
SAUDI ARABIA [*]
SENEGAL [*]
SERBIA, YUGOSLAVIA [*]
SEYCHELLES ISLDS. [*]
SIERRA LEONE [*]
SINGAPORE [*]
SLOVAKIA [*]
</TABLE>
- --------------------
[*] Information redacted pursuant to a confidential treatment request
throughout this exhibit.
BSLD Proprietary Information
RESTRICTED
21
<PAGE> 48
BELLSOUTH LONG DISTANCE, INC.
CARRIER AGREEMENT
EXHIBIT 5 - PRICING
International dedicated Outbound Base Rates:
(Via BSLD switch location)
FLAT RATE
COUNTRY PER MINUTE
------- ----------
SLOVENIA [*]
SOLOMON ISLDS. [*]
SOMALIA [*]
SOUTH AFRICA [*]
SPAIN [*]
SRI LANKA [*]
ST. HELENA [*]
ST. PIERRE [*]
ST. KITTS [*]
ST. LUCIA [*]
ST. VINCENT [*]
SUDAN [*]
SURINAME [*]
SWAZILAND [*]
SWEDEN [*]
SWITZERLAND [*]
SYRIAN ARABREP [*]
TAIWAN [*]
TAJIKISTAN [*]
TANZANIA [*]
THAILAND [*]
TOGO [*]
TONGA [*]
TRINIDAD & TOBAGO [*]
TUNISIA [*]
TURKEY [*]
TURKMENISTAN [*]
TURKS CAICOS [*]
TUVALU [*]
UGANDA [*]
UKRAINE [*]
UNITED A.E. [*]
UNITED KINGDOM [*]
URUGUAY [*]
UZBEKISTAN [*]
VANUATU REP. [*]
VATICAN CITY [*]
VENEZUELA [*]
VIETNAM [*]
WALLIS & FORNTUNA ISLD. [*]
WESTERN SAMOA [*]
YEMEN REP. [*]
ZAIRE REP. [*]
ZAMBIA [*]
ZIMBABWE [*]
- --------------------
[*] Information redacted pursuant to a confidential treatment request
throughout this exhibit.
BSLD Proprietary Information
RESTRICTED
22
<PAGE> 49
EXHIBIT 6
SWITCH PORT LICENSE AGREEMENT
SECTION 1. SCOPE
The scope of this Switch Port License Agreement ("License") is to set forth
terms and conditions for BSLD to license from SCS the use of a portion of SCS's
telecommunications equipment including its Nortel DMS 250 Supermode in Portland,
Oregon, in order to interconnect such telecommunications equipment with
telecommunications equipment provided by SCS, BellSouth affiliates and
subsidiaries, other carriers, billing providers, order entry systems,
maintenance systems, network operations systems and end user customers as
described in this License and the Annexes attached hereto. All non-conflicting
terms and conditions of the Agreement shall apply to this License. BSLD and SCS
are sometimes referred to as "parties" or individually as "a party".
SECTION 2. LICENSE TO USE FACILITIES
2.1 License. Subject to the terms as set forth herein, SCS hereby grants to
BSLD a nonexclusive license to use a portion of SCS's Premises, comprised of a
quantity of T-1 ports (Dedicated Switch Partition), as set forth in Appendix B
to this License, for the purpose of permitting BSLD to receive and deliver
communications traffic to and from SCS's telecommunications network or that of
other carriers, and end users, together with a nonexclusive license to connect
BSLD's equipment to the equipment provided by SCS or that of other carriers and
end user customers ("License"). The license granted hereby is, with respect to
the Dedicated Switch Partition, exclusive of any other license, but this
license shall not be construed to limit, qualify or condition SCS's access to
the Dedicated Switch Partition, or its possession thereof. SCS shall at all
times retain sole ownership rights in the SCS's premises and equipment, BSLD
shall not obtain any ownership rights therein except as to the license
provided therein.
2.2 Services. For the licensed premises described in paragraph 2.1, SCS shall
provide switching, billing and operational services for BSLD as set forth in
Appendix A to this License which is incorporated by reference.
2.3 Available Ports. BSLD shall notify SCS in writing of the number of T-1
ports desired to be used by BSLD. Within fifteen (15) business days thereafter,
SCS shall use its best efforts to have the ports available for use by BSLD. BSLD
shall use its best efforts to provide SCS accurate forecasts of future port
requirements.
2.4 Location. The Dedicated Switch Partition shall be located within an area
designated by the SCS.
2.5 Point of Demarcation. Reception and delivery of such communications
traffic between SCS and BSLD shall be to the SCS's point of demarcation in
their premises. The point of demarcation between SCS and BSLD shall be a DSX-1,
DSX-3 (together the "DSX") or analog termination (the "MDF") as applicable.
Signals transmitted or received at this demarcation shall meet the then current
industry standard for the applicable interface specifications.
2.6 Labor and Materials. Labor and materials required for the mounting,
installation and facility interconnection, which includes but is not limited to
cable running, wirewrapping and punch down to the demarcation point, shall meet
SCS and BSLD approved technical standards and shall be provided by SCS.
2.7 Additional Equipment. If requested by BSLD, SCS may provide additional
equipment to BSLD, including but not limited to, modems, terminations, and
other ancillary equipment. BSLD is responsible
Bell South Long Distance
BSLD Proprietary Information
RESTRICTED
<PAGE> 50
for paying charges agreed to by the parties prior to the time of installation.
Title to all equipment provided by SCS as part of this license resides at all
times with the SCS.
2.8 Fraud Monitoring. SCS shall monitor ports designated to BSLD for
fraudulent and illegal use to the same standards that are used to manage SCSs
traffic. SCS shall be liable for all fraudulent and illegal usage of SCS's
telecommunications equipment. SCS agrees to indemnify and hold BSLD harmless
for any such fraudulent or illegal use. SCS is responsible and liable for all
fraud incidence, maintenance and management, unless caused by BSLD or BSLD
Customer.
2.9 Emergencies and Instructions. In case of interruption of any services
furnished hereunder, SCS shall use commercially reasonable efforts under the
circumstances to restore service or if SCS elects, equivalent service may be
substituted.
2.10 Retention of Title. SCS shall retain title to all of its equipment and
facilities used to provide services under the License.
2.11 BSLD Access to SCS Premises. SCS is responsible for arranging premises
access at any reasonable time so that BSLD personnel may, inspect Service
components. Premises access must be made available at a time mutually agreeable
to SCS and BSLD.
SECTION 3. MONTHLY PAYMENTS
3.2 Set-up Charge. SCS may charge a one-time Switch Set-up charge to be paid
by BSLD at the signing of Amendment No. 1. The initial one-time Switch Set-up
charge shall not exceed * (see Appendix B) per T-1 port and shall be due prior
to the commencement of any installation work associated with the additional
ports.
3.3 Monthly Payments. BSLD agrees to pay in advance to SCS each month during
the term of the Agreement, the payment (a "Monthly License Payment") set forth
in Appendix B to this License attached hereto. SCS's invoices for amounts
payable hereunder shall be mailed on the tenth (10th) day of the month
preceding the month for which Monthly License Payment is due. Invoices are due
upon receipt by BSLD. If any Monthly License Payment remains unpaid by the
fifth business day of the month following the date of the first SCS's invoice
for such payment, such payment shall be subject to a late payment charge equal
to the lesser of (i) [*] of the unpaid balance per month,
or (ii) the maximum rate allowed under applicable state law. SCS shall send
invoices to BSLD at the address listed herein.
BellSouth Long Distance, Inc.
32 Perimeter Center East
Atlanta, GA 30046
Attn: Finance, Angela Sanders
3.4 Rejection of Ports. BSLD may reject, in writing, a port that is not
operating according to industry standards.
SECTION 4. MAINTENANCE, USE AND ALTERATION OF THE PREMISES
4.1 Alterations. SCS shall use reasonable care in maintaining the Premises
based on industry standards. Any alteration performed by BSLD, e.g., the
construction of conduits for purposes of building interconnection, shall be
done using reasonable care and shall become SCS's property, upon the
termination of the Agreement. Any alteration performed by SCS e.g. the
construction of conduit for the
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BellSouth Long Distance
Proprietary Information
RESTRICTED
<PAGE> 51
purpose of building interconnection, shall be done using reasonable care and
will be billed on the basis of time and materials for work performed.
4.2 Access. BSLD shall have dial-in and dedicated access to a system that
provides the ability to view but not modify or change billing data and displays
operational measurements of the Dedicated Switch Partition at all times, except
during mandatory routine maintenance procedures. View only parameters will be
defined at a later date. Fully supervised, physical access to the SCS's site
may be arranged on an appointment basis.
SECTION 5 EFFECTIVENESS AND TERMINATION
5.1 Term. The term of the License shall be the same as the term of the
Agreement.
5.2 Effect of Termination. Upon the expiration or termination of the
Agreement, the License shall no longer have any force or effect and neither
party shall have any further obligations hereunder.
5.3 Other Termination. If any state or federal governmental agency or
authority with jurisdiction over the parties determines that the provision of
the services under the Agreement or the License is contrary to existing laws,
rules, or regulations, either part may terminate the Agreement without penalty.
SECTION 6 GENERAL
6.1 Entire Agreement. The License established in this Exhibit 6, the Annexes
attached hereto, and the non-conflicting terms and conditions of the Agreement
constitute the entire agreement of the parties with respect to the subject
matter hereof and supersede all prior written or oral agreements, proposals,
representations, statements or understandings. No subsequent agreement between
SCS and BSLD concerning the License provided pursuant to this Exhibit 6 and the
Agreement shall be effective or binding unless it is made in writing by an
authorized representative of SCS and an authorized representative of BSLD, and
no representation, promise, inducement or statement of intention has been made
by either party which is not embodied herein.
Bell South Long Distance
BSLD Proprietary Information
RESTRICTED
<PAGE> 52
APPENDIX A TO EXHIBIT 6
SERVICES
SERVICE DESCRIPTION
Domestic and International Service. The network arrangements for
originating access shall be by Dedicated or Switched Access Lines. When
dedicated access is available from a local network, then SCS will
coordinate the ordering, installation, and testing of and maintain the
local loop or facility to the LEC's network or other mutually acceptable
provider. If dedicated access is ordered in conjunction with a Facility
Provider back-haul facility, then BSLD will serve as the liaison in
coordinating the ordering, provisioning and maintenance of all lines with
Facility Provider and will assume all related charges. When Baseline
service terminates into a local network hubbing facility with
interconnection into the SCS's switch, SCS will order, install, test and
maintain -- only the loop -- from the local network, and will provide
coordination for the Facility Provider's facility in cooperation with BSLD.
Bell South Long Distance
BSLD Proprietary Information
RESTRICTED
<PAGE> 53
APPENDIX B TO EXHIBIT 6
PRICE
1. Subject to the terms set forth above and upon set-up of BSLD's switch
partition at SCS's premises located at 712 1/2 SW 12th Portland, OR 97205,
BSLD shall pay for T-1 ports according to the pricing schedule shown below.
<TABLE>
<CAPTION>
Monthly
Non-Recurring Recurring
------------- ---------
<S> <C> <C>
Partition Setup Fee [*] [*]
Fee per T-1 [*] [*]
(Equivalent Fee Per Port) [*] [*]
</TABLE>
Included in the Monthly License Payment is the following: Call Detail
Record in ASCII format, least cost routing, and SS7 messaging. In the event
that Least Cost Routing will include traffic routed over the SCS network,
billing will be submitted to BSLD at mutually agreed contracted rates.
At BSLD's option and for the life of the Agreement, BSLD may purchase
additional T-1 ports the rate shown in APPENDIX B.1 above.
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[*] Information redacted pursuant to a confidential treatment request
throughout this exhibit.
BellSouth Long Distance
Proprietary Information
RESTRICTED
<PAGE> 54
BS_Rate_Difference
<TABLE>
<CAPTION>
ST GRP LEC OLD RATE NEW RATE DIFF
- -- --- --- -------- -------- ----
<S> <C> <C> <C> <C> <C>
AK 3 GTE [*] [*] [*]
AK 7 LEC OTHER [*] [*] [*]
AL 1 BELL SOUTH [*] [*] [*]
AL 3 GTE [*] [*] [*]
AL 7 LEC OTHER [*] [*] [*]
AR 1 SWBT [*] [*] [*]
AR 3 GTE [*] [*] [*]
AR 4 ALL TEL [*] [*] [*]
AR 5 CENTURY [*] [*] [*]
AR 7 LEC OTHER [*] [*] [*]
AZ 1 US WEST [*] [*] [*]
AZ 4 CITIZENS [*] [*] [*]
AZ 7 LEC OTHER [*] [*] [*]
CA 1 PACIFIC TELESIS [*] [*] [*]
CA 3 GTE [*] [*] [*]
CA 4 CONTEL/CA [*] [*] [*]
CA 7 LEC OTHER [*] [*] [*]
CO 1 US WEST [*] [*] [*]
CO 4 PTI [*] [*] [*]
CO 7 LEC OTHER [*] [*] [*]
CT 1 SNET [*] [*] [*]
CT 2 NYNEX [*] [*] [*]
CT 7 LEC OTHER [*] [*] [*]
DC 1 BELL ATL [*] [*] [*]
DC 7 LEC OTHER [*] [*] [*]
DE 1 BELL ATL [*] [*] [*]
DE 7 LEC OTHER [*] [*] [*]
FL 1 BELL SOUTH [*] [*] [*]
FL 2 SPRINT LTD [*] [*] [*]
FL 3 GTE [*] [*] [*]
FL 7 LEC OTHER [*] [*] [*]
GA 1 BELL SOUTH [*] [*] [*]
GA 4 ALLTEL [*] [*] [*]
GA 7 LEC OTHER [*] [*] [*]
GU 1 GUAM TEL [*] [*] [*]
HI 3 GTE [*] [*] [*]
HI 7 LEC OTHER [*] [*] [*]
IA 1 US WEST [*] [*] [*]
IA 3 GTE [*] [*] [*]
IA 4 CEA-INS [*] [*] [*]
IA 5 ROCHESTER [*] [*] [*]
IA 7 LEC OTHER [*] [*] [*]
ID 1 US WEST [*] [*] [*]
ID 3 GTE [*] [*] [*]
ID 4 CITIZENS [*] [*] [*]
ID 5 CENTURY [*] [*] [*]
ID 7 LEC OTHER [*] [*] [*]
IL 1 AMERITECH [*] [*] [*]
</TABLE>
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Page 1
<PAGE> 55
BS_Rate_Difference
<TABLE>
<CAPTION>
ST GRP LEC OLD RATE NEW RATE DIFF
- -- --- --- -------- -------- ----
<S> <C> <C> <C> <C> <C>
IL 2 SPRINT LTD [*] [*] [*]
IL 3 GTE [*] [*] [*]
IL 4 TCG [*] [*] [*]
IL 7 LEC OTHER [*] [*] [*]
IN 1 AMERITECH [*] [*] [*]
IN 2 SPRINT LTD [*] [*] [*]
IN 3 GTE [*] [*] [*]
IN 7 LEC OTHER [*] [*] [*]
KS 1 SWBT [*] [*] [*]
KS 2 SPRINT LTD [*] [*] [*]
KS 7 LEC OTHER [*] [*] [*]
KY 1 BELL SOUTH [*] [*] [*]
KY 3 GTE [*] [*] [*]
KY 4 CINN BELL [*] [*] [*]
KY 7 LEC OTHER [*] [*] [*]
LA 1 BELL SOUTH [*] [*] [*]
LA 4 CENTURY [*] [*] [*]
LA 7 LEC OTHER [*] [*] [*]
MA 1 NYNEX [*] [*] [*]
MA 2 GRANBY TEL [*] [*] [*]
MA 3 RICHMOND TEL [*] [*] [*]
MA 4 MFS INTELENET [*] [*] [*]
MA 7 LEC OTHER [*] [*] [*]
MD 1 BELL ATL [*] [*] [*]
MD 2 MFS INTELENET [*] [*] [*]
MD 7 LEC OTHER [*] [*] [*]
ME 1 NYNEX [*] [*] [*]
ME 4 TDS [*] [*] [*]
ME 7 LEC OTHER [*] [*] [*]
MI 1 AMERITECH [*] [*] [*]
MI 3 GTE [*] [*] [*]
MI 4 CENTURY [*] [*] [*]
MI 7 LEC OTHER [*] [*] [*]
MN 1 US WEST [*] [*] [*]
MN 2 SPRINT LTD [*] [*] [*]
MN 3 GTE [*] [*] [*]
MN 4 CEA-MEANS [*] [*] [*]
MN 5 ROCHESTER [*] [*] [*]
MN 7 LEC OTHER [*] [*] [*]
MO 1 SWBT [*] [*] [*]
MO 2 SPRINT LTD [*] [*] [*]
MO 3 GTE [*] [*] [*]
MO 4 ALLTEL [*] [*] [*]
MO 7 LEC OTHER [*] [*] [*]
MS 1 BELL SOUTH [*] [*] [*]
MS 4 CENTURY [*] [*] [*]
MS 7 LEC OTHER [*] [*] [*]
MT 1 US WEST [*] [*] [*]
</TABLE>
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[*] Information redacted pursuant to a confidential treatment request
throughout this exhibit.
BSLD Proprietary Information
RESTRICTED
Page 2
<PAGE> 56
BS_Rate_Difference
<TABLE>
<CAPTION>
ST GRP LEC OLD RATE NEW RATE DIFF
- -- --- --- -------- -------- ----
<S> <C> <C> <C> <C> <C>
MT 4 PTI [*] [*] [*]
MT 5 CITIZENS [*] [*] [*]
MT 7 LEC OTHER [*] [*] [*]
NC 1 BELL SOUTH [*] [*] [*]
NC 2 SPRINT LTD [*] [*] [*]
NC 3 GTE [*] [*] [*]
NC 4 ALLTEL [*] [*] [*]
NC 7 LEC OTHER [*] [*] [*]
ND 1 US WEST [*] [*] [*]
ND 7 LEC OTHER [*] [*] [*]
NE 1 US WEST [*] [*] [*]
NE 2 SPRING LTD [*] [*] [*]
NE 3 GTE [*] [*] [*]
NE 4 LINCOLN [*] [*] [*]
NE 7 LEC OTHER [*] [*] [*]
NH 1 NYNEX [*] [*] [*]
NH 7 LEC OTHER [*] [*] [*]
NJ 1 BELL ATL [*] [*] [*]
NJ 2 SPRINT LTD [*] [*] [*]
NJ 7 LEC OTHER [*] [*] [*]
NM 1 US WEST [*] [*] [*]
NM 3 GTE [*] [*] [*]
NM 7 LEC OTHER [*] [*] [*]
NV 1 PACIFIC TELESIS [*] [*] [*]
NV 2 SPRINT LTD [*] [*] [*]
NV 4 CONTEL/CA [*] [*] [*]
NV 5 CITIZENS [*] [*] [*]
NV 7 LEC OTHER [*] [*] [*]
NY 1 NYNEX [*] [*] [*]
NY 4 TCG [*] [*] [*]
NY 5 ROCHESTER [*] [*] [*]
NY 6 CITIZENS [*] [*] [*]
NY 7 LEC OTHER [*] [*] [*]
OH 1 AMERITECH [*] [*] [*]
OH 2 SPRINT LTD [*] [*] [*]
OH 3 GTE [*] [*] [*]
OH 4 CINN BELL [*] [*] [*]
OH 5 ALLTEL [*] [*] [*]
OH 6 CENTURY [*] [*] [*]
OH 7 LEC OTHER [*] [*] [*]
OK 1 SWBT [*] [*] [*]
OK 3 GTE [*] [*] [*]
OK 4 ALLTEL [*] [*] [*]
OK 7 LEC OTHER [*] [*] [*]
OR 1 US WEST [*] [*] [*]
OR 2 SPRINT LTD [*] [*] [*]
OR 3 GTE [*] [*] [*]
OR 4 PTI [*] [*] [*]
</TABLE>
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Page 3
<PAGE> 57
BS_Rate_Difference
<TABLE>
<CAPTION>
ST GRP LEC OLD RATE NEW RATE DIFF
- -- --- --- -------- -------- ----
<S> <C> <C> <C> <C> <C>
OR 7 LEC OTHER [*] [*] [*]
PA 1 BELL ATL [*] [*] [*]
PA 2 SPRINT LTD [*] [*] [*]
PA 3 GTE [*] [*] [*]
PA 4 ALLTEL [*] [*] [*]
PA 7 LEC OTHER [*] [*] [*]
RI 1 NYNEX [*] [*] [*]
RI 7 LEC OTHER [*] [*] [*]
SC 1 BELL SOUTH [*] [*] [*]
SC 2 SPRINT LTD [*] [*] [*]
SC 3 GTE [*] [*] [*]
SC 4 ALLTEL [*] [*] [*]
SC 7 LEC OTHER [*] [*] [*]
SD 1 US WEST [*] [*] [*]
SD 4 CEA-SDN [*] [*] [*]
SD 7 LEC OTHER [*] [*] [*]
TN 1 BELL SOUTH [*] [*] [*]
TN 2 SPRINT LTD [*] [*] [*]
TN 4 TDS [*] [*] [*]
TN 5 CITIZENS [*] [*] [*]
TN 7 LEC OTHER [*] [*] [*]
TX 1 SWBT [*] [*] [*]
TX 2 SPRINT LTD [*] [*] [*]
TX 3 GTE [*] [*] [*]
TX 7 LEC OTHER [*] [*] [*]
UT 1 US WEST [*] [*] [*]
UT 4 CITIZENS [*] [*] [*]
UT 7 LEC OTHER [*] [*] [*]
VA 1 BELL ATL [*] [*] [*]
VA 2 SPRINT LTD [*] [*] [*]
VA 3 GTE [*] [*] [*]
VA 7 LEC OTHER [*] [*] [*]
VT 1 NYNEX [*] [*] [*]
VT 2 HYPERION [*] [*] [*]
VT 4 TDS [*] [*] [*]
VT 7 LEC OTHER [*] [*] [*]
WA 1 US WEST [*] [*] [*]
WA 2 SPRINT LTD [*] [*] [*]
WA 3 GTE [*] [*] [*]
WA 4 PTI [*] [*] [*]
WA 7 LEC OTHER [*] [*] [*]
WI 1 AMERITECH [*] [*] [*]
WI 3 GTE [*] [*] [*]
WI 4 CENTURY [*] [*] [*]
WI 5 PTI [*] [*] [*]
WI 6 TDS [*] [*] [*]
WI 7 LEC OTHER [*] [*] [*]
WV 1 BELL ATL [*] [*] [*]
</TABLE>
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<PAGE> 58
BS_Rate_Difference
<TABLE>
<CAPTION>
ST GRP LEC OLD RATE NEW RATE DIFF
- -- --- --- -------- -------- ----
<S> <C> <C> <C> <C> <C>
WV 4 [*] [*] [*] [*]
WV 7 [*] [*] [*] [*]
WY 1 [*] [*] [*] [*]
WY 2 [*] [*] [*] [*]
WY 4 [*] [*] [*] [*]
WY 7 [*] [*] [*] [*]
</TABLE>
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Page 5
<PAGE> 1
EXHIBIT 10.12
[QWEST LOGO]
SWITCHLESS RESELLER AGREEMENT
THIS SWITCHLESS RESELLER AGREEMENT (this "Agreement") is entered into by and
between Qwest Communications Corporation ("Qwest"), with principal offices at
4250 North Fairfax Drive, Arlington, Virginia 22203 and Shared Communications
Services, Inc. (the "Customer"), an authorized and certificated common carrier
subject to the Communications Act of 1934, as amended, with principal offices
at 3723 Fairview Industrial Drive, SE., Salem, Oregon 97302 (Qwest and Customer
are sometimes referred to herein collectively as the Parties and individually
as the Party).
1. SCOPE OF AGREEMENT
Qwest will provide to Customer and Customer will purchase from Qwest
certain Qwest domestic and international long distance services
described in the Exhibits hereto (the "Service" or "Services") provided
pursuant to Qwest/LCI Tariff F.C.C. No. 1, Qwest/LCI Tariff F.C.C. No.
2, and applicable state tariffs (collectively, "Tariff(s)"), which are
on file with the Federal Communications Commission ("FCC") and
applicable state regulatory bodies. The Tariffs may be modified from
time to time by Qwest in accordance with law and thereby affect the
Service(s) furnished Customer. To the extent applicable to the
furnishing of Qwest Services hereunder, the Tariff, as amended from time
to time, is hereby incorporated herein and made a part hereof, except
that the following terms and conditions shall supplement or, to the
extent inconsistent, supersede Tariff terms and conditions and shall
remain in effect throughout the service term, as hereinafter defined.
2. MONTHLY MINIMUM COMMITMENT
Along with all other services Customer procures and uses from Qwest,
including those under a certain Carrier Service Agreement, Customer's
Monthly Revenue shall equal or exceed [*] each billing month under the
term of this Agreement following a [*] (collectively, the "Monthly
Commitment") under and during the Term of this Agreement. "Monthly
Revenue" shall mean Customer's total monthly recurring and usage
charges, after applicable discounts are applied, for Qwest services
outlined in Exhibit A based upon rates shown therein and applied in
accordance with Section 3 of this Agreement, exclusive of taxes,
surcharges, and installation charges. In the event Customer fails to
meet its Monthly Commitment in any month under this Agreement Customer
will be required to pay the shortfall between that Monthly Commitment
and the actual Monthly Revenue incurred by Customer.
3. SERVICE RATES AND TERMS
(A) Qwest service rates and terms are shown and described in Exhibit A.
All discounts will be calculated based on total domestic and
international usage and are applied to interstate usage charges, except
the discount may not exceed the total interstate usage charge incurred
in any month. If Customer does not maintain its Monthly Commitment as
set forth above, the terms and conditions of Exhibit A shall apply.
- --------------------
[*] Information redacted pursuant to a confidential treatment request
throughout this exhibit.
QWEST CONFIDENTIAL AND PROPRIETARY
1
<PAGE> 2
SWITCHLESS RESELLER AGREEMENT
(B) Qwest reserves the right to change international rates upon five (5)
calendar days notice and, domestic rates and Services described herein
and in Exhibit A at any time upon thirty (30) calendar days prior
written notice. Rate decreases and the offering of additional services
may, in Qwest's sole discretion, be effective immediately upon or as of
a date specified in a written notification to the Customer.
(C) In the event that any regulatory agency, legislative body or court
of competent jurisdiction promulgates regulations or modifies existing
ones including, without limitation, regulations regarding payphone
compensation, access charges and/or universal service ("Regulatory
Activity"), Qwest reserves the right, at any time and upon written
notice, to: (i) pass through to Customer all, or a portion of, any
charges or surcharges directly or indirectly related to such Regulatory
Activity; or (ii) modify the rates, including any rate guarantees,
and/or other terms and conditions contained in this Agreement and/or the
Tariff to reflect the impact of such Regulatory Activity.
(D) Rates for Private Line Services and Services requiring dedicated
access do not include installation, access and access-related charges,
which are additional.
(E) Customer shall pay all applicable federal, state and local taxes and
surcharges unless and until Customer submits valid tax exemption
certificates for an applicable tax. Credits or refunds of tax payments
will not be issued to Customer for usage prior to the submission of tax
exemption certificates.
(F) Customer shall have the right to terminate this Agreement, in whole
or in part, in the event of any material increase in rates for Services
utilized by Customer, without penalty or fee.
4. CUSTOMER SERVICE AND BILLING
(A) Customer acknowledges and agrees that it shall provide all
billing, inquiry, and customer service to its own customers or
end-users (the "End-Users"). Qwest shall only be obligated to
provide customer service and services to Customer.
(B) Qwest will use commercially reasonable efforts to provide
accurate bills and call detail to Customer on a monthly basis.
The billing formats will be those available from time to time by
Qwest, and are subject to change. There may be additional
charges for certain billing formats requested by Customers.
5. REPRESENTATION
Customer shall not use any trademark, service mark, brand name or any
other intellectual property of Qwest or any Qwest affiliate without
Qwest's prior written consent. In no event shall Customer represent or
state to End Users or prospective End Users that it has any relationship
with Qwest other than an agreement to resell Qwest's services. Customer
shall promptly and fully cooperate with Qwest to address and
resolve all issues, problems, administrative procedures, End User
complaints, regulatory investigations or inquiries, or any other
circumstances arising from Customer's use or resale of Qwest Services.
6. FINANCIAL RESPONSIBILITY, PAYMENT AND SECURITY
Customer acknowledges that the Qwest invoices for services used by
Customer (the "Invoices") are due upon receipt. Any payment received by
Qwest later than thirty (30) calendar days after the
QWEST CONFIDENTIAL AND PROPRIETARY
2
<PAGE> 3
SWITCHLESS RESELLER AGREEMENT
date of the invoice (the "Due Date") shall be subject to an interest
charge on delinquent amounts at the rate of [*] of the late payment per
month or the maximum lawful rate allowable under applicable state law,
whichever is lower. Any applicable federal, state or local use, excise,
sales or privilege taxes, duties, levies or similar liabilities,
chargeable to or against Qwest because of the Service provided Customer
shall also be charged to and payable by Customer. If full payment is not
made when due, Qwest, in its sole discretion, shall have the right, after
Qwest has given written notice to Customer, to suspend all or any part of
the Service until such time as Customer has paid all unpaid balances
(including interest), or to terminate all or any part of the Service.
During any such suspension, and upon any such termination, no service
interruption shall be deemed to occur. Customer acknowledges that it may
not withhold any sums invoiced by Qwest for actual calls made by Customer
including, without limitation, calls made by Customer's End Users and/or
unauthorized third Parties (e.g., fraudulent calls) and charges to
Customer's Qwest account(s). Customer will be responsible for full payment
of all charges as reflected on any Qwest billing statement. Independent of
Customer's payment obligations set forth in this section, Customer must
notify Qwest within sixty (60) days of the invoice date of any contested
or disputed amount concerning charges as they appear on the Qwest billing
statement. Customer's notification of any contested or disputed amount
must be in writing and sent to: 4650 Lakehurst Court, Dublin, Ohio 43017
or to (614) 798-6460 by facsimile with duplicate notification to follow
via regular U.S. Mail or overnight delivery. Written notification must be
accompanied with a detailed written support, for any service interruption
credit or other credit to which Customer believes itself entitled, and
Qwest and Customer will promptly address and attempt to resolve the claim.
Qwest, in its sole discretion exercised in good faith, may reject such
documentation and/or explanation as inadequate and so notify Customer. The
Customer shall then be entitled to a period of ten (10) additional
business days to provide to Qwest additional documentation. If Qwest
rejects this additional documentation, then the disputed portion of the
bill shall be paid by Customer within ten (10) business days of Customer's
receipt of Qwest's notice of inadequacy. If Qwest and Customer are unable
to resolve any such claim, the matter may be submitted to arbitration
pursuant to Section 26(A) - (E). All credits or adjustments for service
outages will be made pursuant to applicable provisions of Qwest/LCI's
Tariff F.C.C. No. 1 and Tariff F.C.C. No. 2 and applicable state tariffs
which are on file with the Federal Communications Commission and
applicable state regulatory bodies and which may be modified from time to
time by Qwest in accordance with law. In consideration of the discounts
offered by Qwest pursuant to this Agreement, with respect to any unpaid
balance(s) owed by Customer to Qwest, Qwest shall have the right to offset
such unpaid balance(s) from any amounts that Qwest owes to Customer and
any of its affiliates.
(C) Customer shall also provide and/or execute any additional collateral
security document(s), including, an irrevocable letter of credit, a cash
deposit, or a prepaid invoice amount, as may be required by Qwest, in
Qwest's sole and reasonable judgment, if there is a material change in
circumstances of Customer's actual or anticipated usage hereunder or
Customer's financial condition during any time that Customer uses the
Service.
7. TERM
The term of this Agreement shall begin on the Effective Date (defined as
the date this Agreement is signed by an authorized officer of Qwest) and,
subject to Section 2 above, will continue for a period of twelve (12)
months after such date (the "Initial Term"); provided, however, that Qwest
shall execute this Agreement as soon as possible following Customer's
execution hereof, but in no event later than thirty (30) calendar days
following Customer's execution. The Agreement shall be renewed,
thereafter, on a monthly basis ("Renewal Term") at the Qwest standard
rates in effect at the time of renewal until either Party provides the
other Party with at least thirty (30) calendar days prior written notice
of its intent to terminate this Agreement.
QWEST CONFIDENTIAL AND PRIVILEGED
- --------------------
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throughout this exhibit.
3
<PAGE> 4
SWITCHLESS RESELLER AGREEMENT
8. OBLIGATIONS UPON EXPIRATION OR TERMINATION OF TERM OR RENEWAL TERM
Upon expiration or termination of this Agreement, Customer shall pay all
outstanding balances in accordance with Section 6 of this Agreement. Upon
expiration or termination of this Agreement, Customer shall be fully
subject to all terms and conditions, including standard tariffed rates,
set forth in the Qwest/LCI Tariff for services received by Customer after
such date.
9. EARLY TERMINATION
(A) Customer shall have the right to terminate this Agreement during the
initial term upon payment of an amount equal to the [*], or a pro
rata portion thereof for any partial month, for each month remaining
in the Initial Term of this Agreement; notwithstanding the
foregoing, Customer shall not be liable for the early termination
charges set forth herein in the event of an increase of a rate which
materially affects Customer's Services, as set forth under Section
3(A) of this Agreement or if Qwest fails to provide Customer with
accurate billing tapes.
(B) Either Party may terminate this Agreement without liability or
further obligation, except for unpaid charges as of the effective
date of such termination, if Qwest is prohibited from furnishing the
Service or if any material rate or term contained herein is
substantially changed by order of the highest court of competent
jurisdiction to which the matter is appealed, the FCC, or any other
federal, state or local government authority.
(C) In addition, Customer represents, warrants and covenants that it
understands that Qwest may, at any time, with written notice to
Customer but without notice to End User(s), discontinue providing
service to Customer in accordance with the terms of the Qwest/LCI
Tariff and this Agreement and that such discontinuance may result in
termination of service to the End User(s).
(D) Notwithstanding the foregoing, and without affecting Qwest's right
to compensation accrued prior to the termination date, Qwest,
without waiving any rights set forth in this Agreement or the
Qwest/LCI Tariff, retains the right to terminate this Agreement
immediately and without written notice, under any of the following
circumstances:
(i) Customer becomes or is declared insolvent or bankrupt, is the
subject of any proceedings related to its liquidation,
insolvency or for the appointment of a receiver or similar
officer for it, makes an assignment for the benefit of all or
substantially all of its creditors, or enters into an
agreement for the composition, extension, or readjustment of
all or substantially all of its obligations;
(ii) Material change in Customer's ownership without written
consent of Qwest, which consent shall not be unreasonably
withheld; or
(iii) Customer's failure to abide by all terms of Section 6 hereof,
including, without limitation, Customer's failure or refusal
to provide additional security or payment upon Qwest's
request, for any unethical or illegal acts on the part of
Customer, its officers, directors, employees, contractors,
agents, or servants;
QWEST CONFIDENTIAL AND PRIVILEGED
- --------------------
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4
<PAGE> 5
SWITCHLESS RESELLER AGREEMENT
(iv) for any Customer breach of a material term or provision of
this Agreement. Termination of this Agreement shall not affect
Qwest's right to compensation accrued prior to the termination
date; or
(E) Customer may terminate this Agreement without termination fee or
charge upon Qwest's material breach of its obligations under this
Agreement.
10. Default
It shall be a default under this Agreement, if Customer fails to pay Qwest
in accordance with Section 6 of this Agreement. Upon default under this
Section 10, Qwest shall be entitled to all rights and remedies under the
Qwest/LCI Tariff and other applicable law in addition to all rights and
remedies available to Qwest under this Agreement.
11. Liability
(A) OTHER THAN AS SET FORTH IN QWEST'S TARIFFS, IN NO EVENT SHALL QWEST,
ITS AFFILIATES OR ITS CONTRACTORS BE LIABLE TO CUSTOMER OR ANY OTHER
PERSON, FIRM OR ENTITY IN ANY OTHER RESPECT, FOR ANY DAMAGES, EITHER
DIRECT, INDIRECT, CONSEQUENTIAL, SPECIAL, INCIDENTAL, ACTUAL, OR PUNITIVE
DAMAGES, OR FOR ANY LOST PROFITS OF ANY KIND OR NATURE WHATSOEVER EVEN IF
FORESEEABLE, ARISING OUT OF ANY MISTAKE, ACCIDENT, ERROR, OMISSION,
INTERRUPTION, OR DEFECT IN TRANSMISSION, OR DELAY ARISING OUT OF OR
RELATING TO THE SERVICES OR THE OBLIGATIONS OF QWEST PURSUANT TO THIS
AGREEMENT AND ANY EXHIBITS THERETO INCLUDING, WITHOUT LIMITATION, ANY
FAILURE TO PROVIDE BILLING TAPES WHICH ARE COMPATIBLE WITH CUSTOMER'S
BILLING SYSTEM(S), OR ANY FAILURE TO TIMELY OR ACCURATELY PROVISION OR
INSTALL ANY PORTION OF THE SERVICES, OR CONDITIONS WHICH MAY RESULT FROM
ACTIONS BY REGULATORY OR JUDICIAL AUTHORITIES OR OTHER CARRIERS THAT QWEST
RELIES ON TO PROVIDE SERVICE TO CUSTOMER. QWEST MAKES NO WARRANTY WHETHER
EXPRESS, IMPLIED OR STATUTORY, AS TO THE DESCRIPTION, QUALITY,
MERCHANTABILITY, COMPLETENESS OR FITNESS FOR ANY PURPOSE OF THE SERVICE OR
LOCAL ACCESS OR AS TO ANY OTHER MATTER, ALL OF WHICH WARRANTIES BY QWEST
ARE HEREBY EXCLUDED AND DISCLAIMED. FOR PURPOSES OF THIS SECTION, THE TERM
"QWEST" SHALL BE DEEMED TO INCLUDE QWEST, ITS EMPLOYEES, OFFICERS,
DIRECTORS AND AFFILIATES, AND ANY PERSON OR ENTITY ASSISTING QWEST IN ITS
PERFORMANCE OR OBLIGATIONS UNDER THIS AGREEMENT.
(B) If necessary to provision the Qwest Services to Customer, Qwest will
install orders of Customer into the Qwest account system. Such
installation shall be within a reasonable time and after receipt of such
order by Qwest from Customer. Such installation may be by direct data
transfer from Customer into the Qwest system or may be by manual
installation. In the normal course of its business, Qwest will notify the
Local Exchange Carrier ("LEC") of the orders that have been installed into
the Qwest system. If the records of the LEC and those supplied to Qwest by
Customer do not coincide in every respect, the LEC may reject the order
installation from Qwest. In such event, if the End User has converted to
Qwest service by the LEC for another reason, the End User will be billed
by the LEC for any use of Qwest telecommunications services, the End User
will receive Qwest Services at Qwest standard tariffed rates, and Qwest
will receive the revenue from any use of the Qwest Services. If the LEC,
for whatever reason, has not
QWEST CONFIDENTIAL AND PRIVILEGED
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<PAGE> 6
SWITCHLESS RESELLER AGREEMENT
designated Qwest as each End User's PIC, the End User will be billed in
accordance with the records of the LEC. The Parties will use reasonable
efforts to notify the other Party of any rejection of order installation
by the LEC. Customer is responsible for determining the correct
information for reinstallation of the order. Customer shall protect,
indemnify, defend, and hold harmless Qwest from and against any claim of
any person or entity regarding PIC changes or the failure to effect PIC
changes. Customer understands that Qwest shall have no liability for any
acts or omissions of LECs, including the making or failure to make PIC
changes.
12. Relationship
Neither Party shall have authority to bind the other by contract or
otherwise make any representations or guarantees on behalf of the other.
Both Parties acknowledge and agree that the relationship arising from this
Agreement does not constitute an agency, joint venture, partnership,
employee relationship or franchise. Customer acknowledges and agrees that
it is an independent contractor.
13. Assignment or Sale
This Agreement shall be binding on Qwest and Customer and their respective
affiliates, successors, and assigns. Customer shall not assign, sell or
transfer this Agreement or the right to receive the Services provided
hereunder, whether by operation of law or otherwise, without the prior
written consent of Qwest. Qwest may terminate this Agreement in the event
of a change in control of Customer without Qwest's prior written consent,
which consent shall not be unreasonably withheld by Qwest.
14. PIC Authorizations
(A) Customer shall obtain a signed or verbal interexchange carrier
("PIC") authorization with true third Party verification and
archived recordings according to state or FCC guidelines for each
ANI ordered by Customer. Upon an oral or written request by Qwest,
Customer shall immediately produce a copy of the written or verbal
authorization. Qwest reserves the right not to process or turn up
ANIs until Customer has produced appropriate written or verbal
authorizations requested by Qwest. If Customer does not comply with
the request for PIC authorizations, Qwest reserves the right not to
accept additional ANIs until Customer complies.
(B) If Customer elects to provide only direct dial (or so-called "1+")
services, and Qwest will act as the interexchange carrier ("IXC")
for operator-assisted (or so-called "0+") traffic generated by
Customer's end users, Customer agrees where appropriate to inform
its end users that it:
(i) designates Qwest as its primary carrier for 0+ operator assisted
intraLATA long distance services;"
(ii) designates Qwest as its primary carrier for 0+ operator
assisted interLATA long distance services;" or
(iii) designates Qwest as its primary carrier for 0+ operator
assisted intraLATA and interLATA long distance services."
QWEST CONFIDENTIAL AND PRIVILEGED
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<PAGE> 7
SWITCHLESS RESELLER AGREEMENT
(C) in the event an LEC or any regulatory entity assesses Qwest any
charge, fine, forfeiture, or fee for improper or inadequate PIC
authorizations relating to Customer's service, Customer shall
promptly reimburse Qwest for all such charges plus a Qwest
management fee of [*] per ANI ordered by Customer that is deemed to
lack proper service authorization or PIC verification.
(D) Upon the request of Qwest, Customer shall promptly provide to Qwest
or the LEC, at Customer's expense, any documentation required by the
LEC regarding PIC selections or authorizations from Customer's End
Users. In addition, Customer shall promptly and in good faith
cooperate with Qwest and all LECs in investigating and attempting to
resolve all PIC selection and authorization disputes.
15. Reporting Requirements
Where reporting obligations or requirements are imposed upon Qwest
by any third Party or regulatory agency that can be satisfied by
Customer, Customer agrees to comply with such requirements and
obligations and to hold Qwest harmless for any failure of compliance
with any such requirement or obligation.
16. Governing Law, Certifications and Warranties
(A) Customer understands that Qwest in conducting its business in the
manner set forth herein, is subject to the Communications Act of
1934, as amended, and as interpreted and applied by the Federal
Communications Commission. All terms of this Agreement not subject
to the Communications Act of 1934 as amended and as interpreted and
applied by the Federal Communications Commission will be interpreted
according to New York law, without regard to its conflicts of law
provisions. Any cause of action Customer may have with respect to a
breach of this Agreement must be commenced within one (1) year after
the claim or cause of action arises or such claim or cause of action
is barred.
(B) If service is provided solely within a single state in a manner
which subjects the Service to regulation by such state, then the
terms and conditions of such Service and of this Agreement shall be
subject to such regulations and to any Agreement to this Agreement
relating thereto which is delivered by Qwest to Customer. Customer
shall have the right to terminate this Agreement within ten (10)
days of receipt of such Agreement without further liability
hereunder.
(C) Customer certifies and warrants that it is in compliance with and
will continue to be in compliance with all international, federal,
state and local laws and regulations relating to its performance
under this Agreement. Customer is solely responsible for obtaining
all licenses, approvals, and regulatory authority for its operation
and the provision of services to its End Users. Any breach of the
obligations of Customer under this Section shall be a material
breach of this Agreement. If Customer does not comply with this
Section, in addition to any remedies available to Qwest at law or in
equity, Qwest, in its sole discretion, may elect to decline to
accept additional orders under this Agreement or may immediately
terminate this Agreement without further liability or obligation to
Customer.
(D) The Services are provided on an "as is" and "as available" basis
without warranties of any kind, either express or implied.
QWEST CONFIDENTIAL AND PRIVILEGED
- --------------------
[*] Information redacted pursuant to a confidential treatment request
throughout this exhibit.
7
<PAGE> 8
SWITCHLESS RESELLER AGREEMENT
17. Terms and Conditions Surviving Termination or Expiration of Agreement
The terms and conditions of the Qwest/LCI Tariff along with Section 6, 10,
11, 12, 16, 18, 25, 26 and any provision hereof, which, by its context is
intended to survive the termination or expiration hereof, shall also
survive. Additionally, any obligation to hold harmless and indemnify a
Party hereunder shall survive the termination or expiration of this
Agreement.
18. Indemnification
Customer shall protect, defend, hold harmless, and indemnify Qwest from
and against any claims, actions, damages, liabilities, costs, judgments or
expenses (including attorney fees) arising out of (i) the resale or
reselling of the Service, including but not limited to the provision or
termination of service by Customer to End Users and any failure to provide
service; (ii) any breach by Customer of any warranty, representation,
obligation or covenant hereunder; (iii) and any instance of an
unauthorized PIC change commonly referred to as "slamming" or failure to
obtain a properly executed LOA as required by Section 14(B) herein.
19. Cancellation, Blocking and Disconnect of Service
Without affecting Customer's minimum usage or other obligations herein,
Customer may cancel, disconnect, or terminate a portion of the Service
when Customer's End User has provided a new PIC authorization to another
carrier. Customer shall be financially responsible for Service provided
under this Agreement until such time that the new PIC change is
implemented. In the event Customer requests that an ANI be blocked from
Qwest Services, Customer must certify that the request for blocking is due
to an End User account being past due and delinquent and the End User has
been properly notified.
20. Nondisclosure
Neither Party shall disclose to any third Party during the term of this
Agreement and during the two (2) year period immediately following
termination of this Agreement, any of the terms and conditions set forth
in this Agreement unless disclosure is required by any state or federal
governmental agency, otherwise required to be disclosed by law, or is
necessary in any proceeding establishing rights or obligations under this
Agreement. Each Party reserves the right to terminate this Agreement, upon
written notification, of any disclosure prohibited hereunder.
21. Non-Bell Usage Surcharge
Customer will originate at least [*] of Customer's total usage of the
Service in a tandem owned and operated by a Regional Bell Operating
Company (RBOC) and subject to such RBOC's tariffed access charges. Qwest
will apply a surcharge of [*] per minute of use to the number of minutes
by which Non-RBOC originations exceed [*] of Customer's total usage of
the Service.
22. Amendments
The Agreement, together with all Exhibits, represents the entire
understanding of the Parties as it pertains to the subject matter herein.
Any and all prior offers, agreements, representations and understandings,
whether oral or written, shall be superseded by this Agreement. Exclusive
of any Tariff modifications initiated by Qwest, once this Agreement has
been fully executed, any
QWEST CONFIDENTIAL AND PRIVILEGED
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[*] Information redacted pursuant to a confidential treatment request
throughout this exhibit.
8
<PAGE> 9
SWITCHLESS RESELLER AGREEMENT
amendment hereto must be made in writing and signed by authorized
representatives of both Parties.
23. Waiver
Qwest's failure to insist upon or enforce strict performance of any
provision of this Agreement shall not be construed as a waiver of any
provision or right. Neither the waiver by either of the Parties hereto of
a breach or a default under any provisions of this Agreement, nor the
failure of either of the Parties, on one or more occasions, to enforce any
of the provisions of this Agreement or to exercise any right or privilege
hereunder shall thereafter be construed as a waiver of any subsequent
breach or default of a similar nature, or as a waiver of any of such
provisions, right, or privileges hereunder. Neither the course of conduct
between Parties nor trade practice shall act to modify any provision of
this Agreement.
24. Notice
Except when actual receipt is expressly required by the terms hereof, all
notices, demands, requests, elections or other communications herein
provided to be given or which may be given by one Party to another Party
shall be made in writing and is considered given either (i) when delivered
by facsimile service to the phone number listed below with duplicate
notification sent via regular U.S. Mail or overnight delivery and; (ii)
when delivered in person to the recipient named below; or (iii) after
deposit in the United States mail in a sealed envelope or container,
either registered or certified mail, return receipt requested, postage
prepaid; or (iv) the day after delivery to the courier if sent via
overnight courier service, addressed by name and address to the Party or
person intended as follows:
To Customer: Shared Communications Services, Inc.
3723 Fairview Industrial Drive, S.E.
Salem, Oregon 97302
Facsimile #: (503) 316-4467
Attention: Mr. Lance Stapleton, Vice, President
To Qwest: General Counsel
Qwest Communications Corporation
4250 North Fairfax Drive
Arlington, VA 22203
Facsimile #: (703) 363-3750
Any Party may at any time change its address or facsimile number for
notification purposes by giving the other Party prior written notice as
provided in this Section by setting forth the new address and the date on
which it will become effective. Either Party may require, by prior written
notice given at any time or from time to time, subsequent notices to be
given to another individual person, whether a Party or an officer or
representative, or to a different address, or both; provided, however,
that a P.O. Box shall not be considered to be an address for purposes of
this Agreement.
QWEST CONFIDENTIAL AND PRIVILEGED
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SWITCHLESS RESELLER AGREEMENT
25. SEVERABILITY
In the event that any one or more of the provisions contained in this
Agreement shall for any reason be held to be invalid, illegal or
unenforceable in any respect, such invalidity, illegality or
unenforceability shall not affect any other provision of this Agreement,
but this Agreement shall be construed as if such invalid, illegal or
unenforceable provision had never been contained herein. Further, in the
event that any provision of this Agreement shall be held to be invalid,
illegal or unenforceable by virtue of its scope or period of time, but may
be made enforceable by a limitation thereof, such provision shall be
deemed to be amended to the minimum extent necessary to render it valid,
legal and enforceable or in the alternative both Parties shall negotiate
in good faith to substitute for such invalid, illegal, or unenforceable
provision a mutually acceptable provision that is consistent with the
original intent of the Parties. The remainder of the provisions shall
remain in full force and effect.
26. ARBITRATION OF DISPUTES
(A) Any dispute arising out of this Agreement relating to Qwest invoices
or balances owed by Customer to Qwest for Services rendered, which
cannot be resolved between the Parties, shall be settled by binding
arbitration at the office of the American Arbitration Association
("AAA") located in Washington, D.C. or Denver, Colorado, at the
choice of the Party initiating the arbitration. The arbitration
shall be held in accordance with the commercial Arbitration Rules of
the American Arbitration Association ("AAA Rules"), as amended by
this Agreement. Neither Party may seek injunctive relief of any kind
prior to the confirmation of an arbitration award.
(B) Either Qwest or the Customer may initiate arbitration by providing
written demand for arbitration, a copy of this Agreement and the
administrative fee required by the AAA Rules to the AAA, 1150
Connecticut Avenue, 6TH Floor, Washington, DC 20036-4104. A copy of
the notice shall also be provided to the other Party. The remaining
cost of the arbitration, including the fees and expenses of the
arbitrator, shall be shared equally by the Parties unless the
arbitration award provides otherwise. Each Party shall bear the cost
of preparing and presenting its case.
(C) One Arbitrator shall be appointed in accordance with the AAA Rules
within sixty (60) days of the submission of the demand for
arbitration, unless both Parties otherwise agree in writing. The
Arbitrator shall designate the time and place in the Washington, DC
area for the hearing within thirty (30) days of his or her
appointment. Qwest and the Customer agree that the Arbitrator's
authority to grant relief shall be subject to the provisions of this
Agreement, the United States Arbitration Act, ("USAA"), the ABA-AAA
Code of Ethics for Arbitrators in Commercial Disputes, Qwest/LCI
Tariffs, substantive law, and the Communications Act of 1934, as
amended. The Arbitrator shall not be able to award, nor shall any
Party be entitled to receive punitive, incidental, consequential,
exemplary, reliance or special damages, including damages for lost
profits. The Arbitrator's decision shall follow the plain meaning of
the relevant documents, and shall be final, binding, and enforceable
in a court of competent jurisdiction. The decision of the Arbitrator
is appealable only for mistakes of law.
(D) Customer agrees to place One Hundred Per Cent (100%) of any invoiced
sums it disputes into an interest-bearing escrow account pending
completion of the arbitration. Qwest and the Customer agree to
undertake all reasonable steps to expedite the arbitration process.
QWEST CONFIDENTIAL AND PRIVILEGED
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SWITCHLESS RESELLER AGREEMENT
(E) Any dispute not outlined in Section 26(A) and arising out of or
related to this Agreement regardless of the form of action whether
in contract, indemnity, warranty, strict liability, or tort,
including negligence of any kind with regard to Qwest Services or
other conduct under this Agreement may be subject to arbitration
upon the written consent of both Parties.
27. HEADINGS
The headings of sections and subsections used in this Agreement are for
convenience only and are not part of is operative language. They shall not
be used to affect the construction of any provisions hereof.
28. THIRD-PARTIES
The representations, warranties, covenants and agreements of the Parties
set forth in this Agreement are not intended for, nor shall they be for
the benefit of or enforceable by, any person or entity not a Party hereto.
29. ATTACHMENTS AND EXHIBITS
All Attachments and Exhibits annexed to this Agreement are expressly made
a part of this Agreement as fully as though completely set forth in it.
All references to this Agreement shall be deemed to refer to and include
this Agreement and all such Attachments and Exhibits.
30. CUSTOMER AUTHORIZATION
Customer represents that the person executing this Agreement has been duly
authorized by Customer to execute and bind Customer to the terms and
conditions contained herein. Customer, with full knowledge of all terms
and conditions herein, does hereby warrant and represent that the
execution, delivery, and performance of this Agreement are within
Customer's corporate and/or partnership powers, have been duly authorized,
and are not in conflict with law or the terms of any charter or bylaw or
any agreement to which Customer is a Party or by which it is bound or
affected.
IN WITNESS WHEREOF, an authorized representative of each Party has
executed this Agreement effective as of the date of execution by Qwest as set
forth below.
QWEST COMMUNICATIONS CORPORATION SHARED COMMUNICATIONS SERVICES, INC.
By: /s/ JOHN G. MUSCI By: /s/ JEFF RAINES
----------------------------- ---------------------------------
Date: 12/31/98 Date: 12-17-98
----------------------------- ---------------------------------
John G. Musci
Senior Vice President
QWEST CONFIDENTIAL AND PRIVILEGED
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<PAGE> 12
EXHIBIT A1
REQWEST SWITCHLESS RESELLER SERVICE
SWITCHLESS RESELLER SERVICES AGREEMENT
GENERAL
Interstate rates are per state and are for state-wide calling. The applicable
continental US Interstate rate is determined based upon the originating state of
an outbound call or based upon the terminating state of a toll-free inbound
call. Intrastate rates are per State and are for Statewide termination. Domestic
rates shown in the ReQwest Interstate and Intrastate Rate Exhibits are shown in
terms of full minutes and are billed in [*] increments.
International rates are per country and are for country-code wide termination.
International rates shown in the ReQwest International Rate Exhibit, with the
exception of Mexican rates, are shown in terms of a rate per minute and are
billed in [*] increments, with an initial [*] increment. Mexican calls are
billed in [*] increments. Directory Assistance calls are billed [*].
Calling Card rate billing increments vary by originating and terminating points
of the call and are listed in the Calling Card rate exhibit.
Rates shown in the ReQwest Rate Exhibits are Base Rates. Discounts, if any,
pursuant to the below Discounts Section and Discount Schedule.
Qwest reserves the right to charge excessive quantities (ie. [*] of Customer's
total calls) of short duration calls (i.e. calls under [*] in length) a minimum
of [*] per answered call.
ROUNDING
Currently, the ReQwest Switchless Reseller Service utilizes "bulk rounding". For
the purposes of this agreement, bulk rounding is defined as carrying over the
3rd and 4th place amounts of a call charge to the next call, and continuing to
do so until one full cent ($.01) is accrued. When this has occurred, the cent is
applied to the next call. In addition, the ReQwest Switchless Reseller Service
employs [*], which means that all calls are rounded [*], as opposed to [*] (e.g.
initial and incremental).
TOLL FREE SERVICES PORTABILITY
Qwest will provide toll free inbound services to End Users desiring to keep
their current toll free number and under the following condition:
- The End User signs a Letter of Agency designating Qwest as the
Responsible Organization for the toll free number
Qwest will train the Customer on the proper procedures and documentation
required for toll free portability.
Qwest will provide to Reseller Responsible Organization Service and will charge
the following rates:
Monthly Recurring Charge(s)
- --------------------
[*] Information redacted pursuant to a confidential treatment request
throughout this exhibit.
QWEST CONFIDENTIAL AND PROPRIETARY
<PAGE> 13
EXHIBIT A1
REQWEST SWITCHLESS RESELLER SERVICE
SWITCHLESS RESELLER SERVICES AGREEMENT
<TABLE>
<S> <C>
Number Storage Charge: [*] per toll free number
Search/Reservation: No Charge
SMS Data Base Administration: No Charge
</TABLE>
PICC, PAYPHONE COMPENSATION, AND OTHER REGULATORY REFORM
RELATED SURCHARGES
As a result of regulatory reform, certain government subsidies and other
government-imposed charges previously collected through local exchange access
usage rates are assessed directly upon interexchange carriers on a per-line or
per-call basis. The following flat rate charges may apply to Customer's total
charges as a result, and Customer agrees to be responsible for paying for such
fees. These charges will be itemized on the customer's bill and are in addition
to the rates for services, described in the Rates and Discounts portion of
Exhibit A.
- - Payphone Compensation Surcharge: [*] per payphone originated, completed
call will be assessed
- - PICC (Primary Interexchange Carrier Charge): A fee per line presubscribed
to Qwest/LCI that may vary as follows, depending upon line type. These
charges are subject to change.
- [*] for each Single Line Business and Primary Residential line.
- [*] for each Subsequent Residential line.
- [*] for each Multi-Line Business line.
PROJECT ACCOUNT CODES (PAC)
Qwest will provide Project Account Codes for use with Outbound and toll free
inbound services to Customer at the following rates:
- Outbound PAC (charges are per account):
<TABLE>
<S> <C>
Non-Verified PAC set up: [*]
Verified PAC set up: [*]
Non-Verified PAC Monthly Recurring Charges: [*]
Verified PAC Monthly Recurring Charges: [*]
</TABLE>
- Toll Free PAC (charges are per toll free number):
<TABLE>
<S> <C>
Non-Verified PAC set up: [*]
Verified PAC set up: [*]
Non-Verified PAC Monthly Recurring Charges: [*]
Verified PAC Monthly Recurring Charges: [*]
</TABLE>
Customer agrees to be responsible for such charges and to pay for such charges
within thirty (30) calendar days of Qwest's invoice setting forth such charges.
CALLING CARD SERVICES
Qwest Reseller Calling Card Service offers domestic-to-domestic,
domestic-to-international and international origination calling card service
from certain countries with the use of a fourteen digit authorization code,
consisting of 10 digits plus a 4 digit PIN. Customer shall request the
provision, and Qwest shall provide, the Reseller Calling Card Service, through
and in accordance with the completion and submission of Qwest's Calling Card
Order Form and order procedures in effect, as may be changed from time to time.
- --------------------
[*] Information redacted pursuant to a confidential treatment request
throughout this exhibit.
QWEST CONFIDENTIAL AND PROPRIETARY
<PAGE> 14
EXHIBIT A1
REQWEST SWITCHLESS RESELLER SERVICE
SWITCHLESS RESELLER SERVICES AGREEMENT
Qwest's Calling Card Service offers two options with respect to the branding of
the platform:
- - Generic Calling Card Option, and
- - Private-Labeled Calling Card Option.
The Generic Calling Card offers no branding on the platform or in the branding
of Operator Services calls. The Private Labeled version of Qwest's Calling Card
Service offers branding in the Customer's name for the greeting and closing
platform scripts; the request of a Toll Free access number to the platform;
branding of the Operator Services greeting in the Customer's name; and routing
of customer service calls to the Customer's own customer service center.
For both Calling Card Service options, the customer is responsible for all
calling card production, fulfillment, billing, collections, tariffing and
fraudulent use.
CUSTOMIZED GREETING AND CLOSING MESSAGES WITH PRIVATE-LABELED CALLING CARD
SERVICES
On the Private-Labeled Calling Card, the Customer will provide to Qwest a
requested branded message for platform greeting and closing. These branded
messages must be sent to Qwest's Account Management group on a diskette
containing the two pre-recorded customized .wav files. The wav. files must meet
the following specifications:
- - 22,500 Hz, 16-bit Mono
- - greeting and closing message should be saved as two different files
- - submitted to Qwest on a 3.5" diskette
- - leading and trailing noise must be removed
- - One (1) second of silence is required in front of the message and one (1)
second of silence after the message is required to allow for message
queuing on the 8XX recording.
Qwest reserves the right to approve or reject Customer greeting and closing
messages that are to be placed on the platform.
CUSTOMER SERVICE CALL ROUTING WITH PRIVATE-LABELED CALLING CARD SERVICES
On the Private-Labeled Calling Card, Qwest will provide customer service routing
to the Customer's Customer service line for calls originating in the Continental
United States. The customer will be required to provide Qwest with the customer
service routing number on the Calling Card Order Form. Three consecutive
mistakes in number dialing will cause calls to be forwarded to Customer's
Customer Service.
OPERATOR SERVICES BRANDING WITH PRIVATE-LABELED CALLING CARD SERVICES
On the Private-Labeled Calling Card, Customers may opt to customize its operator
services greeting for domestic-originated calling. Greeting content should be
provided by the customer by filling out the appropriate section the Private
Label Travel Card Order Form. Qwest reserves the
QWEST CONFIDENTIAL AND PROPRIETARY
<PAGE> 15
EXHIBIT A1
REQWEST SWITCHLESS RESELLER SERVICE
SWITCHLESS RESELLER SERVICES AGREEMENT
right to approve or reject these greetings prior to submission. Dialing "0" or
15 seconds of dialing unresponsiveness by the card user will cause a call to be
forwarded to operator services.
CALLING CARD SERVICE CHARGES
CALLING CARD NONRECURRING CHARGES
The Customer will pay a platform implementation fee of [*] per Access Number
associated with the Private Labeled Calling Card option to Qwest in accordance
with the agreed-upon payment terms and conditions set forth in the Agreement and
the Calling Card Order Form. This charge shall be credited to subsequent
Customer's invoices from Qwest once Qwest collects payment of Customer's Travel
Card Usage per Access Number billing which exceeds [*].
Customer shall pay to Qwest a nonrefundable service fee of [*] for each
Customer-initiated scripting, greeting or routing change per Access Number after
Qwest's initial set-up of the Customer Calling Card platform.
CALLING CARD OPERATOR SERVICES SURCHARGE
A [*] per call surcharge will be applied to any call that is forwarded to
Operator Services from the calling card platform for all calls originating in
the Continental United States. This charge will be assessed in addition to
metered charges incurred by the call.
INSTALLATION AND MONTHLY CHARGES FOR DEDICATED ACCESS SERVICES
Installation and Monthly Charges associated with dedicated access services will
be billed to Customer, and Customer agrees to pay within thirty (30) calendar
days of the date of Qwest's invoice. These charges include those associated with
local loops, CSU/DSU, channel card, T-1 centrex cards and any other equipment or
services provided by Qwest in order to install, test and maintain dedicated
access lines. Monthly Recurring Charges will be those normally charged to
Customer unless otherwise negotiated by Qwest and customer. Installation charges
will be on an individual case basis.
[*]
- --------------------
[*] Information redacted pursuant to a confidential treatment request
throughout this exhibit.
QWEST CONFIDENTIAL AND PROPRIETARY
<PAGE> 16
EXHIBIT A1
REQWEST SWITCHLESS RESELLER SERVICE
SWITCHLESS RESELLER SERVICES AGREEMENT
[*]
- --------------------
[*] Information redacted pursuant to a confidential treatment request
throughout this exhibit.
QWEST CONFIDENTIAL AND PROPRIETARY
<PAGE> 17
EXHIBIT A1
REQWEST SWITCHLESS RESELLER SERVICE
SWITCHLESS RESELLER SERVICES AGREEMENT
[*]
- --------------------
[*] Information redacted pursuant to a confidential treatment request
throughout this exhibit.
QWEST CONFIDENTIAL AND PROPRIETARY
<PAGE> 18
EXHIBIT A1
REQWEST SWITCHLESS RESELLER SERVICE
SWITCHLESS RESELLER SERVICES AGREEMENT
[*]
- --------------------
[*] Information redacted pursuant to a confidential treatment request
throughout this exhibit.
QWEST CONFIDENTIAL AND PROPRIETARY
<PAGE> 19
Switchless Reseller Agreement
Exhibit A
Services and Rates
[LCI INTERNATIONAL LOGO]
[*]
- --------------------
[*] Information redacted pursuant to a confidential treatment request
throughout this exhibit.
<PAGE> 20
COMPEER A Agreement
Exhibit A
Services and Rates
[LCI INTERNATIONAL LOGO]
SWITCHLESS RESELLER
COMMERCIAL INTERSTATE RATES
<TABLE>
<CAPTION>
SWITCHED DEDICATED
Outbound & Inbound Outbound & Inbound
Base Price Base Price
--------------------- ------------------------
Day Non-Day Day Non-Day
------- ------- ------- -------
<S> <C> <C> <C> <C>
Continental U.S. [*] [*] [*] [*]
</TABLE>
<TABLE>
<CAPTION>
SWITCHED DEDICATED
----------------------------------- ------------------------------------
Outbound* Inbound** Outbound* Inbound**
Base Price Base Price Base Price Base Price
----------------- ---------------- ----------------- ----------------
Day Non-Day Day Non-Day Day Non-Day Day Non-Day
------- ------- ------- ------- ------- ------- ------- -------
<S> <C> <C> <C> <C> <C> <C> <C> <C>
Alaska & Hawaii [*] [*] [*] [*] [*] [*] [*] [*]
Puerto Rico [*] [*] [*] [*] [*] [*] [*] [*]
US Virgin Islands [*] [*] [*] [*] [*] [*] [*] [*]
</TABLE>
*from the Continental U.S.
**to the Continental U.S.
Billing Increments: [*]
Minimum Average time Requirement per call: [*]
Interstate usage contributes to the Voice and Data Discount Level
Interstate usage receives Voice Discounts
SWITCHLESS RESELLER
COMMERCIAL DIRECTORY ASSISTANCE RATES
Interstate calls: [*]
Intrastate calls: [*]
Directory Assistance rates are effective for all Time Periods
Directory Assistance rates neither contribute to or receive discounts
- -----------------------
[*] Information redacted pursuant to a confidential treatment request
throughout this exhibit.
<PAGE> 21
COMPEER Agreement
Exhibit A
Services and Rates
[LCI INTERNATIONAL LOGO]
SWITCHLESS RESELLER
COMMERCIAL INTRASTATE RATES
<TABLE>
<CAPTION>
SWITCHED DEDICATED
Outbound & Inbound Outbound & Inbound
Base Price Base Price
--------------------- -----------------------
State Day Non-Day Day Non-Day
- ----- ------- ------- ------- -------
<S> <C> <C> <C> <C>
Alaska [*] [*] [*] [*]
Alabama [*] [*] [*] [*]
Arkansas [*] [*] [*] [*]
Arizona [*] [*] [*] [*]
California [*] [*] [*] [*]
Colorado [*] [*] [*] [*]
Connecticut [*] [*] [*] [*]
Delaware [*] [*] [*] [*]
Florida [*] [*] [*] [*]
Georgia [*] [*] [*] [*]
Hawaii [*] [*] [*] [*]
Iowa [*] [*] [*] [*]
Idaho [*] [*] [*] [*]
Illinois [*] [*] [*] [*]
Indiana [*] [*] [*] [*]
Kansas [*] [*] [*] [*]
Kentucky [*] [*] [*] [*]
Louisiana [*] [*] [*] [*]
Massachusetts [*] [*] [*] [*]
Maryland [*] [*] [*] [*]
Maine [*] [*] [*] [*]
Michigan [*] [*] [*] [*]
Minnesota [*] [*] [*] [*]
Missouri [*] [*] [*] [*]
Mississippi [*] [*] [*] [*]
Montana [*] [*] [*] [*]
North Carolina [*] [*] [*] [*]
North Dakota [*] [*] [*] [*]
Nebraska [*] [*] [*] [*]
New Hampshire [*] [*] [*] [*]
New Jersey [*] [*] [*] [*]
New Mexico [*] [*] [*] [*]
Nevada [*] [*] [*] [*]
New York [*] [*] [*] [*]
Ohio [*] [*] [*] [*]
Oklahoma [*] [*] [*] [*]
Oregon [*] [*] [*] [*]
Pennsylvania [*] [*] [*] [*]
Rhode Island [*] [*] [*] [*]
South Carolina [*] [*] [*] [*]
South Dakota [*] [*] [*] [*]
Tennessee [*] [*] [*] [*]
Texas [*] [*] [*] [*]
Utah [*] [*] [*] [*]
Virginia [*] [*] [*] [*]
Vermont [*] [*] [*] [*]
Washington [*] [*] [*] [*]
Wisconsin [*] [*] [*] [*]
West Virginia [*] [*] [*] [*]
Wyoming [*] [*] [*] [*]
</TABLE>
Billing Increment: [*]
(N/A) Not currently authorized to provide Intrastate service
Minimum Average Time Requirement per call: [*]
Intrastate usage contributes to the Voice and Data Discount Level;
but does not receive Discounts
- --------------------
[*] Information redacted pursuant to a confidential treatment request
throughout this exhibit.
<PAGE> 22
International
[LCI INTERNATIONAL LOGO]
SWITCHLESS RESELLER
COMMERCIAL INTERNATIONAL RATES
<TABLE>
<CAPTION>
SWITCHED DEDICATED
Country Outbound Outbound
Country Code Rate Rate
- ------- ------- -------- ---------
<S> <C> <C> <C>
Afghanistan 93
Albania 355 [*] [*]
Algeria 213 [*] [*]
American Samoa 684 [*] [*]
Andorra 376 [*] [*]
Angola 244 [*] [*]
Anguilla 809 [*] [*]
Antarctica (CASEY & SCOTT) 672 [*] [*]
Antigua 809 [*] [*]
Argentina 54 [*] [*]
Armenia 374 [*] [*]
Aruba 297 [*] [*]
Ascension Island 247 [*] [*]
Australia 61 [*] [*]
Austria 43 [*] [*]
Azerbaijan 994 [*] [*]
Azores 992 [*] [*]
Bahamas 809 [*] [*]
Bahrain 973 [*] [*]
Bangladesh, People's Republic of 880 [*] [*]
Barbados 809 [*] [*]
Belarus 375 [*] [*]
Belgium 32 [*] [*]
Belize 501 [*] [*]
Benin, People's Republic of 229 [*] [*]
Bermuda 809 [*] [*]
Bhutan 975 [*] [*]
Bolivia 591 [*] [*]
Bosnia & Herzegovina, Republic of 387 [*] [*]
Botswana 267 [*] [*]
Brazil 55 [*] [*]
British Virgin Islands 809 [*] [*]
Brunei 673 [*] [*]
Bulgaria 359 [*] [*]
</TABLE>
- --------------------
[*] Information redacted pursuant to a confidential treatment request
throughout this exhibit.
<PAGE> 23
International
<TABLE>
<S> <C> <C> <C>
Burkina Faso 226 [*] [*]
Burundi 257 [*] [*]
Cambodia 855 [*] [*]
Cameroon, United Republic of 237 [*] [*]
Cape Verde Islands 238 [*] [*]
Cayman Islands 809 [*] [*]
Central African Republic 236 [*] [*]
Chad 235 [*] [*]
Chile 56 [*] [*]
China, People's Republic of 86 [*] [*]
Christmas & Cocos Islands 672 [*] [*]
Colombia 57 [*] [*]
Comoros, Federal Islamic Republic 269 [*] [*]
Congo, Republic of 242 [*] [*]
Cook Islands 682 [*] [*]
Costa Rica 506 [*] [*]
Croatia, Republic of 385 [*] [*]
Cuba 53 [*] [*]
Cyprus 357 [*] [*]
Czech Republic 42/420 [*] [*]
Denmark 45 [*] [*]
Diego Garcia 246 [*] [*]
Djibouti, Republic of 253 [*] [*]
Dominica 809 [*] [*]
Dominican Republic 809 [*] [*]
Ecuador 593 [*] [*]
Egypt, Arab Republic of 20 [*] [*]
El Salvador 503 [*] [*]
Equatorial Guinea, Republic of 240 [*] [*]
Eritrea 291 [*] [*]
Estonia 372 [*] [*]
Ethiopia 251 [*] [*]
Faeroe Islands 298 [*] [*]
Falkland Islands 500 [*] [*]
Fiji Islands 679 [*] [*]
Finland 358 [*] [*]
France 33 [*] [*]
French Antilles (includes Martinique) 596 [*] [*]
French Guiana 594 [*] [*]
French Polynesia 689 [*] [*]
Gabon Republic 241 [*] [*]
Gambia 220 [*] [*]
Georgia 995 [*] [*]
Germany, Fed Republic of 49 [*] [*]
</TABLE>
- --------------------
[*] Information redacted pursuant to a confidential treatment request
throughout this exhibit.
<PAGE> 24
International
<TABLE>
<S> <C> <C> <C>
Ghana 233 [*] [*]
Gibraltar 350 [*] [*]
Greece 30 [*] [*]
Greenland 299 [*] [*]
Grenada 809 [*] [*]
Guadeloupe 590 [*] [*]
Guam 671 [*] [*]
Guantanamo Bay 5399 [*] [*]
Guatemala 502 [*] [*]
Guinea, Peoples Rev. Rep. 224 [*] [*]
Guinea-Bissau 245 [*] [*]
Guyana 592 [*] [*]
Haiti 509 [*] [*]
Honduras 504 [*] [*]
Hong Kong 852 [*] [*]
Hungary 36 [*] [*]
Iceland 354 [*] [*]
India 91 [*] [*]
Indonesia 62 [*] [*]
INMARSAT - Atlantic Ocean East 871 [*] [*]
INMARSAT - Atlantic Ocean West 874 [*] [*]
INMARSAT - Indian Ocean 873 [*] [*]
INMARSAT - Pacific Ocean 872 [*] [*]
Iran 98 [*] [*]
Iraq 964 [*] [*]
Ireland, Republic of 353 [*] [*]
Israel 972 [*] [*]
Italy 39 [*] [*]
Ivory Coast, Republic of 225 [*] [*]
Jamaica 809 [*] [*]
Japan 81 [*] [*]
Jordan 962 [*] [*]
Kazakhstan 7 [*] [*]
Kenya, Republic of 254 [*] [*]
Kiribati 686 [*] [*]
Korea, Dem. People's Rep of (North) 850 [*] [*]
Korea, Republic of (South) 82 [*] [*]
Kuwait 965 [*] [*]
Kyrgyzstan/ Krygyz Republic 7 [*] [*]
Laos 856 [*] [*]
Latvia 371 [*] [*]
Lebanon 961 [*] [*]
Lesotho 266 [*] [*]
Liberia 231 [*] [*]
</TABLE>
- --------------------
[*] Information redacted pursuant to a confidential treatment request
throughout this exhibit.
<PAGE> 25
International
<TABLE>
<S> <C> <C> <C>
Libyan Arab Peoples Socialist Jamah 218 [*] [*]
Liechtenstein 41 [*] [*]
Lithuania 370 [*] [*]
Luxembourg 352 [*] [*]
Macau 853 [*] [*]
Macedonia, The Former Yugoslav Republic 389 [*] [*]
Madagascar, Democratic Republic of 261 [*] [*]
Malawi 265 [*] [*]
Malaysia 60 [*] [*]
Maldives, Republic of 960 [*] [*]
Mali Republic 223 [*] [*]
Malta 356 [*] [*]
Marshall Islands 692 [*] [*]
Mauritania, Islamic Republic of 222 [*] [*]
Mauritius 230 [*] [*]
Mayotte Island (MOU) combined with 269 [*] [*]
Micronesia, Federal States of 691 [*] [*]
Moldova 373 [*] [*]
Monaco 377 [*] [*]
Mongolian People's Republic 976 [*] [*]
Montserrat 809 [*] [*]
Morocco 212 [*] [*]
Mozambique 258 [*] [*]
Myanmar (Formerly Burma) 95 [*] [*]
Nakhodka 7 [*] [*]
Namibia 264 [*] [*]
Nauru 674 [*] [*]
Nepal 977 [*] [*]
Netherlands 31 [*] [*]
Netherlands Antilles 599 [*] [*]
Nevis 809 [*] [*]
New Caledonia 687 [*] [*]
New Zealand 64 [*] [*]
Nicaragua 505 [*] [*]
Niger Republic 227 [*] [*]
Nigeria, Federal Republic of 234 [*] [*]
Niue 683 [*] [*]
Norfolk Island 672 [*] [*]
Northern Mariana Islands (including 670 [*] [*]
Norway 47 [*] [*]
Oman 968 [*] [*]
Pakistan 92 [*] [*]
Palau, Republic of 680 [*] [*]
Panama, Republic of 507 [*] [*]
</TABLE>
- --------------------
[*] Information redacted pursuant to a confidential treatment request
throughout this exhibit.
<PAGE> 26
International
<TABLE>
<S> <C> <C> <C>
Papua New Guinea 675 [*] [*]
Paraguay 595 [*] [*]
Peru 51 [*] [*]
Philippines 63 [*] [*]
Poland, Republic of 48 [*] [*]
Portugal 351 [*] [*]
Qatar 974 [*] [*]
Reunion Island 262 [*] [*]
Romania, Socialist Republic of 40 [*] [*]
Russian Federation 7 [*] [*]
Rwanda 250 [*] [*]
Sakhalin 7 [*] [*]
San Marino 378 [*] [*]
Sao Tome 239 [*] [*]
Saudi Arabia 966 [*] [*]
Senegal Republic 221 [*] [*]
Seychelles Islands 248 [*] [*]
Sierra Leone 232 [*] [*]
Singapore, Republic of 65 [*] [*]
Slovakia 42/421 [*] [*]
Slovenia, Republic of 386 [*] [*]
Solomon Islands 677 [*] [*]
Somalia 252 [*] [*]
South Africa, Republic of 27 [*] [*]
Spain 34 [*] [*]
Sri Lanka, Democratic Socialist Rep 94 [*] [*]
St. Helena 290 [*] [*]
St. Kitts 809 [*] [*]
St. Lucia 809 [*] [*]
St. Pierre/Miquelon 508 [*] [*]
St. Vincent/Grenadines 809 [*] [*]
Sudan 249 [*] [*]
Suriname, Republic of 597 [*] [*]
Swaziland 268 [*] [*]
Sweden 46 [*] [*]
Switzerland 41 [*] [*]
Syrian Arab Republic 963 [*] [*]
Taiwan, Republic of China 886 [*] [*]
Tajikistan 7 [*] [*]
Tanzania 255 [*] [*]
Thailand 66 [*] [*]
Togo, Republic of 228 [*] [*]
Tokelau 690 [*] [*]
Tonga Islands 676 [*] [*]
</TABLE>
- --------------------
[*] Information redacted pursuant to a confidential treatment request
throughout this exhibit.
<PAGE> 27
International
<TABLE>
<S> <C> <C> <C>
Trinidad & Tobago, Democratic Rep 809/868 [*] [*]
Tunisia 216 [*] [*]
Turkey 90 [*] [*]
Turkmenistan 7 [*] [*]
Turks & Caicos 809 [*] [*]
Tuvalu 688 [*] [*]
Uganda 256 [*] [*]
Ukraine 380 [*] [*]
United Arab Emirates 971 [*] [*]
United Kingdom 44 [*] [*]
Uruguay 598 [*] [*]
Uzbekistan 7 [*] [*]
Vanuatu, Republic of 678 [*] [*]
Vatican City 39 [*] [*]
Venezuela 58 [*] [*]
Vietnam 84 [*] [*]
Wallis & Futuna Islands 681 [*] [*]
Western Samoa 685 [*] [*]
Yemen Arab Republic 967 [*] [*]
Yemen Democratic Republic 969 [*] [*]
Yugoslavia, Federal Republic of (inc 381 [*] [*]
Zaire, Republic of 243 [*] [*]
Zambia 260 [*] [*]
Zimbabwe 263 [*] [*]
</TABLE>
International Rates are effective for all Time Periods
Billing Increment: [*]
International traffic contributes to
COMPEER Discounts, but receives no discount
- --------------------
[*] Information redacted pursuant to a confidential treatment request
throughout this exhibit.
<PAGE> 28
Canada and Mexico
[LCI INTERNATIONAL LOGO]
SWITCHLESS RESELLER
COMMERCIAL CANADIAN RATES
<TABLE>
<CAPTION>
SWITCHED DEDICATED
- ----------------------------------- ------------------------------------
Outbound* Inbound** Outbound* Inbound**
Rate Rate Rate Rate
- ----------------- ---------------- ----------------- ----------------
Day Non-Day Day Non-Day Day Non-Day Day Non-Day
- ------- ------- ------- ------- ------- ------- ------- -------
<S> <C> <C> <C> <C> <C> <C> <C>
[*] [*] [*] [*] [*] [*] [*] [*]
</TABLE>
Canadian Usage contributes to Discounts; but receives no discount
Canadian Billing Increment: [*]
*from the Continental U.S.
**to the Continental U.S.
SWITCHLESS RESELLER
COMMERCIAL MEXICAN RATES
<TABLE>
<CAPTION>
SWITCHED DEDICATED
Outbound Outbound
Rate Rate
------------------ ------------------
Rate Area Day Non-Day Day Non-Day
--------- ------- ------- ------- -------
<S> <C> <C> <C> <C>
1 [*] [*] [*] [*]
2 [*] [*] [*] [*]
3 [*] [*] [*] [*]
4 [*] [*] [*] [*]
5 [*] [*] [*] [*]
6 [*] [*] [*] [*]
7 [*] [*] [*] [*]
8 [*] [*] [*] [*]
</TABLE>
Mexican Billing Increment: [*]
Mexican Usage contributes to Discounts; but receives no discount
- --------------------
[*] Information redacted pursuant to a confidential treatment request
throughout this exhibit.
Page 1
<PAGE> 29
Travel Card
[LCI INTERNATIONAL LOGO]
SWITCHLESS RESELLER
COMMERCIAL TRAVEL CARD RATES
<TABLE>
<CAPTION>
TO
----------------------------------------------------------------------------------------
FROM C US A & H Can PR&USVI IDDD Mex
------- ------- ------- ------- ------- ---- -----
<S> <C> <C> <C> <C> <C> <C>
C US [*] [*] [*] [*] (1) (1)
A & H [*] [*] [*] [*] (1) (1)
Can [*] [*] [*] [*] (1) (1)
PR&USVI [*] [*] [*] [*] (1) (1)
IDDD (1) (1) (1) (1) (1) (1)
Mex (1) (1) (1) (1) (1) (1)
O/A (1) (1) (1) (1) (1) (1)
</TABLE>
Note: (1) All calls from and to these areas are priced as per LCI retail tariff.
BILLING
INCREMENTS
<TABLE>
<CAPTION>
TO
-----------------------------------------------------------------------------------------------
C US A & H Can PR&USVI IDDD Mex
Initial/ Initial/ Initial/ Initial/ Initial/ Initial/
FROM Incremental/ Incremental/ Incremental/ Incremental/ Incremental/ Incremental/
------- ------------ ------------ ------------ ------------ ----------- ------------
<S> <C> <C> <C> <C> <C> <C>
C US [*] [*] [*] [*] (1) (1)
A & H [*] [*] [*] [*] (1) (1)
Can [*] [*] [*] [*] (1) (1)
PR&USVI [*] [*] [*] [*] (1) (1)
IDDD (1) (1) (1) (1) (1) (1)
Mex {1) (1) {1) (1) (1) (1)
O/A (1) (1) (1) (1) (1) (1)
</TABLE>
Note: (1) All calls from and to these areas are priced as per LCI retail tariff.
Terms: C US Continental United States
A & H Alaska and Hawaii
Can Canada
PR&USVI Puerto Rico and United States Virgin Islands
IDDD International other than otherwise noted
Mex Mexico
O/A Operator Assisted Calls
Travel Card traffic contributes to Switchless Reseller Discounts; but receives
no discount
- --------------------
[*] Information redacted pursuant to a confidential treatment request
throughout this exhibit.
Page 1
<PAGE> 30
Enhanced Toll Free
LCI ENHANCED 800 FEATURES
<TABLE>
<S> <C> <C>
Originating Features NRC MRC
1) Extended Call Coverage Option 1 - Allows calls to NC NC
come from Alaska and Hawaii.
2) Extended Call Coverage Option 2 - Allows calls to come from NC NC
Puerto Rico and US Virgin Islands.
3) Canadian Origination - Allows calls to come from NC NC
Canada (choose any or all area codes).
4) Tailored Call Coverage - Allows the 800 service NC NC
number to block calls from any number of states or domestic
area codes Blocking can be done by state or NPA. Limited to 29
exchanges for NPA-NXX blocking.
Routing Features
1) Day of Week Routing - Calls to a single 800 [*] [*]
number can be routed to different terminating locations based on (per Order) (per Arrangement)
the day of the week. Divides weeks into three groups of days
for routing: Monday - Friday, Saturday, Sunday.
2) Holiday Routing - Routes calls placed on an 800 number to following [*] [*]
different terminating locations on any of the (per Order) (per Arrangement)
holidays: New Years Day, Martin Luther King Day, Labor
Day, Ash Wednesday, Good Friday, Passover, Easter,
Memorial Day, Independence Day, Rosh Hashanah, Columbus Day,
Thanksgiving, day after Thanksgiving, Hanukkah, Christmas,
Christmas Eve, Yom Kippur.
3) Time of Day Routing - Routes calls placed on an 800 [*] [*]
number to different terminating locations based an (per Order) (per Arrangement)
any of the following time of day slots: 7:00 - 7:59 am,
8:00 - 8:59 am, 9:00 - 11:59 am, 12:00 - 3:59 pm, 4:00 -
4:59 pm, 5:00 - - 5:59 pm, 6:00 - 11:50 pm,
12:00 midnight - 6:59 am.
4) Percentage Allocation Routing - Routes calls placed on an [*] [*]
800 number to up to 8 different terminating locations (per Order) (per Arrangement)
based on whole number percentages that add up to 100
percent.
Terminating Features
1) Direct Termination Overflow - Allows a dedicated [*] [*]
access line customer to control potential congestion of calls (per Order) (per Arrangement)
placed on an 800 number by sending overflow calls to
another 800 trunk group, WATS access line,
dedicated access line, or business line.
2) Dialed Number Identification - Allows a dedicated [*] [*]
access customer to receive calls from multiple 800 numbers (per order) (per Arrangement)
on the same terminating trunk group by sending special
identification digits along with the 800 call to the
customer site. Customer must have proper equipment to receive.
3) Real Time ANI - Allows a dedicated customer to receive the [*] [*]
ANI of the calling party if the call originates from (per Trk Grp) (per Trk Grp)
an equal access end office. Currently provided via in-band
signalling. Terminating equipment must accept FGD signalling.
</TABLE>
- --------------------
[*] Information redacted pursuant to a confidential treatment request
throughout this exhibit.
Page 1
<PAGE> 1
EXHIBIT 10.13
[ILLUMINET LOGO]
MASTER SERVICE AGREEMENT
<PAGE> 2
MASTER SERVICE AGREEMENT
TABLE OF CONTENTS
<TABLE>
<CAPTION>
SECTION TITLE PAGE
- ------- ----- ----
<S> <C> <C>
I Scope and Structure 2
II Compensation 3
III Proprietary Information 3
IV Resolution of Disputes 4
V Successors and Assigns 5
VI Independent Contractors 6
VII Indemnification 6
VIII Limitation of Liability 7
IX Year 2000 Compliance 7
X Compliance With Laws 7
XI Force Majeure 8
XII Amendments and Waivers 8
XIII Notices 9
XIV Governing Law 9
XV Severability 9
XVI No Third Party Beneficiaries 9
XVII Integration 9
XVIII Survival 9
XIX Attorneys' Fees and Costs 10
XX Headings 10
XXI Term 10
XXII Execution In Counterparts 10
XXIII Incorporation by Reference 11
Signatures 11
Attachment A Participating Companies
</TABLE>
Page 1 of 11
<PAGE> 3
THIS MASTER SERVICE AGREEMENT, made and executed to be effective the day
and year set forth on the signature page of this Agreement, by and between
ILLUMINET, INC., a Delaware corporation ("ILLUMINET"), and the entities
identified on Attachment A annexed hereto, (individually referred to as
"Company" and collectively as "Companies").
W I T N E S S E T H:
WHEREAS, ILLUMINET is a corporation which was formed by
telecommunications companies situated throughout the United States of America
and for several years has been providing database management, billing services,
general administrative services, revenue administration services, and other
services beneficial to the telecommunications industry; and
WHEREAS, ILLUMINET operates a signaling network based on Signaling
System 7 ("SS7") protocol to effect the transport of data from and to the
switches of local exchange carriers and other services ("SIGNET 7(R)
Services"); and
WHEREAS, the Company provides a variety of telecommunications services
to its subscribers and wishes to provide new and improved services utilizing
SIGNET 7(R) Services; and
WHEREAS, in connection with the offering of SIGNET 7(R) Services,
ILLUMINET shall maintain an Independent Line Information Database ("Independent
LIDB") which will serve as the mechanism for the storage of database information
of all participants; and
WHEREAS, the Company may participate in SIGNET 7(R) Services without
first upgrading its switch center to SS7 protocol, by providing line information
data to the Independent LIDB.
NOW, THEREFORE, in consideration of the covenants and undertakings
herein contained and the mutual benefits to be derived herefrom, the adequacy of
which consideration is hereby acknowledged, ILLUMINET and the Company agree as
follows:
SECTION I: SCOPE AND STRUCTURE
A. This Master Service Agreement specifies the general terms and
conditions pursuant to which ILLUMINET will perform certain services for the
Company. Additional terms and conditions pursuant to which the parties may
perform specific services or types of services will be set forth in "Modules"
that will be made and entered into by and between the parties, and upon the
execution of each such Module, shall be attached to and incorporated herein to
this Master Service Agreement and be subject to the terms and conditions of this
Master Service Agreement. Unless otherwise specified herein or implicit in the
context hereof, the term "Master Service Agreement" used herein shall include
any and all Modules hereto in effect from time to time.
Page 2 of 11
<PAGE> 4
B. Each Module incorporated in this Master Service Agreement shall contain
its own expiration and termination provisions and shall expire or terminate
individually in accordance with such provisions. This Master Service Agreement
shall remain in full force and effect in accordance with its terms from its
effective date until it expires or is terminated in accordance with the
provisions hereof, even if no Modules are in effect at any given time.
C. In the event of any conflict or inconsistency between the provisions of
this Master Service Agreement (excluding Modules) and any individual Module of
this Master Service Agreement, the provisions of the Module shall control.
D. ILLUMINET warrants that all services provided pursuant to this Master
Services Agreement, including all Modules hereunder, shall operate in
substantial accordance with ILLUMINET's corresponding User Guides, provided that
Company uses such services in substantial accordance with such User Guides.
SECTION II: COMPENSATION
The parties agree that the compensation to be paid by either party to the
other for services performed pursuant to this Master Service Agreement shall be
as specified in the applicable Module of this Master Service Agreement. Each
party agrees to pay the other party the compensation stated in each executed
Module, in accordance with all of the terms and conditions of such Module and
this Master Service Agreement. All payments made under this Master Service
Agreement shall be made in U.S. currency.
SECTION III: PROPRIETARY INFORMATION
A. All information or other data relating to either party's business
activities which is disclosed by said party to the other party in connection
with this Master Service Agreement and/or any Module hereto, and designated as
proprietary or confidential information (hereinafter referred to as "Proprietary
Information") will be safeguarded and kept confidential by the other party to
the same extent that the other party protects its own proprietary and
confidential information, and shall be deemed the property of the disclosing
party. Such Proprietary Information in tangible form, and all reproductions
thereof, shall be returned to the disclosing party upon its request. The
receiving party shall not disclose or release any such Proprietary Information
without written authority from the disclosing party, to anyone other than an
employee, contractor, agent, attorney or affiliated company having a need for
such Proprietary Information in furtherance of the performance of services. The
receiving party shall require any
Page 3 of 11
<PAGE> 5
person not its employee to whom it discloses or releases any such Proprietary
Information of the other party to sign an agreement to protect the
confidentiality of such Proprietary Information as provided in this Agreement,
prior to such disclosure or release.
B. Upon the expiration or termination of this Master Service Agreement,
each party, at the request of the other party, shall promptly, but in any event
within thirty (30) days following the date of such request, return any and all
copies of Proprietary Information in tangible form, that such party received
from the other party and is still in its possession, custody, or control. In
addition, each party shall delete or erase all Proprietary Information from its
computer systems within the same time period and certify such compliance to the
other party in writing, signed by an officer of the certifying party. In the
event of the expiration or termination of a Module hereto, each party shall
return or eliminate any and all Proprietary Information in its possession,
custody, or control which pertains solely to such Module or the contract of
services covered by such Module, in the same manner and within the same time
period as provided above in this paragraph.
C. The provisions of this Section III shall survive the termination or
expiration of this Master Service Agreement and any Module hereto for a period
of three (3) years unless otherwise agreed in writing by both parties.
D. Notwithstanding any other provision of this Section III, neither
party hereto shall be required to return or to delete or erase from its computer
systems, any Proprietary Information or portion thereof which such party has
received pursuant to this Agreement and is required to retain among its records
by law or applicable regulations. In the event either party hereto is required
by law or regulation to retain Proprietary Information disclosed to it which the
other party has requested to be returned, the party so retaining the Proprietary
Information shall advise the disclosing party of that fact and of the law or
regulation requiring such retention, and all such retained Proprietary
Information shall continue to be maintained confidential as provided in this
Agreement and in the applicable provisions hereof which shall survive the
termination or expiration of this Agreement.
SECTION IV: RESOLUTION OF DISPUTES
A. INFORMAL RESOLUTION. The parties agree that they shall attempt to
resolve any dispute regarding any right, obligation, duty, or liability arising
out of the provisions of this Master Service Agreement or any Module through
informal discussions or negotiations prior to resorting to formal dispute
resolution procedures contained in Subsection B below. If, at any
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<PAGE> 6
time following the commencement of any such discussions or negotiations, either
party determines such discussions or negotiations are not likely to result in a
reasonable resolution of the dispute, it may send to the other party a written
statement of the issues or problems being discussed or negotiated. If the
dispute has not been resolved within sixty (60) days after the mailing of the
said statement of issues, either party shall have the right to serve a written
demand for arbitration upon the other and thereby commence binding arbitration
in accordance with the provisions set forth below. The mailing of the statement
of issues and the passage of sixty (60) days from the date of the mailing of
such statement of issues shall be conditions precedent to the commencement of
any arbitration proceedings hereunder.
B. BINDING ARBITRATION. Within five (5) working days of delivery of a
demand, each party shall designate an arbitrator. The two designated arbitrators
shall then select a third arbitrator to complete the full arbitration panel
within twenty (20) working days, or as otherwise agreed.
The arbitration panel shall commence hearing within sixty (60)
days of the selection of the panel. The scope of document production and the
enforcement of document requests may be ordered by the arbitrators to the extent
economical and reasonable. All discovery requests shall be subject to the
proprietary rights of the parties, and the arbitrators shall adopt procedures to
protect such rights. Except where contrary to the provisions set forth in this
Master Service Agreement, the rules of the American Arbitration Association
("AAA") shall be applied, provided, however, that the arbitration need not be
conducted under the auspices of the AAA, in which event the fee schedule of the
AAA shall not apply.
All costs of arbitration and any award of attorney's fees shall be
awarded pursuant to the provisions of Section XIX of this Master Service
Agreement.
Unless otherwise agreed in writing, the parties shall continue to
provide service under any Module, honor all commitments under this Master
Service Agreement, and continue to make payments in accordance with this Master
Service Agreement during the course of dispute resolution pursuant to the
provisions of this Section.
SECTION V: SUCCESSORS AND ASSIGNS
This Agreement shall be binding upon and inure to the benefit of the
parties hereto and their respective successors and assigns; provided, however,
this Agreement shall not be assigned by either party hereto without the prior
written consent of the other party hereto, which consent shall not be
unreasonably withheld, except as provided in the next succeeding sentence. If
another corporation
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<PAGE> 7
which is a parent, a wholly-owned or controlled subsidiary of a parent ("Sister
Company") or a wholly-owned or controlled subsidiary of one of the parties
hereto shall succeed to some or all of the business of the corporation which is
a party hereto, such party hereto may assign this Agreement to such parent,
subsidiary or Sister Company, without the consent of the other party, if such
parent, subsidiary or Sister Company shall expressly undertake in writing the
performance of the obligation and duties of the party hereto which it is
succeeding pursuant to such assignment. Notwithstanding any other provision in
this Agreement, Company may assign this Agreement, in whole or in part, to any
entity acquiring substantially all of the stock or assets of Company.
SECTION VI: INDEPENDENT CONTRACTORS
Each party agrees that it shall perform its duties, obligations, and
services hereunder as an independent contractor and not as the employee or
servant of the other party. Except as expressly provided in any Module, neither
party nor any personnel employed or furnished by such party shall be deemed the
agent, employee, or servant of the other party or be entitled to any benefits
available under any plans for such other party's employees. Each party has and
hereby retains the right to exercise full control and supervision over the
performance of its obligations under this Master Service Agreement and retains
full control over the employment, supervision, direction, compensation, and
termination of all of its employees assisting in the performance of such
obligations. Each party shall be solely responsible for all matters relating to
the compensation of its respective employees, including payment of all
employment taxes and withholdings due in respect of its employees. Each party
shall be responsible for its acts and those of its employees during the
performance of such party's duties and obligations hereunder.
SECTION VII: INDEMNIFICATION
The indemnification provisions of this Section shall apply to all
matters arising under this Master Service Agreement except that indemnification
or limitation of liability or related provisions contained in any Module to this
Master Service Agreement shall be controlling and take precedence over this
Section.
To the extent not prohibited by law, each party shall indemnify the
other and hold it 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 any services
or duties under this Master Service Agreement.
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<PAGE> 8
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. Each 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 claims. The indemnifying party shall not be
liable under this Section for settlement by the indemnified party of any claim,
lawsuit, or demand if the indemnifying party has not approved the settlement in
advance unless the indemnifying party has had the defense of the claim, lawsuit,
or demand tendered to it in writing and has failed to assume such defense.
No claims under this Section, or claims with respect to charges under
this Master Service Agreement or adjustments to such charges, or any other
claims with respect to this Master Service Agreement, may be made more than two
(2) years (or such greater time as may be set by law) after the date of the
event that gave rise to the claim; provided, however, that claims for indemnity
under this Section may be made within two (2) years (or such greater time as may
be set by law) of the accrual of the cause of action for indemnity. The mailing
of a statement of issues as provided in Section IV.A hereinabove shall
constitute a claim with respect to this Master Service Agreement for the
purposes of satisfying the claims limitation period requirements of this Section
VII.
SECTION VIII: LIMITATION OF LIABILITY
In no event shall either party be liable to the other party for
incidental, special, or consequential damages including but not limited to lost
profits.
SECTION IX: YEAR 2000 COMPLIANCE
ILLUMINET represents and warrants that the software, hardware and
equipment that it uses to provide services under this Master Service Agreement
will record, store, process, and present calendar dates falling on or after
January 1, 2000, in the same manner, and with the same functionality, as
performed on or before December 31, 1999.
SECTION X: COMPLIANCE WITH LAWS
Each party shall perform all of its obligations and undertakings set forth
in this Master Service Agreement in compliance with all applicable laws, orders,
and regulations specifically including, without limitation, all applicable laws,
orders, and regulations prohibiting
Page 7 of 11
<PAGE> 9
discrimination against any employee or applicant for employment by
reason of race, color, religion, sex, national origin, age, or disability.
In the event of any conflict between any provision of this Master
Service Agreement and any applicable law, order or regulation (including,
without limitation, any order, rule or regulation of any regulatory agency
having jurisdiction over the Company which may effect the matters covered by
this Master Service Agreement), the parties agree to negotiate in good faith,
such reasonable modification(s) as may be required to resolve such conflict.
SECTION XI: FORCE MAJEURE
Neither party shall be held liable for any delay or failure of
performance of any part of this Master Service Agreement arising out of or
resulting from any cause beyond its control and without its fault or negligence,
including, without limitation, acts of God, acts or omissions of civil or
military authority, government regulations, embargoes, epidemics, war, terrorist
acts, riots, civil commotion or civil uprisings, insurrections, fires,
explosions, nuclear accidents, strikes, lockouts, power blackouts, earthquakes,
floods, hurricanes, tornados, volcanic actions, or other similar causes beyond
its control. If such delay or failure occurs, the non-delaying party may elect
to (a) terminate this Master Service Agreement or any Module thereof for
services not already received, if such Force Majeure condition results in a
delay or failure to perform which continues for more than thirty (30) days; or
(b) suspend such services for the duration of the delaying cause, obtain
elsewhere the services to be bought or sold hereunder, and resume performance
under this Master Service Agreement once the delaying cause ceases. Unless
written notice is given within thirty (30) days after such non-delaying party is
apprised of the delay or failure, (b) shall be deemed selected.
SECTION XII: AMENDMENTS AND WAIVERS
This Master Service Agreement may be amended only by a written agreement
signed by both parties. No course of dealing or failure of either party to
enforce any provision of this Master Service Agreement shall be construed as a
waiver of such provision or of any other provision of this Master Service
Agreement. The amendment of any provision of this Master Service Agreement shall
not constitute an amendment or modification of any other part of this Master
Service Agreement unless expressly stated in such written agreement.
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<PAGE> 10
SECTION XIII: NOTICES
All written notices required under this Master Service Agreement shall
be given by telephonic facsimile transmission (FAX) or certified mail, return
receipt requested, addressed to such designated representative and address as
either party may from time to time provide by written notice to the other party,
and unless and until any further designation is made, such representative and
address for each party shall be as set forth on the signature page hereof.
SECTION XIV: GOVERNING LAW
This Master Service Agreement shall be governed by and construed in
accordance with the laws of the State of Washington.
SECTION XV: SEVERABILITY
In the event any provision of this Master Service Agreement shall be
held invalid or unenforceable by any Court of competent jurisdiction and if such
invalidity or unenforceability shall materially impair achieving the purpose and
intent of this Master Service Agreement, then this entire Master Service
Agreement shall be invalid and unenforceable. Otherwise, this Master Service
Agreement shall be construed as if not containing the particular provision or
provisions hereof held to be invalid or unenforceable, and the rights and
obligations of the parties shall be construed and enforced accordingly.
SECTION XVI: NO THIRD PARTY BENEFICIARIES
This Master Service Agreement shall not be construed to provide any
third party with any remedy, claim, right of action, or other right.
SECTION XVII: INTEGRATION
This Master Service Agreement constitutes the entire agreement between
the parties concerning the subject matter hereof. All representations,
statements, negotiations, understandings, proposals, and undertakings, whether
oral or in writing, with respect to the subject matter hereof are superseded and
replaced by this Master Service Agreement.
SECTION XVIII: SURVIVAL
Any liability or obligation of either party to the other for acts or
omissions prior to the expiration or termination of this Master Service
Agreement or any part hereof, including, without
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<PAGE> 11
limitation, either party's obligation to make payment for services rendered
prior to the effective date of such expiration or termination, and the
obligations of each party regarding the protection of Proprietary Information
shall survive the expiration or termination of this Master Service Agreement or
any part hereof.
SECTION XIX: ATTORNEYS' FEES AND COSTS
In the event binding arbitration is commenced by either party to enforce
any covenant or undertaking of this Master Service Agreement, the prevailing
party in such arbitration shall be entitled to recover all reasonable costs and
expenses incurred in connection with such arbitration, including, without
limitation, costs of arbitration and a reasonable attorney's fee, and all such
sums shall be included in any ruling entered in said arbitration.
SECTION XX: HEADINGS
The headings in this Master Service Agreement have been inserted for
convenience only and are not to be considered a part hereof and shall in no way
be construed to define or limit any of the terms herein or affect the meaning or
interpretation of any of the provisions of this Master Service Agreement.
SECTION XXI: TERM
This Master Service Agreement shall continue in full force and effect
from the Effective Date until terminated by either party pursuant to written
notice delivered by the terminating party to the other party, not less than
ninety (90) days prior to the intended termination date. Notwithstanding the
foregoing sentence, this Master Service Agreement shall continue in full force
and effect for so long as any Module hereto is in effect, and this Master
Service Agreement may not be terminated pursuant to the foregoing sentence
unless any Module in effect at a given time, may, by its terms, also be
terminated at such time.
SECTION XXII: EXECUTION IN COUNTERPARTS
This Master Service Agreement or any part hereof 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 instrument.
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<PAGE> 12
SECTION XXIII: INCORPORATION BY REFERENCE
Attachment A annexed hereto is, respectively by each and every reference
thereto incorporated herein as though fully set forth herein.
# # #
IN WITNESS WHEREOF, each of the parties hereto has made and caused this
Master Service Agreement, to be duly executed for it and on its behalf by its
authorized representative, to be effective the date of the last signature below
(the "Effective Date").
Note: The signatories to this Agreement hereby warrant and represent
that they have the authority to execute this Agreement on behalf of the entity
or entities for which they sign.
ILLUMINET, INC.
March 29,1999 By: /s/ RICHARD R. WOLF
- ----------------------------------- ------------------------------------
Date Signed Richard R. Wolf
Director, Legal and Regulatory Affairs
ILLUMINET ADDRESS:
Illuminet, Inc.
4501 Intelco Loop SE
Lacey, WA 98503
"ILLUMINET"
EACH COMPANY IDENTIFIED ON
ATTACHMENT "A" ATTACHED HERETO
3/25/99 By: /s/ MICHAEL BLACK
- ----------------------------------- ------------------------------------
Date Signed Its Authorized Representative
Michael Black
---------------------------------------
Printed Name of Signatory
Senior VP
---------------------------------------
Title of Signatory
"COMPANY"
Page 11 of 11
<PAGE> 13
ATTACHMENT A
TO
MASTER SERVICE AGREEMENT
PARTICIPATING COMPANIES
<TABLE>
<CAPTION>
(ILLUMINET
COMPLETES)
COMPLETE LEGAL NAME AND EFFECTIVE STATE OF LOCATED IN
ADDRESS OF PARTICIPATING COMPANY DATE INCORPORATION (STATE) OCN
- -------------------------------- ---- ------------- ------- ---
<S> <C> <C> <C> <C>
Advanced Tel Com Group, Inc. Delaware California 4268
100 Stony Point Rd. Suite 130 applies to
Santa Rosa, CA 95401 all States
Advanced Tel Com Group, Inc. Delaware California 4296
100 Stony Point Rd. Suite 130 (only)
Santa Rosa, CA 95401
Advanced Tel Com Group, Inc. Delaware Oregon 4271
100 Stony Point Rd. Suite 130 (only)
Santa Rosa, CA 95401
Advanced Tel Com Group, Inc. Delaware Washington 4272
100 Stony Point Rd. Suite 130 (only)
Santa Rosa, CA 95401
</TABLE>
Page 1 of 1
<PAGE> 1
EXHIBIT 10.14
EXECUTION COPY
- --------------------------------------------------------------------------------
GENERAL SUPPLY AGREEMENT
BETWEEN
ADVANCED TELCOM GROUP INC.
AND
LUCENT TECHNOLOGIES INC.
- --------------------------------------------------------------------------------
CONTRACT NUMBER LNM99NMYK09ATG
The mailing, delivery or negotiation of this Agreement by either party or its
agent or attorney shall not be deemed an offer by such party to enter into any
transaction or to enter into any other relationship, whether on the terms
contained herein or on any other terms. This Agreement shall not be binding upon
either party, nor shall such party have any obligations or liabilities or the
other party any rights with respect thereto, or with respect to the transactions
contemplated by the Agreement, unless and until the Agreement has been approved
by the executive officers and/or Board of Directors of such party and such party
has executed and delivered this Agreement. Until such execution and delivery of
this Agreement by a party, such party may terminate all negotiation and
discussion of the subject matter hereof, without cause and for any reason,
without recourse or liability.
LUCENT TECHNOLOGIES INC. - PROPRIETARY
- --------------------
[*] Information redacted pursuant to a confidential treatment request
throughout this exhibit.
<PAGE> 2
<TABLE>
<CAPTION>
EXHIBITS
- --------
<S> <C>
A Octel Products
B Octel Services
C SAS Products, Pricing, & Support
D CS Support Schedule - Billdats
E Planning & Program Management
F Checkmate Direct & Indirect
G SOW - NRC
H Kenan (To Be Provided)
I Cabernet (To Be Provided)
J Co-Marketing Program
K BOA
L PMO
M IMO
N FMO (To Be Provided)
</TABLE>
LUCENT TECHNOLOGIES INC. - PROPRIETARY
-i-
<PAGE> 3
GENERAL SUPPLY AGREEMENT
This General Supply Agreement (Contract Number LNM99NMYK09ATG and referred to as
"Agreement") is made and entered into on July 28, 1999 (the "Effective Date"),by
and between Lucent Technologies Inc. ("Seller"), a Delaware corporation
operating through its Global Services Provider group, with offices located at
600 Mountain Avenue, Murray Hill, New Jersey 07974, and Advanced TelCom Group
Inc., a Delaware corporation with offices located at 100 Stony Point Road, Suite
130, Santa Rosa, California 95401 (hereinafter "Customer").
WHEREAS, Seller has expertise and experience in designing, recommending,
configuring, building, supplying, installing, and servicing telecommunications
network systems;
WHEREAS, Customer desires to provide facilities-based commercial
telecommunications services;
WHEREAS, Seller desires to provide to Customer, and Customer desires to procure
from Seller, products, licensed materials and services for the purposes of
building and maintaining a telecommunications Network (as defined below) based
on the terms and conditions set forth in this Agreement and the terms,
conditions, and Specifications set forth in the Attachments to this Agreement.
NOW, THEREFORE, in consideration of the mutual promises herein contained and
other good and valuable consideration, the receipt and sufficiency of which is
hereby acknowledged, the parties intending to be lawfully bound agree as
follows:
ARTICLE I DEFINITIONS
DEFINITIONS
For the purpose of this Agreement, the following definitions will apply:
a) "Acceptance Test" means the testing which may be performed jointly by Seller
and Customer during the Acceptance Test Period to determine that the
Deliverables or Network Elements or other portion of the Network has been
installed in accordance with the mutually agreed upon Acceptance Test plan
in the applicable Attachment or, if none is specified, in accordance with
Seller's standard acceptance testing procedures.
b) "Acceptance Test Period" means the applicable period set forth in days as
specified in Attachments to this Agreement. Where not specified, the
Acceptance Test Period shall be thirty (30) days after issuance of the
Notice of Completion if Deliverables or Network Elements are installed by
Seller, or, if not installed or implemented by Seller, within thirty (30)
days after delivery.
c) "Affiliate" means any United States entity, which controls, is controlled
by, or is under common control with Customer. "Control" means (i) in the
case of corporate entities, direct or indirect beneficial ownership of more
than fifty percent (50%) of the stock or shares entitled to vote for the
election of the board of directors or other governing body of the entity;
and (ii) in the case of non-corporate entities, a direct or indirect
beneficial equity interest of more than fifty percent (50%) of the entity;
or, in either case, otherwise having the right to direct and control the
operations of such entity.
d) "Agreement" means this General Supply Agreement and all Attachments
incorporated by reference and attachment.
e) "Application Software" means those general purpose Licensed Materials used
for provisioning, Integration, Implementation and continuing support
maintenance of the Network, as part of Seller licensed Software but not
Firmware. Application Software does not include either host switch Software
or host switch Software features.
LUCENT TECHNOLOGIES INC. - PROPRIETARY
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<PAGE> 4
f) "Architecture" means documented set of rules and standards, functional
requirements and functional specifications related to the network and
application design and process models, application and network architecture
methodologies, and the application and network frameworks that will deliver
voice and data services meeting the requirements of the Agreement.
Architecture provides the foundation and boundaries when building,
modifying, or selecting Products, Deliverables, and Services.
g) "Attachment" means any Exhibits, Statements of Work, Schedules, or any other
documents that are attached to this Agreement.
h) "Backwards Compatible" means (i) with respect to Licensed Materials, the
ability of newer or more advanced versions to function seamlessly with the
most recent older or less advanced major release of such Software or other
Licensed Materials and with all existing in-service Seller Provided Products
only, already installed or already ordered from Seller to be installed in
the Network, and (ii) with respect to Seller Provided Products, the
interoperability and compatibility of such Seller Provided Products with
existing infrastructure resulting in no reduction in the existing level of
Functionality of the existing infrastructure. For the purposes of this
definition, any particular version of Licensed Materials shall mean only a
software upgrade or software enhancement.
i) "Business Support System" means all interconnected and interworking software
and/or manual applications and their associated processes that are related
to customer service, operations, telemarketing, telesales, sales and
marketing to achieve revenue projections; or any other system used internal
to ATG and Lucent to maintain or improve operational effectiveness. Examples
include reporting, cost control, revenue assurance, and ordering systems.
j) "Change Order" means changes by Customer to an order which has been
previously accepted by Seller as further described in Section 3.4 hereof.
k) "City Specific Plan" means a plan that addresses the facilities, timing,
Network design, functional specifications and scope of Installation,
Integration, and Implementation for that portion of the Network Architecture
and Network Technology to be implemented in a particular city.
l) "Commercial Service" means, with respect to any Products or Licensed
Materials the use of such Products or Licensed Materials to bring non-trial,
billable services to any customer of Customer.
m) "Customer" means Advanced TelCom Group Inc. and those United States
Affiliates who may purchase under this Agreement as "Customer" pursuant to
Section 2.2 hereof.
n) "Customer Price List" means a list of prices, fees, or charges for the
Deliverables and Services procured under this Agreement. Each Customer Price
List shall be included in an Attachment to this Agreement.
o) "Cutover" means the date upon which the Deliverables at each Customer switch
site are commissioned for service into the public switch network.
p) "Deliverable" means any tangible materials, Product(s), Licensed
Material(s), or an end product of a Service delivered by Seller pursuant to
this Agreement, Exhibits, or other applicable Attachments.
q) "Delivery Date" means the respective date by which a Deliverable specified
in this Agreement arrives at the destination specified in the order.
r) "Designated Processor" means the Product on which licenses to Use Licensed
Materials are granted.
s) "Enterprise Connectivity" means the physical and logical connection of
employees, customers, trading partners, Products, Deliverables, Services and
software systems required to access one or multiple operating systems,
Operational Support Systems, Business Support Systems, and other
LUCENT TECHNOLOGIES INC. - PROPRIETARY
-3-
<PAGE> 5
required Third Party interfaces and systems in a secure and timely fashion
from any location using authorized computers.
t) "Firmware" means a combination of (1) hardware and (2) Software represented
by a pattern of bits contained in such hardware.
u) "Fit" means physical size or mounting arrangement (e.g., electrical or
mechanical connections).
v) "Form" means physical shape.
w) "Function" means the operations, features and functions that the Product
performs, the behavior that the Product exhibits, and the performance of
such Product.
x) "Implementation" means all program management and work effort required to
plan and verify that the communications Network interfaces to and
interconnects with all required third party products and mediated, services,
Operational Support Systems and Business Support System required to order,
provision and provide complete and accurate service fulfillment to end
customers.
y) "Implementation Acceptance" has the meaning set forth in Section 3.10
z) "Initial Term" means the period beginning on the Effective Date of this
Agreement and ending four (4) years thereafter.
aa) "Installation" means all program management and work effort required to
plan, verify facilitates and all required gray iron, verify communications
equipment, the physical install of all identified gray iron and
communications equipment, physical interconnection via wiring
scheme/harnesses, loading and/or initiation of first software install,
verification of full interconnection and operability testing of the network,
and written acceptance and hand-off to the Integration Phase.
bb) "Installation Acceptance" has the meaning set forth in Section 3.8.
cc) "Integration" means all program management and work effort required to plan
and verify the ability to access, connect, disconnect, configure, manage,
monitor, and test via local and remote terminal connection, whether using
in-band or out-of-band methods all elements of the Network with written
acceptance and hand-off to the Implementation Phase.
dd) "Integration Acceptance" has the meaning set forth in Section 3.9.
ee) "Licensed Materials" means the Software and Related Documentation for which
Seller grants licenses under this Agreement, which may include any Software
described in any Attachment hereto or any Customer Price List. Unless
specifically set forth in this Agreement or otherwise agreed by the parties,
no Source Code versions of Software are included in Licensed Materials,
except for Customer's rights under the Escrow Agreement.
ff) "Market Development Funds" means the suite of Seller's marketing tools and
Services described in Exhibit F that are available to Customer as Market
Development Funds and will be calculated as [*] of the total purchase
amounts paid to Seller for Switching and Access Products.
gg) "Minimum Purchase Amount" has the meaning set forth in Section 2.5.
hh) "Network" means the physical hardware and software Products related to the
transport, transmission, access, and application Network communications
infrastructure used by Customer to its customers via centralized and
distributed business offices in a variety of combinations. The demarcation
points of the Network shall be coincident with the Customer demarcation
points. It is anticipated that the Network will include domestic intra-city
networks, inter-city networks, international networks and international
intra-city networks.
ii) "Network Architecture" means the overall design and architecture
specification for the Network, including sizing and engineering
requirements, from which the Network Technology, as part of the overall
Solution, is developed.
- --------------------
[*] Information redacted pursuant to a confidential treatment request
throughout this exhibit.
LUCENT TECHNOLOGIES INC. - PROPRIETARY
-4-
<PAGE> 6
jj) "Network Element" means any transport, transmission, and access Products or
set of interrelated Products used in the delivery of services necessary for
the proper operation of the Network, which will be set forth in the Network
Technology, and result in the specified Solution.
kk) "Network Technology" means the Deliverable developed from the Network
Architecture by Seller for review and approval by Customer, all as set forth
in Schedule A, that identifies the Product and transport specifications for
implementation as part of the City-Specific Plans.
ll) "Notice of Completion" has the meaning set forth in Section 3.8.
mm) "Operating Support Systems" means all interconnected and interworking
software and/or manual applications and related methods, processes and
procedures required to support the overall operations of the Network,
Network Technology, Network Elements, and the broadest definition of the
service activation, service fulfillment and service assurance with regards
to the ordering, provisioning, billing, and customer service disciplines.
nn) "Outage" has the meaning set forth in Section 6.5.
oo) "Product" means equipment, hardware, and parts and components thereof
provided by Seller under this Agreement, which may include, at Customer's
election, any Product described in any Attachment hereto, any firm price
quotation or any Customer Price List, or any other Product made available by
Seller to other parties during the Term, provided, however, that a Product
will become subject to this Agreement only when included in an Attachment
hereto.
pp) "Program Management" has the meaning set forth in Section 3.1.
qq) "Related Documentation" means materials useful in connection with Software
such as, but not limited to, flowcharts, logic diagrams and listings,
program descriptions and Specifications.
ss) "Services" mean activities provided by Seller to Customer under this
Agreement, which may include, at Customer's election, any Service described
in Section 5 hereto, any Attachment hereto, any firm price quotation or any
Customer Price List, any other Service made available by Seller to other
parties during the Term, or any other Service necessary or useful for
designing, building and maintaining the Network, including but not limited
to, design, engineering, configuration, installation, provisioning,
integration testing, maintenance, repair and monitoring.
tt) "Software" means a computer program in object code or run-time form
consisting of a set of logical instructions and tables of information that
guide the functioning of a processor. Such program may be contained in any
medium whatsoever, including Firmware. However, the term "Software" does not
mean or include such medium.
uu) "Solution" means all Products, Licensed Materials and Services designed and
architected to meet an agreed Specification or set of Specifications
allowing Customer to deliver voice and data by Seller services to its
customers.
vv) "Source Code" means any version of Software incorporating high-level or
assembly language in human perceivable form that generally is not directly
executable by a processor.
ww) "Specifications" means Seller's or its vendor's technical specifications for
particular Products or Software furnished hereunder, which, if not included
in the Attachments, Seller shall provide to Customer as soon as practicable
after Customer's request, and which, if not earlier provided, Seller shall
automatically provide with Customer's first order of the corresponding
Product or Software item.(Can we do this?)
xx) "Statement of Work" (SOW) means a detailed description of Services to be
performed which includes the expected completion dates of such Services. A
Statement of Work may be updated from time to time upon mutual written
consent of the parties.
yy) "Term" means the Initial Term and any extension or extensions agreed by the
parties as set forth in Section 2.1.
LUCENT TECHNOLOGIES INC. - PROPRIETARY
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<PAGE> 7
zz) "Third-Party Products" means equipment, hardware, Software or components
thereof which are procured by Customer (or by Seller on behalf of Customer)
from a third party and which are recommended or approved in writing by
Lucent for use in the Network.
aaa)"Use," with respect to Software, means installing the Software onto a
computer, loading the Software, or any portion thereof into a computer,
executing the instructions and tables contained in such Software, whether
alone or in conjunction with other software, providing input to and
obtaining output from such Software, using any such output, modifying user
controlled modules of such Software, reproducing the Software for backup and
archival purposes, and otherwise using the Software as described in the
Related Documentation.
bbb) "Work" means Product, Licensed Materials and/or Services provided to
Customer pursuant to this Agreement.
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ARTICLE 2 SCOPE AND STRUCTURE
2.1 TERM OF AGREEMENT
The Initial Term of this Agreement shall commence on the Effective Date
and shall continue in effect thereafter for the Initial Term. Upon written
notice from Customer, no less than sixty (60) days prior to the expiration
of the Initial Term, or any extension thereof, Customer may, at its sole
discretion extend this Agreement for successive one (1) year terms
provided that Customer has subsequently met its payment obligation as set
forth in this Agreement and is not in material breach of this Agreement.
The parties agree on the applicable terms, conditions, specifications and
pricing. Upon execution and delivery of this Agreement, the Letter of
Intent for Proposed Definitive Agreement(s) Between Advanced Telecom
Group, Inc. and Lucent Technologies Inc. dated November 19, 1998 (as
amended) is hereby superseded and effectively terminated, and the rights
and obligations of the parties with respect to the Proposal No.
GS-98-1H7532A1 dated September 4, 1998 and supplemented October 15, 1998
shall retroactively and hereafter be governed by this Agreement.
2.2 SCOPE
This Agreement sets forth the general terms and conditions under which
Customer may purchase and receive Products, Deliverables and Services from
Seller for Customer's own use within North America. It is Customer's
objective to engage Seller to provide program and project management
services, network and system design and architecture services,
installation, integration, and implementation services, hardware and
software products, and to generally supply Customer with requested Lucent
and potentially third party products and services as required, due to the
business and industry dynamics as may be dictated by change and more over,
provision, monitor, and maintain the service fulfillment of the Customer's
nationwide multi-service delivery communications Network. By entering into
this Agreement, Customer and Seller desire to leverage Seller's core
competencies in both products in designing, implementing, supplying and
maintaining the Network. As more fully described in the schedules hereto,
Seller and Customer will cooperatively define all program management,
scheduling, product, and service requirements and specifications that
describe the specific Products, Deliverables, and Services the Seller will
be responsible for. Following is a high-level list of such
responsibilities:
i. Develop and document the end-to-end design and architecture of the
Network;
ii. Develop and document the design and architecture of the end-to-end
Network Technology;
iii. Develop and document required plans including which products,
deliverables, services, schedules and resources are required to
execute the Installation, Integration, and Implementation of the
Network and Network Technology;
iv. Develop and document required plans including which products,
deliverables, services, schedules, and resources required to execute
the Enterprise Connectivity of the Network and Network Technology to
the operating systems, Operational Support Systems, Business Support
Systems, and other required Third Party interfaces and systems.
v. Consistent with the terms of this Agreement, acquire (on Customer's
behalf) the required Network Elements and related Services for the
installation, integration, and implementation of the Network and
Network Technology;
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vi. Program manage, project manage, and provide the physical and logical
Installation, Configuration, Integration, Implementation, and
testing of the Network Elements individually, with each other, and
as part of Network and Network Technology overall Acceptance
certification; and
vii. Program manage, project manage, and provide the physical and logical
Installation, Configuration, Integration, Implementation, and
testing of the Network, Network Technology, Network Elements
individually, with each other, and as part of the Customer's
end-to-end Solution that includes Operating Systems, Operational
Support Systems, Business Support Systems, and required Third Party
interfaces and systems; and
viii. Provide continued Product, Deliverable and Service planning, design,
architecture, engineering, installation, integration, and
implementation, and maintenance support for the Network, Network
Technology, Network Elements, Operating Systems, Operational Support
Systems, Business Support Systems, and other Third Party interfaces
and systems as it may evolve and expand.
Customer will designate Seller as Customer's preferred provider of
Products, Deliverables and Services for the Network, Network Technology,
Network Elements for the term of this Agreement; provided Seller's
Products, Deliverables and Services meet Customer's needs and preferences
with regard to Form, Fit, Function and price. Notwithstanding Seller's
preferred provider status, nothing in this Section 2.2 shall be
interpreted to limit Customer's rights to make purchases of any
Products and software from other vendors.
2.3 AFFILIATES
Customer and its North America Affiliates may place orders under this
Agreement. By virtue of placing orders with Seller, Customer hereby
guarantees the performance of such Affiliates to comply with the terms and
conditions of the Agreement and payment of all invoices for such
Affiliates. Customer shall promptly notify Seller in writing of any change
in the Affiliate status and upon losing Affiliate status, such Affiliate
shall immediately be disqualified from purchasing under this Agreement.
Any such notices shall automatically append to this Agreement and require
no further amendments between the parties. Customer shall provide Seller a
list of approved Affiliates, updated from time to time, attached as
Exhibit J to this Agreement.
2.4 CONFLICTING TERMS
Any firm price quotes, proposals, or other offers ("Offers") made by
Seller to Customer during the Term shall incorporate the terms and
conditions of this Agreement. Any conflicting terms and conditions of an
Offer signed by an authorized representative of Seller and Customer and
dated after the Effective Date will supersede the comparable terms of this
Agreement.
In the event of any conflict between the Agreement and an Attachment, the
terms and conditions of the Agreement shall prevail unless a term of an
Attachment expressly states that it supersedes a specific provision of the
Agreement.
2.5 MINIMUM PURCHASE AMOUNT
Under the terms and conditions and prices set forth herein and set forth
in any Attachments to this Agreement and subject to Seller's performance
of its obligations under this Agreement, Customer will purchase from
Seller [*] ("Minimum Purchase Amount") of no less than Deliverables and
Services during the Initial Term of this Agreement which shall include no
less than [*] [and no less than [*] according to the following schedule:
- --------------------
[*] Information redacted pursuant to a confidential treatment request
throughout this exhibit.
LUCENT TECHNOLOGIES INC. - PROPRIETARY
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<PAGE> 10
'
<TABLE>
<CAPTION>
Purchase Period Cumulative Purchase Amount
<S> <C>
End of First 12 Months of the Initial Term [*]
End of Second 12 Months of the Initial Term [*]
End of Third 12 Months of the Initial Term [*]
End of Fourth 12 Months of the Initial Term [*]
</TABLE>
All Deliverables ordered prior to the Effective Date shall be considered
as part of the First 12 Months orders. No more than thirty (30) days after
the end of each 12 months of the Initial Term, Seller and Customer will
review Customer's orders for the previous period to determine if Customer
has met the cumulative purchase amount. As Seller's sole remedy for
Customer's failure to meet its purchase obligations under this Section,
Seller reserves the right to review Customer's pricing discounts for
future orders to determine if the decrease warrants revision of the
pricing discounts. If Customer exceeds the cumulative purchase amount for
a reviewed year, Seller shall also review its pricing discounts to
determine if the increased cumulative purchase amount warrants further
discounts. The above determinators shall utilize the aggregate amount of
purchase orders submitted by Customer during each 12 month period,
adjusting said amount by eliminating those Purchase Orders which are
canceled or not paid for.
2.6 CUSTOMER RESPONSIBILITY
Customer shall, at no charge to Seller, provide Seller with such technical
information, data, or assistance as may reasonably be required by Seller
to fulfill its obligations under this Agreement or order. If Customer
fails to provide the technical information, data and assistance necessary
for Seller to fulfill an obligation hereunder Seller shall be discharged
from any such obligation until Customer provides such technical
information, data or assistance. Seller shall provide Customer with such
technical information, data, or assistance as may reasonably be required
by Customer to fulfill its obligations under this Agreement or order. If
Seller fails to provide the technical information, data and assistance
necessary for Customer to fulfill an obligation hereunder Customer shall
be discharged from any such obligation until Seller provides such
technical information, data or assistance.
2.7 FORECASTS
Customer hereby agrees that Customer shall provide Seller an initial
forecast of the portions of the Network Elements and Services to be
implemented during the first year of this Agreement within thirty (30)
business days after receiving all necessary firm price quotations,
recommendations and other necessary information and advice from Seller.
Customer shall, every six (6) months thereafter, provide Seller a six (6)
month forecast that reflects its best estimate of the quantity or volume
of Network Elements and Services actually implemented. Customer will
provide its best estimate of a rolling twelve (12) month forecast of
Network Elements and Services to be implemented. Seller acknowledges that
the last 6 months of any 12-month forecast may not be as accurate as the
first 6 months.
2.8 PERMITS AND APPROVALS
Seller represents that its Products furnished hereunder shall comply, to
the extent required, with applicable FCC rules and regulations pertaining
to said Products. Seller shall be responsible for obtaining necessary
governmental permits required to perform its work under this Agreement.
Except for the forgoing, Customer shall be responsible for obtaining
necessary governmental permits required for Customer to implement and
operate the Network.
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[*] Information redacted pursuant to a confidential treatment request
throughout this exhibit.
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ARTICLE 3 GENERAL TERMS AND CONDITIONS
3.1 PLANNING SERVICES AND PROGRAM MANAGEMENT.
Seller will be responsible for the overall program management of the
functions performed by Seller and Customer where such program management
is required and involves Network, Network Technology, and Network Elements
whereby the Seller has been selected to perform such planning, design,
architecture, engineering, installation, integration, implementation, and
testing of Products, Deliverables and Services. Also included are such
on-going program management of plans, design, architecture, engineering,
installation, integration, implementation, and testing of Network
operations (e.g., Lucent NRC operations, ATG INOC operations, third party
interfaces, third party product, Network Element monitoring, maintenance
and support). Seller, in cooperation with Customer program management
personnel, will manage master schedules, project schedules, and task
schedules for functions performed by Seller, Seller subcontractors,
Customer and Customer's third-party contractors in accordance with the
Attachments. Seller's performance of the overall program management
function does not imply responsibility for budget, cost or performance of
work functions not directly controlled by Seller or its subcontractors.
The Seller's program management role, as that of a single point of
reference and contact for the overall plan, design, architecture,
engineering, installation, integration, implementation, and testing of
Products, Deliverables and Services and at a high-level will include:
(a) Typical activities such as program/project schedule development and
maintenance, roles and responsibility matrix development and
maintenance, action register administration, high-level document
control, change control, critical item/jeopardy escalation process
management and program progress reporting;
(b) Managing and communicating with the various responsible parties
(i.e., Seller and its subcontractors, Customer and Customer-directed
third party resources) as appropriate so that the Implementation
meets established objectives of time, cost, functionality and
service quality, as defined in the relevant City-Specific Plan.
Customer will provide a single point of contact to monitor status,
resolve issues and make commitments to Seller with regard to each
Customer-performed function or required input; and
(c) Attending regularly scheduled progress reviews with appropriate
Customer personnel to communicate project status and resolve issues
in cooperation with Customer.
3.2 ORDERS
Customer shall submit orders to the designated Lucent Account Executive
for the Deliverables and Services specified by Seller. Each order shall
incorporate and be subject to the terms and conditions of this Agreement
and shall contain information required by Seller to process orders.
Unless Customer requests expedited delivery as provided below, the
requested delivery date of any order must be in accordance with the
delivery intervals set forth in the Attachments to this Agreement, or, if
not specified therein, with Seller's standard order intervals in effect on
the date of receipt of order by Seller. Seller reserves the right to
change such standard order intervals upon thirty (30) business days notice
to Customer but only with respect to future orders. Such
LUCENT TECHNOLOGIES INC. - PROPRIETARY
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change shall not affect orders accepted by Seller prior to the change to
the standard order intervals.
Customer may request that delivery of Deliverables be expedited by giving
Seller as much notice as possible in advance of the requested delivery
date and the reasons for the expedited delivery. Customer shall pay any
and all costs and expenses that result directly from the expedited
delivery.
Electronic orders submitted by Customer shall be binding on Customer
notwithstanding the absence of a signature. All orders are subject to
acceptance by Seller, provided that Seller shall accept all orders that
comply with the terms of this Section 3.1 and Customer is not in breach of
this Agreement. Pre-printed terms and conditions on Customer's purchase
order or on Seller's acceptance or invoice shall be ineffective, void and
of no force and effect. Orders shall be sent by Seller's designated
Account Executive to the following address:
Lucent Technologies Inc.
Customer Service
6701 Roswell Road
Building D - 3rd Floor
Atlanta, GA 30328-2501
3.3 CHANGES IN CUSTOMER'S ORDERS
Changes made by Customer to a purchase order which has been previously
accepted by Seller (a "Change Order") are subject to acceptance by Seller.
Change Orders shall be treated as a separate purchase order and shall
follow the mutually agreed Change Order process. In the event Seller
accepts a Change Order and such change affects Seller's ability to meet
its obligations under the original purchase order any price (discount, if
applicable), shipment date or Services completion date quoted by Seller
with respect to such original purchase order is subject to change. Seller
will provide to Customer written quotations and expected completion dates
for any requested Change Orders and Seller will have ten (10) business
days to accept or reject the new quotation and new completion dates.
Seller agrees to use reasonable efforts to minimize any delayed shipment
or completion date occasioned by such changes.
3.4 LATE DELIVERIES
3.4.1 For delivery delays that are the sole fault of Seller, and provided
that Customer is not in breach of this Agreement and has made invoice
payments in accordance with this Agreement, Seller will use its best
efforts to provide the delayed Deliverables to Customer expediently and at
no additional cost to Customer.
3.4.2 The parties agree that Seller's failure to meet the mutually agreed
upon Installation Acceptance Date for the host switch and associated gray
iron and power ("Host Switch Installation") will cause damages to Customer
which are difficult if not impossible to ascertain and prove. The parties
agree that subject to the terms and conditions set forth herein, Seller
shall pay and Customer shall accept as liquidated damages, and not as a
penalty, the amounts set forth in this paragraph. If due to Seller's
action or inactions, Seller fails to meet such Installation Acceptance
Date for the Host Switch Installation, Seller shall pay to Customer as
liquidated damages for any loss or damage sustained by Customer an initial
payment of [*] after a seven (7) day cure period and thereafter [*] per
day, for a maximum of thirty (30) days (resulting in a maximum liability
of [*]) for each host switch Installation Acceptance Date. With respect to
any host switch installation for which the maximum liquidated damages
become due to
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[*] Information redacted pursuant to a confidential treatment request
throughout this exhibit.
<PAGE> 13
Customer hereunder, Customer shall have the right to cancel the Purchase
Order with respect to such Host Switch Installation, receive a refund of
all monies and Customer shall have no further liability or obligation with
respect to such Purchase Order. Also, Seller shall not be liable or
responsible for liquidated damages for any delay caused by (1) Customer
changes, revisions, or modifications, or special requirements of Customer
not communicated and agreed to by Seller in writing as specified in the
Change Order process set forth in Section 3.3; (2) Customer's failure to
meet intervals specified in Schedule of Milestones contained in Schedule
____ of Exhibit C; or (3) Customer's failure to have the Host Switch Site
ready as defined by the Site Ready Checklist contained in Schedule _____
of Exhibit C. Any damages for which Seller is liable pursuant as to this
clause shall be credited against an invoice(s) for future Purchase Orders
during the term as the partied may agree. To the extent Seller does not
place Purchase Orders sufficient to credit all Late Delivery damages
accrued within six (6) months of the thirty (30) day period, Seller shall
refund to Customer that portion of the credit not previously credited.
This provision for liquidated damages (and cancellation of the applicable
Purchase Order) is intended to be and shall be in lieu of any other remedy
and any other claims for damages to which Customer might otherwise be
entitled for Seller's failure to timely meet the host switch Installation
Acceptance Date.
3.5 CHANGES IN PRODUCTS
Prior to shipment, Seller may, from time to time, make changes in Products
with respect to future orders. Seller may modify the Product(s) drawings
and Specifications or substitute Products of later design. Seller agrees
that such modifications or substitutions will not impact upon Form, Fit,
or Function under normal and proper use of the ordered Product as provided
in Seller's Specifications. For changes that do impact the Form, Fit, or
Function of the ordered Product, Seller shall notify Customer in writing
one hundred eighty (180) days prior to the date that changes become
effective. If Customer objects to the change, Customer shall notify Seller
within thirty (30) days from the date of notice. Upon receipt of notice,
Seller and Customer shall jointly determine acceptable Product
alternatives.
3.6 PRICES
Prices, fees, and charges ("Prices") for Deliverables and Services are set
forth in Customer's Price Lists and based upon Seller's standard ordering
and shipping intervals. If Customer desires to procure Deliverables or
Services that are not listed in any of Customer's Price Lists, Customer
may request that Seller provide an additional Customer Price List.
3.7 COMPETITIVE PRICE
Provided that Customer is not in material breach of this Agreement after
being notified by Seller in writing and given a reasonable opportunity to
cure such breach Seller will, [*]. If Customer fails to cure a material
breach of this Agreement within a reasonable time after being given
written notice by Seller, the obligations of Seller under this section
shall be suspended until such time as Customer cures the breach at which
time Seller's obligations shall be reinstated with respect to purchases on
and after the date of cure. If customer purchases Deliverables and
Services for deployment in Canada, this Section shall apply to such
purchases but the analysis shall be limited to Seller's other customers in
Canada.
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[*] Information redacted pursuant to a confidential treatment request
throughout this exhibit.
<PAGE> 14
3.8 ACCEPTANCE OF INSTALLATION
Following Installation of Products and Deliverables, or at such other
reasonable time during the Implementation plan, Seller shall issue to
Customer a written notice of completion ("Notice of Completion")
certifying that the Products or Deliverables are in working order and
ready for the Acceptance Test. Promptly after issuance of the Notice of
Completion and no later than thirty (30) days thereafter, Seller and
Customer shall conduct the Acceptance Test (or, at Customer's option,
Seller alone may conduct the Acceptance Test) to confirm that the Network
Elements or Deliverables have been installed in accordance with the
mutually agreed acceptance standards and procedures. "Installation
Acceptance" shall occur on the earlier of (i) the date Seller has
corrected all material defects identified during testing; (ii) thirty (30)
days after Notice of Completion if Customer fails to notify Seller of any
material defects during such 30-day period; (iii) the date Customer
advises Seller of acceptance; and (iv) the date Customer places the
Network Elements or Deliverables into Commercial Service.
3.9 ACCEPTANCE OF INTEGRATION
Following Integration of Products and Deliverables, or at such other
reasonable time during the Integration plan, Seller shall issue to
Customer a written notice of completion ("Notice of Completion")
certifying that the Products or Deliverables are in working order and
ready for the Integration Acceptance Test. Promptly after issuance of the
Notice of Completion and no later than thirty (30) days thereafter, Seller
and Customer shall conduct the Integration Acceptance Test (or, at
Customer's option, Seller alone may conduct the Integration Acceptance
Test) to confirm that the Network Elements or Deliverables have been
integrated in accordance with the mutually agreed acceptance standards and
procedures. "Integration Acceptance" shall occur on the earlier of (i) the
date Seller has corrected all material defects identified during testing;
(ii) thirty (30) days after Notice of Completion if Customer fails to
notify Seller of any material defects during such 30-day period; (iii) the
date Customer advises Seller of acceptance; and (iv) the date Customer
places the Network Elements or Deliverables into Commercial Service.
3.10 ACCEPTANCE OF IMPLEMENTATION
Following Implementation of Products, Deliverables or Services or at such
other reasonable time during the Implementation plan, Seller shall issue
to Customer a written notice of completion ("Notice of Completion")
certifying that the Products or Deliverables are in working order and
ready for the Implementation Acceptance Test. Promptly after issuance of
the Notice of Completion and no later than thirty (30) days thereafter,
Seller and Customer shall conduct the Implementation Acceptance Test (or,
at Customer's option, Seller alone may conduct the Implementation
Acceptance Test) to confirm that the Network Elements or Deliverables have
been implemented in accordance with the mutually agreed acceptance
standards and procedures. "Implementation Acceptance" shall occur on the
earlier of (i) the date Seller has corrected all material defects
identified during testing; (ii) thirty (30) days after Notice of
Completion if Customer fails to notify Seller of any material defects
during such 30-day period; (iii) the date Customer advises Seller of
acceptance; and (iv) the date Customer places the Network Elements or
Deliverables into Commercial Service.
3.11 INVOICES AND TERMS OF PAYMENT
3.11.1 Customer shall pay all undisputed, invoiced amounts and applicable
transportation charges and taxes for receipt by Seller within thirty (30)
days of invoice date as follows:
(a) Products and Licensed Materials (including transportation charges
and taxes, if applicable) will be invoiced by Seller when shipped,
or as soon thereafter as practicable.
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(b) Engineering services will be invoiced upon main shipment of
Products.
(c) Installation will be invoiced as performed, on a monthly basis, or
as soon thereafter as practical.
(d) For all other Services, invoicing will be on a monthly basis, at the
end of the month in which the Service is performed, unless otherwise
set forth in an applicable Exhibit.
3.11.2 Customer shall pay all undisputed amounts when due Seller hereunder
using Electronic Funds Transfer ("EFT"). EFT payments by Customer shall be
made to the following account of Seller or such other account as is
subsequently designated by Seller in writing and, concurrent with the EFT
payment, Customer shall fax a copy of the remittal to Seller's Manager of
Cash Operations at 770-750-4288.
Chase Manhattan Bank
New York, New York
Account Name: Lucent Technologies Inc.
ACCT. 910144-9099
ABA 021000021
3.11.3 If Customer fails to pay any invoiced amount when due, the invoiced
amount will be subject to a late payment charge at the rate of [*] per
month, or portion thereof, of the amount due (but not to exceed the
maximum lawful rate). Amounts disputed in good faith shall not be subject
to a late payment charge, provided Customer has notified Seller of the
dispute as provided below. If Customer is in breach of its obligations to
make payments, Seller shall have the right to reject, cancel or delay
orders, until such time as Customer has cured its breach, and Seller shall
not be liable for loss, delay or failure to perform its obligations as a
result of such action.
3.11.4 Customer agrees to review all invoices furnished by Seller
hereunder upon receipt and notify Seller of any billing discrepancies or
disputed amounts within ten (10) business days of receipt of the
applicable invoice. Such inquiries can be directed to Seller in writing or
by telephone. Inquiries shall be made to the telephone number or, if in
writing, to the address identified on the invoice.
3.12 PURCHASE MONEY SECURITY INTEREST
Seller reserves and Customer agrees that Seller shall have a purchase
money security interest in each Product and Licensed Material hereafter
supplied to Customer by Seller under this Agreement until any and all
payments and charges due Seller for such Product or Licensed Material are
paid in full under this Agreement including, without limitation, shipping
and installation charges. Seller shall have the right, at any time and
without notice to Customer, to file in any state or local jurisdiction
such financing statements (e.g., UCC-1 financing statements) as Seller
deems necessary to perfect its purchase money security interest hereunder.
Upon request by Seller and at Seller's expense, Customer hereby agrees to
execute all documents necessary to secure Seller's purchase money security
interest including without limitation, UCC-1 or such other documents
Seller deems reasonably necessary. Notwithstanding the foregoing
obligation of Customer to execute, Customer hereby irrevocably appoints
Seller as its attorney-in-fact for purposes of executing and filing such
financing statements and such other documents prepared by Seller or its
designated agent for purposes of perfecting Seller's security interest
hereunder. Customer also agrees that Seller may file this Agreement in any
state or local jurisdiction as a financing statement (or as other evidence
of the Seller's purchase money security interest).
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[*] Information redacted pursuant to a confidential treatment request
throughout this exhibit.
<PAGE> 16
3.13 TAXES
Customer shall be liable for and shall reimburse Seller for all taxes
and related charges, however designated, imposed upon or based upon the
provision of Services and the sale, license or Use of Deliverables,
excluding taxes on Seller's net income, unless Customer provides Seller
with a valid tax exempt certificate. Seller's failure to collect taxes
in accordance herewith shall not be deemed to be an authorization to
resell Products or Services or sublicense Licensed Materials. Whenever
Seller is able to do so, Seller shall deliver Software electronically to
minimize the amount of sales tax payable.
3.14 TRANSPORTATION AND PACKING
Seller, in accordance with its normal practices, shall arrange for prepaid
transportation to destinations in the contiguous United States and shall
invoice transportation charges to Customer. Premium transportation will be
used only at Customer's request. Seller shall pack Products for delivery
in the contiguous United States, in accordance with its standard practices
for domestic shipments. Where, in order to meet Customer's requests,
Seller packs Products in other than its normal manner or for destinations
outside the contiguous United States, Customer shall pay the additional
charges for such packing and transportation.
3.15 TITLE AND RISK OF LOSS
Title to Products only and risk of loss to Products and Licensed Materials
shall pass to Customer upon shipment. Title to all Licensed Materials
(whether or not part of Firmware) furnished by Seller, and all copies
thereof made by Customer, including translations, compilations and partial
copies are, and shall remain, the property of Seller or its licensor.
Customer shall notify Seller promptly of any claim with respect to loss,
which occurs while Seller has the risk of loss and shall cooperate in
every reasonable way to facilitate the settlement of any claim. Seller
shall notify Customer promptly of any claim with respect to loss, which
occurs while Customer has the risk of loss and shall cooperate in every
reasonable way to facilitate the settlement of any claim.
3.16 INFRINGEMENT
In the event of any claim, action, proceeding or suit brought in North
America, the European Union, or Japan, by a third party against Customer
alleging an infringement of any patent, copyright, or trademark in North
America, the European Union, or Japan, or a violation of any trade secret
or proprietary rights in North America, the European Union, or Japan, by
reason of the use in accordance with Seller's Specifications or Related
Documentation of any Product or Licensed Materials furnished by Seller to
Customer under this Agreement, or the provision of Services by Seller
under this Agreement, Seller, at its expense, will defend, indemnify and
hold Customer harmless, subject to the conditions and exceptions stated
below. Seller will reimburse Customer for any cost, expense or attorneys'
fees, incurred at Seller's written request or authorization, or otherwise
reasonably incurred by Customer in good faith and in compliance with this
Section , and will indemnify Customer against any liability assessed
against Customer on account of such infringement or violation arising out
of such use and against any settlement agreed to by Seller.
If Customer's use shall be enjoined or in Seller's opinion is likely to be
enjoined, Seller will, at its expense and at its option, either (1)
replace the enjoined Product or Licensed Materials furnished pursuant to
this Agreement with a suitable substitute free of any infringement without
materially affecting Form, Fit or Function; (2) modify it so that it will
be free of the infringement without materially affecting Form, Fit or
Function; or (3) procure for Customer a license or other right to use it.
If none of the foregoing options can be implemented , Seller will remove
the enjoined Product or Licensed Materials and any related Products or
Licensed Materials elected by Customer and refund to Customer any amounts
paid to Seller therefor.
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Customer shall give Seller prompt written notice of all such claims,
actions, proceedings or suits alleging infringement or violation and
Seller shall have full and complete authority to assume the sole defense
thereof, including appeals, and to settle same. Customer shall, upon
Seller's request and at Seller's expense, furnish all information and
assistance available to Customer and cooperate in every reasonable way to
facilitate the defense and/or settlement of any such claim, action,
proceeding or suit.
No undertaking of Seller under this section shall extend to any such
alleged infringement or violation to the extent that it: (1) arises from
adherence to design modifications, specifications, drawings, or written
instructions which Seller is directed by Customer to follow, and which
were not prepared, specified, or recommended by Seller, but only if such
alleged infringement or violation does not reside in corresponding
commercial Product or Licensed Materials of Seller's design or selection;
or (2) arises from adherence to instructions by Customer to apply
Customer's trademark, trade name or other company identification; or (3)
resides solely in a product or licensed materials which are not of
Seller's origin and which are furnished by Customer to Seller for use
under this Agreement, except to the extent such product or licensed
materials were installed, recommended or otherwise approved by Seller; or
(4) relates to uses of Product or Licensed Materials provided by Seller in
combination with other products or licensed materials not furnished by
Seller, unless the combination was installed, recommended or otherwise
approved by Seller, or is otherwise required or necessary to use the
Product or Licensed Materials. In the foregoing cases numbered (1) through
(4), Customer will defend and save Seller harmless, subject to the same
terms and conditions and exceptions stated above, with respect to the
Seller's rights and obligations under this Section.
The liability of Seller and Customer with respect to any and all such
claims, actions, proceedings or suits by third parties described in this
Section shall be limited to the specific undertakings contained in this
Section.
3.17 REMEDIES
3.17.1 Customer's exclusive remedies and the entire liability of Seller,
its Affiliates and their respective employees, agents and suppliers for
any claim, loss, damage or expense of Customer or any other entity arising
out of this Agreement, or the use, performance, or nonperformance of any
Product, Licensed Materials, or Services, whether in an action for or
arising out of breach of contract, tort, including negligence, indemnity,
or strict liability, shall be as follows:
1. For infringement, the remedy set forth in the "Infringement"
Section;
2. For the nonperformance of Products, Software and the Network and for
the performance or nonperformance of Services during the Warranty
Period - the remedy set forth in the applicable "Warranty" Section;
3. For tangible property damage to Customer's property and personal
injury caused by Seller - the amount of direct damages; and
4. For the late delivery, the remedy set forth in Section 3.4; and
5. For everything other than as set forth above - [*].
3.17.2 Seller's exclusive remedies and the entire liability of Customer,
its Affiliates and their respective employees, agents and suppliers for
any claim, loss, damage or expense of Seller or any other entity arising
out of this Agreement, or the use, performance, or nonperformance of any
Product, Licensed Materials, or Services, whether in an action for or
arising out of breach of contract, tort, including negligence, indemnity,
or strict liability, shall be as follows:
1. For infringement, the remedy set forth in the "Infringement"
Section;
- --------------------
[*] Information redacted pursuant to a confidential treatment request
throughout this exhibit.
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2. For tangible property damage to Seller's property and personal
injury caused by Customer - the amount of direct damages; and
3. For everything other than as set forth above - [*].
3.17.3 EXCEPT FOR CLAIMS, LOSS, OR DAMAGES ARISING FROM BREACH OF
SECTION 3.17 OR MISAPPROPRIATION OF A PARTY'S INTELLECTUAL PROPERTY,
NEITHER PARTY NOR ITS AFFILIATES NOR THEIR RESPECTIVE EMPLOYEES, AGENTS
AND SUPPLIERS, SHALL BE LIABLE FOR ANY INCIDENTAL, INDIRECT, OR
CONSEQUENTIAL DAMAGES OR LOST PROFITS, REVENUES OR SAVINGS OR LOSS OF DATA
ARISING OUT OF THIS AGREEMENT, OR THE USE OR PERFORMANCE OF ANY PRODUCT,
LICENSED MATERIALS, DELIVERABLES, OR THE PROVISION OF SERVICES, REGARDLESS
OF THE FORM OF ACTION AND REGARDLESS WHETHER SUCH DAMAGES WERE
FORESEEABLE. THIS SECTION SHALL SURVIVE FAILURE OF AN EXCLUSIVE OR LIMITED
REMEDY.
3.18 USE OF INFORMATION
All technical and business information in whatever form recorded which
bears a legend or notice stating its proprietary or confidential nature or
otherwise restricting its use, copying, or dissemination or, if not in
tangible form, is described as being proprietary or confidential at the
time of disclosure and is subsequently summarized in a writing so marked
and delivered to the receiving party within thirty (30) days of disclosure
to the receiving party (all hereinafter designated "Information") shall be
deemed confidential. The furnishing party grants the receiving party the
right to use such Information only for purposes expressly permitted in
this section. Such Information (1) shall not be reproduced or copied, in
whole or part, except for use as authorized in this Agreement; and (2)
shall, together with any full or partial copies thereof, be returned or
destroyed upon request of the furnishing party when no longer needed or
useful. Moreover, when Seller is the receiving party, Seller shall use
such Information only for the purpose of performing under this Agreement,
and when Customer is the receiving party, Customer shall use such
Information only (1) to order; (2) to evaluate Seller's Products, Licensed
Materials and Services; or (3) to install, operate and maintain the
particular Products and Licensed Materials for which the Information was
originally furnished. Unless the furnishing party consents in writing,
such Information, except for that part, if any, which is known to the
receiving party free of any confidential obligation, which is
independently developed by the receiving party without reference to the
Information, or which becomes generally known to the public through acts
not attributable to the receiving party, shall be held in confidence by
the receiving party. The receiving party may disclose such Information to
other persons (such as financial advisors, legal advisors, consultants,
investors, customers, and suppliers), upon the furnishing party's prior
written authorization, but solely to perform acts which this section
expressly authorizes the receiving party to perform itself and further
provided such other person agrees in writing (a copy of which writing will
be provided to the furnishing party at its request) to the same conditions
respecting use of Information contained in this section and to any other
reasonable conditions requested by the furnishing party. Notwithstanding
the foregoing, the receiving party may disclose information to the extent
disclosure may be required by applicable laws or regulations, in which
latter case, the party required to make such disclosure shall promptly
inform the other prior to such disclosure in sufficient time to enable
such other party to make known any objections it may have to such
disclosure. The party required to make such disclosure shall take all
reasonable steps and exercise all reasonable efforts directed by the other
party to secure a protective order, seek confidential treatment, or
otherwise assure that this Agreement and/or any order will be withheld
from the public record.
- --------------------
[*] Information redacted pursuant to a confidential treatment request
throughout this exhibit.
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3.19 DOCUMENTATION
Seller shall furnish to Customer, at no additional charge, three (3)
electronic copies on CD-Rom of the documentation for Products and/or three
electronic copies on CD-Rom of the Related Documentation for Software
licensed to Customer. Electronic copies shall be in CD-Rom format or in an
alternative Web accessible format, if available, and if not available,
Seller shall furnish three (3) hard copies. Such documentation shall be
that which is customarily provided by Seller to its Customers at no
additional charge. Such documentation shall be sufficient to enable
Customer to operate and maintain such Products and Software in accordance
with Seller's Specifications. Such documentation shall be provided either
prior to, included with, or shortly after shipment of Products and/or
Software from Seller to Customer. Additional copies of such documentation
are available at prices set forth in Seller's Customer Price Lists. Seller
hereby grants Customer a nonexclusive, nontransferable license to print a
reasonable number of hard copies of the documentation for Customer's sole
use in operating its business.
3.20 NOTICES
Any notice, demand or other communication (other than an order) required,
or which may be given, under this Agreement shall, unless specifically
otherwise provided in this Agreement, be in writing and shall be given or
made by nationally recognized overnight courier service, confirmed
facsimile, or certified mail, return receipt requested and shall be
addressed to the respective parties as follows:
If to Seller:
Attn: Contract Manager
Lucent Technologies Inc.
Global Commercial Markets
8400 East Prentice Ave., Ninth Floor
Englewood, CO 80111-2912
Facsimile: 303-773-2455
If to Customer: Advanced Telecom Group, Inc.
Attn: Mr. Eric Russell, Controller
100 Stony Point Road
Suite 130
Santa Rosa, CA 9540
Any such notice shall be effective upon receipt. Each party may change its
designated representative or address for receipt of communications and
notices by giving written notice to the furnishing party.
3.21 FORCE MAJEURE
Neither party shall be liable to the other party for any delay or failure
in performance to the extent the delay or failure results from a Force
Majeure. A Force Majeure is any cause which is beyond a party's reasonable
control, including but not limited to fires, strikes, embargoes,
explosions, earthquakes, floods, wars, water, the elements, labor
disputes, government requirements, civil or military authorities, acts of
God or by the public enemy, inability to secure raw materials or
transportation facilities, acts or omissions of carriers or suppliers, or
other causes , whether or not similar to the foregoing, in each case to
the extent beyond such party's control. A party shall promptly notify the
other party of the occurrence of Force Majeure, and the notifying party
shall be excused from any further performance of the obligations affected
by Force Majeure for as long as the Force Majeure continues, provided such
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party uses and continues to use its best efforts to recommence
performance. If such delay or failure to perform extends for more than
ninety (90) days, the other party may terminate the order or orders
affected by Force Majeure upon written notice without liability for such
termination.
3.22 ASSIGNMENT
Except as provided in this section, neither party shall assign this
Agreement or any right or interest under this Agreement, nor delegate any
work or obligation to be performed under this Agreement (an "assignment")
without the other party's prior written consent. Any attempted assignment
in contravention of this shall be void and ineffective. Nothing shall
preclude a party from employing a subcontractor in carrying out its
obligations under this Agreement, subject to the other party's approval,
which shall not be unreasonably withheld. A party's use of such
subcontractor shall not release the party from its obligations under this
Agreement. Notwithstanding the foregoing, either party has the right to
assign this Agreement and to assign its rights and delegate its duties
under this Agreement, in whole or in part, at any time and without the
other party's consent, to any present or future subsidiary or Affiliate of
such party or to any combination of the foregoing. Such assignment or
delegation shall not release such party from any further obligation or
liability thereon. In addition, each party shall have the right to assign
this Agreement to an entity which acquires all or substantially all of the
business, stock or assets of such party, whether by operation of law or
otherwise, provided that the party acquiring Customer's business, stock or
assets is not a direct competitor of Seller in providing Network Products,
Software or Services. In such cases, the assigning party shall give the
other party prompt written notice of the assignment. For the purposes of
this section, the term "Agreement" includes this Agreement, all
Attachments, any subordinate agreement placed under this Agreement and any
order placed under this Agreement or subordinate agreement.
3.23 TERMINATION
In the event either party is in material breach or default of the terms of
this Agreement and such breach or default continues for a period of thirty
(30) days after the receipt of written notice from the other party,
excluding matters which are the subject of a good faith dispute under
negotiation, then the party not in breach or default shall have the right
to terminate this Agreement without any charge, obligation or liability
except for Products or Licensed Materials already delivered and Services
already performed.
3.24 INDEPENDENT CONTRACTOR
All work performed by either party under this Agreement shall be performed
as an independent contractor and not as an agent of the other, and no
persons furnished by the performing party shall be considered the
employees or agents of the other.
3.25 RELEASES VOID
Neither party shall require releases or waivers of any personal rights
from representatives or employees of the other in connection with visits
to its premises, nor shall such parties plead such releases or waivers in
any action or proceeding.
3.26 PUBLICITY
For publication at a mutually agreed time, the parties will jointly and
promptly create a press release to announce the execution of this
Agreement and the formation of a relationship between Customer and Seller
within thirty (30) days of the Effective Date. The press release will be
subject to prior written consent of each party. Neither party shall issue
or release for publication any articles, advertising, or publicity
material relating to Products, Licensed Materials, or Services under this
Agreement or mentioning or implying the name, trademarks,
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logos, trade name, service mark or other company identification of the
other party or any of its Affiliates or any of its personnel without the
prior written consent of the other party, which, if applicable, shall be
provided as soon as practicable thereafter. Customer may use Seller's
trade name, logo, trademarks, service marks and other company
identification as provided in Exhibit F.
3.27 CONFIDENTIALITY OF AGREEMENT
Notwithstanding the obligations contained in Section "Use of Information"
of this Agreement the parties shall keep all provisions of this Agreement
and any order submitted hereunder (including, without limitation, prices
and pricing related information) confidential except as reasonably
necessary for performance by the parties hereunder and except to the
extent disclosure may be required by applicable laws or regulations, in
which latter case, the party required to make such disclosure shall
promptly inform the other prior to such disclosure in sufficient time to
enable such other party to make known any objections it may have to such
disclosure. The disclosing party shall take all reasonable steps and
exercise all reasonable efforts directed by the other party to secure a
protective order, seek confidential treatment, or otherwise assure that
this Agreement and/or any order will be withheld from the public record.
3.28 EXPORT CONTROL
The parties acknowledge that all Deliverables, related documentation, and
technical information (including, but not limited to, service and
training) provided under this Agreement are subject to U.S. export laws
and regulations and any use or transfer of such Products, Software,
related documentation, or technical information must be authorized under
those regulations. Each party agrees that it will not use, distribute,
transfer, or transmit the Products, Software, related documentation, or
technical information (even if incorporated into other products) except in
compliance with U.S. regulations. If requested by Seller, Customer also
agrees to sign written assurances and other export-related documents as
may be required for Seller to comply with U.S. export regulations.
3.29 AMENDMENTS
Any supplement, modification or waiver of any provision of this Agreement
must be in writing and signed by authorized representatives of both
parties.
3.30 SEVERABILITY
If any portion of this Agreement is found to be invalid or unenforceable,
the parties agree that the remaining portions shall remain in effect. The
parties further agree that in the event such invalid or unenforceable
portion is an essential part of this Agreement, they will immediately
begin negotiations for a replacement.
3.31 WAIVER
If either party fails to enforce any right or remedy available under this
Agreement, that failure shall not be construed as a waiver of any right or
remedy with respect to any other breach or failure by the other party.
3.32 SURVIVAL
The rights and obligations of the parties, which by their nature would
continue beyond the termination cancellation, or expiration of this
Agreement, shall survive such termination, cancellation or expiration.
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3.33 SECTION HEADINGS
The section headings in this Agreement are inserted for convenience only
and are not intended to affect the meaning or interpretation of this
Agreement.
3.34 CHOICE OF LAW
The construction and interpretation of, and the rights and obligations of
the parties pursuant to this Agreement, shall be governed by the laws of
the State of California without regard to its conflict of laws provision
and excluding the United Nations Convention on the Sale of Goods. All
disputes arising out of this Agreement shall be subject to the exclusive
jurisdiction and venue of the United States District Court for the
Northern District of California, or if there is no federal jurisdiction,
the California state courts of San Francisco, California, and the parties
consent to the personal and exclusive jurisdiction of these courts.
3.35 DISPUTE RESOLUTION
3.36.1 Senior management of either party may, upon notice and within five
(5) business days of receipt of a notice from the other party, elect to
utilize a non-binding resolution procedure whereby each party presents its
case before a panel consisting of two senior executives of each of the
parties and, if such executives can agree upon such an individual, a
mutually acceptable neutral advisor. If a party elects to use the
procedure set forth in this clause, the other party shall participate. The
hearing shall occur no more than ten (10) business days after a party
serves notice to use the procedure set forth in this clause. If the matter
cannot be resolved by such senior executives, the neutral advisor, if one
has been agreed upon, may be asked to assist such senior executives in
evaluating the strengths and weaknesses of each party's position on the
merits of their dispute. The parties shall each bear their respective
costs incurred in connection with the procedure set forth in this clause,
except that they shall share equally the fees and expenses of the neutral
advisor, if any, and the cost of the facility for the hearing.
If the parties are unable, in good faith, to reach a settlement of the
matter submitted to mediation, upon notice to the other party, either
party may elect to file a lawsuit in a court of competent jurisdiction.
Similarly, if one party refuses or fails to comply with the procedure
described above, upon notice to the non-compliant party, the other party
may elect to file a lawsuit in a court of competent jurisdiction.
3.36 AMBIGUITIES
The parties represent that they are sophisticated businesses with access
to their own legal, financial and business advisors and that each party
has had the opportunity to consult with advisors of their own choosing
before entering into this Agreement. The parties therefore acknowledge and
agree that the rule of law that ambiguities are construed against the
drafter shall not apply to the interpretation of this Agreement.
3.37 INSURANCE
Each party shall maintain during the term of this Agreement, at its own
cost and expense, carry and maintain at a minimum, the insurance coverage
listed below. If either party is not self-insured, that party shall
maintain such coverages having a "Best's" rating of at least B+XIII.
Seller shall not commence any work hereunder until each party has
fulfilled all insurance requirements herein. Each party shall require its
subcontractors and agents to maintain the same insurance coverage listed
below.
- Workers' Compensation insurance with statutory limits as required in
the state(s) of operation; and providing coverage for either party's
employee entering onto Customer premises, even if not required by
statute. Employers' Liability or "Stop Gap" insurance with limits of
not less than $500,000 for each occurrence.
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- Commercial General Liability Insurance covering claims for bodily
injury, death, personal injury or property damage occurring or
arising out of the performance of this Agreement, including coverage
for independent contractor's protection (required if any work will
be subcontracted), premises-operations, products/completed
operations and contractual liability with respect to the liability
assumed by either party hereunder.
- The limits of insurance shall not be less than:
- Each Occurrence (Bodily Injury/Property Damage) $1,000,000.00
- General Aggregate Limit (Annual Aggregate) $2,000,000.00
- Products-Completed Operations Limit (Annual Aggregate)
$1,000,000.00
- Personal Advertising Injury Limit (Each Occurrence)
$1,000,000.00
- Comprehensive Automobile Liability Insurance covering ownership,
operation and maintenance of all owned, non-owned and hired motor
vehicles used in connection with the performance of this Agreement,
with limits of at least $1,000,000 combined single limit for bodily
injury and property damage.
The insurance limits required herein may be obtained through any
combination of self-insurance, primary and excess or umbrella liability
insurance. Each party shall furnish the other prior to the start of the
work, if requested by the other, certificates or adequate proof of the
insurance required by this clause. Each party shall notify the other in
writing at least thirty (30) days prior to cancellation of or any material
change in the policy. Notwithstanding the above, each party shall have the
option where permitted by law to self-insure any or all of the foregoing
risks.
3.38 FACILITIES ACCESS
Each party shall provide the other with reasonable access to its
facilities required in connection with the performance of their respective
obligations under this Agreement. No charge shall be made for such access.
Reasonable prior notification will be given when access is required.
Neither party shall require releases of any personal rights in connections
with visits to its premises.
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ARTICLE 4 PROVISIONS APPLICABLE TO LICENSED MATERIALS
4.1 LICENSE FOR LICENSED MATERIALS
Upon delivery of Licensed Materials and payment of the applicable license
fee(s) to Seller, Seller grants to Customer a perpetual, irrevocable,
non-terminable and nonexclusive license to Use Licensed Materials in North
America for its own business operations. No license is granted to Customer
to Use the Licensed Materials outside North America or to sublicense such
Licensed Materials furnished by Seller. Customer shall not reverse
engineer, decompile or disassemble Software furnished as object code to
generate corresponding Source Code, except as authorized by applicable
law. Unless otherwise agreed in writing by Seller, Customer shall not
modify Software furnished by Seller under this Agreement, except as
authorized in Section 4.8 or otherwise authorized herein or in the
Documentation. Further, Seller shall offer maintenance and support
services for such Licensed Materials in accordance with mutually agreed
terms and conditions.
Customer shall not copy Software embodied in Firmware, except as necessary
for its Use. Customer shall not make any copies of any other Licensed
Materials except for backup and archival copies and as otherwise necessary
in connection with the rights granted hereunder. Customer shall reproduce
and include any Seller copyright and proprietary notice on all such
necessary copies of the Licensed Materials. Customer shall also mark all
media containing such copies with a warning that the Licensed Materials
are subject to restrictions contained in an agreement between Seller and
Customer and that such Licensed Materials are the property of Seller.
Customer shall maintain records of the number and location of all copies
of the Licensed Materials. Customer shall take appropriate action, by
instruction, agreement, or otherwise, with the persons permitted access to
the Licensed Materials so as to enable Customer to satisfy its obligations
under this Agreement. If the Licensed Materials are no longer needed by,
or useful to Customer, Customer shall return all copies of such Licensed
Materials to Seller or follow written disposition instructions provided by
Seller.
Seller shall provide, at no extra cost to Customer, up to three (3) copies
of the Application Software for use in Customer testing facility ("Testing
Software"). Customer shall not make additional copies so the "Testing
Software" and expressly agrees that it will not use the Testing Software
for commercial service or for any purpose other than testing, and
migration planning for entities to be acquired by Customer, provided that
the period of use for migration planning shall not exceed 120 days. In
addition, the testing Software may be used for disaster recovery at a fee
to be mutually agreed.
4.2 CHANGES IN LICENSED MATERIALS
Prior to shipment, Seller at its option may at any time modify the
Licensed Materials, provided the modifications, under normal and proper
Use, do not materially adversely affect the Use, function, or performance
of the ordered Licensed Materials and such Licensed Materials continue to
conform to the Specifications, and provided that Customer receives thirty
(30) days notice of such modifications and an opportunity to cancel such
order without charge. Unless otherwise agreed in writing, such
substitution shall not result in any additional charges to Customer with
respect to licenses for which Seller has quoted fees to Customer.
4.3 NON-CANCELLATION OF LICENSE
The parties acknowledge that licenses to Use the Licensed Materials,
together with the Products and Services, are critical to Customer's
business operations, and as such, Seller may not under
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any circumstances terminate or cancel Customer's licenses hereunder or
otherwise prevent Customer from Using the Licensed Materials (except as
provided below), and such licenses shall survive any expiration or
termination of this Agreement. If Customer fails to comply with any of the
material terms and conditions of this Agreement with respect to the Use of
Licensed Materials and such failure is not corrected within sixty (60)
days of receipt of written notice thereof by Customer, then Seller shall
be entitled to recover damages including direct and consequential damages
for Customer's breach of license(s), not to exceed [*]. If Customer's
failure to comply with such terms and conditions involves the disclosure
of proprietary or confidential Information or impairs the protection of
Seller's intellectual property, Customer acknowledges that Seller will
suffer irreparable harm and damages will be insufficient to compensate
Seller. Accordingly, in such event Seller shall be entitled to injunctive
and other equitable relief to insure ongoing compliance with the
applicable terms and conditions of the license, but not to prevent
Customer's use of the Licensed Materials in accordance with the license
terms and conditions. In addition, until such time as Customer cures its
failure to comply with such terms and conditions, Seller shall have no
obligation to grant any additional licenses or deliver any additional
Software hereunder.
4.4 OPTIONAL SOFTWARE FEATURES
Software provided to Customer under this Agreement may contain optional
features that are separately licensed and priced. Seller shall notify
Customer regarding all such features prior to or concurrent with delivery
of the Software. Customer understands and agrees that such optional
features will not be activated without written authorization from Seller
and Customer's payment of the appropriate license fees. Seller will
identify all locked-out features of Seller- developed Software. If, in
spite of Customer's best efforts to comply with this restriction, such
features are activated, Customer agrees to so notify Seller within five
(5) business days from the date of Customer's knowledge that such features
were activated and to either pay Seller the current license fees charged
by Seller for the activated features or allow Seller to promptly
deactivate such features.
4.5 ADDITIONAL RIGHTS IN LICENSED MATERIALS
Customer may relocate the Software from time to time, as long as Customer
remains in compliance with the license restrictions set forth herein. Upon
Seller's reasonable request from time to time, Customer shall provide
Seller a report regarding the current locations of the Software. Seller
will not unreasonably withhold its consent to Use outside the United
States provided that the proprietary information associated with the Use
can be adequately protected and any other reasonable concerns of Seller
are adequately addressed
Customer may retain an archival copy of the Software for as long as such
Software is relevant to Customer's operations.
4.6 INSTALLATION OF SOFTWARE
If an order specifies that Customer is responsible for Software
installation, Seller shall deliver the Software to Customer on or before
the scheduled Delivery Date specified in the order. However, if the order
specifies that Seller is responsible for such installation, Seller shall
deliver and install the Software on Customer's computer(s)on or before the
scheduled installation date specified in such order.
Where Customer has assumed responsibility for the installation of newly
licensed Software and in the event that Customer encounters installation
difficulties, at Customer's request, Seller will, at the standard rate in
effect at the time of the request, provide technical assistance, provided
that if such installation difficulties are due to problems with the
Software, Seller shall provide such assistance at no charge.
- --------------------
[*] Information redacted pursuant to a confidential treatment request
throughout this exhibit.
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4.7 MODIFICATIONS BY CUSTOMER TO USER CONTROLLED MODULES
Customer may add to, delete from, or modify user controlled Software
modules or menus as contemplated in the Seller's Related Documentation.
Such changes or modifications, however extensive, shall not affect
Seller's title to the licensed Software. Seller shall have no liability
for Customer's errors in making such changes or modifications.
4.8 ADDITIONAL SOFTWARE RIGHTS
Customer may transfer Software embedded in hardware without the payment of
an additional right-to-use fee or transfer fee provided the license to
such Software may only be transferred together with the Product with which
Customer has a right to use such Software, and such right to use the
Software shall continue to be limited to Use with such Product.
Application Software for general purpose operating system(s) may be
transferred under this Section in connection with Customer's sale of a
business or subject to mutually agreed transfer fee(s) or other
right-to-use fee(s), if any. Any transfer can be made to an end user for
its own internal use and only under the following conditions:
(a) Such Software shall be Used only within North America; however,
Seller will not unreasonably withhold its consent to Use outside
North America provided that the proprietary information associated
with the Use can be adequately protected and any other reasonable
concerns of Seller are adequately addressed;
(b) Before any such Software shall be transferred, Customer shall notify
Seller of such transfer and the transferee shall have agreed in
writing (a copy of which will be provided to Seller at its request)
to keep such Software in confidence and to comply with corresponding
conditions respecting Use of Licensed Materials as those imposed on
Customer; and,
(c) Within North America, the transferee shall have the same right to
Software warranty or Software maintenance for such Software as the
transferor, provided the transferee continues to pay the fees, if
any, associated with such Software or Software maintenance.
(d) In no event shall such transfer be made to any competitor of Seller
who is in the business of developing or manufacturing comparable
systems.
4.9 SOURCE CODE ESCROW
At Customer's request and expense and subject to the terms of a mutually
negotiated escrow agreement with an independent escrow agent reasonably
acceptable to both parties, Seller will deposit into an escrow account a
copy of the human-readable source code and available documentation
therefor (collectively, "Source Code") for certain Seller-developed
Application Software licensed under this Agreement. The Source Code shall
be for Application Software and not apply to host switch Software or to
host switch optional Software features.
The Source Code escrow agreement shall provide for release of the Source
Code to Customer if and when one of the following events occurs:
(a) Seller becomes insolvent or makes an assignment for the benefit of
creditors;
(b) A petition is filed by or against Seller under any state or federal
bankruptcy or insolvency law alleging that Seller is insolvent or
unable to pay debts as they mature, which petition is not withdraw
or stayed within sixty (60) days;
(c) Seller announces it is will discontinue manufacture of the
Application Software and will no longer maintain the Application
Software;
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(d) Seller ceases to maintain a standard, supported version of
Application Software furnished pursuant to this Agreement, and
support services are not available from another entity (either
working with or independently from Seller);
(e) Seller's enhancements and development of the Application Software
require migration to a different operating environment and Seller no
longer provides standard support services for the version of the
Application Software that runs on the operating system used by
Customer;
(f) A court determines that Seller has continuously and repeatedly
breached its obligations under this Article 4 and has failed to cure
its breach.
If the Source Code is released to Customer as provided above, Seller
grants Customer a nonexclusive, nontransferable, limited right to use and
modify the Source Code only to the extent necessary to maintain and
enhance the corresponding Application Software.
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ARTICLE 5 GENERAL SERVICES PROVISION
5.1 SCOPE OF SERVICES
To the extent required to design, engineer, install, integrate, implement,
test, monitor, order, activate and delivery voice and data services, and
document the Network, Network Architecture, Network Technology, Network
Elements, Enterprise Connectivity, Operational Support Systems, and
Business Support Systems, Seller will provide ongoing Services to
accomplish the Solution as outlined in Section 2.2, in all attached
Exhibits to this Agreement and any successors thereto.
Subject to the provisions of Section 3.16, and in recognition of the fact
that Seller provides similar Services for other customers, this Agreement
will not prevent Seller from providing such similar Services or restrict
Seller's use of any personnel who may be provided to Customer under this
Agreement.
5.2 PERSONNEL & SUBCONTRACTORS
a) Seller reserves the right to re-assign and substitute its personnel
with personnel having comparable qualifications at any time during
the term of this Agreement, with no interruption of Customer's
services.
b) Seller reserves the right to subcontract, with Customer's prior
written approval, such approval to not be unreasonably withheld,
specific Services to third parties and to use independent
consultants provided that the use of subcontractors and/or
consultants will not cause any interruption of Services to Customer.
Services supplied by such third parties shall be subject to the
terms and conditions of this Agreement as if supplied directly by
Seller and Seller shall be responsible for the Services performed.
c) Customer's site representative shall exercise no direct supervision
over any personnel furnished by Seller or any subcontractor, but
Customer's site representative (or such representative's designee)
shall be available to Seller for consultation and advice upon
Seller's reasonable request and advance written notice.
Notwithstanding the foregoing, Customer may establish reasonable
rules and procedures with which personnel furnished by Seller or any
subcontractor shall be obligated to comply, provided that such rules
and procedures do not interfere with the performance of Seller's
obligations under this Agreement.
5.3 WORK OR SERVICES PERFORMED BY OTHERS
Seller is expected to provide Services whereby Seller oversees the work of
Customer's vendors or contractors pursuant to an Exhibit. In such cases,
Seller shall be responsible for the third party vendor performing the
Services in accordance with the applicable Exhibit. If Customer oversees
the work of vendors or contractors, Customer shall use all reasonable
efforts to ensure that work or services performed at the site by Customer
or its other vendors or contractors shall not interfere with Seller's
performance of Services. Seller shall have no responsibility or liability
with respect to such work or services performed by those vendors or
contractors for which Customer has oversight responsibility. If Customer
or its other vendors or contractors fail to timely complete the site
readiness or if Customer's or its other vendors' or contractors' work
unreasonably interferes with Seller's performance, the scheduled
completion date of Seller's Services under this Agreement shall be
extended as necessary to compensate for such delay or
LUCENT TECHNOLOGIES INC. - PROPRIETARY
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interference. Each party shall use all reasonable efforts to avoid
interfering with work or services performed by the other party and its
other vendors or contractors.
5.4 CHANGES TO SERVICES
Changes to Services requested by Customer shall be handled in accordance
with the Change Order process described in Section 3.3. Customer's request
for changes shall be provided in writing to Seller's designated
representative for Services.
5.5 SPECIAL PROVISIONS FOR SERVICES
From time to time, both Seller and Customer will be required to provide
certain items or perform certain tasks prior to, or in order to, implement
the Services that may be required under this Agreement. Seller and
Customer will review Seller's standard requirements for the Services, SOW,
Methods of Procedure where applicable, and mutually determine the tasks
that each party must perform and or the items to be furnished by each
party.
5.6 STATEMENTS OF WORK
Certain Services are set forth in the initial Statement of Work, which is
attached to and incorporated herein as Exhibit G. Seller and Customer may
enter into additional written Statements of Work, and, if so, each will be
automatically incorporated into this Agreement upon signature by an
authorized representative of each party without further amendment.
5.7 DOCUMENTATION
Upon payment by Customer of the applicable price, Customer shall own all
rights in the documents and plans created by Seller as set forth in
Section 2.2, to the extent developed specifically for Customer's Network
or Network Technology. Customer shall not acquire any rights to other
intellectual property utilized by Seller in creating the aforementioned
documents and plans.
LUCENT TECHNOLOGIES INC. - PROPRIETARY
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ARTICLE 6 WARRANTY
6.1 PRODUCTS AND SOFTWARE
Seller warrants to Customer only, that during the applicable warranty
period (I) Products (exclusive of Software) will be free from defects in
material and workmanship and will conform to the Specifications for such
Products; (ii) Software will be free from those defects which materially
affect performance in accordance with the Specifications.
The warranty period for switching, transmission and optical hardware
Products and the associated Software (acquired with the Product that
enables it to function) is [*] and for all other Software is for a period
of [*], in each case commencing on acceptance by Customer as set forth in
this Agreement. The warranty period for any Product (or part thereof)
repaired or replaced under this section is the unexpired portion of the
new Product warranty period or [*], whichever is longer.
If, under normal and proper use, a defect or non-conformity appears in
Products or Software during the applicable warranty period and Customer
notifies Seller in writing of such defect or non-conformance during such
period or promptly thereafter and follows Seller's instructions regarding
return of defective or non-conforming Product or Software, Seller, at its
option, will either repair, replace or correct the same without charge or,
if Seller is unable after using its best efforts to repair, replace or
correct within a reasonable time period, provide a refund of the original
purchase price or license fee. Seller may offset any refund amounts owed
by Seller to Customer against amounts due from Customer to Seller. No
Product or Software will be accepted for repair or replacement without the
written authorization of and in accordance with instructions of Seller.
Removal and reinstallation expenses as well as transportation expenses
associated with returning such Product or Software to Seller shall be
borne by Seller, unless it is ultimately determined that such Product or
Software is not defective, in which case it shall be borne by Customer.
Seller shall pay the costs of transportation of the repaired or replacing
Product or Software to any United States destination designated by
Customer. If the returned Product or Software is not defective, Customer
shall pay Seller's reasonable costs of handling, inspecting, testing and
transportation and, if applicable, travel and related expenses. In
repairing or replacing any Product, part of Product, or Software medium
under this warranty, Seller may use either new, remanufactured,
reconditioned, refurbished or functionally equivalent Products or parts.
Replaced Products or parts shall become Seller's property. Response and
restoral times during the warranty period will be the same as the
response/restoral times specified in the maintenance and support services
agreement to be negotiated between the parties.
With respect to Products, which are not readily returnable for repair,
Seller shall repair or replace the Products at Customer's site. Customer,
at its expense, shall make the Products accessible for repair or
replacement.
6.2 YEAR 2000
Seller agrees that all Software licensed to Customer pursuant to this
Agreement shall be Year 2000 Capable Software. Seller agrees that,
notwithstanding any other warranty provided to Customer pursuant to this
Section during the Year 2000 Warranty Period, the period beginning on the
warranty start date and ending on the later of three (3) months after
Acceptance or March 31, 2001, that Year 2000 Capable Software will (a)
process calendar dates falling on or after January 1, 2000, with
substantially the same functionality as such Software processes calendar
dates falling on or before December 31, 1999, (b)provide substantially the
same functionality with respect to the introduction of records containing
dates falling on or after January 1, 2000, as it provides with respect to
the introduction of records containing dates
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[*] Information redacted pursuant to a confidential treatment request
throughout this exhibit.
LUCENT TECHNOLOGIES INC. - PROPRIETARY
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falling on or before December 31, 1999, and (c) correctly calculate and
compare date data between the twentieth and twenty-first centuries without
impairment of the functioning of the Software, including recognition of
the year 2000 as a leap year. All of the foregoing functionality shall be
known as "Year 2000 Capability". In the event Customer has or licenses
more than one version of "Year 2000 Capable" Software, such versions of
Software, if they are intended by Seller to interoperate, will be
compatible and interoperate in such manner as to process between them, as
applicable, date related data correctly as described herein. All of the
foregoing functionality shall be known as "Year 2000 Interoperability".
The foregoing sets forth an additional warranted specification for
Software developed by Seller that Seller has identified as having "Year
2000 Capability". The failure of such Software to meet such specification
during the Year 2000 Warranty Period shall, to the extent the Software
remains then subject to warranty protection, entitle Customer to the
remedies set out in this Section 6.1. Moreover, nothing in the foregoing
shall be deemed to make Seller responsible for the "Year 2000 Capability"
or "Year 2000 Interoperability" of any third party software interoperating
or intended to interoperate with Software developed by Seller. Customer
and/ or the manufacturer or other supplier of such third party software
shall be responsible for such compliance and assuring the ability of such
software to successfully operate while interoperating with Software
developed by Seller.
6.3 SERVICES
Seller agrees to perform Services in a professional and workmanlike
manner, in accordance with the Statement of Work and Specification for
such Services, and in accordance with good usage and accepted practices in
the community in which Services are performed using material free from
defects except where such material is provided by Customer. If Services
performed by Seller are not so performed, and if Customer notifies Seller
to that effect within a thirty (30) business day period commencing on the
date of completion of the service, Seller will correct any defects and
deficiencies or, if after using its best efforts, Seller is unable to
correct such defects and deficiencies, Seller shall render a full refund
of the original charge for the defective or deficient Service. Seller may
offset any refund amounts by Seller to Customer against amounts due from
Customer to Seller.
If engineering or installation Services only are not performed as
warranted, and Customer so notifies Seller within a three (3) month period
commencing on the date of completion of the Services, Seller will correct
the defect or non-conforming Services or, if after using its best efforts,
Seller is unable to correct such defects and deficiencies, Seller shall
render a full refund of the original charges for the defective or
deficient Services. Seller may offset any refund amounts by Seller to
Customer against amounts due from Customer to Seller.
6.4 NETWORK AND INTEGRATION
Seller represents, warrants and covenants that Seller is familiar with the
intended use by Customer of the Network as described in this Agreement and
in the applicable Operations Plan and that the Network and its associated
Deliverables are suitable for and will satisfy such use and the terms of
this Agreement in all respects, including the Network Architecture and
design and Product recommendations.
Seller represents and covenants that the Network, if implemented in
accordance with the Network Architecture, is designed to and will
interface and interoperate in accordance with the Network Architecture,
the Solutions Specifications and other corresponding Specifications in
this Agreement as a fully integrated system. If the Network fails to so
interface and interoperate during the Term of this Agreement, Seller shall
initiate corrective actions after receipt of notice of the defect or
failure and shall promptly cure such defect at Seller's sole cost and
expense. This warranty shall not apply to the extent that a failure
results from (i) the Network being installed at Customer's direction by a
party other than Seller and said Installation is not in accordance
LUCENT TECHNOLOGIES INC. - PROPRIETARY
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with the Network Architecture or (ii) a failure or defect or Third-Party
Products to operate in accordance with their specifications. This warranty
shall not be deemed to extend, limit or substitute for any warranty for
any individual Product provided by Seller
6.5 NETWORK PERFORMANCE
6.5.1 Seller recognizes that Customer may suffer injury which will be
difficult to determine with certainty as a result of Outages resulting
from causes which are a breach of Seller's warranty obligations as set
forth in Sections 6.1, 6.2, 6.3 and 6.4 hereof.
6.5.2 A "Business Hour Outage" is an Outage with occurs on Monday through
Friday between the hours of 8 am and 5 pm. As used herein, "Business Hour
Outage" means an unscheduled loss of functionality of a host switch
Network from the causes set forth in Section 6.5.1 above which results in
the loss of the capability to originate or terminate five percent (5%) or
more of the active voice channels then in service with the host switch
Network for a period of time exceeding five (5) minutes, or the loss of
capability of a multi-line 15 or more lines end-user customer to originate
or terminate any calls on all of its lines for a period of time exceeding
five (5) minutes.
6.5.3 During the warranty period, Business Hour Outage damages will be
calculates as follows: [*] of the Business Hour Outage, plus [*] for each
minute the duration of the Business Hour Outage exceeds [*].
6.5.4 "Other Outages" is an Outage which occurs during a time other than a
Business Hour Outage. As used herein, "Other Outage" means an unscheduled
loss of functionality of a host switch Network for the reason set forth in
Section 6.5.1 above which results in the capability to originate or
terminate [*] or more of the active voice channels than in service within
the host switch network for a period of time exceeding ten (10) minutes,
or the loss of capability of a multi-line [15 or more lines] end-user
customer to originate or terminate any calls on all of its lines for a
period of time exceeding ten (10) minutes.
6.5.5 During the warranty period, Other Outage damages will be calculated
as follows: [*] for the first thirty (30) minutes of the Other Outage,
plus [*] per minute for each minute the duration of the outage exceeds
30 minutes.
6.5.6 In the event a Second Outage occurs within thirty (30) days of a
prior Outage (the "First Outage"), the Outage damages specified in
Sections 6.5.3 and 6.5.4 will be [*]. In the event a Third Outage occurs
within thirty (30) days of the First Outage, the Outage damages set forth
in Sections 6.5.3 and 6.5.4 will be [*].
6.5.7 In no event will Seller's liability for Outage damages pursuant to
either Section 6.5.3 or Section 6.5.4 exceed [*] with respect to each
Outage in any given host switch Network, provided however, that said cap
will be [*] in the event of a Second Outage occurring
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[*] Information redacted pursuant to a confidential treatment request
throughout this exhibit.
LUCENT TECHNOLOGIES INC. - PROPRIETARY
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within thirty (30) days of a First Outage and [*] in the event of a Third
Outage occurring within thirty (30) days of a Second Outage.
In addition, the Seller's total liability for all Outage damages for the
Network will not exceed [*] per calendar year until Customer deploys more
than [*] host switches. For each additional host switch deployed by
Customer, the damage total liability cap will increase by [*]. These
Outage damages will be Customer's sole remedy for any failure in Network
performance as set forth in this Agreement.
6.5.8 Any damages for which Seller is liable pursuant to this Section
shall be credited against an invoice for future Purchase Orders during the
term as the parties may agree. To the extent, Seller does not place
Purchase Orders sufficient for Customer to utilize the entire Outage
Credit in the six months after the Outage Credit accrues, Seller shall
refund the unused portion of the Outage Credit to Customer.
6.5.9 Notwithstanding the foregoing, Seller will have no liability for:
(i) Outages caused by a Force Majeure;
(ii) Outages resulting from a mutually agreed scheduled activity such as
Network maintenance or loading of Software that does not exceed the
scheduled Outage interval
(iii) Outages resulting from Customer's, its subcontractor's or any third
party's (employed by the Customer) failure to follow the Documentation;
(iv) Outages resulting the failure of Customer to have (a) competent
technicians available to respond to notification from Seller, or (b)
adequate spares as recommended by Seller on site to repair the problem or
(c) from Customer's failure to perform an assigned responsibility under
this Agreement or the Exhibits.
(v) Outages resulting from an end user customer to which this Section
applies failing to properly maintain its Network or otherwise follow
operating procedures, based on standard industry processes applicable to
networks of similar size and scope.
6.5.10 Customer acknowledges that the provisions of this network
performance warranty are based on Customer's continuing to purchase the
full range of Deliverables and Service set forth in Section 2.2. If
Customer chooses to reduce the scope of Seller's responsibilities, the
parties will need to renegotiate the provisions of this Network
Performance Warranty.
6.6 DISCLAIMER
The foregoing warranties will not extend to defective conditions or
non-conformities resulting from Customer's modifications, misuse, neglect,
accident or abuse; improper wiring, repairing, splicing, alteration,
installation, storage, maintenance; or use, in each case, in a manner not
in accordance with Seller's or its vendor's Specifications or operating
instructions or failure of Customer to apply previously applicable
Seller's modifications or corrections. In addition, Seller makes no
warranty with respect to Products which have had their serial numbers or
month and year of manufacture removed, altered and with respect to
expendable items, including, without limitation, fuses, light bulbs, motor
brushes and the like. No warranty is made that Software will run
uninterrupted or error free, and in addition Seller makes no warranty with
respect to defects related to Customer's data base errors.
LUCENT TECHNOLOGIES INC. - PROPRIETARY
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[*] Information redacted pursuant to a confidential treatment request
throughout this exhibit.
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THE FOREGOING WARRANTIES ARE EXCLUSIVE AND ARE IN LIEU OF ALL OTHER
EXPRESS AND IMPLIED WARRANTIES, INCLUDING BUT NOT LIMITED TO THE IMPLIED
WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
LUCENT TECHNOLOGIES INC. - PROPRIETARY
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ARTICLE 7 ATTACHMENTS
All Attachments to this Agreement are incorporated herein by reference.
Any additional Attachments agreed upon by the parties subsequent to the
Effective Date, and any Amendments to this Agreement which are subject to
Section 3.29, shall also be incorporated herein by reference to this
Agreement.
[THE REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK]
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ARTICLE 8 ENTIRE AGREEMENT
The terms and conditions contained in this Agreement supersede all prior
oral or written understandings between the parties with respect to the
subject matter thereof and constitute the entire agreement between the
parties with respect to such subject matter. This Agreement may be
executed in several counterparts, all of which taken together shall
constitute one single agreement between the parties hereto.
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed
by their duly authorized representatives on the date(s) indicated.
- -------------------------------------- -----------------------------------------
ADVANCED TELCOM GROUP INC. LUCENT TECHNOLOGIES INC.
- -------------------------------------- -----------------------------------------
BY: /s/ CLIFFORD G. RUDOLPH BY: /s/ S. TIM GROPP
- -------------------------------------- -----------------------------------------
SIGNATURE: CLIFFORD G. RUDOLPH SIGNATURE: S. TIM GROPP
- -------------------------------------- -----------------------------------------
NAME: Clifford G. Rudolph NAME: S. Tim Gropp
- -------------------------------------- -----------------------------------------
TITLE: Chief Executive Officer TITLE: Vice President, Sales
- -------------------------------------- -----------------------------------------
DATE: July 30, 1999 DATE: July 30, 1999
- -------------------------------------- -----------------------------------------
LUCENT TECHNOLOGIES INC. - PROPRIETARY
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EXHIBIT A
TO THE
GENERAL SUPPLY AGREEMENT
- --------------------------------------------------------------------------------
PURCHASE AND SERVICE OF IMA-CA VOICE PROCESSING SYSTEMS
1. RELATIONSHIP OF DOCUMENTS; AGREEMENT TO SELL IMA-CA PRODUCTS
This Exhibit A to the Agreement, together with its Schedules attached hereto
(collectively, the "Exhibit"), contains the terms and conditions under which
Seller, acting through its wholly owned subsidiary Octel Communications
Corporation ("OCC") shall sell and service IMA-CA voice processing systems.
OCC shall sell (or license) to and service for Customer such IMA-CA Products and
IMA-CA Software licenses described in this Exhibit as Customer may elect to
obtain by executing one or more Order Schedules and/or Customer purchase orders.
Customer's purchases and OCC's service of IMA-CA Products and IMA-CA Software
offered by OCC shall be and are subject to the terms and conditions of this
Exhibit A. The terms and conditions of Customer's standard purchase order which
conflict with or in any way purport to amend any of the terms and conditions of
this Exhibit A shall be of no force or effect.
2. EFFECT
The Parties to this Exhibit agree that the following sections of the Agreement
shall be excluded and/or amended solely in connection with the purchase
contemplated hereunder of OCC's voice processing systems, as indicated herein:
3. ADDITIONAL DEFINITIONS FOR OCC PRODUCTS
Solely for purposes of this Exhibit A, Article I Section 1.1 Definitions is
hereby amended to include the following capitalized terms which shall have the
meanings ascribed to them herein:
a. "CAPACITY ON DEMAND PRODUCTS AND SOFTWARE" Capacity On Demand ("COD")
Products consist of IMA-CA Equipment and/or IMA-CA Software with COD. "IMA-CA
SOFTWARE WITH COD" is software that determines the capacity of OCC's IMA-CA
Product to, among other things, store messages, create mailboxes and add
functionality to mailboxes. IMA-CA Software with COD may be enabled at the time
of manufacture or remotely after installation, in incremental units of capacity.
b. "ENHANCEMENT" shall mean any improvements, additions and revisions to the
IMA-CA Software which contain substantially new functionality, which at times
may also be referred to as an "Engineering Upgrade".
c. "IMA-CA SYSTEM" means the entirety of the IMA-CA Products and IMA-CA Software
described in an Order Schedule which are to be installed at a particular site.
d. "INSTALLATION DATE" means the date an IMA-CA System is connected to
Customer's access lines and Customer's power source. For IMA-CA Products other
than an IMA-CA System, Installation Date means the date the IMA-CA Product is
installed in an existing IMA-CA System.
e. "ORDER SCHEDULE" shall mean the document used to purchase OCC IMA-CA Systems
and license IMA-CA Software under this Exhibit and which is substantially in the
form attached as SCHEDULE A.
f. "SYSTEM UPDATES" shall mean those improvements, additions, and revisions to
the IMA-CA Software which do not contain substantially new functionality and are
part of OCC's normal IMA-CA Software release process.
4. OCC ADDITIONAL PURCHASE PRICE TERMS
Solely for the purposes of this Exhibit A, Article III Section 3.6 Prices is
hereby amended as follows:
The Prices shall be specified in the Order Schedule and do not include freight
charges or applicable taxes. The Price for all IMA-CA Products, IMA-CA Software
licenses and Services will be the then-current price on OCC's official price
list ("Price List") less a [*] discount on all discountable IMA-CA Products and
IMA-CA Software as indicated in the Price List.
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[*] Information redacted pursuant to a confidential treatment request
throughout this exhibit.
Lucent Technologies Inc. Proprietary 1
<PAGE> 38
5. CONDITIONS FOR INSTALLATION AND ACCESS
Solely for the purposes of this Exhibit A, Article III Section 3.38 Facilities
Access is expressly amended by the following and Article 5 is amended to include
the following Section 5.9 Installation:
Prior to the delivery of each IMA-CA System, Customer, at its own expense, shall
make available a room on the Premises for installation of the IMA-CA System that
meets the environmental and other site requirements as specified in Exhibit C of
the Agreement, Customer shall also provide reasonable access to the Premises and
the IMA-CA System for OCC's installation and maintenance personnel or other
authorized OCC representatives.
6. TRAINING AND DOCUMENTATION
Solely for the purposes of this Exhibit A, Article III Section 3.19
Documentation is expressly superseded by the following:
Unless otherwise noted in the applicable Order Schedule, OCC will provide to
Customer for each IMA-CA System, the training, consultation and documentation
specified in Schedule B. Transportation and other expenses to and from training
facilities are Customer's responsibility. Additional training and documentation
will be available to Customer at OCC's standard prices in effect at the time
such training and/or consultation is performed or such documentation is
purchased. All documentation provided hereunder shall be in a format and of a
quality commonly accepted in the industry with respect to content, size,
legibility and reproducibility.
7. OCC WARRANTIES
Solely for the purposes of this Exhibit A, Article VI Warranty is expressly
amended by the following:
7.a IMA-CA PRODUCT WARRANTY WITH COD
The applicable Warranty Period for IMA-CA Products, IMA-CA Software with
COD, Upgrades, and IMA-CA Systems shall be as follows:
<TABLE>
<CAPTION>
IMA-CA PRODUCT: WARRANTY PERIOD:
--------------- ----------------
<S> <C> <C>
1. New IMA-CA System (IMA-CA Software and [*] from Installation Date
IMA-CA Products) with COD
2. COD upgrades and expansions (IMA-CA [*] Installation Date
Products only)
3. IMA-CA Software Upgrades (including [*] from Installation Date in the case of new
new releases of IMA-CA system Software releases and [*] from date of ennoblement by
and new IMA-CA Software features whose OCC or its authorized agent in the case of new
capacity is not variable) features
4. IMA-CA Software with COD (e.g., [*] from the date of ennablement by OCC or its
incremental units of message storage authorized agent
hours, number of mailboxes, etc.)
</TABLE>
7.b REMOTE ACCESS:
Customer is aware and agrees that OCC through its remote access to each
IMA-CA System has the ability to audit Customer's use of each IMA-CA
System. As a result of any such audit, should OCC reasonably conclude that
COD features or incremental units of capacity, ports or mailboxes have
been enabled for which Customer has not paid the specified price or
license fee, OCC will notify Customer and request that Customer pay the
specified price or license fee within thirty (30) days. If Customer fails
to (1) pay the specified price or license fee, (2) turn off the
unauthorized COD features, incremental units of capacity, ports or
mailboxes, or (3) reasonably demonstrate that Customer has paid for such
COD features capacity ports or mailboxes, then at the conclusion of said
thirty (30) days (without resolution), OCC shall have the right to shut
down only the COD features or incremental units of capacity, ports or
mailboxes that have been enabled for which Customer has not paid the
specified price or license fee.
7.c DISCLAIMER OF OTHER WARRANTIES; LIMITATION OF REMEDIES:
Solely for the purposes of this Exhibit A, Article VI Warranty Section 6.6
Disclaimer is amended to include the following:
Except as otherwise expressly set forth in this Agreement, OCC makes no
express or implied warranty that the IMA-CA Product is immune from or
prevents fraudulent intrusion, unauthorized use or disclosure or loss of
proprietary information. Customer acknowledges that certain features, such
as Conference Mailbox, Skip Password, Password Reset and Monitor
Lucent Technologies Inc. Proprietary 2
- --------------------
[*] Information redacted pursuant to a confidential treatment request
throughout this exhibit.
<PAGE> 39
Mailbox, could be improperly used in violation of privacy laws. Customer
assumes all responsibility for its improper use of the IMA-CA, or any
portions or features thereof, in violation of any applicable privacy laws.
8. POST WARRANTY PRODUCT AND SOFTWARE SUPPORT
Solely for the purposes of this Exhibit A, Article VI Warranty is expressly
amended to include the following:
Customer agrees to have personnel trained and duly certified in OCC's
Installation and Maintenance Training Course in sufficient numbers to provide
coverage at the locations of Customer's IMA-CA System Sites as deemed adequate
by Customer , but no less than one OCC certified Customer technician per IMA-CA
System site.
8.a POST WARRANTY: After the expiration of a IMA-CA Product or IMA-CA
Software warranty, Customer may order Technical Assistance and Parts
Replacement Agreement Program ("TAPRA") in accordance with Schedule C
attached hereto. If Customer chooses not to order TAPRA, OCC will provide
maintenance service to Customer on a time and materials basis at OCC's
then-current rates. OCC will make parts and materials available at its
then-current prices; provided, however, Customer shall receive a [*]
credit toward any such parts if the replaced part is returned to OCC
within ten (10) days after receipt of its replacement. For a period of
five (5) years from Acceptance of each IMA-CA Product and item of IMA-CA
Software, OCC will make available maintenance and support and spare parts
as described in this Section and in Schedule C.
8.b SOFTWARE SUPPORT: OCC will periodically provide performance related
engineering modifications and changes ("Engineering Updates") at no charge
during warranty, while under TAPRA, or for Services provided by Seller
under Exhibit B in conformance of the Agreement. Additionally, OCC will
provide safety related changes, and modifications at no charge. Customer
agrees to install such Engineering Updates promptly once provided by OCC
on Customer's IMA-CA System. Engineering Updates will be defined by OCC,
exclusively. For IMA-CA Systems for which IMA-CA Software Updates that
have been provided to Customer but have not been installed on the IMA-CA
System within thirty (30) days from the date the IMA-CA Software Update
was provided, OCC will thereafter provide software maintenance support on
a time and material basis at OCC's then-current rates. From time to time
OCC will introduce software and/or hardware features that enhance the
functionality of IMA-CA Products or IMA-CA Software ("Upgrades"). Upgrades
will be made available to Customer at OCC's Price Schedule in effect at
the time of purchase of such Upgrades.
9. SYSTEM INTEGRATION
During the term of this Agreement, IMA-CA Systems purchased from OCC will
interface with the Simplified Message Desk Interface (SMDI) enabled Lucent Host
Switch. In addition, OCC will make commercially reasonable efforts to Integrate
IMA-CA Systems with Lucent Host Switches purchased by Customer during the term
of this Agreement. For purposes of this section, "Integrate" shall mean that an
IMA-CA System interoperates with a Lucent Host Switch to in a manner that is
functionally equivalent to how IMA-CA Systems interoperate with 5ESS host
switches.
In the event the Customer chooses to buy a Lucent Host Switch which does not
Integrate with the IMA-CA System at the time of purchase, Customer's IMA-CA
purchase commitment as set forth in Section 2.5 of the master Agreement will be
suspended, only until such time as the IMA-CA is able to integrate with the
Lucent Host Switch (the "Suspension Period"). Customer's purchase commitment of
[*] IMA-CA Systems and related Voice Messaging Services shall be reduced by the
number of Lucent Host Switches purchased during the Suspension Period, and
Customer shall have no obligation to purchase IMA-CA Systems or related Voice
Messaging Services for any Lucent Host Switches which are purchased during the
Suspension Period.
10. OCC IMA-CA SOFTWARE LICENSE AND IMA-CA PRODUCTS RESTRICTION
Solely for the purposes of this Exhibit A, Article IV Provisions Applicable to
Licensed Materials is expressly amended as follows:
10.a.1 Section 4.3 is expressly amended as follows:
If the irrevocable nature of the license grant in Section 4.1 or the
rights or restrictions set forth in this Section 4.3 are in violation of
any agreement in effect as of the Effective Date between OCC and any third
party from whom OCC has licensed any portion of the IMA-CA Software, then
the license grant in Section 4.1 and/or Section 4.3 shall be deemed
amended, solely with respect to the IMA-CA Software and solely to the
extent necessary to comply with such agreement, to provide OCC a limited
right to terminate Customer's software license upon Customer's material
breach which remains uncured for a reasonable period of time after written
notice thereof. In addition, solely with respect to IMA-CA Software,
replace "not to exceed [*] with [*]."
10.a.2 Section 4.8 is expressly amended to add the following:
Lucent Technologies Inc. Proprietary 3
- --------------------
[*] Information redacted pursuant to a confidential treatment request
throughout this exhibit.
<PAGE> 40
Before Customer may transfer any Software license rights to the IMA-CA
software to any reseller of voice messaging equipment, Customer shall
obtain OCC's written approval, which shall not be unreasonably withheld.
10.b IMA-CA SOFTWARE LICENSE TERMS WITH COD:
10.b.1. INCREMENTAL CAPACITY LICENSED AS SEPARATE IMA-CA SOFTWARE
PRODUCTS. - Each incremental unit of capacity for all IMA-CA Software with
COD will be considered a separate IMA-CA Software product that is licensed
in object code form to Customer pursuant to the terms of this Section.
Only that IMA-CA Software that has been properly ordered from OCC, paid
for by Customer, and whose enablement has been authorized and directed by
OCC, will be licensed to Customer. Customer specifically acknowledges that
only OCC is entitled to authorize the enablement of any IMA-CA Software
(or features thereof) and that Customer will not enable (remotely or
otherwise) or attempt to enable any IMA-CA Software (or features thereof),
nor will it authorize or assist any third party to do so. Customer will
promptly notify OCC if it has knowledge of any third party attempt to
enable IMA-CA Software (or features thereof).
10.b.2. CONDITIONS FOR ENABLEMENT OF IMA-CA SOFTWARE FEATURE PRODUCTS. To
facilitate OCC's enablement of IMA-CA Software features and capabilities,
Customer will make available remote system-level access to Customer's OCC
IMA-CA Systems at a time mutually agreeable to both Customer and OCC.
10.b.3. OCC AUDIT RIGHTS. Customer agrees that OCC or its authorized agent
may, at its discretion, electronically inspect and audit the configuration
of Customer' OCC IMA-CA System(s) for compliance with the terms of this
IMA-CA Software License at the following times: (i) at the time of
enablement of any separately licensed IMA-CA Software feature or
capability, such as incremental capacity for OCC's IMA-CA Products, and
(ii) once each calendar year upon three (3) business days' notice to
Customer from OCC. Customer agrees to cooperate with OCC or its authorized
agent in conducting such audits including making available remote system
level access to Customer's IMA-CA Systems for such purpose.
11. MARKETING PROGRAM
Solely for the purposes of this Exhibit A, Lucent's marketing program
(CheckMate) is expressly superseded by the following:
Customer may participate in OCC's marketing program, known as the "ADvantage
Fund Participation Program" under the terms and conditions specified in Schedule
D attached hereto.
Lucent Technologies Inc. Proprietary 4
<PAGE> 41
SCHEDULE A TO EXHIBIT A
OCC ORDER SCHEDULE
Exhibit A to the Purchase Agreement No. LNM99NMYK09ATG ("Agreement") between the
Customer identified below and OCC is hereby incorporated by reference as though
set forth in full herein.
<TABLE>
<S> <C>
CUSTOMER: PREMISES (IF DIFFERENT THAN INVOICE ADDRESS):
INVOICE ADDRESS
________________________________________________________ Various, to be specified on Customer Purchase Order(s)
________________________________________________________ ____________________________________________________________
________________________________________________________ ____________________________________________________________
ATTN: __________________________________________________ ATTN: ______________________________________________________
TELEPHONE NO: _________________ FACSIMILE NO: _____________
IMA-CA PRODUCT CONFIGURATION:
"IMA-CA Product" as used in Exhibit A shall include: IMA-CA SOFTWARE OPTIONS:
1 CLEC offer package (See Exhibit A.1 attached)
----
System Type: IMA-CA Serial No. TBD ____ ______________________________________________________
Ports: 24 Drive Type: RAID 1 Drive Quantity: 4 ____ ______________________________________________________
---- --- ____ ______________________________________________________
____ ______________________________________________________
____ ______________________________________________________
HARDWARE:
System
1 CLEC Offer with Message Redundancy (RAID) package
- ---- (see SCHEDULE A.1 attached) AUTHORIZED CAPACITY:
____ _________________________________________________ ____________________
____ _________________________________________________ ____________________
____ _________________________________________________ ____________________
____ _________________________________________________ ____________________
Literature:
Other equipment ____ Standard
____ _________________________________________________ ____ Other
____ _________________________________________________ x To be ATG branded using OCC Marketing Assistance
---- and tools in the Octel ADvantage Program
____ _________________________________________________
[SEE SCHEDULE A.1 ATTACHED] ____ ________________________________________________
(ADD ADDITIONAL SHEETS AS NECESSARY)
PURCHASE PRICE: For each 5ESS host installation, IMPLEMENTATION CHARGES:
[*] (exclusive of freight, related charges and [*] for Customer's selection of
---------- --------------------------------
taxes, if applicable). Full Implementation as more fully described in Schedule C (for
--------------------
billing purposes only, will be included in the purchase price upon
invoice).
Scheduled Shipment Date: February, 1999 .
--------------
Scheduled Installation Date: March, 1999 .
-----------
Please reference Purchase Order # _____________________
for payment purposes only.
</TABLE>
Lucent Technologies Inc. Proprietary 5
- --------------------
[*] Information redacted pursuant to a confidential treatment request
throughout this exhibit.
<PAGE> 42
SCHEDULE A TO EXHIBIT A
OCC ORDER SCHEDULE
TAPRA
MODULES COVERED Voice [x] Data and [ ] Custom [ ]
Applications Applications
Applications included under customer application support:
__________________________________________________________________.
List price of included applications:
_______________________________________________________________________________.
POST-WARRANTY SERVICE PLAN:
Customer selects the: two (2) year TAPRA as more fully described in Schedule C
(service program checked above)
Purchase price for the service plan is $ 0 , payable quarterly, annually or paid
---
in full (circle) for 2 year(s).
- ------- ---
Service shall begin at expiration of warranty
----------------------
Please reference Purchase Order # _______________________ for payment purposes
only.
CUSTOM APPLICATIONS:
The purchase price for _______________________________ described in the attached
Scope of Work (exclusive of freight charges and taxes) shall be
$_________________________________________.
The purchase price for ______________________________ Services described in the
attached Scope of Work shall be $_____________________________________________.
The scheduled implementation date for the _______________________________ is
_______________________________.
Please reference Purchase Order # __________________ for payment purposes only.
By their signature on this Schedule A and A.1, the parties named below have
reviewed and agree to be bound by the terms and conditions of the Exhibit A
between Customer and OCC.
CUSTOMER LUCENT TECHNOLOGIES INC.
Signature:_____________________________ Signature:__________________________
Name Printed:__________________________ Name Printed:_______________________
Title:_________________________________ Title:______________________________
Date:__________________________________ Date:_______________________________
Lucent Technologies Inc. Proprietary 6
<PAGE> 43
SCHEDULE A.1 TO EXHIBIT A - CLEC OFFER
In accordance with OCC's CLEC Offer ("The Offer") the Customer as an Integrated
Communications Provider ("ICP") shall qualify to receive the following standard
package:
A complete 24-port IMA-CA Voice Processing System which includes:
~ A 24-port IMA-CA Voice Processing IMA-CA System with 150 hours of
message storage and 2,500 mailboxes
~ A 24-port T1-TIC
~ SMDI Integration (with cables)
~ Inband Integration
~ VIS 2.0 system software
~ Non-standby Redundancy Kit
~ Cabinet with floor mount
Business Messaging Features:
~ Enhanced Features Package which includes the Enhanced Call Package (ECP)
and Information Center Mailboxes (ICMBs)
~ Fax Store and Forward which includes Fax Overflow
~ Voice Forms
Team CLEC ADvantage Program: The objective of the Team CLEC ADvantage program is
to prepare you for success through an interactive consulting process. With the
Team CLEC ADvantage Program, an OCC Market Resource Consultant trained in the
CLEC market will be assigned to your account to deliver the following programs:
~ SmartStart for CLECs - The objective of the Smart Start program is to
help you design a successful messaging launch strategy. It consists of
two days of consulting via the telephone or face to face plus one day of
consultant preparation time. The two days will be tailored to meet the
specific needs of your market and can include modules such as service
offer definition, pricing strategy, channel strategy, communications
strategy, assistance with end user collateral development, etc.
~ VoiceMail Academy for CLECs - The objective of the VoiceMail Academy
program is to develop the training and education necessary for your
channels to sell effectively prior to launch. It consists of two days of
consulting via the telephone or face to face plus one day of consultant
preparation time. The two days will be tailored to meet the specific
needs of your market and can include modules such as developing a
training package, training the trainer and assistance with sales tools
and incentives. Actual channel training is not included with VoiceMail
Academy but is available from OCC for an additional fee.
~ MarketPlus for CLECs- The objective of the MarketPlus program is to tune
up your market offering 3-6 months after launch. It consists of one day
of consulting via the telephone or face to face plus one day of
consultant preparation time. The day consists of performing a situation
analysis including a launch assessment and results in recommendations
for service evolution.
~ CLEC Launch Tool Kit - Lucent OCC has developed a CLEC Launch Tool Kit
for use in conjunction with the above programs. This kit includes
templates and tools to assist a CLEC to launch in a new market and are
included in order to expedite the launch.
This set of marketing programs provided for every five systems purchased through
the CLEC Offer out of a centralized location. Additional programs or consulting
is available for additional fees. In addition to the Marketing Resource
Consultant and the Marketing Programs, CLECs purchasing the CLEC Offer are
eligible to participate in the Octel ADvantage Fund. This fund provides
marketing funds based on your purchases to be used to pay for marketing expenses
associated with your messaging service. Octel ADvantage funds are available the
quarter after you enroll. See your MRC for more details.
A Services Package to meet ongoing CLEC service needs:
~ Full IMA-CA Implementation
~ Following the first year warranty, a 2-year Technical Assistance and
Parts Replacement Agreement (TAPRA) contract
~ IMA-CA CLEC Spares Kit ((1) CPU32, (1) RAID File Card, (1) 4GB drive for
IMA-CA, (1) Voice/Fax line card, (1) Monitor Card, (1) T1-TIC, 24
channel)
~ IMA-CA implementation and Maintenance training course (one seat)
~ IMA-CA System Management training course (one CD ROM)
~ IMA-CA Advanced System Management training course (one seat)
~ IMA-CA System manager's terminal assembly (with cables)
~ Epson FX870 Printer (with cables)
~ IMA-CA System Manager Literature Kit
Lucent Technologies Inc. Proprietary 7
<PAGE> 44
SCHEDULE B TO EXHIBIT A
IMPLEMENTATION PACKAGES SUMMARY
<TABLE>
<CAPTION>
IMA-CA
FULL IMPLEMENTATION
<S> <C>
ACTIVITY)
PRE-INSTALLATION CONSULTATION
Consultation on application development 12 hours
Software configuration assistance 16 hours
TELEPHONE CONSULTATION
Consultation on MTSO/CO requirements 4 hours
INSTALLATION
Hardware installation Provided
MTSO/CO interface/integration testing Provided
TRAINING
System Management Training for one (1)
employee at Premises 6 hours
One (1) seat in System Manager Course and one seat
in Installation and Maintenance Training Course Provided
at OCC Facilities*
POST-INSTALLATION SUPPORT
Load of initial Customer database
and IMA-CA System parameters** 2-6 hours
</TABLE>
DOCUMENTATION - ALL PACKAGES
PER IMA-CA SYSTEM
1 System Managers Manual
1 System Manager Addendum
1 Training Kit
1 Service Manual (to be delivered to Attendee of OCC's Installation
and Maintenance Training)
ART WORK FOR
User Guide
Quick Reference Guide
* Expires ninety (90) days after Installation Date
** Number of hours depends on IMA-CA System size
Additional training slots may be ordered at the then-current prices.
Lucent Technologies Inc. Proprietary 8
<PAGE> 45
SCHEDULE C TO EXHIBIT A
TECHNICAL ASSISTANCE AND PARTS REPLACEMENT AGREEMENT ("TAPRA")
TERMS AND CONDITIONS
1. TAPRA PROGRAM SUMMARY
Following the Warranty Period, OCC will provide to Customer the support Services
described herein for those IMA-CA Products and IMA-CA Software for which
Customer has ordered TAPRA. This TAPRA Program, which is designed for those
Customers with OCC-certified technical personnel who desire to perform their own
maintenance, consists of the following:
~ Replacement parts ordered at any time from local inventory and airport
locations with non-urgent delivery during normal business hours.
~ Emergency replacement plan in the event of a natural disaster.
~ Twenty-four hour technical assistance through the OCC Technical
Assistance Center.
~ On-site response time within 24 hours of problem identification, if
required, at OCC's Preferred Customer Rate.
~ IMA-CA Software Updates provided by OCC, for installation by Customer.
~ Preferred Customer Rate for any on-site service performed by OCC.
2. GENERAL INFORMATION
2.1 ELIGIBILITY/CERTIFICATION
Any Customer IMA-CA System is eligible to participate in this TAPRA Program.
However, OCC may require Customer to upgrade IMA-CA System, at Customer expense,
to supportable hardware and software levels, as specified by OCC, prior to
entering into or renewing this TAPRA Program.
2.2 REPLACEMENT PARTS
Replacement parts are provided from OCC factory depots and airport locations at
no charge if the replaced part is returned undamaged to OCC within thirty (30)
days of receipt of replacement part. Otherwise, Customer will be charged the
then-current rate in the Price List for the replacement part.
Replacement parts can be ordered 24 hours/day, 7 days/week with non-urgent
delivery during normal coverage hours. OCC is responsible for the costs of
surface shipment of a replacement part to Customer. Customer is responsible for
shipping costs of replaced part to OCC and any costs for expedited shipment
requested by Customer.
OCC can recommend approved packaging procedures, if so requested by Customer, to
prevent additional physical damage to a returned part. If improperly packaged or
shipped, Customer may not receive credit for the returned part and may be
charged the Agreement Rate for the replacement part.
2.3 EMERGENCY REPLACEMENT PLAN
In the event of an emergency out-of-service condition because of a natural
disaster such as a flood, earthquake, unusually severe weather conditions, or
fire, OCC will, upon Customer's request, use all reasonable efforts to ship
replacement IMA-CA Products in an expedited time frame (within 24 hours of
request) and to waive delivery schedule priorities to the extent permitted by
prior contract obligations and commitments, laws and regulations. The price for
the replacement IMA-CA Products and IMA-CA Software will be those in OCC's
then-current Price List. Customer shall bear all shipping costs.
2.4 TECHNICAL ASSISTANCE CENTER
The Technical Assistance Center, staffed by OCC-certified technicians, provides
Customer with twenty-four (24) hour telephone access for problem resolution and
technical assistance.
In order to identify or resolve IMA-CA System problems in a timely manner, OCC
may, with Customer authorization, remotely poll the IMA-CA System, provided
Customer supplies OCC with a direct line to the IMA-CA System, separate from
voice messaging lines, and all necessary access information to perform the
polling. OCC analysis may result in recommending the replacement of defective
hardware components and/or the installation of IMA-CA Software patches or
Engineering Updates.
Lucent Technologies Inc. Proprietary 9
<PAGE> 46
2.5 ESCALATION PLAN
Customer and OCC will use reasonable efforts to resolve problems in accordance
with the following escalation plan:
1. Customer's local OCC-certified technician attempts to isolate
the problem and contacts the Technical Assistance Center via
telephone which will be deemed Customer's initial request for
maintenance Services.
2. OCC's Technical Assistance Center provides telephone support to
Customer's local technician.
3. If the problem is not resolved within two (2) hours after
Customer's initial request for maintenance Services, OCC's
technician at the Technical Assistance Center shall escalate the
problem to OCC's IMA-CA Product Technical Support group, which
will assist with telephone support.
4. If the problem is a major maintenance occurrence and is not
resolved within six (6) hours following Customer's initial
request for maintenance Services, at Customer's OCC shall
dispatch a technician to the IMA-CA System Site.
2.6 ON-SITE RESPONSE TIME
When it is determined that OCC service is required on-site, response time will
not exceed twenty-four (24) hours after such determination is made.
2.7 IMA-CA SOFTWARE UPDATES AND UPGRADES
OCC will periodically provide, and Customer will promptly install,
performance-related or safety-related engineering modifications, and changes
("Engineering Updates"). Customer may also request installation by OCC at
Customer expense. Software Updates are defined exclusively by OCC.
From time to time OCC will introduce Software and/or hardware features which
enhance the functionality of IMA-CA Products ("Upgrades"). Upgrades will be made
available to Customer at the Agreement Rate.
2.8 PREFERRED CUSTOMER RATE
While Customer System is covered by this TAPRA Program, any on-site service
performed by OCC shall be invoiced at OCC's prime-shift hourly rate ("Preferred
Customer Rate") unless otherwise stated in the terms of the Exhibit A between
OCC and Customer. The Preferred Customer Rate (2-hour minimum, portal to portal)
is subject to change at any time.
3. CUSTOMER RESPONSIBILITIES
3.1 PROBLEM REPORTING
Customer agrees to work with the Technical Assistance Center by phone so that
OCC support personnel can diagnose problems and determine the best method of
repair. In the event that Customer determines that a IMA-CA Product or IMA-CA
Software does not operate properly, Customer will, if requested by OCC:
A. Attempt to duplicate the malfunction, but only at times and under
circumstances when doing so will not reasonably interrupt service to
Customer's user base.
B. Supply OCC with problem analysis routines, such as error logs and
diagnostic data, and any reasonable assistance necessary to demonstrate
and diagnose the malfunction.
C. Promptly implement or assist in implementing each patch, bypass, Update
or other solution provided by OCC.
Customer is also responsible for performing designated service actions per
written notification periodically provided by OCC.
3.2 PERSONNEL TRAINING
Customer will ensure that personnel authorized to service the IMA-CA System and
report any problems to OCC will have been trained and duly certified in OCC
technical training courses.
3.3 REQUIRED SPARES
Customer is required to maintain the appropriate spares kits, as defined in the
OCC Official Price List.
Lucent Technologies Inc. Proprietary 10
<PAGE> 47
3.4 PREVENTIVE MAINTENANCE
Customer is responsible for performing the preventive maintenance recommended by
OCC.
4. PROGRAM TERMS
4.1 PROGRAM RENEWAL
This TAPRA Program will be automatically renewed, subject to price changes, on
the anniversary of the Program Start Date for a period equal to the original
Coverage Period. Customer should submit a purchase order verifying the renewal
to OCC within 30 days of the anniversary date. OCC will provide Customer with
any price changes no less than sixty (60) days prior to each such anniversary or
other automatic renewal date, and OCC may require re-certification in accordance
with Section 2.1.
This Program will terminate if either party receives written notice from the
other of its intention to cancel thirty (30) days from receipt of such notice.
If Customer terminates a multi-year TAPRA Program commitment prior to its
expiration date, OCC shall invoice, and Customer shall pay OCC, a termination
fee equal to [*] If Customer has prepaid for service which it will not receive
due to termination, OCC will credit Customer for amounts paid for such service
to the extent the amount exceeds Customer's termination fee.
Any hardware Upgrade or expansion to a IMA-CA System covered by this Schedule
will require a price adjustment that will be prorated based on the term of this
Schedule, less the applicable warranty period. An addendum will be generated and
the appropriate charges will be added.
4.2 AGREEMENT RATE
Any charges for IMA-CA System products, parts, services and training classes are
at the then-current prices and are pursuant to Exhibit A to the Purchase
Agreement between OCC and Customer ("Agreement Rate"). The Agreement Rate is
applied at the time of order of such items and is exclusive of local, state and
federal taxes.
5. BILLABLE SERVICES
Items described below are not covered by this TAPRA Program but will be
provided, where possible, at the Preferred Customer Rate for on-site services
and the Agreement Rate for IMA-CA System Products and parts.
a. Any on-site service.
b. Any parts for an IMA-CA System that are damaged by or as a result of any
of the following:
~ Failure to comply with Customer site requirements as defined by
OCC.
~ Other than normal use and wear.
~ Acts of nature or disaster such as, but not limited to, floods,
fire, winds, lightning and earthquakes.
~ Accidents, vandalism, burglary, neglect, misuse, repair and
unauthorized changes.
~ Moving of the IMA-CA System by other than authorized personnel.
~ Improper interface with or operation of associated equipment
such as telephone systems or services.
Lucent Technologies Inc. Proprietary 11
- --------------------
[*] Information redacted pursuant to a confidential treatment request
throughout this exhibit.
<PAGE> 48
SCHEDULE D TO EXHIBIT A
OCC ADVANTAGE FUND PARTICIPATION TERMS AND CONDITIONS
[OCC ADVANTAGE FUND LOGO]
OCC and the undersigned Customer ("You") are entering into this OCC ADvantage
Fund Participation Agreement ("Agreement") to confirm the terms and conditions
of your participation in the OCC ADvantage Fund (the "Fund") for the current
Fund Year, which extends from July 1 through June 30. With regard to the current
Fund Year, OCC and You hereby agree as follows:
1. The rights and duties of OCC and You under the Fund are specified in
detail in the "Guidelines", Schedule D.1 attached hereto. OCC reserves
the right to revise these Guidelines from time to time during the Fund
Year. OCC will provide You with any revisions. Also, OCC reserves the
right to cancel the Fund at any time by written notice. If the Fund is
canceled, any dollars accrued in your account will still be available
for use by You under the terms of the Fund before it was canceled.
However, no new dollars will accrue in your account after any notice of
cancellation has been given.
2. You will earn dollars in your account based on purchases by You from OCC
during the Fund Year. Details of how purchases count toward dollars, and
how the dollars will be calculated for the first quarter of the Fund
Year, will be communicated to You by letter after you have signed this
Agreement.
3. All expenditures for which You claim reimbursement from the Fund must be
in accordance with the Guidelines. Expenditures by You not in accordance
with the Guidelines are not reimbursable. You must submit a Prior
Approval Form and obtain the approval of OCC, in accordance with the
Guidelines, prior to incurring any expense for which a reimbursement is
claimed from the Fund.
4. As a condition of participation in the Fund, You must state an
incremental growth goal such as increased mailboxes, increased
activation of mailboxes and /or increased messaging for the Fund Year,
and will be expected to report to OCC within sixty (60) days after the
close of the Fund Year (June 30) how your actual growth corresponded to
the goal.
5. You must complete a Marketing Results Form, a copy of which is attached
to the Guidelines, for each approved marketing project within 60 days
after the end date of the program. OCC will keep this information
confidential on an individual customer basis, and will only share it in
a consolidated report form.
6. Within the first three months after you execute this Agreement, you
shall review your marketing plans for the remaining months of the
current Fund Year and discuss with your OCC Account Manager how to best
leverage the Fund as part of your overall marketing plan.
7. You may terminate participation in the Fund at any time upon written
notice to OCC. OCC may terminate your participation in the Fund if you
are in breach of any material obligation under this Agreement and the
breach remains uncured for thirty (30) days following written notice
from OCC.
8. You shall be entirely responsible for the contents of any advertising or
promotional materials for which You are reimbursed by OCC under the
Fund.
9. The parties acknowledge that nothing in this Agreement or the Guidelines
shall be interpreted to give OCC the right to control the price under
which You may resell OCC products to end users, and You acknowledge that
You are free to set the resale price at your sole discretion.
10. The parties acknowledge that the Fund consists only of a bookkeeping
entry, and no funds shall be set aside in trust or otherwise for your
benefit, and that under no circumstances will interest or other earnings
be paid or credited on dollars accumulated in your favor under the Fund.
11. To the extent that taxes are payable with respect to any transaction
contemplated by this Agreement, any amounts reimbursed to You by OCC
shall include any applicable municipal, provincial, state, county or
federal taxes for which OCC is liable, including, but not limited to,
all sales, use, consumption excise, value-added, or other taxes.
Lucent Technologies Inc. Proprietary 12
<PAGE> 49
12. This Agreement is subject to acceptance by OCC in Milpitas, California.
13. This Agreement, including its attachments, constitutes the entire
agreement between OCC and You, and supersedes all prior and
contemporaneous proposals, negotiations, and communications, oral or
written, between OCC and You, with respect to the subject matter of the
Agreement.
14. This Agreement will be automatically renewed at the end of the then
current Fund Year, but subject always to the termination and
cancellation rights of the parties set forth in Sections 1 and 7 above.
The three-month period referred to in Section 6 will commence on the
first day of the new Fund Year (July 1).
Lucent Technologies Inc. Proprietary 13
<PAGE> 50
SCHEDULE D.1 TO EXHIBIT A
OCC ADVANTAGE FUND GUIDELINES
Welcome to OCC ADvantage! This flexible program demonstrates our commitment to
making sure our valued business partners have the tools and resources to
effectively market OCC voice messaging and enhanced services.
OCC ADvantage is being administered by MEDIANET, located in Austin, Texas. Any
questions you have about the program, should be directed to MEDIANET at (512)
343-2002 ext. 222.
These guidelines contain the following information to help you best utilize the
OCC ADvantage Fund:
~ How OCC ADvantage works
~ Guidelines Matrix
~ How to enroll
~ How to obtain prior approval
~ How to file a claim
~ How to report results
HOW THE OCC ADVANTAGE FUND WORKS
HOW DO I QUALIFY FOR THE ADVANTAGE FUND? Any OCC VIS service provider selling
OCC voice messaging and other enhanced services is eligible to participate as
long as you are not participating in another OCC sponsored program where you
receive marketing credits.
ENROLLMENT To enroll in the OCC ADvantage Fund, you must fill out the "Getting
Started with OCC ADvantage" form, sign the OCC ADvantage Fund Participation
Agreement and submit them to your OCC Account Manager.
ACCRUAL OCC ADvantage funds accrue quarterly. Funds will accrue during each
quarter based on your company's purchase of OCC products. The funds accrued are
available for use the month after the quarter ends.
ALLOWANCE PERIOD For any quarter that you accrue funds, you will have four
quarters in which to spend those OCC ADvantage Fund dollars. Any money accrued
and not spent within the twelve-month window will be forfeited. As you
participate in the OCC ADvantage Fund, a summary statement of your accruals and
claims will be sent to you monthly. This statement will include your available
funds, funds about to expire, and your previous accrual and claim activity.
PRIOR APPROVAL REQUIREMENT All marketing projects must receive prior approval.
Prior Approval Forms (contained in this package) must be filled out completely
and faxed or mailed to your OCC Account Manager. MEDIANET will return a copy of
the form to you once the project is approved. You will not be approved for funds
exceeding the amount currently available in your OCC ADvantage account.
CHANGES TO PRIOR Approvals If you make any changes to your prior approval
including delaying the start and end dates of your marketing program, please
notify MEDIANET and submit a new Prior Approval Form.
REIMBURSEMENT AMOUNT You will be reimbursed with OCC ADvantage Funds for 100% of
any preapproved expenses for the promotion of qualifying OCC products and
services. In the event that the marketing project contains information on
products or services in addition to Octel's products and services, you will be
reimbursed for the percentage devoted to Octel, as determined by MEDIANET
("Octel's Share," see Guidelines Matrix). The amount paid will be based on
actual invoices for the marketing project, not the amount estimated on your
Prior Approval Form. The amount will be paid as long as funds are available.
Taxes will not be reimbursed.
MARKETING RESULTS REQUIREMENT Octel requires that the Marketing Results Form be
filled out completely for each marketing project within 60 days after the end
date of the program. This information will be kept confidential on an individual
customer basis. Information will be shared in consolidated report form by region
and type of business. These forms will automatically be sent to you from
MEDIANET. Future prior approvals will not be granted until all outstanding
Marketing Results Forms have been received. Additional forms are available from
MEDIANET.
CLAIM REJECTION If you do not send MEDIANET all of the required documentation
and proof of performance, your claim will be rejected. MEDIANET will ask you to
forward the missing information and upon receipt, your claim will be paid.
Lucent Technologies Inc. Proprietary 14
<PAGE> 51
LACK OF FUNDS If you submit a claim for prior approval and do not have
sufficient funds, you may only be approved up to the amount available in your
Octel ADvantage account.
PROGRAM CANCELLATIONS Failure to adhere to any of the Guidelines may result in
rejection of your claim for reimbursement. Repeated violations can result in
loss of eligibility.
GUIDELINES MATRIX The following matrix was created to give you an overview of
marketing activities and their eligibility requirements for reimbursement.
<TABLE>
<CAPTION>
QUALIFIED ACTIVITY EXPENSES COVERED REQUIRED DOCUMENTATION AND PROOF OF PERFORMANCE EXPENSES NOT COVERED
- ------------------ ---------------- ----------------------------------------------- --------------------
<S> <C> <C> <C>
DIRECT MAIL ~ Mail list /Postage ~ Sample of piece ~ Applicable taxes
~ Layout/Design ~ Copy of paid invoices
~ Printing ~ Copy of postage receipt
PRINT ADVERTISING (INCLUDING ~ Layout/Design ~ Original, actual-sized tearsheet or ~ Applicable taxes
NEWSPAPER) ~ Photography/Illustration photocopy showing publication name, date
~ Space cost and location
~ Copy of publisher invoice
~ Copy of layout/design, photography invoices
INDOOR, OUTDOOR AND VEHICLE ~ Layout/Design ~ Copy of paid invoice indicating where ~ Applicable taxes
SIGNAGE ~ Space advertising was posted
~ Photo of ad
~ Copy of paid invoice for layout/design
RADIO AND TV ~ Air time ~ Copy of paid invoice showing length of ~ Applicable taxes
~ Production costs commercial, dates and times of spots, where
aired, cost per spot, and total cost
~ Station affidavit and a copy of the
video/audio tape
~ Copy of paid invoice for production work
SERVICE PROVIDER CREATED ~ Printing ~ Original sample of piece ~ Applicable taxes
SALES LITERATURE ~ Production costs ~ Copy of paid invoices
</TABLE>
<TABLE>
<CAPTION>
QUALIFIED ACTIVITY EXPENSES COVERED REQUIRED DOCUMENTATION AND PROOF OF PERFORMANCE EXPENSES NOT COVERED
- ------------------ ---------------- ----------------------------------------------- --------------------
<S> <C> <C> <C>
TRADE SHOWS AND SEMINARS ~ Rental of facilities/booth ~ Photo of display ~ Travel
~ Collateral materials ~ All supporting invoices ~ Applicable taxes
~ Equipment rental
~ Banners/Display materials
IN-HOUSE INCENTIVE ~ All costs associated with ~ All supporting invoices ~ Applicable taxes
PROGRAMS program support ~ Copy of promotional piece
~ Travel ~ Copy of incentive plan
MARKETING AND ~ Tuition of OCC training ~ All supporting invoices ~ Travel
SALES TRAINING ~ Printed materials ~ Copy of materials if not OCC ~ Applicable taxes
~ Refreshments/Food
~ Promotional materials
~ Display/Banner
</TABLE>
Lucent Technologies Inc. Proprietary 15
<PAGE> 52
<TABLE>
<CAPTION>
QUALIFIED ACTIVITY EXPENSES COVERED REQUIRED DOCUMENTATION AND PROOF OF PERFORMANCE EXPENSES NOT COVERED
- ------------------ ---------------- ----------------------------------------------- --------------------
<S> <C> <C> <C>
MARKET RESEARCH ~ Outside market research ~ All supporting invoices ~ Applicable taxes
firm
~ Focus groups ~ Copy of final report
~ Quantitative study
materials
POINT OF PURCHASE MATERIALS ~ Cost of materials ~ All supporting invoices ~ Applicable taxes
~ Layout/Design ~ Copy of supporting materials
TELEMARKETING ~ Script development ~ All supporting invoices ~ Phone usage bill
~ Telemarketers ~ Copy of scripts ~ Applicable taxes
PURCHASE OF MARKETING ~ Cost of program ~ None required ~ Applicable taxes
PROGRAM FROM OCC
INFORMATION ABOUT VOICE ~ Writer ~ All supporting invoices ~ Development of web
MESSAGING ONYOUR WEB SITE ~ Graphic design ~ Hard copy of how it appears on your web site site
~ Must appear on web site for at least six ~ Postings on web site
months in a row of less than six
months in a row
~ Applicable taxes
OTHER APPROVED PROMOTIONAL ~ All costs associated with ~ All supporting invoices ~ Applicable taxes
ACTIVITY approved promotion ~ Copy of all materials ~ Travel
</TABLE>
Remember: all claims require the following:
~ Prior Approval Form
~ Claim Form
~ Marketing Results Form
HOW TO ENROLL
1. Fill out the Getting Started with OCC ADvantage form.
2. Read and sign the OCC ADvantage Fund Participation Agreement.
3. Have your Octel Account Manager submit these forms to MEDIANET.
4. You are now enrolled in the Octel ADvantage Fund.
HOW TO OBTAIN PRIOR APPROVAL
1. You and your Octel Account Manager plan a marketing project.
2. You complete the Prior Approval Form and forward it to your Octel
Account Manager.
3. Your Octel Account Manager approves this project.
4. Octel Corporate approves this project.
5. MEDIANET verifies that you have funds available.
6. MEDIANET verifies that results from previous projects have been
submitted (if there has been a previous project).
7. The appropriate funds are held until you submit your claim for
reimbursement.
8. MEDIANET faxes you and your Octel Account Manager a prior approval
confirmation.
Lucent Technologies Inc. Proprietary 16
<PAGE> 53
HOW TO FILE A CLAIM
1. Claims may not be submitted until the marketing project has been
completed.
2. You must fill out the Claim Form within 60 days of the end of the
marketing project.
3. If the claim is not received within 60 days of the end of the marketing
project, the prior approval will be canceled and the allocated Octel
ADvantage funds will be released back into your available balance for
future use.
4. Submit the completed claim form with supporting documentation to
MEDIANET (see Guidelines Matrix.)
5. Be sure to mail, not fax, your claim.
6. Claims are checked against Prior Approval Forms.
7. MEDIANET verifies cost documentation and your proof of performance.
8. Checks or wire transfers are issued by MEDIANET.
9. Under no circumstances may you deduct the amount of your claim from a
merchandise or service invoice due to Octel.
10. As you use the Octel ADvantage Fund, a monthly summary statement showing
your accruals and claim activity will be sent to you.
11. Octel will not reimburse a publication, broadcasting station or any
other supplier directly for advertising costs incurred by a service
provider.
Submit claims to: OCC ADvantage c/o MEDIANET, Inc.
PO Box 203218 Austin, Texas 78720-3218
Please do not send your final claims directly to OCC as this will only delay
processing and reimbursement.
HOW TO REPORT RESULTS
1. At the same time you fill out the Claim Form, fill out the Marketing
Results Form.
2. Make sure you state your objectives and results.
3. Submit your completed Marketing Results Form to MEDIANET.
4. A Marketing Results Form must be filled out for each marketing project
within 60 days of the end date of the project. Marketing Results Forms
may be faxed to (512) 343-1717.
5. Once you have submitted your Marketing Results Forms, you may be
approved for your next project.
SUMMARY
Working closely with your OCC Account Representative, we hope you will quickly
see the benefits of the OCC ADvantage program. Our goal is to help you
successfully market messaging services -- to take some risks, to try new things.
We encourage you to try this program. Put the OCC ADvantage on your side.
(C) Copyright 1996
Octel Communications Corporation
All Rights Reserved.
All trademarks identified by the (R) and (TM) symbols are registered trademarks
of Octel Communications Corporation. All other trademarks are the properties of
their respective owners. Printed in USA.
The above information is provided by Octel Communications Corporation based on
the information available at the time of publication and is subject to change
without notice.
5/96
PN 001-10625-00
Lucent Technologies Inc. Proprietary 17
<PAGE> 54
EXHIBIT B
TO THE
GENERAL SUPPLY AGREEMENT
VOICE MESSAGING SERVICES
This Exhibit B to the Agreement, together with its Schedules attached
hereto (collectively, the "Exhibit"), contains the terms and conditions under
which Seller shall provide certain voice/data information storage and retrieval
services. In case of any conflict between the provisions of this Exhibit and the
Agreement with respect to the Services described in this Exhibit, the provisions
of this Exhibit shall control.
1. DEFINITIONS.
Capitalized terms used in this Exhibit shall have the meanings set forth in the
Agreement. Additional capitalized terms or capitalized terms with meanings
specifically related to this Exhibit are also set forth below:
Administrative Change means any request from Customer to move, add, delete, or
modify a Mailbox or Enhanced Mailbox.
Billable Mailbox means a block of computer disk memory resident on a Voice Mail
Platform associated with a Mailbox or an ECP Application.
Call Answering means the Service whereby the Voice Mail System will, subject to
the operation of the telecommunication equipment, facilities and services of
Customer and the applicable Subscriber, receive telephone calls directed to
Seller from Customer. Upon accessing the Voice Mail System, callers directed to
the Voice Mail System will hear a customized greeting and will then be provided
with instructions regarding use of the Voice Mail System. The Voice Mail System
will store verbal/data message(s) (subject to storage limitations) which the
caller chooses to leave. Additionally, telephone calls received by the Voice
Mail System may be directed to a specific Mailbox which will provide the caller
with the User's personal greeting if Customer's equipment provides compatible
in-band or out-of-band integration with the Voice Mail System.
Central Office Switching System Integration/Call Answering means the combined
Service whereby the Voice Mail System will, subject to the operation of the
telecommunication equipment located at the premises of Customer and the
applicable Subscriber and the CENTREX systems, facilities and services of the
applicable LEC, receive unanswered telephone calls, provide the caller with
instructions regarding use of the Voice Mail System, dispatch message waiting
indication information packets to Customer's PBX/CO in accordance with Seller's
Specifications, and store verbal/data message(s) (subject to storage
limitations) which the caller chooses to leave. As used herein, unanswered
telephone calls include those not answered because the intended recipient's
telephone station either is in use at the time of the telephone call or is not
answered within a predetermined number of rings.
Customer Site means one of the locations set forth in SCHEDULE C at which a
Voice Mail Platform will be deployed. Additional locations may be added to
SCHEDULE C in the future with the written consent of Seller.
Enhanced Call Processing (ECP) Application means the application which creates
one or more Enhanced Mailboxes and links such Enhanced Mailboxes together to
perform the functions requested by Customer (subject to the capabilities of the
Voice Mail System). The series of choices in an ECP Application is called a menu
and one or more menus linked together comprise an ECP Application. Development
of an ECP Application requires that a graphical representation of the menu(s)
accompany the order to Seller to create the requested linkages between the
requested Enhanced Mailboxes.
Enhanced Mailboxes means the following types of Mailboxes that deliver specific
information or routing instructions to calling parties as described in Seller's
Specifications: "Enhanced Call Processing Mailbox" (Types 30, 31, 32, 33);
"Information Center Mailbox" (Types 1, 2, and 3); "Bulletin Mailbox"; "Transfer
Mailbox"; "Conditional Transfer Mailbox"; and "Voice Forms Mailbox" (Types 10
and 11).
Confidential 1
<PAGE> 55
Error Dispatcher means a monitoring system which allows any/all alarm conditions
to be captured by the Seller Network Operations Center. Each device being
monitored is displayed on color monitors in the Network Operations Center with
specific alarm conditions and thresholds. As events (alarms) occur an audible
and/or visual signal is generated that requests immediate attention. In this
fashion alarm conditions are acknowledged and acted upon by initiating trouble
tickets and notifying Seller Network Services Operations Personnel to contact
Customer for resolution, if required.
HelpDesk means a Service whereby Users may place a call to Seller via Customer
provided 800/888 circuits for support relative to the functionality of their
Mailbox and/or the Voice Mail System.
LEC means a local exchange carrier.
Local Access is a means of accessing the Voice Mail System via DID circuits
provided by the LEC pursuant to the request of Customer, whereby a User can
access his/her Mailbox by calling a local telephone number terminating in one of
the service centers listed in SECTION 4.1.
Mailbox means a block of computer disc memory locations assigned to a User,
residing on a Voice Mail Platform and used to provide User Services.
Mailbox Activation means the download to the proper Voice Mail Platform of the
information necessary to activate the requested Mailbox on that specific Voice
Mail Platform.
Mailbox Model means a standardized set of features. Each Mailbox Model will have
a five digit order code for purposes of Mailbox Activation.
Remedial Maintenance means Services required to restore the Voice Mail System to
good operating condition and cause it to be capable of performing in accordance
with Seller's Specifications following a malfunction of the Voice Mail System.
Management Reports mean a series of reports generated and delivered each month
by Seller to Customer consisting of (a) Customer care reports (including trouble
ticket statistics and HelpDesk tickets), Mailbox access reports (including count
by features, count by bill group, access minutes by call types, usage minutes by
call types, and fax usage detail), and System operation reports (including
capacity planning, services availability, System downtime, mean time to correct
statistics, and monthly service performance metrics); and (b) the billing
statistics in the mutually agreed medium and format as provided in SECTION 3.4.
Message Waiting Indicator (MWI) - (Integrated Services to Customer Premise
Equipment Telephone Systems ONLY) is a means to visually notify a User of the
arrival of a message in the User's Mailbox. The notification consists of
illuminating a light on the User's telephone instrument. Upon retrieval of any
messages contained in the Mailbox, the Voice Mail System will subsequently
extinguish the light.
Message Networking means the class of service assigned to a specific Mailbox
allowing the applicable User to transmit a message(s) to the Mailbox(s) of other
User(s) established on one or more different Voice Mail Platforms.
NOC means Seller's Network Operations Center.
PBX/CO Private Branch Exchange (PBX) Central Office (CO) means Customer's
telephone switching system and/or a privately owned telephone system located at
Customer's or a Subscriber's place of business.
PBX Integration means the service whereby the Voice Mail System will, subject to
the operation of the PBX(s) and other telecommunication equipment located at a
Subscriber's premises, receive, via dedicated facilities, unanswered telephone
calls, provide the caller with instructions regarding use of the Voice Mail
System, provide for "on/off" control of a User's message waiting indicator and
store any message (subject to storage limitations) which the caller chooses to
leave. As used herein, unanswered telephone calls include those not answered
because the intended recipient's telephone station either is in use at the time
of the telephone call or is not answered within a predetermined number of rings.
Confidential 2
<PAGE> 56
Port means any or all of the following: a port located on a Voice Mail Platform
that is in a state of receiving traffic from the network of Customer or a LEC; a
port located on the digital access cross-connect system (DACS) that when in use
is physically connected to either the network of Customer or equipment inside of
an Seller Service Center; and a port located on Seller's administrative system
(Sun Microsystems SPARC 6000).
Seller Sites means one of the locations set forth in SECTION 4.1 where Seller
has deployed one or more Voice Mail Platforms.
Services means any or all of the information storage and retrieval services
provided by Seller under this Exhibit.
Service Activation Date means the month in which a Voice Mail Platform is
deployed and is enabled to deliver Services.
Services Enabling Equipment means the PBX/CO(s) provided by Customer and the
hardware and software required on the Voice Mail Platform(s) to provide
Services, including, but not limited to, Seller Command Language, Command
Language Port, Centralized System Management, DMID(s) and associated PBX/CO
connections.
Subscriber means an individual, corporation, partnership or other legal entity
which has purchased User Services from Customer.
User means any individual authorized (directly or indirectly) by Customer to
have a Mailbox resident on the Voice Mail System.
User Documentation Kits mean the documentation provided to Subscribers to
describe the features of the Voice Mail System and the User Services.
User Services mean those Services used directly by Users.
Voice Mail Platform means the hardware and software programs (excluding related
telecommunications facilities) necessary to provide a User with User Services.
Voice Mail System means all Voice Mail Platforms and Service Enabling Equipment
necessary to provide a User with User Services.
2. SERVICES.
2.1 For the fees and Prices stated in SCHEDULE B, Seller shall deliver to
Customer one or more of the information storage and retrieval Services described
in this Exhibit as Customer may request. From time to time, Seller may amend
this Exhibit to add additional Services which will be made available to Customer
or to delete Services previously made available to Customer. Prior to deleting
any Service from this Exhibit, Seller will provide Customer at least sixty (60)
days advance notice of deletion. Upon deletion from this Exhibit, a Service will
cease to be included within the definition of "Services" and Customer will stop
marketing those services to Subscribers and potential Subscribers. Seller will
not delete a Service from this Exhibit, unless such Service is being generally
discontinued.
2.2 Customer shall request delivery of Services in writing and specify the date
at least thirty (30) days in advance of the date on which such Services are to
be delivered. Customer shall purchase Services from Seller in at least the
amounts and on or before the dates set forth in SCHEDULE C.
3. SELLER'S DUTIES AND OBLIGATIONS.
3.1 Seller will provide the Services in accordance with the service performance
standards set forth in SCHEDULE B and will use commercially reasonable efforts
to complete all requested events subject to the timelines indicated therein.
Seller will provide Services in the various markets described in SCHEDULE C on
or before the dates listed therein.
Confidential 3
<PAGE> 57
3.2 Seller will use its commercially reasonable efforts to fulfill all accepted
Administrative Change orders pursuant to SCHEDULE B, SECTION 1.
3.3 Seller will provide HelpDesk Service with a mutually agreed upon custom
greeting to be played to calling parties. At Customer's request, Seller will
provide User Mailbox address directories on a mutually agreed upon basis.
3.4 Seller will provide available detailed billing content and reports per
Subscriber to Customer in a mutually agreed format to be determined jointly by
Customer and Seller. Such billing information will be rendered monthly to
Customer representing a period of 30 days as mutually agreed.
3.5 At Customer's request, Seller will prepare and mail User Documentation Kits
to the Customer sales office specified in the order entry documents (postage
incurred will be billed separately). Seller's marketing communications group
will, as requested, reasonably assist Customer to develop, publish and
distribute customized promotional, informational and educational materials and
documentation.
3.6 Seller will use its commercially reasonable best efforts to provide written
quotes for Services not covered by this Exhibit within 5 business days of
receipt through normal channels of all necessary information required to render
a proper quotation.
3.7 Seller will be reasonably available (via telephone or teleconference) for
rendering marketing and sales support and will use commercially reasonable
efforts to provide answers within 3 days of request with the procedure subject
to agreement by both parties.
3.8 Seller will use its commercially reasonable efforts to upgrade Voice Mail
Platforms (when provided by Seller) with the latest Seller software that can be
successfully deployed and supported by Seller.
3.9 Seller will notify Customer, not less than ninety (90) days in advance, of
upcoming Software releases that will cause a change in fulfillment or the user
interface materials.
3.10 As Customer requests and Seller technically is able to deliver, special
custom-type Mailboxes may be created using "classes of service" meeting various
feature/functionality requests made by potential Subscribers of Customer. Such
Mailboxes will be developed and provided upon mutually agreeable terms and
conditions.
3.11 Promptly following the written request of Customer and receipt of all
required graphical representations, Seller will create and activate ECP
Applications per the scheduled delivery times as indicated in SCHEDULE B.
3.12 Seller will respond promptly to all Remedial Maintenance problems and will
notify the designated Customer representative of any outage as soon as Seller is
aware of such outage. Seller and Customer will mutually agree on the
notification process required for outages. Seller will respond to outages within
time periods as specified in SCHEDULE B. Seller will provide technical
escalation support to expedite resolution of outages and to coordinate fault
isolation with Customer and with other of Customer's suppliers. Seller will
provide required travel and labor as part of providing the Services. As
necessary, Seller will initiate corrective action upon receipt of an alarm or
trouble report and will ensure impairments and outages are resolved in
descending order of severity. Seller will begin the repair process once a
trouble ticket has been created. Remote Remedial Maintenance will begin
initially and generally resolves troubles reported. Should on-site Remedial
Maintenance procedures be required, Seller targets on-site response of six (6)
hours during business days and twenty four (24) hours during non-business days.
Confidential 4
<PAGE> 58
4. CUSTOMER'S DUTIES AND OBLIGATIONS.
4.1 In the event that Customer does not use frame relay circuits that connect
with the Lucent NRC, Customer will connect at its sole expense to 3410 Midcourt,
Suite 115, Carrolton, Texas 75006, via a dedicated frame relay circuit so that
Lucent may provide the Services described in Schedule A to Exhibit B.
4.2 Customer will utilize the User Services under Customer's service mark or
name to prospective business or consumer markets. Customer will ensure that
Customer's sales organization and support personnel are trained with respect to
the basic features/functionality of the User Services and/or the Voice Mail
System.
4.3 Customer will use its commercially reasonable efforts to provide support and
training to all Users. Customer will provide and cause to be delivered to Seller
collateral materials (requested by Subscribers) for assembly into end-user kits
("User Documentation Kits"). Such User Documentation Kits will be "private
labeled" and appear uniquely different from any then current Seller fulfillment
materials. Customer will provide Seller, upon Seller's request, with sufficient
initial and replacement inventory of Customer developed User Documentation Kits
for use by Seller when executing the end-user collateral fulfillment process
(postage will be paid by Customer).
4.4 Customer and/or Lucent NRC will designate and staff a Customer Voice Mail
Product Manager to act as the first line of support for all Customer
representatives, and act as the single point of contact for Seller with respect
to all matters regarding the Services.
4.5 Customer will be responsible for invoicing each Subscriber or User, as
appropriate.
4.6 Customer and/or Lucent NRC will work with Seller to establish and document,
within thirty (30) days of execution of the Agreement, mutually agreed upon
escalation/trouble handling procedures and clearing times between the Network
Operations Center and Customer. Customer further agrees to escalate to
Customer's senior management for resolution in the event that procedures are not
agreed upon by Seller and Customer's PBX/CO vendor for resolving uncleared
trouble ticket(s).
4.7 Customer will provide and maintain all circuit connections to the Voice Mail
Platforms from Customer's PBX/CO or other devices, including but not limited,
Services Enabling Equipment at Customer's sole expense.
4.8 Customer will work with Seller to establish and document, within thirty (30)
days of execution of this Agreement, mutually agreed upon Mailbox Models.
4.9 Customer will use the secure facilities provided in Exhibit __ to house the
Voice Mail Platform(s) and Services Enabling Equipment. Such facilities will
include sufficient power sources to operate all switching and voice mail
equipment co-located at those facilities.
4.10 Customer will complete the Administrative Change process (to be mutually
agreed upon by both parties) including, but not limited to codes for designating
Mailbox Models, prior to transmission of the order entry documents to Seller
(via facsimile equipment or pursuant to some other mutually agreed method) for
processing.
4.11 Customer will use its reasonable efforts to cause its other vendors to
cooperate with Seller in connection with the installation, testing, modification
and problem evaluation of Voice Mail System components as necessary for Seller
to provide the Services, provided that Seller will not commit Customer to any
charges from such suppliers without Customer's advance written approval.
Customer acknowledges that the failure of such vendors to cooperate with Seller
will excuse Seller from any resulting breach of this Exhibit or any failure to
meet its performance obligations hereunder.
4.12 Customer will provide access by Seller employees/agents to the sites for
purposes of installation, testing, maintenance and inspection of the Voice Mail
System.
4.13 Customer will be responsible for obtaining at its sole cost and expense all
necessary local, long distance switched or dedicated transport access.
Confidential 5
<PAGE> 59
4.14 Neither Customer nor its Affiliates will move any Voice Mail Platform
deployed at a Customer Site without the written consent of Seller.
4.15 Customer acknowledges and agrees that Customer will be solely liable for
ensuring that access requested by its officers, directors, agents, employees
and/or Affiliates to messages contained in Mailboxes is obtained in accordance
with the requirements of applicable law. Customer will indemnify Seller and its
officers, directors, employees, agents and Affiliates against and hold each of
them harmless from any and all liabilities, costs, damages, judgements and
expenses (including reasonable attorney's fees and costs) arising out of or
attributable to Seller providing Customer and/or Customer's officers, directors,
employees, agents and/or Affiliates with access to or assisting Customer and/or
Customer's officers, directors, employees, agents and/or Affiliates in obtaining
access to the content of messages contained in Mailboxes, provided that such
access was requested by Customer.
5. PRICING, INVOICING TO CUSTOMER AND PAYMENT TERMS.
5.1 The fees and Prices for the Services are those set forth in SCHEDULE A.
6. LIMITATION ON LIABILITY.
Solely with respect to the Services provided pursuant to this Exhibit B:
Seller shall have no liability to Customer or to anyone else for any damages,
losses, liabilities, injuries, claims, demands or expenses arising out of or
directly or indirectly connected with the disclosure or loss of information
deposited in the Voice Mail System by Users or others, except to the extent such
damages, losses, liabilities, injuries, claims, demands or expenses arise out of
or result from the negligence or willful misconduct of Seller. Seller will
provide individual identification numbers for each User of the Services and will
use its commercially reasonable best efforts to ensure that the identification
numbers are not disclosed except to Customer and personnel of Seller who require
such information to administer the Services. Users may further protect such
identification numbers by the addition of a password as explained in the User
Documentation Kits, and are encouraged to do so. The Parties acknowledge that
Seller is providing the Services to Customer in lieu of Customer providing such
Services on its own behalf. The intent of this Exhibit is not to shift to Seller
any potential liability resulting from unauthorized access to the Voice Mail
System or to make Seller a surety with respect to such liabilities. Accordingly,
Customer agrees to remain fully liable for damages resulting from unauthorized
access as if, with respect to such damages, Customer were providing the Services
on its own behalf. Notwithstanding the foregoing, Seller will be fully liable
for any damages arising from unauthorized access to the Voice Mail System, if
such access is due to Seller's failure to use its commercially reasonable best
efforts to safeguard identification numbers issued to Users or if such damages
are otherwise due to the willful misconduct or negligence of Seller.
Notwithstanding the foregoing, nothing in this Section 6 is intended to limit
any warranties or remedies set forth in the Agreement or Exhibit A with respect
to the Voice Mail System or the other services provided under this Agreement.
7. REPRESENTATIONS AND WARRANTIES OF SELLER.
7.1 Seller warrants that the Services will meet the Performance Standards as
stated in SCHEDULE B. THE FOREGOING WARRANTY IS THE EXCLUSIVE WARRANTY FOR THE
SERVICES PROVIDED UNDER THIS EXHIBIT AND IS IN LIEU OF ALL OTHER WARRANTIES
EXPRESS OR IMPLIED INCLUDING (WITHOUT LIMITATION) THE IMPLIED WARRANTIES OF
MERCHANTABILITY AND FITNESS FOR PARTICULAR PURPOSE.
7.2 This Section 7.2 is intended to supercede the provisions of Section 6.5
(Network Performance) of the General Supply Agreement except as herein provided.
In addition, this Section 7.2 supercedes any remedy that might otherwise be
available under Section 6.3 of the General Supply Agreement for failure to
achieve the System Availability standard set forth in Section 7 of Schedule B
hereto. Seller shall issue the following service credits if the Voice Mail
Systems for which Seller is providing Services experience an Outage. For
purposes of this Section 7.2, an "Outage" is defined as the inability of a Voice
Mail Platform to accept calls, record messages, store messages, and allow users
to retrieve their respective messages. "Outage" is further defined as any of the
events
Confidential 6
<PAGE> 60
stated in the immediately preceding sentence occurring to a minimum of 25% of
the ports on a Voice Mail Platform, or the lesser of (a) 25% of the mailboxes on
a System or (b) 50 of the mailboxes on a System. In the event that Seller is
unable to satisfy its performance obligations within fifteen (153) minutes of
notification of an Outage, Seller will issue a service credit of [*] per Outage
per Platform. If the same Outage (e.g., failure of the same TIC card or
processor) occurs more than one time in the same month, the amount of the credit
Seller shall issue will increase by [*] for each subsequent occurrence. For
example, for the second occurrence of the same Outage, the credit shall be [*];
for the third occurrence of the same Outage, the credit shall be [*]. The total
Outage credits that Seller will issue for Outages in a particular in any month
shall not exceed the monthly billable fee paid for services. Notwithstanding the
foregoing, Seller will have no liability for: (i) Outages caused by a Force
Majeure; (ii) Outages resulting from a mutually agreed scheduled activity such
as Network maintenance or loading of Software that does not exceed the scheduled
Outage interval (iii) Outages resulting from Customer's, its subcontractor's or
any third party's (employed by the Customer) failure to follow the
Documentation; (iv) Outages resulting the failure of Customer to have (a)
competent technicians available to respond to notification from Seller, or (b)
adequate spares as recommended by Seller on site to repair the problem or (c)
from Customer's failure to perform an assigned responsibility under this
Agreement, the Attachments of the Operations Plan. (v) Outages resulting from an
end user customer to which this Section applies failure to properly operate its
Network or otherwise follow applicable Maintenance procedures.
Notwithstanding the foregoing, Seller will not be liable for any breach arising
out of any modification or attempted modification by Customer of the hardware or
software products used by Seller to provide the Services, unless Customer has
obtained prior authorization from Seller permitting such modification.
- --------------------
[*] Information redacted pursuant to a confidential treatment request
throughout this exhibit.
Confidential 7
<PAGE> 61
SCHEDULE A
TO EXHIBIT B
PRICING SCHEDULE
The Prices described in this Schedule are for Services performed in the
contiguous 48 States of the U.S.A.
CUTOVER SERVICES
- --------------------------------------------------------------------------------
Cutover services include the setup, end user kit development and program
establishment for all markets.
<TABLE>
<S> <C>
Program Establishment Fee $ [*] One (1) Time
PBX or Central Office Integration Fee $ [*] per Integration
User Kit Creation/Development $ [*] One (1) Time Fee
</TABLE>
[QUESTION CONCERNING USER KIT CREATION/DEVELOPMENT AT [*] VERSUS INITIAL
MONTHLY BUNDLE FEE PER SITE AT [*] PRICED IN LETTER. ARE THEY THE SAME
THING AND WHAT THE PRICE PREVAILS?]
PACKAGED SURVEILLANCE AND BACK OFFICE SERVICES
- --------------------------------------------------------------------------------
The following PACKAGED SURVEILLANCE SERVICES will be provided hereunder for
IMA-CA Voice Mail Platforms installed at a Customer Site: Systems Watchdog
Monitoring, Remote Database Maintenance and Remote Database Repair, Disk
Utilization Monitoring and Notification, Port Utilization Monitoring and
Notification, Message Networking Monitoring and Notification, End-to-End Access
Testing (2X daily) and Notification, Capacity Planning Reports by P.0X GOS,
Electronic Billing Data, Monitoring/Repair/Notification and Monthly Reporting on
SURVEILLANCE SERVICES.
The following Customer SERVICES are provided hereunder for IMA-CA Voice Mail
Platforms installed at a Customer Site: Program Management, Mailbox
Administration, Order Entry via Manual and/or Batch Processing, Automatic
Mailbox Provisioning, Networking Node Table Management, System Distribution
Lists Management, Broadcast Mailbox Management, ECP Documentation and Archival,
24x7 HelpDesk, System Database Archival and Restoration, and Management Reports.
For Services not specified in the forgoing table and for Services in excess of
the amounts specified in the foregoing table, the pricing set forth in the
remainder of this Schedule will be applicable.
<TABLE>
<S> <C>
Surveillance and Back Offices Services Establishment $ [*]
Surveillance and Back Offices Services Deployment $ [*]
Surveillance and Back Offices Services Recurring Fees:
</TABLE>
All Ports are added and deleted in 24-Port increments. No proration for periods
less than one month.
For Services not specified in the forgoing table and for Services in excess of
the amounts specified in the forgoing table, the pricing set forth in the
remainder of this Exhibit D will be applicable.
<TABLE>
<CAPTION>
NEW
TYPE-0 MOVES DATABASE BUNDLE
MAILBOX AND HELPDESK FEES PER FEE PER
PACKAGED ADDS CHANGES MINUTES MAILBOX MONTH BY
PORT TOTALS INCLUDED INCLUDED INCLUDED INCLUDED SITE
----------- -------- -------- -------- -------- ----
<S> <C> <C> <C> <C> <C>
24 100 70 150 [*] [*]
48 150 150 300 [*] [*]
72 250 250 500 [*] [*]
</TABLE>
If a market exceeds the parameters in the corresponding tables during a given
month, the following Prices will apply for the Services delivered for the amount
that exceeds the parameters defined in the table above. Package sizes are
dictated by Port utilization of each market. If the total number of Ports used
on a platform exceeds the amounts in a
- --------------------
[*] Information redacted pursuant to a confidential treatment request
throughout this exhibit.
Confidential 8
<PAGE> 62
package in any given month, the next larger package and corresponding parameters
will dictate the package size to be purchased in that month.
<TABLE>
<S> <C>
Growth beyond 72 Port packages $ [*] per Port per month
</TABLE>
The above pricing is for Ports used in excess of the packaged amounts. (Example:
If Customer required 96 Ports, Customer would pay their monthly rate for Package
72 and add the additional amount as set forth above: [*]
BACK OFFICE AND CUSTOMER SERVICES
- --------------------------------------------------------------------------------
The following BACK OFFICE SERVICES will be provided at the Prices indicated for
both Customer or Seller-owned Voice Mail Platforms (IMA-CA) installed at a
Customer Site:
<TABLE>
<CAPTION>
Customer Service Fees
- --------------------------------------------------------------------------------
Order Entry and Mailbox Provisioning
<S> <C>
Manual Order Entry
STANDARD Turnaround Time Per SCHEDULE B $ [*] One-Time Per Mbx Type-0 Only
Administrative Change fee $ [*] One-Time Per Mbx Type-0 Only
EXPEDITE Turnaround Time per SCHEDULE B $ [*] One-Time Per Mbx Type-0 Only
Batch Electronic Mailbox activation
(only available when performed
using the electronic order entry
specification provided by
Seller). Turnaround Time Per SCHEDULE B $ [*] One-Time Per Mbx Type 0 Only
Order Entry of Exception Orders
$ [*] One-Time Per Mbx type 0 Only
Direct Data Link Electronic Mailbox
activation (requires engineering
development for both Customer and
Seller. Intended for high volume
order entry/provisioning) $ [*] One-Time Per Mbx Type 0 Only
Order Entry of Exception Orders $ [*] One-Time Per Mbx type 0 Only
End User Fulfillment Kit Assembly $ [*] per each Kit/One-Time Type-0
$ [*] per each Application: Non Type-0
Fulfillment Shipping Shipped at Customer's sole expense
ECP Applications [Note: Prices are in addition to Mailbox activation.]
STANDARD Turnaround Time Per SCHEDULE B
All ECP Applications $ [*] per application/One-Time*
EXPEDITE Turnaround Time Per SCHEDULE B
All ECP Applications $ [*] per application/One-Time
</TABLE>
*In the event that ATG product management standardizes an ECP
Application (e.g., a Type 31 mailbox plus five Type 0 mailboxes), the
parties will mutually agree to a [*].
<TABLE>
<CAPTION>
Miscellaneous Service Fees
- --------------------------------------------------------------------------------
<S> <C>
Area Code Split $ [*] per system
+$ [*] per mailbox
</TABLE>
- --------------------
[*] Information redacted pursuant to a confidential treatment request
throughout this exhibit.
Confidential 9
<PAGE> 63
<TABLE>
<S> <C>
Addition of new 800# for HelpDesk $ [*] set-up per 800#
+$ [*]/minute for HelpDesk
Bill Cycle Change
$ [*] set-up
+$ [*] per mailbox
Build New Mailbox Community $ [*] per community
Change Billing Hierarchy $ [*] set-up
+$ [*] per mailbox
Circuit Installation (analog line - POTS) $ [*] per POTS line
Circuit Installation (DS-0) $ [*] per DS-0
Circuit Installation (DS-1) $ [*] per DS-1
Circuit Removal (analog line - POTS) $ [*] per POTS line
Circuit Removal (DS-0) $ [*] per DS-0
Circuit Removal (DS-1) $ [*] per DS-1
Note: circuit installation and removal
are waived at the installation of
IMA-CA platforms.
Custom Voice Recordings $ [*] set-up
+$ [*] per recording
Engineering and Software Development $ [*] per hour
Manual Invoice Changes $ [*] per event
Mailbox Model number creation $ [*] per model
Mailbox Move / System Split $ [*] per system
+$ [*] per mailbox
Networking Set-Up - Initial Systems (N=Systems) [*] one time
Networking - Updates or add/delete system [*] one time
Seven to Ten Digit Mailbox Address Conversion $ [*] per system
+$ [*] per mailbox
Software Upgrade requiring database change $ [*] per system
+$ [*] per mailbox
Telephone Interface Card (TIC) Installation $ [*] per event
Training Development and Delivery $ [*] per hour
Trunk Group Reconfiguration $ [*] per event
Voice Mail System Cluster $ [*] per cluster
+system installation/services
activation fees as defined in
customer's contract
Voice Mail System Relocation $ [*] per platform
+ moving expenses
Voice Mail System Removal $ [*] per platform
</TABLE>
- --------------------
[*] Information redacted pursuant to a confidential treatment request
throughout this exhibit.
Confidential 10
<PAGE> 64
Systems Database Maintenance
- --------------------------------------------------------------------------------
The System Database Fee is based upon each Mailbox contained within the
Centralized Administration Database during a billing cycle period.
<TABLE>
<S> <C>
All Mailboxes $ [*] per mailbox, Per month
</TABLE>
HelpDesk and Order Management Fees
- --------------------------------------------------------------------------------
Costs are based upon total Call Minutes (total minutes from connect to
disconnect plus all minutes in after work state, if any), NOTE THAT ALL INBOUND
CALLS ROUTE TO THE SAME ACD QUEUE FOR BOTH HELPLINE AND ORDER MANAGEMENT.
<TABLE>
<S> <C>
HelpDesk Calls (all calls) $ [*] Per Call Minute
HelpDesk or Order Management Training Fees
Training is purchased in blocks of hours, and travel expenses are in addition.
Seller requires a 30-day advance notice for any training requests.
25 hours On Premises $ [*] per 25 hour block
50 Hours On Premises $ [*] per 50 hour block
</TABLE>
- --------------------
[*] Information redacted pursuant to a confidential treatment request
throughout this exhibit.
Confidential 11
<PAGE> 65
SCHEDULE B
TO EXHIBIT B
PERFORMANCE STANDARDS
SECTION 1. ORDER PROCESSING
A. New Mailbox Installations and Administrative MANUAL Changes STANDARD
Response Times
Seller will perform MANUAL Administrative Changes to Type 0 Mailboxes in
accordance with the following schedule (unless otherwise agreed to by the
parties):
<TABLE>
<CAPTION>
NUMBER ADMINISTRATIVE CHANGES
RECEIVED AT SELLER PER BUSINESS DAY CYCLE TIME FROM RECEIPT OF WRITTEN
PER SITE ORDER*
----------------------------------- ----------------------------------
<S> <C>
< 25 Administrative Changes 24 hours
25-50 Administrative Changes 2 business days
51-100 Administrative Changes 3 business days
101-250 Administrative Changes 4 business days
251-400 Administrative Changes 5 business days
> 400 Administrative Changes Must be individually scheduled
</TABLE>
* Includes quality control and shipping of User Documentation
Kits, if required. Rejected order time frames will re-start upon
receipt of the corrected order.
B. New Mailbox Installations and Administrative MANUAL Changes EXPEDITED
Response Times
Seller will perform MANUAL Administrative Changes to Type 0 Mailboxes in
accordance with the following expedited schedule (unless otherwise agreed to by
the parties):
<TABLE>
<CAPTION>
NUMBER ADMINISTRATIVE CHANGES
RECEIVED AT SELLER PER BUSINESS DAY EXPEDITED CYCLE TIME FROM RECEIPT
PER SITE OF WRITTEN ORDER* IN BUSINESS HOURS
----------------------------------- ----------------------------------
<S> <C>
< 10 Administrative Changes 4 hours
10-20 Administrative Changes 8 hours
</TABLE>
* Includes quality control and shipping of User Documentation Kits, if
required. Rejected order time frames will re-start upon receipt of the
corrected order.
C. Enhanced Mailbox Installations and Administrative MANUAL Changes
STANDARD Response Times
Seller will perform MANUAL Administrative Changes to Enhanced Mailboxes in
accordance with the following STANDARD schedule (unless otherwise agreed to by
the parties):
Confidential 12
<PAGE> 66
<TABLE>
<CAPTION>
NUMBER OF ENHANCED MAILBOXES SUBJECT
TO ADMINISTRATIVE CHANGES ORDERS STANDARD CYCLE TIME FROM RECEIPT
RECEIVED IN A SINGLE DAY PER SITE OF WRITTEN ORDER*
--------------------------------- -----------------
<S> <C>
1 - 10 Enhanced Mailboxes 3 business days
11 - 25 Enhanced Mailboxes 5 business days
26 - 50 Enhanced Mailboxes 7 business days
51+ Enhanced Mailboxes Must be individually scheduled
</TABLE>
* Includes quality control and shipping of User Documentation
Kits, if required. Rejected order time frames will re-start upon
receipt of the corrected order.
D. Enhanced Mailbox Installations and Administrative MANUAL Changes
EXPEDITED Response Times
Seller will perform MANUAL Administrative Changes to Enhanced Mailboxes in
accordance with the following EXPEDITED schedule (unless otherwise agreed to by
the parties):
<TABLE>
<CAPTION>
NUMBER OF ENHANCED MAILBOXES SUBJECT
TO ADMINISTRATIVE CHANGES ORDERS EXPEDITED CYCLE TIME FROM RECEIPT
RECEIVED IN A SINGLE DAY PER SITE OF WRITTEN ORDER*
--------------------------------- -----------------
<S> <C>
1-4 Enhanced Mailboxes 1 business days
5- 15 Enhanced Mailboxes 2 business days
16 - 25 Enhanced Mailboxes 4 business days
25+ Enhanced Mailboxes Must be individually scheduled
</TABLE>
* Includes quality control and shipping of User Documentation
Kits, if required. Rejected order time frames will re-start upon
receipt of the corrected order.
Any Administrative Transaction which requires the deployment of a Voice Mail
Platform or the addition of Ports or disk drives on an existing Voice Mail
Platform will be deployed within mutually agreeable time frames. Confirmation of
receipt of new orders and completion of orders back to Customer will be
accomplished at the end of each business day on which orders are placed.
E. New Mailbox Installations and Administrative BATCH Changes Response
Times
Seller will perform BATCH Administrative Changes to Type 0 Mailboxes in
accordance with the following schedule (unless otherwise agreed to by the
parties). NOTE: ENHANCED MAILBOXES ARE NOT AVAILABLE VIA BATCH PROCESSING.
Customer will be responsible for any development to facilitate the accurate
submission of Seller's electronic specification to Seller. All transport is
borne by Customer.
Confidential 13
<PAGE> 67
<TABLE>
<CAPTION>
NUMBER OF BATCH ADMINISTRATIVE
Changes RECEIVED AT SELLER PER BATCH CYCLE TIME FROM THE
BUSINESS DAY RECEIPT OF FILE
------------------------------ -------------------------
<S> <C>
< 50 Administrative Changes 2 hours
< 100 Administrative Changes 4 hours
< 500 Administrative Changes 8 hours
< 1,000 Administrative Changes 12 hours
< 2,000 Administrative Changes 24 hours
< 4,000 Administrative Changes 48 hours
> 4,000 and < 10,000 Administrative 72 hours
Changes
> 10,000 Administrative Changes 96 hours
</TABLE>
* Includes quality control and shipping of User Documentation
Kits, if required. Batch processing usually requires a third
party fulfillment center on behalf of Customer. Rejected order
time frames will re-start upon receipt of the corrected file.
F. Order Flow
All Administrative Change requests will be made on a mutually agreed upon form
by an authorized, designated Customer contact. Said request will be made, via a
mutually agreed upon media, to Seller's designated employee or agent.
SECTION 2. HELPDESK
Seller will provide a toll free number to the HelpDesk for call handling. The
HelpDesk provides a point of contact for Subscribers and Users to report
problems and obtain assistance with the Voice Mail System.
Seller's goals in answering HelpDesk calls are to ensure (i) at least 70% of
HelpDesk calls will be answered within 20 seconds or less directly by an
employee/agent as calculated over a calendar month (ii) calls that enter the
automatic call distributor queue will remain in queue for a targeted average of
1.5 minutes or less as calculated over a calendar month and (iii) Seller will
resolve all informational or User assistance HelpDesk tickets within forty-five
(45) minutes of the time reported to the HelpDesk. Failure to achieve these
goals will not constitute breach of this Exhibit.
SECTION 3. MONITORING
A. Error Dispatcher
Seller will monitor Customer's Voice Mail System twenty-four (24) hours per day,
seven (7) days per week. Monitoring is defined as conducting polling events
utilizing polling computer technology which electronically retrieves error and
status logs. Such polling is typically performed in sixty (60) minute intervals.
Upon extraction of the error logs (i.e. polling action) Seller processes and
analyzes the error log for possible system problems/errors. If an error is
detected, the NOC will begin immediate resolution procedures. An Seller
employee/agent is present at the NOC twenty-four (24) hours a day, seven (7)
days a week for trouble resolution and corrective action. All error and status
log extractions are stored for fourteen (14) days following collection.
B. Access Manager
Seller will dial each system access number utilized by Customer's Voice Mail
System, detect the system greeting, gain access to a test Mailbox, detect a
pre-recorded tone and disconnect. Each system access number is tested at least
twice between the hours of 10:00 PM and 6:00 AM CST. If a problem is detected,
the NOC will begin
Confidential 14
<PAGE> 68
immediate resolution procedures. An Seller employee/agent is present at the NOC
twenty-four (24) hours a day, seven (7) days a week for trouble resolution and
corrective action.
SECTION 4. TROUBLE TICKET RESOLUTION
On behalf of Customer, Seller will manage the escalation and resolution of
trouble tickets, which is a record of Major and/or Minor Outages identified by
monitoring or reported to the HelpDesk. Seller's employee or agent will
diagnose, investigate and where possible, remotely correct the reported outage.
If any outage can not be corrected from the NOC, the trouble ticket associated
with such outage will be escalated to the appropriate Seller employee/agent and
continually documented and tracked until resolution.
SECTION 5. REPAIR RESPONSE
Seller will respond promptly to all outages identified by monitoring or reported
to the HelpDesk. Seller will classify each outage as a Minor Outage or Major
Outage. If a Major Outage is identified, Seller will immediately begin remote
diagnostics and corrective actions as mutually defined by Customer AND Seller.
All outages not classified as Major Outages are considered Minor Outages and
will be responded to within twenty-four (24) hours.
Seller will provide required travel, labor and parts as part of the cost of
providing Services. Replacement spare parts will be furnished on an exchange
basis and may, at the discretion of Seller, be new, re-manufactured, or
refurbished; provided any such re-manufactured or refurbished replacements are
equivalent in functionality to new parts and are in good working condition.
SECTION 6. TROUBLE TICKET ESCALATION
Customer may escalate any trouble ticket at any time by calling the HelpDesk and
asking to speak to a HelpDesk supervisor. Major Outages will be escalated every
two (2) hours until resolution.
SECTION 7. SYSTEM AVAILABILITY
Seller will maintain each Voice Mail Platform with 99.9% system availability
based on twenty-four (24) hour system availability. The system availability will
be calculated monthly, as a percent as follows:
System Availability = A-B
---
A
Where: A = Total minutes in a calendar month less total minutes
of scheduled downtime in such month
B = Total minutes of Major Outage in such month less
on-site response time, if required.
SECTION 8. SCHEDULED DOWNTIME
Seller will perform preventive maintenance procedures designed to keep the Voice
Mail System in operating condition and capable of performing in accordance with
the manufacturers' specifications. Seller and Customer will mutually agree on
the scheduling of preventive maintenance procedures with a view toward
minimizing interruptions of normal business activities. Seller will identify,
prior to performance, any preventive maintenance procedures which may result in
any disruption of User Services to Customer.
Seller will provide Customer with a request for scheduled downtime at least one
week in advance (normally between 11:00 PM and 6:00 AM local time) for any
scheduled maintenance procedures, system hardware and software enhancements,
disk expansions, system splits, user moves or special projects. Seller will
obtain Customer approval prior to the performance of any such procedures. If
Customer restricts Seller from performing required preventive maintenance
procedures, Seller will be relieved from any liability for resultant failures
and the downtime, if any, associated with that failure.
Confidential 15
<PAGE> 69
SECTION 9. EQUIPMENT UPGRADES
Seller will, at mutually agreed upon times, perform installation of software,
hardware and/or safety engineering changes required or recommended by the
manufacturer. Seller will first notify and obtain advance written authorization
from Customer to perform such installations. At its discretion, Customer may
refuse to allow installation of engineering changes not required for safety
reasons; however, such a refusal will relieve Seller from any liability for
resultant failures and the downtime, if any, associated therewith.
SECTION 10. CAPACITY MANAGEMENT
A. Grade of Service (GOS)
Seller agrees to electronically monitor Voice Mail Platform line group traffic
statistics from each Voice Mail Platform to proactively identify capacity
issues. Upon identification of a capacity issue, Seller will notify Customer and
recommend a course of action for resolution. Customer will provide the final
approval before any action is taken.
Seller collects capacity statistics as part of monitoring services. The
statistics are compiled, processed and analyzed in seven-day periods. Capacity
reports are generally available within ten (10) days following the close of the
seven-day monitoring period. These statistics provide a set of data that is used
to compute the daily busy hour Erlangs and the corresponding statistical Erlang
B GOS. Busy hours are determined by dividing each business day into twenty-four
(24) one (1) hour periods and identifying the hour which carried the most
traffic Unless otherwise specified, the capacity metrics used to initiate a
proactive capacity issue notification to Customer are as follows:
<TABLE>
<CAPTION>
NUMBER OF SAMPLES PER
MONTH EXCEEDING THE GOS
LINE GROUP TYPE GOS METRIC METRIC
--------------- ---------- -----------------------
<S> <C> <C>
In-bound to Voice Mail P.02 (2% 3
Platform blocking)
Outbound from Voice Mail P.30 (30% 3
Platform blocking)
</TABLE>
Inbound Voice Mail Platform line groups are typically used for
voicemail access and Call Answering functions. Outbound Voice
Mail Platform line groups are typically used for paging,
networking and FAX delivery functions.
B. Disk Storage
Seller collects and reviews Voice Mail Platform disk storage statistics as part
of monitoring services. The statistics are compiled, processed and analyzed in
seven-day periods. Capacity reports are generally available within ten (10) days
following the close of the seven-day monitoring period. These statistics
identify the available disk storage as a percent of total storage by Voice Mail
Platform. Upon identification of a storage availability issue, Seller will
notify Customer and include a recommended course of action for resolution.
Customer will provide the final approval before any action is taken.
Unless otherwise specified, the metric used to initiate a disk storage
availability issue notification to Customer is as follows:
<TABLE>
<CAPTION>
NUMBER OF SAMPLES IN A MONTH EXCEEDING MINIMUM UNUSED STORAGE
THE STORAGE AVAILABILITY METRIC CAPACITY METRIC
-------------------------------------- ----------------------
<S> <C>
3 20%
</TABLE>
Note: Customer has the responsibility of identifying any future events
that might influence the recommend course of action, as it
relates to capacity planning.
Confidential 16
<PAGE> 70
SECTION 11. PROJECT MANAGEMENT
Seller Project Management will develop project plans and assign Seller resources
to complete Customer projects in accordance with the following schedule (unless
otherwise agreed to by the parties):
Confidential 17
<PAGE> 71
<TABLE>
<CAPTION>
PROJECT TYPE TIME FRAME TO COMPLETE*
------------ -----------------------
<S> <C>
New Voice Mail Platform installations 90 calendar days
Remote integration to existing Voice 60 calendar days
Mail Platform
Blank cluster to existing Voice Mail 60 calendar days
Platform
Trunk group expansion 45 calendar days
Area code split 30 calendar days
Mailbox Model development 15 business days
</TABLE>
* These time frames are dependent upon Customer providing information
and any required power, circuits, switch programming, etc. on or before
the date defined in the project plan.
SECTION 13. QUARTERLY BUSINESS REVIEW MEETINGS
Seller will hold quarterly business review meetings with Customer to review
information such as, but not limited to, the status of performance, disclosures
of new features and technologies and organizational direction for both parties.
The parties will use their commercially reasonable efforts to alternate
locations for hosting the quarterly review meetings.
Confidential 18
<PAGE> 72
SCHEDULE C
TO EXHIBIT B
CUSTOMER COMMITMENTS
Customer agrees that it will purchase Services from Seller in at least
the amounts and on or before the following dates.
<TABLE>
<CAPTION>
Date Amount Market
---- ------ ------
<S> <C> <C>
2/15/99 Package 24 Santa Rosa, CA
3/15/99 Package 24 Salem, OR
4/15/99 Package 24 Tacoma, WA
7/17/99 Package 24 Reno, NV
9/15/99 Package 24 Washington, D.C.
TBD Package 24 To Be Determined (TBD) by Customer
TBD Package 24 TDB
TBD Package 24 TBD
TBD Package 24 TBD
TBD Package 24 TBD
TBD Package 24 TBD
TBD Package 24 TBD
TBD Package 24 TBD
TBD Package 24 TBD
TBD Package 24 TBD
TBD Package 24 TBD
TBD Package 24 TBD
TBD Package 24 TBD
TBD Package 24 TBD
TBD Package 24 TBD
</TABLE>
In the event that Customer fails to purchase Services in the amounts and
on or before such dates, Customer agrees that the pricing for the Services
Purchased during the applicable periods will be retroactively adjusted to
satisfy the commitments set forth in the immediate preceding sentence and
Customer agrees to pay the additional amounts due on or before the date ninety
(90) days subsequent to the end of such period.
Confidential 19
<PAGE> 73
EXHIBIT C
SWITCH AND TRANSMISSION SYSTEM PRODUCTS
1 SCOPE
1.1 This Switch and Transmission System Products Discount Exhibit
establishes terms and conditions under which Customer may
purchase the 5ESS(R)-2000 Products, additional related Software,
and Transmission System Products ("TSP") set forth herein from
Seller.
1.2 In consideration for Customer's Purchase Commitment, Seller
shall provide the pricing, allowances and incentives for
5ESS(R)-2000 Products, additional related Software, and TSP set
forth herein. Seller reserves the right to discontinue or adjust
accordingly all discounts, pricing, allowances and/or incentives
set forth herein for all orders if Customer does not meet its
Purchase Commitment and or Customer is in breach of the
Agreement.
2 DEFINITIONS
2.1 The following terms shall have the meanings indicated below for
the 5ESS-2000 Products and related Software described herein:
2.1.1 "5ESS-2000 Switch" means any initial 5ESS-2000 Switch
system. A 5ESS-2000 Switch contains at a minimum, an
Administrative Module ("AM"), Communications Module
("CM"), and at least one (1) Switch Module, and any such
Switch can act as a host for Optically Remote Modules
("ORMs"), Remote Switch Modules ("RSMs"), and/or the
Extended Switch Modules ("EXMs").
2.1.2 "Base Software" means the operating system and related
Software, and operations, administration and maintenance
features and functions, for all Seller's 5ESS-2000
Switch based platforms.
2.1.3 "Expanded Access Interface Unit (`EAIU')" means an
extended line unit.
2.1.4 "Growth" means any hardware or Software not purchased
with the associated 5ESS-2000 Switch required to expand
the capacity of such 5ESS-2000 Switch, which may include
without limitation Switch or Switch Module.
2.1.5 "Peripherals" means hardware and/or optional Software
features added subsequent to the installation of the
initial Switch or Switch Module.
3 PRICING PLAN FOR 5ESS-2000 PRODUCTS AND SWITCH SOFTWARE RELEASES
3.1 Purchase Price and Configurations
Seller shall provide to Customer the Product(s) described in the
following Schedules which are incorporated herein by reference
and attachment:
3.1.1 Schedule 1, "5ESS/RSM Price Fact Table,"
3.1.2 Schedule 2, "5ESS/RSM Product Configurations"
Schedule 1 pricing is fixed for the Agreement term,
subject to Seller's evaluation of Customer's Purchase
Commitment. Schedule 2 describes Customer's customized
configurations for 5ESS-2000 Switches in its networks.
Any 5ESS-2000 Products discounts shall be applied
towards Seller's published list price in effect upon the
Effective Date of this Agreement.
3.2 Pricing Plan for 5ESS-2000 Product Discounts
3.2.1 Any purchase orders placed pursuant to this Exhibit
shall reference Contract Number LNM99NMYK09ATG to
qualify for the discounts incorporated herein. During
the term, these discounts are applicable to Seller's
5ESS-2000 Products and related Software licenses listed
herein only. Purchases orders shall be discounted
against Seller's list price in effect at the time of
order receipt and be
LUCENT TECHNOLOGIES - PROPRIETARY 1 OF 11
<PAGE> 74
processed using then-current standard delivery
intervals. Ancillary items, pre-conditioning,
engineering and installation services are excluded from
the discount schedule. Discounts shall be determined by
Seller's merchandise class code.
3.2.2 In consideration for its Purchase Commitment, Customer
shall receive the following discounts as provided below:
<TABLE>
<CAPTION>
DISCOUNT SCHEDULE FOR 5ESS-2000 SWITCH PRODUCTS(1)
--------------------------------------------------
INITIAL SWITCH SM / LARGE
PRODUCT TYPE DISCOUNT GROWTH DISCOUNT
------------ -------- ---------------
<S> <C> <C>
5ESS- 2000 Host Switch [*] [*]
5ESS-2000 Peripheral Hardware [*] [*]
EXM- & ORM-2000 Remote Switch [*] [*]
EAIU [*] [*]
</TABLE>
1 Discounts do not apply to engineering and
installation Services.
2 This discount shall apply when [*] or more
STSX packs are included on Customer's purchase
order for a single 5ESS-2000 Switch site.
3.3 Pricing Plan For 5ESS-2000 Switch Software Releases
3.3.1 For the purposes of this Section, the fees for Base
Software releases shall mean the Software RTU and Office
Data Administration ("ODA") fees. The purchase by
Customer of a 5ESS-2000 Switch during the term will
include, at no additional charge to Customer, a license
(subject to the licensing provisions of the Agreement)
to use the then-current Base Software on the Switch.
Subsequent Base Software releases will be licensed by
Customer for [*] per RTU Base Software release per
5ESS-2000 host Switch. These license fees do not include
any other licenses for Software features, firmware,
hardware, engineering and installation in Customer's
network.
3.4 Discount Schedule for Transmission Systems Products
Seller will provide the following TSP discounts for Seller's
SLC-2000, Anymedia Fast and SLC Connect Reach products pursuant
to the discount table below:
<TABLE>
<CAPTION>
TRANSMISSION SYSTEMS PRODUCTS DISCOUNT
------------------------------------------------- --------------
<S> <C>
SLC-2000 CARRIER SYSTEM: [*]
ANYMEDIA FAST 303/08
ANYMEDIA SHELF/COMMONS [*]
POTS ONLY APPLICATION PACK [*]
PROGRAMMABLE APPLICATION PACK [*]
ISDN APPLICATION PACK [*]
ADSL APPLICATION PACK [*]
SLC CONNECT REACH
HARDWARE [*]
POTS CHANNEL UNITS [*]
DATA CHANNEL UNITS [*]
</TABLE>
3.5 The above TSP does not include the cables or power used with the
equipment. Unless otherwise specified, the discounts shown above
apply to TSP hardware only. The discount
- --------------------
[*] Information redacted pursuant to a confidential treatment request
throughout this exhibit.
LUCENT TECHNOLOGIES - PROPRIETARY 2 OF 11
<PAGE> 75
for the power and cables used in the systems set forth above
shall be [*] off the list price in effect at the time of order
receipt.
3.5.1 During the term, these discounts are applicable to
Seller's TSP listed herein only. Purchases orders shall
be discounted against Seller's list price in effect at
the time of order receipt and be processed using
then-current standard delivery intervals. Ancillary
items, pre-conditioning, engineering and installation
services are excluded from the discount schedule.
Discounts shall be determined by Seller's merchandise
class code.
3.6 RTU Audit and Payment Plan for Optional 5ESS-2000 Software
Features
3.6.1 Each calendar quarter, Seller will audit Customer's
activated optional Software features by 5ESS(R)-2000
Switch for the preceding quarter. Optional Software
features are those features which can be installed on
the 5ESS(R)-2000 Switch dependent upon the generic
Software release platform. Optional Software features
not installed at the time of initial 5ESS(R)-2000 Switch
purchase and installation are discounted [*]. Seller
shall invoice and Customer shall remit payment within
thirty (30) days of the invoice date for any increase in
the number of activated features for the audited
quarter. Seller shall use the Feature Activation
Accounting and Reconciliation (FACR) software program to
accurately audit activated features. In addition to
Seller's audit, Customer shall promptly submit written
notification to Seller of the total number of activated
features by 5ESS-2000 Switch for the prior calendar
quarter. Seller shall notify Customer five (5) business
days prior to such audit. Customer shall support Seller
in its auditing activities to ensure the accuracy of
such audit.
4 TRAINING
4.1 Seller will provide [*] for the first 5ESS-2000 Host/Standalone
Switch purchased after the effective date of this Schedule. This
training may be used any time during the first twelve (12)
months after the Host/Standalone Switch installation. Seller
will provide an additional [*] for each 5ESS-2000
Host/Standalone Switch purchased subsequent to the first
Host/Standalone Switch, [*] for each additional Remote Switch,
and [*] for the first SM-2000 growth per 5ESS-2000
Host/Standalone Switch. Customer is responsible for all travel
and living expenses for Customer's personnel. While Seller
recommends core courses from Customer Training Catalog, any
5ESS-2000 Switch-related courses may be taken at Customer's
discretion.
4.2 In consideration for Customer's first purchase of each SLC-2000
Access system, SLC-Connect Reach system, and Anymedia-Fast
system, Seller will provide [*] for each system. The use of
training days as used herein shall mean one student day per
training class. Training days earned by Customer for TSP must be
used before the expiration date of this Agreement. Customer is
responsible for all associated travel and living expense for
Customer personnel. Seller, at its option, shall offer training
regionally at Seller's Training Centers. While Seller recommends
core courses from its Customer Training Catalog, Customer may
choose from any of the Seller's TSP related courses.
5 DOCUMENTATION
5.1 Seller will provide, at no charge, three (3) copies of the
5ESS-2000 Switch System and Software Site Documentation on
CD-ROM for each Host Switch site. Updates will be provided for
two (2) years from Host Switch Site Notice of Installation
Complete. When a Host Switch is converted to the subsequent
Software generic, Seller will provide another copy of Switch
System and Software Site documentation on CD-ROM to the Host
Site along with updates for one (1) year after issuance.
- --------------------
[*] Information redacted pursuant to a confidential treatment request
throughout this exhibit.
LUCENT TECHNOLOGIES - PROPRIETARY 3 OF 11
<PAGE> 76
5.2 Seller will provide at no charge one (1) Application Planning
and Ordering Guide in paper form with the initial order of each
TSP type. Seller will also provide in CD-ROM three (3) copies of
the latest version of Seller's TSP Documentation.
6 MARKETING DEVELOPMENT FUND
6.1 Seller will allocate to a Marketing Development Fund (MDF) [*]
of TSP revenues by Customer during the term. Any amounts
allocated to the MDF herein may be utilized by Customer only in
accordance with the MDF Guidelines set forth at the time of
utilization.
7 TECHNICAL SUPPORT
7.1 During the term, warranty assistance shall be available to
Customer by calling Seller's Regional Technical Assistance
Center (RTACs) on 1-800-CAL-RTAC (1-800-225-7822). Seller shall
monitor this number on a twenty-four (24) hour a day, seven day
a week basis. During regular business hours (8:00 a.m. to 5:00
p.m. central time), calls will be answered by the closest
geographically located RTAC. Outside of regular business hours,
all calls will be answered at a centralized assistance center.
Service-affecting problems will be expedited to the local RTAC.
7.2 Seller shall make available for purchase by Customer
post-warranty technical support. Such post-warranty technical
support shall be provided under a separate post-warranty service
contract entered into by the parties or on a per-problem basis
during the term at Seller's prevailing rates.
7.3 Seller shall make available additional services designed to
enhance the operating capabilities of Customer's network or
system on a billable basis. Seller shall also make available
additional technical support for Customer's network or system.
Such additional technical support shall be provided at Seller's
then prevailing rates and terms.
8 SITE REQUIREMENTS
8.1 Customer is solely responsible for ensuring that the
installation site is compliant with any site requirements
identified by Seller for the installation and/or operation of
any Products, Licensed Materials, or Services furnished by
Seller under this Agreement. Such site requirements shall
include, without limitation, those site requirements set forth
herein below. Seller agrees to cooperate with Customer to ensure
compliance with all site requirements, provided that such
cooperation shall not require Seller to incur any out-of-pocket
costs unless the parties expressly agree otherwise in writing.
8.2 Customer shall be solely responsible for ensuring that the
installation site complies with all applicable laws, orders, and
regulations of federal, state and local governmental entities
including, without limitation, those relating to environmental
conditions.
8.3 Notwithstanding anything contained in this Agreement to the
contrary, Seller shall have no liability to Customer, its
employees, agents, and customers for any delay by Seller in
completion of any installation or other Service to be provided
by Seller under this Agreement if such delay is attributable to
the failure by Customer to comply with any site requirements or
to provide any other items which are the responsibility of
Customer under this section.
The site requirements which are solely the Customer's
responsibility shall include but are not limited to the
following:
(a) Participate in a joint site survey with Seller
(b) Interior Space -Clears ten feet (10') from floor to
bottom of lowest obstruction
(c) Floor Loading(minimum requirements) Structural Analysis
always required
- --------------------
[*] Information redacted pursuant to a confidential treatment request
throughout this exhibit.
LUCENT TECHNOLOGIES - PROPRIETARY 4 OF 11
<PAGE> 77
(d) Power Room 150 lb. per sq. ft
(e) Switch Room 100 lb. per sq. ft.
(f) Floor Thickness: In accordance with local seismic
requirements for the equipment
(g) Conduit access to all floors in building
(h) Local exchange carrier cable available
(i) Commercial electrical current
(j) Existing building grounding is 5 ohm or less metered
(k) Battery room ventilation in accordance with local
requirements
(l) Fire suppression system
(m) Freight access for a 48' trailer off loading equipment.
8.3.1 ADDITIONAL ITEMS TO BE PROVIDED BY CUSTOMER
Customer will also be responsible for furnishing the items described in
this section as required by the conditions of the particular
installation or other on-site Service at no cost to Seller and such
items are not included in Seller's price for the Services. Seller shall
have the right to invoice Customer for any costs or expenses incurred by
Seller as a result of Customer's failure to provide any of these items
described in this section and all such invoices shall be paid by
Customer in accordance with this Agreement.
(a) Access to Building and Work Site Customer shall provide
employees of Seller and its subcontractors free access
to premises and facilities at all hours during the
scheduled Service or at such other times as are
requested by Seller. Customer shall obtain for Seller's
employees and its subcontractors' employees any
identification and clearance credentials, which are
necessary to enable Seller and its subcontractors to
have access to the work site.
(b) Site Coordination At Seller's request Customer shall
coordinate with Customer's sub contractors, property
managers, Regional Bell Operating Company, Local
Exchange Carrier and any other parties and tenants
having rights to the work site or whose participation is
necessary in order for Seller to perform the applicable
Services.
(c) Environmental Conditions Prior to the Services start
date, Customer shall insure that the premises will be
dry and free from dust and Hazardous Materials,
including but not limited to asbestos, and that the
premises are in such condition as not to be injurious to
Seller's or its subcontractors' employees or to the
Products and Licensed Materials to be installed. Prior
to Services start date and during the performance of the
Services, Customer shall, if requested by Seller,
provide Seller with sufficient data to assist Seller and
its subcontractors in evaluating the environmental
conditions at the work site (including without
limitation, the presence of Hazardous Materials). The
price quoted by Seller for Services does not include the
cost of removal or disposal of the Hazardous Materials
from the work site. Customer is responsible for the
removal and disposal in accordance with applicable laws,
rules and regulation of the Hazardous Materials,
including but not limited to asbestos, prior to
commencement of Services.
(d) Sensitive Equipment Prior to the Services start date,
Customer shall inform Seller of the presence of any
sensitive equipment at the work site (e.g., equipment
sensitive to static electricity or light).
(e) Repairs to Buildings Prior to the Services start date,
Customer shall make such alterations and repairs to the
work site as are necessary for proper installation of
Products and Licensed Materials.
LUCENT TECHNOLOGIES - PROPRIETARY 5 OF 11
<PAGE> 78
(f) Building Readiness Prior to the Services start date,
Customer shall provide extraordinary hauling and
hoisting services such as, rigging or crane services, if
applicable, and shall arrange for traffic control, if
necessary for the delivery of Products.
(g) Openings in Buildings Customer shall furnish suitable
openings in buildings, including, without limitation,
elevators and windows as needed to allow Products to be
placed in position, and shall provide necessary openings
and ducts for cable and conductors in floors and walls
as designated on engineering drawings furnished by
Seller. Customer shall fireproof (with steel covers and
as otherwise required by applicable laws, rules,
regulations, and codes) all unopened paths throughout
such buildings.
(h) Surveys Prior to the Services start date, Customer shall
provide to Seller (and, if requested by Seller, to
Seller's subcontractors) surveys (describing the
physical characteristics, legal limitations, and utility
locations for the work site) and a legal description of
the site.
(i) Electrical Current, Heat, Light, and Water Customer
shall, in amounts no less than that ordinarily furnished
for similar purposes in a working office, provide
electric power, run all leads to Seller's power board;
provide temperature control and general illumination
(regular and emergency) in rooms in which services are
to be performed or Products stored, provide exit lights;
and provide water and other necessary utilities for the
proper execution of Services.
(j) Building Evacuation Prior to the Services start date,
Customer shall provide building evacuation plans in case
of a fire or other emergency.
(k) Ceiling Inserts Provide ceiling inserts as required
using Seller's standard spacing arrangement for ceiling
support equipment.
(l) Material Furnished by Customer Unless expressly stated
in the Firm Price quote, Seller's prices do not include
costs for any Customer furnished material nor do they
include any Seller charges for engineering,
installation, modification, or repair Services to
Customer furnished material. New or used material
furnished by Customer requiring installation shall be in
such condition that it requires no repair and no
adjustment or test effort in excess of that normal for
new equipment. Refurbish of Customer provided equipment
will be billed on an individual basis and can not be
Firm Price quoted. Customer assumes all responsibility
for the proper functioning of such material. Customer
shall also provide the necessary technical assistance
and information for Seller to properly install such
material. Cost for installation and engineering services
must be identified prior to installation start and a
signed Purchase Order must be provided.
(m) Floor Space and Storage Facilities Customer shall
provide, for the duration of Services, suitable and
easily accessible floor space and storage facilities to
permit storing of Products and other material, tools and
other property of Seller and its subcontractors in close
proximity to where they will be used. Where the Services
are to be performed outside of a building or in a
building under construction, Customer shall, in addition
to the above requirements, permit or secure any
necessary permission for Seller and its subcontractors
to maintain at the work site, storage facilities for
Products, material, tools, and equipment needed to
complete the Services. As appropriate Customer shall
provide Seller's and its subcontractors' personnel
access to toilet facilities.
(n) Easements, Permits, and Rights of Way Customer shall
secure prior to the Services start date and shall
maintain for the duration of the Services all
rights-of-way, easements, licenses, and permits and such
other rights and approvals as are necessary to enable
Seller to perform the Services including, without
limitation, all construction and building permits for
work to be performed at
LUCENT TECHNOLOGIES - PROPRIETARY 6 OF 11
<PAGE> 79
the work site and other areas ancillary to the work site
such as sidewalks, streets, alleys, and highways.
(o) Security Service Customer shall provide such levels of
security as are necessary to prevent admission of
unauthorized persons to building and other areas where
installation Services are performed and to prevent
unauthorized removal of the Products and other
materials. Seller will inform Customer as to which
storage facilities at the work site Seller will keep
locked. Such storage facilities will remain closed to
Customer's building surveillance.
(p) Access to Existing Equipment Customer shall permit
Seller reasonable use of such portions of the existing
equipment as are necessary for the proper completion of
such tests as require coordination with existing
equipment. Such use shall not interfere with the
Customer's normal maintenance of equipment.
(q) Grounds Customer shall provide access to suitable and
isolated building ground as required for Seller's
standard grounding of equipment. Where installation is
performed outside or in a building under construction,
Customer shall also furnish lightning protection ground.
(r) Requirements for Customer Designed Circuits Customer
shall furnish information covering the proper test and
readjust requirements for apparatus and shall furnish
requirements for circuit performance associated with
circuits designed by Customer or standard circuits
modified by Customer's drawings such as alarm and
environmental circuits.
(s) Cross-Connecting Main Distributing Frames and Installing
Heat Coils Customer shall install such cross-connections
and heat coils as are necessary in connection with the
Services.
(t) Clearing Equipment for Modifications Customer shall
remove cross-connections, transfer service on trunks and
sundry working equipment, and make other arrangements
required to permit Seller to modify existing equipment.
In the event the joint site survey conducted by the parties pursuant to this
Section determines that the necessary requirements are not met at the
commencement of the installation of the Products and the Customer needs to
arrange for alterations and/or repairs, the order will be placed on hold until
such time as requirements are met. During such interval, Seller reserves the
right to determine any schedule and price impacts, to treat such product as Bill
and Hold, or to cancel such order. Customer shall be responsible for and agrees
to pay the applicable cancellation fee if Seller cancels such order.
8.3.2 IMA-CA SITE REQUIREMENTS
(a) Purpose: This Schedule defines the power, physical and
environmental requirements for the equipment room to be
furnished by the CUSTOMER for the IMA-CA, the form of which may
be revised by Octel from time to time. It is the responsibility
of the CUSTOMER to ensure that these requirements are met.
Conformance to site requirements will ensure maximum reliability
of the system. CUSTOMER assumes responsibility for equipment
room compliance to applicable building and electrical codes.
(b) Power Source: OCTEL systems require a dedicated power circuit
from the facility's primary power source. The power panel
provided for the systems will have an isolated ground connected
to the service entry ground using a continuous insulated
conductor the same size as the current carrying conductors. The
service entry ground will be connected to a single point ground,
such as a ground rod, building structural steel, or other
approved ground source defined by the National Electrical Code.
Water pipes are not an acceptable ground for this technology.
LUCENT TECHNOLOGIES - PROPRIETARY 7 OF 11
<PAGE> 80
(c) Power Requirements: A system administrator terminal requires one
outlet at 117 VAC, 60 Hz, 10 amps, 3-wires with a dedicated
ground. An optional printer connecting to the terminal requires
the same power.
(d) Power Conditioning: The Systems are extremely resistant to
transient voltages in comparison to most computing devices.
However, in areas where electrical storms pose a danger,
consider installing transient protection device in the power
lines. This is particularly important where power is provided by
outside overhead lines. Installing the Systems onto the same AC
line with copy machines, elevators, air conditioning units or
other motor-driven devices is not recommended, unless proper
power conditioning is installed to isolate the system from AC
power surges and fluctuations.
(e) Equipment Room Space: The CUSTOMER will provide approximately 36
inches in front, sides and rear of the equipment which will
allow sufficient space for access to the equipment for service
personnel. Space provided by the CUSTOMER will also accommodate
a desk top or suitable rack for installation of the system
administrator's terminal and printer.
(f) Equipment Room Environment: CUSTOMER will provide adequate
temperature and humidity equipment and controls to maintain
optimum operation range of 40 to 100 degrees F, and 20-80%
relative humidity. Space provided will be relatively dust-free
and moisture-proof. The space should meet NEBS requirements for
airborne contaminants and not contain X-ray equipment, radar or
TV transmitters.
9 PREREQUISITES FOR DEPLOYMENT OF INTEGRATION TEAM
9.1 Requirement
9.1.1 Building Site Readiness
<TABLE>
<CAPTION>
Owner C/L Comp Requirement
----- --- ---- -----------
<S> <C> <C> <C>
L 5ESS installation complete and FULLS loaded in the switch.
C/L Transport equipment installation complete. If not Lucent
Manufactured Equipment, Customer responsible for Test and
Turn-up.
C/L Cross connect equipment installation complete.
C/L Office clock installed, wired to equipment, and synchronization
active.
</TABLE>
9.1.2 Facility orders (DS-3's, DS-1's and DS-0's)
- - Facility orders, for facilities required for cut over, are placed and
delivered to coincide with the start of the integration process
interval. Office records (CLRs, DLRs) availability at the site.
<TABLE>
<CAPTION>
Owner C/L Comp Requirement
----- --- ---- -----------
<S> <C> <C> <C>
C DS3's: Facility will appear within the location, and be
terminated on the appropriate frames. Due dates for facilities
should coincide with the start of the integration interval.
Facility assignment records (i.e., DLR's, CLR's) need to be
available. T-Bird 310 and
</TABLE>
LUCENT TECHNOLOGIES - PROPRIETARY 8 OF 11
<PAGE> 81
<TABLE>
<S> <C> <C> <C>
224 test equipment available.
C DS1's - DS0's: Orders placed with due dates on or before the
start of Integration interval. Trunk layout records which
associate the trunks with the facilities they ride, need to be
available. Any changes to facility or trunk assignments must
be accompanied by updated records.
</TABLE>
9.1.3 SS7 Links ordered and Installed
<TABLE>
<CAPTION>
Owner C/L Comp Requirement
----- --- ---- -----------
<S> <C> <C> <C>
C Due dates for SS7 links should be on or before the start of the
integration interval. Level one testing complete.
C Diversity of the SS7 links should be planned for and provided.
</TABLE>
9.1.4 Integration Team Work Area and Telecommunications
- - Work area and telecommunications readiness to support all Lucent and
Customer personnel scheduled for the office.
<TABLE>
<CAPTION>
Owner C/L Comp Requirement
----- --- ---- -----------
<S> <C> <C> <C>
C Several tables or desks need to be provided for the Integration
Team. This is in addition to the maintenance center
C Telecommunications needs to be adequate to support the expected
population of the site during the interval. The Integration
Team needs a minimum of two lines (hunting), which appear in
the maintenance center area and near the transport equipment,
and two lines (hunting) which only appear in the maintenance
center. These lines are for the use of the integration Team in
completing the integration process.
C If other people will be at the location during the integration
process, separate lines need to be provided for their use
C Telephone lines required for remote access (e.g., SCANS, NRC
and remote TLWS) must be installed to the site prior to the
start of integration.
</TABLE>
9.1.5 Contact information for other service providers
<TABLE>
<CAPTION>
Owner C/L Comp Requirement
----- --- ---- -----------
<S> <C> <C> <C>
C Telephone numbers for vendor contacts should be obtained when
facilities or circuits are order. This should include contacts
for initial testing of circuits, ongoing maintenance, and
escalation information.
C Contact information for the SS7 provider is required.
</TABLE>
9.1.6 Alarm Assignments
LUCENT TECHNOLOGIES - PROPRIETARY 9 OF 11
<PAGE> 82
<TABLE>
<CAPTION>
Owner C/L Comp Requirement
----- --- ---- -----------
<S> <C> <C> <C>
C A list of miscellaneous alarms (i.e., building, environmental)
must be provided at the beginning of the integration interval
C If a specific layout on the alarm page is desired, that
information must be provided at the start of the integration
interval.
C/L Alarm leads from miscellaneous equipment must appear on the
main distributing frame or other cross-connect bays to allow
connection to the 5ESS.
C Arrangements must be made with vendors of miscellaneous
equipment (i.e., air conditioning, fire detection) to perform
alarm tests from their equipment.
</TABLE>
9.1.7 Call flow Diagrams
<TABLE>
<CAPTION>
Owner C/L Comp Requirement
----- --- ---- -----------
<S> <C> <C> <C>
C The call through test plan is based upon the CALL FLOW DIAGRAMS
provided by the customer
C Call Flow Diagrams must be provided two weeks prior to the
start of the integration interval to allow time to develop a
site specific plan
</TABLE>
9.1.8 Recorded Announcement assignments and required inputs
<TABLE>
<CAPTION>
Owner C/L Comp Requirement
----- --- ---- -----------
<S> <C> <C> <C>
C RA Tapes must be provided on or about the start of the
integration interval.
</TABLE>
10 DELIVERABLES OF INTEGRATION PROCESS
10.1 All Equipment is Up and Running
- - Switch and transport equipment are free of alarms.
- - All switching equipment passes machine diagnostic tests.
- - All assigned trunks are ready for service.
- - All assigned recorded announcements have the appropriate announcements.
- - All working facilities are in a "green" condition.
11 SITE HANDLES CALLS AS SPECIFIED IN CALL DIAGRAMS
- - An approved test plan which verifies the ability of the switch to
process calls as defined in the call flow diagrams will be successfully
completed.
LUCENT TECHNOLOGIES - PROPRIETARY 10 OF 11
<PAGE> 83
ATG/LUCENT "NEW SITE" SWITCHROOM AND MAINTENANCE CONTROL CENTER
"READY" CHECKLIST
DATE______________________ OFFICE LOCATION________________________
BUILDING/ROOM READY DATE______________ ADDRESS:_______________________________
INSTALLATION START DATE_______________ _______________________________________
_______________________________________
SWITCH ROOM READY CHECK LIST
The following items must have a "YES" or
"NA" response prior to the start of installation
<TABLE>
<CAPTION>
- ------------------------------------------------------------------------------------------------------------------------------------
RENEGOTIATED
ITEM CHECK LIST YES NO N/A DUE DATE ISSUES YES NO DATE IMPACT ON COMMITMENT
- ------------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C>
1 ACCESS/EQUIPMENT DELIVERY TO SWITCHROOM
- ------------------------------------------------------------------------------------------------------------------------------------
2 WALLS OR PARTITIONS CONSTRUCTION COMPLETE
- ------------------------------------------------------------------------------------------------------------------------------------
3 WALLS PAINTED
- ------------------------------------------------------------------------------------------------------------------------------------
4 HOLES CUT IN WALLS/FLOORS FOR CABLE RACK
- ------------------------------------------------------------------------------------------------------------------------------------
5 HOLES CUT IN WALLS/FLOORS FOR CONDUIT
- ------------------------------------------------------------------------------------------------------------------------------------
6 D/C POWER TO FUSE PANEL
- ------------------------------------------------------------------------------------------------------------------------------------
7 A/C POWER OUTLETS INSTALLED/WORKING
- ------------------------------------------------------------------------------------------------------------------------------------
8 FIRE SUPPRESSION SYSTEM/INSTALLED/WORKING
- ------------------------------------------------------------------------------------------------------------------------------------
9 DUST FREE ENVIRONMENT
- ------------------------------------------------------------------------------------------------------------------------------------
10 INSTALLATION/WORK AREA TRAFFIC FREE
- ------------------------------------------------------------------------------------------------------------------------------------
11 FLOOR TILES-INPLACE-SWEPT-WAXED
- ------------------------------------------------------------------------------------------------------------------------------------
12 FLOOR-SWEPT-CLEANED (IF CONCRETE)
- ------------------------------------------------------------------------------------------------------------------------------------
13 "IF" RAISED FLOORING-INSTALLED & COMPLETE
- ------------------------------------------------------------------------------------------------------------------------------------
14 OVERHEAD CONSTRUCTION COMPLETE
- ------------------------------------------------------------------------------------------------------------------------------------
15 AIR CONDITIONING/HEATING INSTALLED/WORKING
- ------------------------------------------------------------------------------------------------------------------------------------
16 HEATING/COOLING DUCTS INSTALLED
- ------------------------------------------------------------------------------------------------------------------------------------
17 LIGHTING INSTALLED/WORKING
- ------------------------------------------------------------------------------------------------------------------------------------
18 "IF" FALSE CEILING INSTALLED
- ------------------------------------------------------------------------------------------------------------------------------------
19 CEILING TILES INPLACE/CEILING CLOSED
- ------------------------------------------------------------------------------------------------------------------------------------
20 CABLE RACK IS INSTALLED TO D/C-MDF-DSX
- ------------------------------------------------------------------------------------------------------------------------------------
21 GROUND POINT/GROUNDING
- ------------------------------------------------------------------------------------------------------------------------------------
22 LOCKED/SECURE SWITCHROOM FOR EQUIPMENT
- ------------------------------------------------------------------------------------------------------------------------------------
23 CLOCK/GPS INSTALLED
- ------------------------------------------------------------------------------------------------------------------------------------
</TABLE>
Lucent Representative_______________________ DATE________________
ATG Representative__________________________ DATE________________
PAGE 1
THIS FORM MUST BE COMPLETE PRIOR TO DELIVERY OR START OF INSTALLATION.
<PAGE> 84
<TABLE>
<CAPTION>
- ------------------------------------------------------------------------------------------------------------------------------------
MILESTONE OWNER REQUIRE PRIOR TO TASK EXAMPLE
SERVICE READINESS INTERVAL
- ------------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Host PO's Received (Note 2) ATG 25 weeks prior to Service Readiness 6/4/99
Host Power Manufacturing Complete Lucent 16 weeks prior to Service Readiness 9 Weeks 8/6/99
Host Power Equipment Ship to Designated Warehouse Lucent 15 weeks prior to Service Readiness 1 Week 8/13/99
Host 5ESS Manufacturing Complete Lucent 14 weeks prior to Service Readiness 11 Weeks 8/20/99
Host 5ESS Equipment Ship to Designated Warehouse Lucent 13 weeks prior to Service Readiness 1 Week 8/27/99
Host Site Ready (Note 3) ATG 13 weeks prior to Service Readiness 8/27/99
ODA Questionnaire Complete ATG 12 weeks prior to Service Readiness 9/3/99
5ESS Software Loaded (ODA) Lucent 5 weeks prior to Service Readiness 11/5/99
Host Equipment Installation Complete
(TURNOVER Acceptance Test) Lucent 3 weeks prior to Service Readiness 12 Weeks 11/19/99
All Integration Pre-requisite Deliverables
Complete (Note 4) ATG 4 weeks prior to Service Readiness 11/12/99
Commence Host Integration Testing
(TURNOVER to CUTOVER Acceptance Test) Lucent 4 weeks prior to Service Readiness 4 Weeks (starts 11/12/99
1 week prior to
Installation
Completion
SERVICE READINESS Lucent/ATG 12/10/99
- ------------------------------------------------------------------------------------------------------------------------------------
</TABLE>
DEFINITIONS:
1. The Schedule of Milestones may be customized for each location
dependant on Configuration
2. Host PO's: All PO's for Host, including pre-conditioning ironwork, 5ESS,
power, Transmission
3. Host Site Ready: Please refer to Site Ready Checklist for definition
4. Integration Pre-Requisite Deliverables: Please refer to Prerequisite for
Deployment of Integration Team for definition
5. Excludes all third party equipment - this will be addressed in a separate
exhibit.
6. Service Readiness: Host Integration is complete, Host is ready for
service
7. Network Build: Includes site survey, RFQ, PO process, Equipment
Engineering, Manufacturing, Shipment, Installation and Integration of
Network Elements.
<PAGE> 85
EXHIBIT D-1
TO THE
GENERAL SUPPLY AGREEMENT
COMMUNICATIONS SOFTWARE SUPPORT AGREEMENT BETWEEN
LUCENT TECHNOLOGIES INC. AND CUSTOMER
This is an Agreement (hereinafter "Agreement") between LUCENT TECHNOLOGIES,
INC., (hereinafter SELLER) a Delaware corporation with offices at 480 Red Hill
Road, Middletown, New Jersey 07748, and ADVANCED TELCOM GROUP, INC. having an
office at 100 Stony Point Road, Suite 130, Santa Rosa, California 95401
(hereinafter CUSTOMER).
WHEREAS, the parties have entered into an agreement; and,
WHEREAS, the Customer wishes to purchase certain Support services and Seller
wishes to provide Support services.
NOW, THEREFORE, the parties agree as follows:
1. PURPOSE OF THE AGREEMENT
This Agreement sets forth the terms and conditions under which Support
is provided for Lucent Communications Software (LCS). Such LCS, for
purposes of this Agreement, means Communications Software that is
currently in Customer's embedded base and any New Communications
Software. Such Communications Software(s) are listed in Attachment C
which may be amended from time-to-time by mutual agreement of the
Parties.
2. TERM
This Agreement shall have an initial term of one (1) years commencing on
January 1, 1999, (hereinafter "Effective Date"), and continuing through
December 31, 1999 (hereinafter "Initial Term") and shall be
automatically renewable for the following years of support unless
otherwise acknowledged by both Parties.
An annual pricing sheet will be distributed to the customer according to
the pricing structure in Attachment B, Clause 6 "Pricing for Support
Levels of Coverage". The parties will be able to review the their
pricing for software maintenance, however, in the event that the
customer does not respond to the new pricing sheet, it will then be
agreed to by default.
Seller may terminate Support for any LCS covered by the Agreement by
providing Customer with a one (1) year written notice before
discontinuing Support on any LCS covered by this Agreement. If Seller
elects to discontinue Support on any LCS covered
LUCENT TECHNOLOGIES
USE PURSUANT TO COMPANY INSTRUCTION
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by this Agreement Customer shall receive a refund for any payments made
and applicable after such termination.
Customer may terminate Support for any LCS covered by this Agreement by
providing Seller written notice one (1) year before the effective date
of termination. In the event of such termination, Customer agrees to pay
the balance of the Initial Term or any renewal term Support price for
such LCS in accordance with the scheduled quarterly payments. Customer
may change the Support Level of any LCS covered by this Agreement for
any renewal term of this Agreement by giving Seller written notice at
least ninety (90) days before such renewal term commences.
3. POST WARRANTY SUPPORT CERTIFICATION
New Communications Software generic/release/features furnished and
installed by Seller or furnished by Seller and installed by Customer
shall be eligible for Support without initial evaluation by Seller,
provided that Support commences immediately upon conclusion of the
warranty period.
If New Communications Software generic/release/features Support does not
commence immediately upon conclusion of the warranty period, the New
Communications Software shall not be eligible for Support until Seller,
at its option, has made an initial evaluation at Customer's expense, at
Seller's then current standard rate, to determine whether modifications
are required to make the New Communications Software conform to Seller's
specifications and whether the New Communications Software can be
maintained in such condition. If, in Seller's judgment, modifications
are required for such purpose, Seller will provide a Firm Price Quote
("FPQ") to Customer for the price of making such modifications. Except
as set forth in paragraph 1 of this Clause, the New Communications
Software will not be eligible for Support unless Seller determines that
the New Communications Software is in good working order according to
its specifications and can be maintained in such condition.
4. ORDERS
Customer shall place an Order for Support indicating the Support Level
to be provided for each LCS Application no later than November 30 of
each applicable year. Seller shall invoice Customer, on a quarterly
basis, in the first month of each quarter, in accordance with the
Support Level chosen and the associated price contained in Attachment C.
Attachment C will be updated annually, and if required, on a quarterly
basis to reflect Support for new LCS products, generics/release/features
at the conclusion of any warranty period.
In addition, a running Purchase Order for Time and Material, if
applicable, shall also be provided by the Customer for each LCS
application no later than November 30 of each applicable year. Seller
shall invoice Customer on a quarterly basis, no later than 45 days after
the end of each quarter for any Time and Material charges. T&M disputes
from Customer must be forwarded to Seller within 15 days of Customer
receipt of invoice.
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5. ASSIGNMENT
The rights and obligations of Seller and Customer hereunder shall
neither be assigned nor delegated without a sixty (60) day advance
written notice. Such notification shall be directed to the parties
listed in Clause 7, entitled "Notices".
6. AUTHORIZED USERS, ADMINISTRATION, OR MANAGEMENT OUTSOURCING Customer
shall not permit LCS to be used by any other person except for its
employees, agents, consultants, contractors, and Outsourcers who need to
use the Communications Software for the operation, administration,
and/or management of their duties for Customer and who are authorized
and enabled by Customer to access and utilize the LCS. Notwithstanding
the foregoing, in accordance with the terms of the LCS licenses,
Customer is not permitted to sub-license such LCS to any third party.
If the Customer contracts with any party in accordance with paragraph 1
of this Clause for its network or any site, in whole or in part, Seller
agrees to grant such party access and use, but not a separate license to
use such LCS, as is necessary for such party to perform its duties as
set forth above; provided, that such party executes Seller's
nondisclosure agreement. Customer shall give Seller ninety (90) days
advance written notice prior to providing access and use of any LCS by
such party and Seller agrees to reasonably cooperate with Customer to
support Customer's desire to outsource certain of its functions. Any
agent, consultant, contractor, or Outsourcer the Customer contracts with
shall be bound to the terms and conditions of this Agreement.
If Customer makes such a contract, and such contract is not transparent
to Seller, Seller reserves the right to renegotiate the terms and
conditions and prices stated herein.
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7. SIGNATURES
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their duly authorized officers or representatives on the
date written below.
Lucent Technologies Inc.: Advanced TelCom Group, Inc.
---------------------------- ------------------------------
(Authorized Signature) (Authorized Signature)
---------------------------- ------------------------------
(Print or Type Name) (Print or Type Name)
---------------------------- ------------------------------
(Title) (Title)
---------------------------- ------------------------------
(Date) (Date)
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ATTACHMENT A
DEFINITIONS
ASSISTANCE REQUEST DATABASE means Seller's automated tool for Assistance
Requests (AR) for support.
DEFECT means an error condition that causes the Communications Software to fail
to operate in compliance with the documented specifications issued at the time
the Communications Software is licensed.
FEATURE means additional functionality to the Communications Software.
GENERIC/RELEASE means a new release of Communications Software containing new
Features.
LICENSED MATERIAL means the Communications Software and associated documentation
covered under this Agreement that Customer has been granted a license to use by
Seller.
LUCENT COMMUNICATIONS SOFTWARE OR COMMUNICATIONS SOFTWARE means Seller Licensed
Software and embedded Third Party Software identified in Attachment C that are
actively embedded at Customer sites at the time this Agreement is executed.
MATURE COMMUNICATIONS SOFTWARE (MATURE PRODUCT) means those products which have
reached that stage of their lifecycle where new features and generics are
developed only at the specific request of the customer, and fixes requiring
software changes are rarely needed therefore product updates are no longer
regularly scheduled. This lifecycle stage is defined by Seller. Communications
Software which is classified as Mature at the time of execution of this
agreement will be identified in the list of supported products in Attachment C.
This list will be updated as needed during the Term of the Agreement.
NEW COMMUNICATIONS SOFTWARE GENERICS/RELEASES/FEATURES means any Communications
Software which is licensed by Customer after the Effective Date of the Initial
Term of this Agreement or any renewal term thereof and was not included in the
Customer's embedded base of Communications Software at the commencement of the
Initial Term or any renewal thereof.
OBSERVED HOLIDAYS means the following observed holidays:
New Years Day
Memorial Day
Independence Day
Labor Day
Thanksgiving Day
Christmas Day
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OUTSOURCER means a third party under contract to Customer for purpose of
managing and implementing the Communications Software to process data for
Customer. Such Communications Software is licensed to Customer under the terms
of the GPA or Supplemental Agreements thereto and is licensed for use on
Designated Processors. Customer warrants that any outsourcing arrangement will
be transparent to Seller's Support provided for under this Agreement.
PARTIES means either the Seller or Customer as designated in Paragraph 1 of this
agreement.
PROBLEM MANAGEMENT means that Seller shall manage the resolution of a reported
condition in a manner that provides Customer a single interface. This service is
performed only for Communications Software covered under this Agreement, in
accordance with the terms set forth in Attachment C.
RESPOND means a Seller's engineer has contacted Customer regarding a particular
assistance request.
RESPONSE TIME means the time between Customer's initial call and response by
Seller's engineer to Customer. It is measured for all request types and
Severity's of problems reported through Seller's toll-free Call Receipt and
Routing Service. Response Time excludes problems directly entered by Customer
into the Assistance Request Database unless Customer notifies Seller through
Seller's toll-free Call Receipt and Routing Service that the problem was
entered.
RESTORE means that the Communications Software or major feature of the
Communications Software is temporarily operative, but a permanent resolution has
not yet been provided. Restore may mean that a software patch has been provided
to temporarily correct the problem, or a workaround has been implemented and
mutually agreed upon by the parties.
RESTORAL TIME means the time between the Customer's initial call being
identified as an out-of-service condition and the Restoral of the condition.
RESOLVE means that a permanent solution to the problem has been provided. For
Service Calls, Resolve means that the question has been answered to Customer's
satisfaction. For Defect calls, Resolve means either that a final correction to
the Defect has been released to Customer or that Seller has notified Customer
that the Defect will not be fixed, but that the workaround (or patch) will
become the permanent fix.
RESOLUTION TIME means the time between Customer's initial call and the final
resolution of the problem.
SERVICE CALL means a call for remote technical assistance or consultation.
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SERVICE PERFORMANCE REPORT (SPR) means a quarterly report that provides specific
performance results of Seller relative to objectives and commitments as
described in Attachment B, Section 7 of this Agreement.
SEVERITY LEVEL ONE problems are the conditions under which the Communications
Software is inoperative and Customer's inability to use the Communications
Software has a critical effect on Customer's operations. This condition is
generally characterized by complete system failure and requires immediate
resolution or correction. Some examples are:
- - problem affects system operation in the following ways:
- total system outage
- continuous system outages (reoccurrence of outages)
- system failure resulting in significant reduction in customer's
operation
SEVERITY LEVEL TWO problems are conditions that exists when the Communications
Software is partially inoperative, but is still usable by Customer. The
inoperative portion of the Communications Software severely restricts Customer
operations but has a less critical effect than a Severity Level One condition.
Some examples are:
- - loss of system redundancy
- - significant degradation in resources or capacity handling (when system is
being operated according to specifications at time of license of product)
- total loss of major system component or function
- loss of ability to apply software updates
SEVERITY LEVEL THREE means the condition that exists when the Communications
Software is usable by the Customer, but with limited functions. The condition is
not critical to overall Customer operations, and does not severely restrict such
operations. Some examples are:
- - loss of administrative functions, routine maintenance functions
- - any item, including documentation errors, that can generate procedural
problems
- - failures that have minor system impact
SEVERITY LEVEL FOUR means the conditions under which the Communications Software
is usable and the condition does not materially affect Customer operations.
These problems are those resulting in a minor failure which involve individual
components of the system. Some examples are:
- - general documentation problems
- - technical consulting consisting of informational questions
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SOFTWARE PRODUCT UPDATES means changes required for the original Licensed
Material and Third Party Software to correct Defects. Software Product Updates
include both corrections requested by Customer as well as corrections requested
by other customers. Software Product Updates may be distributed through point
issue releases on magnetic media or Broadcast Warning Messages (BWMs) or other
on-line delivery mechanism. Upon receipt of Third Party Software fixes,
Communications Software will include these fixes with the next available
Communications Software Product Update.
STANDARD COVERAGE PERIOD means Monday through Friday, 8:00 a.m. through 5:00
p.m., Customer site specific local time within the contiguous United States with
the exclusion of Observed Holidays as listed in this attachment.
SUPPORT means Seller's assistance in analyzing a Communications Software
problem, remedying Defects, and handling Service Calls through Seller's
toll-free Call Receipt and Routing Service. Support may be purchased by Customer
pursuant to the provisions set forth in this Agreement.
SUPPORT LEVEL OR COVERAGE LEVEL means the level of Support or Coverage as
described in Attachment B, and as selected by Customer for each Communications
Software Product or Application in Attachment C covered by this Agreement.
THIRD PARTY SOFTWARE means software not initially designed or developed by
Seller but included in Seller's Licensed Material.
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ATTACHMENT B
COMMUNICATIONS SOFTWARE SUPPORT
1. GENERAL SUPPORT
The following general Support will be supplied to Customer in accordance with
the Support Level as described in Attachment C.
A. CALL RECEIPT AND ROUTING SERVICE: Customer may access telephone support
for all problems twenty-four (24) hours a day, seven (7) days a week by
dialing 1-800-932-2273 (1-800-WE2-CARE). However, Seller will work
problems outside the Standard Coverage Period only at Customer's
request.
B. ASSISTANCE REQUEST DATABASE ACCESS: Pursuant to this Agreement and
subject to availability, Customer will be given access to Seller's
current Assistance Request Database system at no additional charge.
Access to any additional automated tools or databases requested by
Customer must be purchased by Customer at Seller's prevailing rates.
C. CONSULTATIVE SERVICES: Telephone remote assistance at Seller's location
via Seller's toll-free Call Receipt and Routing Service.
D. THIRD PARTY SOFTWARE SUPPORT: If a condition is caused by Third Party
Software embedded in the product delivered by Communications Software.
Seller shall be responsible for diagnosing and coordinating resolution
of Third Party Software Defects Third Party Software is not subject to
either performance objectives.
E. LICENSED MATERIAL SOFTWARE PRODUCT UPDATE SERVICES
Seller will correct Defects in the Communications Software and
coordinate Third Party Software defects in accordance with the Support
as follows:
- Seller may periodically provide a Software Product Update to the
Communications Software to correct Defects. In such case, Seller
shall provide documentation to enable Customer to train its
personnel in the operation of the Communications Software modified
by such Software Product Update.
- Fees paid under this Agreement cover only Software Product Updates
made Generally Available (GA) during the term of this Agreement,
and are included in the Gold Support Level, Gold Uplift Support
Level and the Silver Support Level. After expiration of this
Agreement, Customer is entitled to the next available Software
Product Update, which may contain corrections for Defects reported
during the term of this Agreement.
- Due to the nature of Communications Software, Software Product
Updates require all previous Software Product Updates for the
particular Generic as prerequisites. Thus, it is
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not possible to install any Software Product Updates unless all
previous Software Product Updates have been installed.
- If the error condition is isolated to the related documentation
for the Communications Software, the fix will be given to Customer
as part of the Defect correction or Software Product Update
procedure.
- Seller agrees to notify Customer of the availability of a
resolution or work-around to a Defect reported by Customer.
F. DIAGNOSTIC SUPPORT: Seller shall support Customer in diagnosing Customer
observed Defects, including isolation of Defects to one of the following areas:
- Problems arising as a result of Communications Software; or
- Other problems related to Communications Software, such as
Customer operations problems, data base problems, and interfaces
to other systems.
G. SEVERITY CONDITIONS AND PRIORITIZATION: Seller shall perform Problem
Management in accordance with the severity level identified by Customer.
The priority for problem resolution will be based on the severity level
of outstanding reported conditions. Severity Level One conditions will
receive top priority support. If Customer's notification of a Severity
Level One causes Seller to redirect its efforts being expended on a
lower severity level condition, Seller shall notify Customer that there
will be a delay in correcting the lower severity level condition.
H. PROBLEM MANAGEMENT SERVICE: Seller shall manage the resolution of a
reported condition in a manner that provides Customer a single interface
as defined below. Performance commitments do not apply to Assistance
Requests falling into the Problem Management Service category.
- DATA BASE PROBLEMS: If the condition is determined to be the
result of corruption of the Licensed Material data base, and such
corruption is not the direct result of a Defect in the
Communications Software, the condition will be referred back to
Customer for resolution. At Customer's request, and at Seller's
option, Seller may prepare a proposal for billable corrective
action to correct Customer's data base. However, if corruption is
the result of, or caused by, Seller's other Licensed Materials,
Seller shall initiate Problem Management, at no additional charge,
regardless of whether such Licensed Material is covered under this
Agreement.
- HARDWARE/FIRMWARE PROBLEMS: When a condition has been isolated to
a problem in hardware or firmware not covered under this
Agreement, the condition will be referred back to Customer for
disposition under whatever maintenance arrangements Customer may
have for such hardware or firmware.
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- INTERFACING SYSTEMS PROBLEMS: If the condition is determined to be
caused by systems other than the Communications Software covered
under this Agreement, including, but not limited to, systems that
interface with the Communications Software, the condition will be
referred to Customer for corrective action unless such other
system(s) has been furnished by Seller, in which case Seller shall
initiate Problem Management, at no additional charge.
I. ON SITE SUPPORT: At Customer's request and as agreed to by Seller, a
support engineer may be dispatched by Seller to Customer's site for
resolution of a problem. On-site Support will be billed at minimum of
eight hours a day at Seller's then current Time and Material (T&M) rate.
Reasonable travel and living expenses incurred by Seller, associated
with such on-site support, will be billed.
J. MANAGEMENT NOTIFICATION: Seller will observe the following escalation
procedures:
- Severity Level One - If a Severity Level One condition has not
been Restored four (4) hours after the condition is reported,
Seller will notify Seller's supervisory management of the
unrestored condition. If the condition has still not been Restored
within eight (8) hours after the condition is reported, the next
higher level of Seller supervisory management will be notified of
the unresolved condition.
- Severity Level Two - If a Severity Level Two condition has not
been Restored twelve (12) hours after the condition is reported,
Seller will notify Seller's supervisory management of the
unrestored condition.
K. SERVICE PERFORMANCE REPORTS: Seller will provide quarterly Service
Performance Reports to Customer that demonstrate specific performance
relative to the performance objectives set forth in this Agreement.
2. CUSTOMER RESPONSIBILITIES
Communications Software knowledgeable individual is responsible to
provide the following information to Seller's call receipt and routing
service:
A. Identification of the condition and if possible, its isolation to a
particular component of the Communications Software believed to be
Seller's responsibility.
B. Determination that there are no uninstalled Software Product Updates
that correct the condition; and
C. Customer identifying information, including:
- caller's name, location, and company;
- call-back telephone number;
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- remote dial access to customer system, if available;
- nature of the question or situation;
- the system name and location;
- processor location, type, and serial number;
- the calling party's alternate contact;
- description and history of problem and efforts to solve it by
customer;
- contract number.
Customer will be responsible for providing adequate diagnostic support
material to enable the diagnosis of any Customer-reported condition.
Such support materials may include, but are not limited to, a
description of the circumstances, a dump of system logs or buffers, a
listing of data base contents, and console printouts as required by
Seller.
D. Maintain the Licensed Material
- Make no modifications other than those approved by Seller. This
includes updates from manufacturers of Third Party Software or
hardware processors that have not been certified by Seller.
- Install all Software Product Updates provided under this Agreement
within sixty (60) days, unless Customer has previously notified
Seller of Defects uncovered in the Software Product Update that
make installation unfeasible.
- Follow Seller's and relevant Third Party Software or hardware
processor manufacturer's applicable installation, operation,
administration, and maintenance instructions.
- Provide the proper environment and electrical and
telecommunications connections as specified by Seller or the
relevant hardware processor manufacturer.
- Maintain software and database backups external to the hardware
processors sufficient to reconstruct lost or altered files, data,
or programs.
- Provide remote (dial-up) access for Seller's Customer Technical
Support diagnostics. If no remote access is provided delay of
diagnosis could be possible.
E. Capacity and Throughput
- Customer agrees to maintain capacity and throughput within
specified guidelines of purchased product (either product
specifications or system documentation) at time of license.
- Exceeding specified capacity and throughput guidelines as set
forth in the specifications, or documentation, at the time of
purchase or license of Communications Software will
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VOID the obligation of Seller to support the Communications
Software for which either the capacity or throughput has been
exceeded. Seller may inform Customer that support for the software
that is in an exceeded capacity or throughput situation will
commence once Customer has corrected the capacity or throughput
situation and software is again operating in a manner consistent
with the specifications or documentation of the software.
- Should Customer exceed specified guidelines for either capacity or
throughput, and require Seller's assistance in diagnosing or
resolving a problem related to the exceeded guidelines, Seller
will proceed only at Customers written agreement that problem
diagnoses and correction will be treated as an Enhanced Service
and billed as such.
3. SUPPORT EXCLUSIONS
Unless expressly agreed by Seller, Support to be provided under this
Agreement does not include:
- Performing preventive maintenance for Communications Software;
- Making corrections to user - defined reports;
- Work External to the Software, whether or not on the Software's
Designated Processor;
- Support which is impractical for Seller to render because of
changes not specified by Seller in the Communications Software or
certified in the environment in which the Communications Software
operates;
- Modification or replacement of Communications Software, repair of
damage, or increase in service time caused by:
A. Failure to continually provide a suitable operational environment
with all facilities prescribed by the applicable document
including, but not limited to, the failure to provide adequate
electrical power, air conditioning, or humidity control;
B. The use of the Communications Software in a manner not in
accordance with its specifications, operating instructions, or
license-to-use;
C. Accident; disaster, which shall include but not be limited to
fire, flood, earthquake, water, wind, or lightning;
transportation; neglect; or misuse;
D. Modifications, maintenance, or repair performed by other than
Seller;
E. The conversion from one Communications Software release to another
if modification or replacement of such Communications Software is
performed by other than Seller, or the failure of Customer to
apply previously applicable Software Product Updates in sixty (60)
days;
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F. Attachment of unspecified or non-approved products to the
Communications Software, including updates from manufacturers of
Third Party Software or hardware processors that have not been
certified by Seller, or failure of a processor or other equipment
or software not maintained by Seller, or failure of removable or
rotating storage media;
G. This Agreement does not include SUPPORT SERVICES for any
Generics/Release/Features delivered after the commencement date
hereof.
Additional services, including but not limited to custom feature
development, training, planning sessions, Numbering Plan Area (NPA)
splits, on-site Support, site visits to review operations,
on-site/remote Software Product Update installation, custom
documentation, feasibility studies, data base recovery, system
administration, project management services, system backup, report
development, script development, accommodations to interfacing systems,
services associated with relocating products, service to non-conforming
products, Communications Software trial support, annual software
inventory, designated customer engineer, network troubleshooting, root
cause analysis and other enhanced services, are not included in the fees
paid under this Agreement. Such services may be available through a Firm
Price Quote (FPQ).
4. SUPPORT OF RELOCATED SOFTWARE Licensed Material covered by this
Agreement that is moved to another certified hardware processor within
the 48 contiguous United States or the District of Columbia, which is
determined by the License for the specific Communications Software,
shall continue to be covered under this Agreement provided that Seller
has received thirty (30) days prior written notice of such relocation.
Seller, reserves the right to supervise the unloading of the
Communications Software from the original processor and to inspect,
reinstall and recertify the Communications Software at the new
installation location. Customer shall be charged for all work performed
by Seller at Seller's then prevailing rates.
5. COVERAGE LEVEL DESCRIPTIONS All levels of coverage provide the Customer
the capability to request assistance seven (7) days a week, 24 hours a
day through the toll-free Communications Software Call Receipt and
Routing service. The specific descriptions of each level of service are
provided below.
Levels of coverage chosen for each Communications Software Product shall
remain intact for the entire calendar year, unless Customer is upgrading
to a higher level of coverage.
Pricing for each level of coverage is provided in Clause 6 of Attachment
B.
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SILVER COVERAGE LEVEL -
- The Silver Coverage Level provides Remote Customer Technical
Support, Performance Objectives for Response times for Severity
Levels 1 - 4 Service and Defect Assistance Requests.
- As a customer of Communications Software Post-Warranty Support and
Services, Silver Coverage customers are provided quarterly
performance reports with product performance relative to their
embedded Communications Software.
- Software Product Updates and Performance Objectives for Respond,
Restore and Resolve as defined in Clause 7, Attachment B.
- Software Product Updates provide temporary fixes or workarounds
and permanent fixes. Delivery of Software Product Updates vary.
The update may be delivered via remote dial in to the customer's
system, BWM, point releases, or paper documentation, or via
electronic media to be loaded on customers system by customer.
GOLD COVERAGE LEVEL -
- This level of coverage provides All the features of Silver as well
as Remote Customer Technical Support from 8:00 AM to 5:00 PM
(customer local time), Monday through Friday excluding US national
holidays.
GOLD UPLIFT -
- Gold Coverage customers are eligible to purchase an Enhanced
Service to provide coverage 24 hours per day, 7 days per week
(including US national holidays) on a per software product basis.
This offer is provided only to those customers purchasing the Gold
level of coverage.
- The 24 X 7 level of coverage is referred to as Gold Uplift and
provides all the features and services of Silver and Gold plus
coverage 24 hours per day and 7 days per week.
- Gold Uplift is the broadest coverage available, and is the
coverage Communications Software provides during the new product
warranty period.
6. PRICING FOR SUPPORT LEVELS OF COVERAGE
Support Levels chosen by Customer and Support prices for the
Communications Software covered by this Agreement are listed in
Attachment C.
If New Communications Software or Features are added during the term of
this Agreement, the Customer shall choose the Support Level for the New
Communications Software and the Seller at the rates shall provide the
appropriate Support listed below. New Features are added to the embedded
base at the prevailing level selected by the customer in the current
contract. Seller's next quarterly invoice shall reflect the prorated
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Support price based on the number of calendar days remaining in the year
from the conclusion of the warranty period.
- The price for the Gold Uplift Level will be [*] of the
Communications Software list price at the time of license by
Customer.
- The price for the Gold Level will be [*] of the Communications
Software list price at time of license by Customer. Time and
material rates will be billed at [*] per hour, with a 2-hour
minimum, for all out of hours calls.
- The price for the Silver Level will be [*] of the Communications
Software list price at time of license by Customer. Time and
material rates will be billed at [*] per hour in-hours, and
[*] per hour out of hours with a 2-hour minimum.
The following is applicable for all levels of support:
Time and material, if applicable, shall be calculated on a fifteen (15)
minute interval basis after the minimum time frame has been met. Also,
time and material charges, if applicable, will be billed to Customer
within forty-five (45) days after the conclusion of each quarter. A
blanket purchase order must be submitted to Lucent prior to the
execution date of this Agreement. Failure to submit such orders by this
date shall result in suspension of all time and material services until
orders are submitted. (This means that calls which fall into Time and
Material categories will be denied support at the point of Call Receipt
and referred to the Customer Contact listed in this agreement).
Support Levels chosen for each Communications Software shall remain
intact for the entire calendar year.
7. PERFORMANCE OBJECTIVES FOR COMMUNICATIONS SOFTWARE SUPPORT SERVICES
The performance objectives described in this Clause shall apply to
Communications Software covered under the Gold Uplift Support Level,
Gold Support Level, and Silver Support Level. The Defect or Service
problem must be reproducible at either Seller's location or on
Customer's system by Customer and verifiable by Seller in order for
terms of this Clause to apply. Problems that are deemed not reproducible
will be initially classified as Service AR's. If the problem continues
to occur the Service AR's will be reclassified as a Defect AR and
performance objectives will apply retroactive to the original trouble
initiation. The Severity Level of any Defect or Service call shall be
determined by Customer; however, if during resolution Seller determines
that the severity level of the problem claimed by Customer to be
inaccurate, the Severity Level may be changed by mutual agreement
between Seller and Customer.
- --------------------
[*] Information redacted pursuant to a confidential treatment request
throughout this exhibit.
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RESPONSE TIME - During the term of this Agreement, in accordance with
the Support Level chosen and upon expiration of any Communications
Software warranty, Seller agrees to Respond to Customer's request for
Support called in through the Seller's Call Receipt and Routing Service
within sixty (60) minutes in-hours and one hundred and twenty (120)
minutes out-of-hours, twenty-four (24) hours a day, seven (7) days a
week, for all severity levels and problem types as recorded in Seller's
Assistance Request Database. Response time will be validated quarterly
with the SPR. Customer requests that are not initiated through Seller's
Call Receipt and Routing Service will be excluded from the Response Time
metric.
RESTORAL TIME -
Severity Level One: During the term of this Agreement, and upon
expiration of the Communications Software warranty, Seller agrees to
Restore service for Severity Level One problems within twenty-four (24)
hours from trouble initiation, as recorded in Seller's Assistance
Request Database. Restoral Time will be validated quarterly with the
SPR.
Severity Level Two: During the term of this Agreement, and upon
expiration of the Communications Software warranty, Seller agrees to
Restore service for Severity Level Two problems within seventy-two (72)
hours from trouble initiation, as recorded in Seller's Assistance
Request Database. Restoral Time will be validated quarterly with the
SPR.
RESOLUTION TIME - Service AR: During the term of this Agreement, and
upon expiration of the Communications Software warranty, Seller agrees
to Resolve Severity Level One through Severity Level Four Service AR's
within forty-five (45) days from trouble initiation, as recorded in
Seller's Assistance Request Database. Resolution Time will be validated
quarterly with the SPR.
Defect AR: During the term of this Agreement, and upon expiration of the
Communications Software warranty, Seller agrees to Resolve Severity
Level One and Severity Level Two Defects within one hundred eighty (180)
days from trouble initiation, as recorded in Seller's Assistance Request
Database. Resolution Time will be validated quarterly with the SPR.
The performance objectives can be summarized as follows:
LUCENT TECHNOLOGIES
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<PAGE> 102
<TABLE>
<CAPTION>
PERFORMANCE OBJECTIVES SEVERITY REQUEST TYPE
- ------------------------------------- ------------- ---------------------
<S> <C> <C>
Respond within 60 Minutes 1,2,3,4 All
In-Hours and 120 Minutes
Out-Hours
Restore within 24 Hrs 1 only Service, Defect
Restore within 72 Hrs 2 only Service, Defect
Resolve within 45 Days 1,2,3,4 Service Only
Resolve within 180 Days 1,2 Defect Only
</TABLE>
LUCENT TECHNOLOGIES
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<PAGE> 103
ATTACHMENT C
COMMUNICATIONS SOFTWARE
<TABLE>
<CAPTION>
SELLING PRICE LEVEL OF % OF ANNUAL SW/MT NO. OF TOTAL ANNUAL
PRODUCT MC RTU FEES SVC RTU FEE (PER SYSTEM) SYSTEMS SW/MT FEE
------- -------- -------- -------- -------- ---------------- -------- ----------------------
<S> <C> <C> <C> <C> <C> <C> <C>
BILLDATS DM Core RTU DL387 [*] GOLD [*] [*] 1 [*] [*]
BILLDATS DM Direct- DL387 [*] GOLD [*] [*] 1 [*] [*]
Connect Output Interface
Type
BILLDATS DM Grid & DL387 [*] GOLD [*] [*] 1 [*] [*]
Format Conversion Turn-
Key Solution Services
SPM Bundled Package DL387 [*] GOLD [*] [*] 1 [*] [*]
(Format Production,
Filter
Production, Search &
browser Modules)
Generic Tape Reader DL387 [*] GOLD [*] [*] 1 [*] [*]
Output File Merger - DL387 [*] GOLD [*] [*] 1 [*] [*]
Feature
Filter Test Tool - Feature DL387 [*] GOLD [*] [*] 1 [*] [*]
Direct-Connect Input DL387 [*] GOLD [*] [*] 1 [*] [*]
Interface Type - Feature
</TABLE>
<TABLE>
<CAPTION>
Total Support Value
----------------------------------------------------
<S> <C> <C> <C> <C> <C> <C>
Total Support Fee thru 3/31/2000 [*] GOLD [*] [*] [*] [*]
</TABLE>
- --------------------
[*] Information redacted pursuant to a confidential treatment request
throughout this exhibit.
LUCENT TECHNOLOGIES
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<PAGE> 104
EXHIBIT D-2
TO THE
GENERAL SUPPLY AGREEMENT
LUCENT TECHNOLOGIES
Bell Labs Innovations
PROPOSAL
TO
ATG
FOR
LUCENT TECHNOLOGIES BILLDATS(R) DATA MANAGER
DATE OF ISSUE: AUGUST 24, 1998
REVISION DATE: FEBRUARY 10, 1999
FINAL REVISION DATE: MARCH 16, 1999
PREPARED BY:
VINCE L. SEARS
ACCOUNT MANAGER
<PAGE> 105
ATG - LNM99NMY09ATG, Exhibit D-2 2
BILLDATS(R) Data Manager Proposal
August 24, 1998
Final Revision March 16, 1999
- --------------------------------------------------------------------------------
1.0 INTRODUCTION
From new services and technology to business relationships, the world of
telecommunications becomes more expansive and comp?? every day. Successful
Service Providers and Network Operators will optimize network billing data in
near-real time to support customer care, competitive services, internal business
tools, Number Portability, wholesale/retail businesses, long distance service
and database marketing as well as other initiatives.
Telecommunications service providers must meet the regulatory and competitive
challenges of today with flexible, modular tools that enhance and build upon
existing infrastructures, processes, and diverse networks without sacrificing
future flexibility and functionality. Lucent Technologies understands that
Service Providers/Network Operators cannot afford to implement a data
collection and management solution today, that does not handle tomorrow's
services.
It is widely recognized that network data affords a rich set of customer
information that, in addition to providing billing input, offers significant
opportunities when processed by downstream applications - opportunities to
understand customers/markets better to improve service assurance processes, to
manage fraud, and to generate additional revenue.
Moving beyond the collection and transmission of billing data, the BILLDATS(R)
Data Manager capitalizes on network data for business and service management
needs. The combination of the Data Manager's highly reliable billing data
collection capabilities portfolio of standard interfaces, and Specialized
Processing Modules will allow ATG to collect call detail records and usage data
from almost any switch or network element, filter and deliver it, in
user-specified formats, to any downstream application - all in near-real time.
For example, ATG can utilize Basic Distribution (a BILLDATS(R) Data Manager
core feature) to send multiple 100% streams (10 copies on a Network Element
basis) of data to different destinations such as a second bill rendering
application, a data warehouse fraud application. Utilizing the Production
Filter Specialized Processing Module, users can filter on any field in the data
stream so as Carrier ID, Service, Calling Number, or Elapsed Time. These
files of filtered data are essentially customized "subsets" or application
specific streams of data that can be sent electronically (via Basic
Distribution) to ATG downstream applications other Service Providers, and
clearinghouses. The addition of the optional Format Conversion processing
module allows users to reform the data before it is distributed to downstream.
The BILLDATS(R) Data Manager is a highly scaleable, modular, UNIX based, open
architecture solution. Composed of "off-the-shelf" data collection, management
and distribution software application modules on one hardware platform, the
Data Manager can easily grow in functionality as ATG requirements change. The
BILLDATS(R) Data Manager application provides ATG with high speed collection
and distribution functionality. It fits into ATG's current environment without
modification, while providing the opportunity to add additional strategic
Specialized Processing Modules such as Production Filter, Production Search,
and Format Conversion either at time of purchase or at a later date. The
BILLDATS(R) Data Manager is designed to be the one flexible solution that meets
all of your needs.
Lucent Technologies welcomes the opportunity to present this proposal to ATG
for the purchase of a next generation data collect and management solution.
PROPRIETARY - LUCENT TECHNOLOGIES
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Final Revision March 16, 1999
- --------------------------------------------------------------------------------
2.0 ATG ENVIRONMENT
The proposed ATG network environment includes:
- - Five Lucent Technologies 5ESS switches (1999).
- - Record volume information currently not available.
- - Kenan Arbor BP bill rendering application.
- - Ethernet FTP TCP/IP feed of BAF data to a single destination - Kenan billing
entity.
Notes:
- - Lucent Technologies assumes that the proposed Data Manager(s) will be
deployed in full compliance with all BILLDATS(R) Data Manager
application/interface specification documents such as the "BILLDATS(R) Data
Manager to Downstream Application FTP Interface Specification".
- - It is also assumed that the BILLDATS(R) Data Manager will transmit BAF data
to the bill rendering application. If a record format other than BAF such as
EMI is required by the biller, then the Format Specialized Processing Module
must be purchase to map the BAF input records to a different output record
format prior to transmission to the biller. The actual format mapping
requirements and provisioning of the requirements in the Data Manager is
ATG's responsibility unless BILLDATS Professional Services have been
purchased for this work.
3.0 PROJECTED GROWTH
ATG plans to grow to 29 switches in four years (5 Lucent 5ESS switches in 1999
and 8 per year for the following three years). No volume estimates available.
The suggested Sun Ultra 2 hardware may, or may not, support all 29 IEs.
Hardware configurations are dependent on switch interfaces, selected data
management functionality, switch data volumes, and network facilities. The Sun
Ultra 2 platform can support 6 - X.25 ports or roughly 14 million records (100
byte records) polled per day, assuming switched 56K network facilities a 12
hour polling day.
4.0 BILLDATS(R) DATA MANAGER SOLUTION
4.1 SOFTWARE
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- --------------------------------------------------------------------------------
[BILLDATS(R) DATA MANAGER END-TO-END SOLUTION CHART]
BILLDATS(R) DATA MANAGER END-TO-END SOLUTION
The BILLDATS(R) Data Manager collects usage data from Network Elements, stores
the data as files, performs specialized processing of the data, and forwards
the usage data to one or more destination systems for bill rendering, fraud
detection, service assurance, and other applications.
The Data Manager's primary mission is to provide reliable and efficient data
collection, speedy distribution of data, and minimize operations expenses
associated with the collection of large amounts of data.
To meet growing customer needs for faster and more efficient delivery of data,
and more effective control and management of the telecommunications services,
the Data Manager offers enhanced capabilities to protect current revenues,
generate new revenue, and improve customer service, while maintaining the
reliability and performance customers have grown to expect from Lucent
Technologies BILLDATS(R) Products. The BILLDATS(R) Data Manager provides:
o Flexible Architecture: The Data Manager fits easily into many different
environments; wireline, wireless, intelligent network; without requiring
changes to the existing infrastructure.
o Convergence: The Data Manager supports simultaneous collection from many
types of switches. A single Data Manager can be configured to
simultaneously collect data from Local Wireline, Long Distance, Wireless,
IP, Intelligent Network and ATM network elements.
o Multi-vendor Environment: The Data Manager supports the
collection/transmission of data from/to platforms from different vendors
using different protocols and data formats.
o Data Integrity and Reliability: The Data Manager provides polling,
re-polling, and retransmission of data from Network Elements at the
individual file or block level.
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- --------------------------------------------------------------------------------
- - Near Real-Time Transport of Data: The Data Manager allows the user to
schedule all collection and transmission frequency. The Data Manager can
support continuous polling of the Network Elements. Distribution of data
can be scheduled as frequently as once per minute.
- - Flexibility: The Data Manager allows the user to send data from any
Network Element to a single destination or multiple downstream
destinations on a demand or scheduled basis.
- - Activity Logging: The Data Manager provides an audit trail that logs,
among other things, files polled, files sent, commands issued and files
cleaned up.
- - Easy Operation: The Data Manager provides a simple, intuitive Graphical
User Interface (GUI) for operation scheduling and control, system
configuration, browsing reports and logs, and monitoring alarms.
- - Hardware Scalability: The Data Manager runs on a range of platforms,
under the powerful UNIX(TM) SVR4 operating system. This offers a range
of processing power, storage, and communications options to meet a wide
range of customer application requirements.
The GENERIC RECORD IDENTIFICATION (GRID) MODULE is also included in the
BILLDATS(R) Data Manager core application. GRID allows customers to specify the
input structure of records being collected, down to an individual record field
level. A single Data Manager can simultaneously support multiple GRID
definitions for various vendor's switches. The GRID Module allows the Data
Manager to parse the contents of the collected files in order to support further
processing of the records collected. The GRID module supports the definition of
multiple data formats (e.g., AMA, Ericsson Toll Ticket, EMI and Motorola DAS),
and the assignment of a data format to a particular Network Element. The data
format includes a set of record formats as well as definitions of any file
headers or trailers, and any nested block headers and trailers. Data formats can
be defined and modified by administrator using a Graphical User Interface. When
a new Network Element is added, the administrator can either assign an existing
data format to that Network Element, or create a new or modified data format. As
data formats change, the administrator simply uses the GUI to make the necessary
changes to the record format definitions.
The GRID Module is currently available (included as part of the core Data
Manager application), and serves as a base for many of the other Specialized
Processing Modules offered to provide enhanced data management functionality.
Lucent Technologies 5ESS(R) record structure is pre-populated in the Data
Manager's GRID module by BILLDATS engineers. The population of other
(non-Lucent) record structure information in GRID is the responsibility of ATG
or the work can be purchased from Lucent Technologies as a Professional
Service.
4.2 HARDWARE
The hardware platform estimated for ATG is the Sun Ultra 2. See Attachment A
for configuration details.
Assumptions used to configure the estimated Sun Ultra 2 platform suggested in
this document:
- - 5 - Lucent Technologies 5ESS switches.
- - ATG specific record volume information not available; used 750,000
records per day per switch (total per day: 3.7 million) for
configuration.
- - 100 byte average record size.
- - AMATPS input interface.
- - Direct Link output interface (FTP) per BILLDATS(R) Data Manager
specifications.
- - BAF data transmitted to a single downstream destination.
- - Approximately 5 days of data storage.
- - Scheduled polling.
- - Switched 56K network facilities.
- - 10 hour polling day.
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- --------------------------------------------------------------------------------
- - The suggested hardware platform (Ultra 2) may or may not support the total
projected ATG growth to 29 Lucent 5ESS switch over 4 years. Hardware
platform sizing is dependent on switch interfaces, selected data management
functionality, switch data volumes, record size, and network facilities.
Depending on these variables, the full deployment of 29 switches may
require a larger hardware platform.
The Sun Ultra 2 can have up to six (6) 56K X 25 ports configured (if a graphics
monitor is utilized). A fully loaded Ultra 2 platform can support approximately
14 million 100 byte records per 12 hour polling day. This figure assumes that
all ports are switched 5 and that the volume of records is fairly evenly
distributed across all switches.
Ethernet link capacity for distribution (BILLDATS(R) Direct Link) is dependent
upon bandwidth allowed to the downstream application.
A system console is provided with the base system for console access (the
suggested configuration has included a graphics terminal for this purpose).
Remote access is available through a dial up port, used for remote support.
Other access is via an x-terminal interface which can be used as an
administrative terminal to run the GUI. This terminal has no other requirements
and can be a PC equipped with an x-terminal software package.
A printer can be added to the configuration if desired; printer prices have not
been included in the suggested configuration. An optional tape drive has been
included in the configuration.
A modem for dial-in support is needed for Lucent support access (if requested
by ATG); modem prices are not included in this proposal.
Network facilities and data communication devices are not included in this
proposal and should be furnished by ATG.
5.0 ENHANCED DATA MANAGEMENT - BILLDATS(R) OPTIONAL FEATURES, INTERFACES, AND
SPECIALIZED PROCESSING MODULES
BILLDATS(R) Specialized Processing Modules (SPMs) are designed to expand upon
the billing data collection and distribution application, by adding one or more
Specialized Processing Modules to the Data Manager core application for greater
data management functionality.
Individual SPMs can be added to the proposed BILLDATS(R) Data Manager platform
as ATG's needs evolve, allowing ATG to architect or customize their own
solution effectively as budgets and business needs permit.
- - Utilizing the PRODUCTION FILTER MODULE, customized streams of AMA data can
be sent to multiple destinations such as billing market analysis, service
providers and fraud applications. The user configurable filter capability
provides ATG with the flexibility to create application specific customized
streams of AMA data easily. The filters are applied an output, thus
eliminating the need for storage of additional copies of the input data.
Combined with the core Basic Distribution feature, the streams of data can
be transmitted to multiple destinations in one minute intervals. The
capability to perform re-transmissions and the reporting/auditing
mechanisms allow this feature to be used in a production environment where
this data is just as important as the primary billing feed. Production
Filter is available now.
- - The FILTER TEST TOOL provides the user with an interactive method for
verifying filter criteria prior to transferring the filtered data to a
downstream application. A customer can execute a filter application id
against a file of records to see which records are selected by the filter.
This allows the user to verify that the filter is working as intended prior
to applying the filter to the output stream. Filter Test Tool is available
now.
- - The DATA SEARCH MODULE will locate specific records on the database meeting
ATG's specified criteria (if chosen) in both primary and tertiary data,
allowing ATG to accommodate client services, such as verifying test calls,
validating new services,
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- --------------------------------------------------------------------------------
and error isolation. The search consists of identifying fields (such as
type of service, calling number, called number, connect data, elapsed time)
and selecting records that match the user specified values of these fields.
The search output can be viewed at a terminal, routed to a line printer or
sent to another application for processing. Search is available now.
. The BROWSER module allows the system operator to view detailed contents of
data files using a full featured Graphical User Interface (GUI). The
operator can select which files they wish to view, and all records and
fields within the record can be viewed in detail. Browser is available now.
. The FORMAT MODULE allows the user to reformat records prior to delivering
them to downstream applications. The Format Module allows the user to
define multiple output record formats, define the mapping of input record
format to output record format, and assign an output format to each
application destination. Each destination may have a different record
format. The mapping of input format to output format is done via a GUI.
The Format Module allows you to convert from one record format to another
(e.g. AMA to EMI), to normalize records (convert all records to a single,
standardized format), to perform field extraction (e.g. include only select
fields in a record, deleting all other fields), or convert field types
within a record (e.g. change BCD fields to ASCII). The Format Module is
available now.
The addition of strategic optional features would provide ATG with flexible,
competitive tools to control and manage the AMA process. These tools move
functionality such as filter, search, and format conversion closer to the
network element, decreasing dependency on the bill rendering application and
increasing ATG's ability to respond efficiently and economically to customer
requests and internal revenue processes.
. CONNECT: Direct input and/or output interface(s) to support the receipt of
billing data from other service providers to the Data Manager for
comprehensive data management - reformatting of records, filter etc. The
CONNECT: Direct output interface supports the transmission of data to other
providers or billing entities. CONNECT: Direct is available now.
. AMADNS DATA SERVER TO DPMS INTERFACE (DDI)
Bellcore has defined a new standard for the movement of AMA data from
generating systems to applications requiring this data. The transfer,
processing, and management of AMA data is called AMA Data Networking and is
provided by the AMA Data Networking System (AMADNS). The AMADNS DDI input
interface supports billing data collection from AMADNS compliant network
elements (Bellcore GR1343, Issue 2).
The BILLDATS(R) Data Manager is Lucent Technologies' DPMS. As such, it
supports an AMADNS compliant interface to a variety of Data Servers (Data
Server functionality may be an adjunct to the switch or may be incorporated
into the switch footprint). The AMADNS Data Server to DPMS Interface (DDI)
is based in the TCP/IP File Transfer Protocol (FTP) and use the standard
Ethernet LAN/WAN for connectivity.
. OUTPUT FILE MERGING: The Data Manager stores billing data in flat files.
The size of each file is driven by user provisioning, near real time
transmission is desired, then the size of each file stored on the Data
Manager is driven by the smallest increment of data that can be collected
from a switch and maintain data integrity. This results in a large number
of small files. This works well for near real time transmission. However,
for batch transmissions (such as a biller), fewer larger files is usually
desired, output file merging feature concatenates many small files into a
large file per network element. This allows large files to be transmitted
to batch applications and small files to be transferred to near time
applications.
. GENERIC TAPE READER to support the reading of tapes into the Data Manager
for comprehensive billing data management. Generic Tape Reader allows a
user to define the format of an input tape, and then read in a tape of the
specified format. Records are read from tape, stored as files on disk, and
can be processed and distributed in the same way as records that were
Providers, ATG switches in the instance of a network outage etc.
PROPRIETARY - LUCENT TECHNOLOGIES
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<PAGE> 111
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August 24, 1998
Final Revision March 16, 1999
- --------------------------------------------------------------------------------
In emergency situations, a tape dump of billing data at a switch may be
required. In this case, the data cannot be electronically collected by the
Data Manager. If the Data Manager is being used for mediation, the tape of
billing data must be read into the Data Manager. The generic tape reader
feature allows a user to read tapes from any network element, thus solving
this situation. The generic tape reader feature also provides a mechanism
for reading tapes from network elements that do not have electronic
transfer capabilities. Generic Tape Reader is available now.
- - DISASTER RECOVERY - the intent of the Data Manager's disaster recovery
feature is to prevent a disaster, like a fire, from completely disabling a
customer's billing data collection and distribution environment. If a
disaster occurs, it is accepted and handled by the customer. Billing data
that has not been sent to all of the associated downstream applications
may be lost depending on the nature of the disaster. However, the disaster
recovery feature allows collection and distribution of new bill data to
continue without interruption. The disaster is not compounded by having
ATG scramble to determine how to continue their billing operation.
The Data Manager's disaster recovery feature is NOT intended to provide a
100% high availability environment. This direction was driven by the
software complexity and monetary cost of a 100% high availability
solution. A 100% high availability automated solution can also cause false
triggers, switching a Data Manager's load prematurely. Our strategy is
based on customer feedback that indicated a high preference for human
intervention making the decision on switching the load to a backup system.
The disaster recovery feature on the Data Manager allows "clusters" of
Data Managers to be configured as one virtual machine. The most common
configuration is two Data Managers in geographically separate locations.
Each Data Manager hardware platform would be engineered to support the
complete load. In normal operation, each Data Manager would only support
half the load (i.e., 50-50 load share). In a disaster mode, a single Data
Manager would support the complete load.
Administrative information such as network element definitions (e.g., 5ESS
switches) and billing entity definitions (e.g., downstream applications
that receive billing data from the Data Manager; Kenan Arbor BP is an
example of a billing entity) is stored in a relational database. The
disaster recovery feature automatically synchronizes the administrative
information over all Data Managers in the cluster.
The billing data is not replicated over all Data Manager clusters (i.e.,
each Data Manager stores its own unique copy of the billing data). If an
individual Data Manager in a cluster fails, transmission of the unsent
data will be delayed or lost depending on the severity of the disaster
(i.e., hardware failure vs. a disaster like fire) following the intent of
the disaster recovery feature.
A single command is used to start/stop an individual Data Manager from
entering a disaster recovery mode. Each network element and/or billing
entity definition is assigned a "home" (i.e., the name of the Data Manager
that supports this element in normal operation). To start/stop the
disaster recovery mode, a manual command with the "home name" is entered.
The manual command will cause the Data Manager to automatically start/stop
collection and distribution of the "named" elements.
The optional "Disaster Recovery" feature automatically replicates
administrative database updates across all Data Managers ATG's
environment. This allows a user to administer multiple Data Managers as
one. It also facilitates a timely start of "recovery" mode in the event of
a disaster. The disaster recover feature also provides one command to
start/stop recovery on particular Data Manager. Recovery feature is
available now.
6.0 PRODUCT DIRECTION
The BILLDATS(R) Data Manager is rapidly evolving to provide additional
capabilities for our customers. Several of the optional features and
Specialized Processing Modules available in Generic 6.0 include:
- - THE DATA VALIDATION AND EDITING SPECIAL PROCESSING MODULES will provide the
ability to perform a set of integrity checks based on user defined,
pre-record, validation rules. Records which fail validation checks will
be filtered out of the data stream. These erred records can then be edited
by a user and reinserted into the distribution stream, deleted by a user or
sent to a
PROPRIETARY - LUCENT TECHNOLOGIES
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- --------------------------------------------------------------------------------
downstream application for further investigation. The optional Data
Validation and Edit Modules will be available in Generic 6.0, available in
July 1999.
o The REPORT WRITER INTERFACE feature will provide extensive reporting
against the usage records. The Data Manager will normalize the usage
records, and then feed them to an adjunct Report Writer system. The
normalized usage records will be placed in a standard database (e.g.
Informix), where they can be queried against using standard relational
On-Line Analytical Processing (OLAP) tools. The user will be able to
execute ad hoc queries against the data, defining their own reports. The
adjunct Report Writer system allows users to generate extensive reports
without impacting the performance of the Data Manager and the feeds to
other downstream applications. The optional Report Writer Interface feature
will be available in Generic 6.0, available in July, 1999.
7.0 TRAINING
The BILLDATS(R) Data Manager training course consists of modules which can be
selected to meet the needs of the target audience. Lucent Technologies offers
the following modules for BILLDATS(R) Data Manager customers (Course OS7733):
Module A: BILLDATS(R) Data Manager Operations (required in Base
BILLDATS(R) Data Manager Package)
Module C BILLDATS(R) Generic Record Identification (GRID; required in
Base BILLDATS(R) Data Manager Package)
ModuleH-1 Production Filter, Browser, Search (Required if respective SPMs
are purchased)
Module G Format (Required if respective SPM is purchased)
o BILLDATS(R) DATA MANAGER OPERATIONS
This module is designed for the BILLDATS(R) Data Manager system operators and
administrators responsible for configuring and operating the Data Manager. This
course will teach the students to operate the BILLDATS(R) Data Manager in an
efficient manner. The students will learn how to use the Graphical User
Interface, how to access and use the application menus, forms, reports and
logs. Data collection and transmission procedures and scheduling will be
covered.
o GENERIC RECORD IDENTIFICATION
This module is designed for Data Manager administrators responsible for
creating and maintaining the call record formats associated with GRID. This
module covers the use of the GRID menus and forms, the file components (such as
data records, file headers and trailers, block headers and trailers), and how
to add, change and delete file formats.
Training is conducted at ATG's location. It is ATG's responsibility to provide
training facilities such as classroom space, whiteboard or easel, and access to
the ATG Data Manager.
8.0 DOCUMENTATION
One set of BILLDATS(R) Data Manager documentation is supplied per Data Manager
purchased. The documentation set consists of:
o BILLDATS(R) Data Manager Operations Guide (190-135-114)
o BILLDATS(R) Data Manager Installation and Maintenance Guide for Sun
Hardware Platform (190-135-112)
o BILLDATS(R) Data Manager Application Guide (190-135-115)
o BILLDATS(R) Data Manager Output Messages Guide (190-135-117)
o BILLDATS(R) Data Manager Generic Record Identification (GRID) Guide
(190-135-116)
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- --------------------------------------------------------------------------------
9.0 BILLDATS PROFESSIONAL SERVICES
Lucent Technologies Billing Products technical support team offers a rich
portfolio of Professional Services with a wide range of pre-defined options or
selections that are customizable to ATG specifications. Our support staff
understands the complexity of near-real time teleprocessing and data
management, and is uniquely qualified to assist ATG in achieving both their
short term and long term objectives. ATG has the option to purchase
professional services from the Billing Technical Support Team to augment their
own staff expertise. For example:
- - GENERIC RECORD IDENTIFICATION (GRID) POPULATION
Lucent engineers will populate GRID with customer specified format information
for Specialized Processing Module administration. For the Lucent 5ESS Switch,
the GRID definitions required to support the collection and transmission of
5ESS B data is included in the core product.
- - PROVISIONING MEDIATION CRITERIA - FORMAT
Provisioning of mediation criteria mostly involves defining input and
output record definition templates and logic to convert an input record to
a record format. This effort can be performed by the customer through the
Data Manager application GUI or it can be contracted through Lucent. If the
customer decides to undertake this effort, Lucent will provide hours of
consultation. If the customer wants to contract the work through Lucent, a
flat fee will be charged to provide this effort. Lucent's provisioning
effort will be bounded by the following:
- Lucent will provide all record template definitions for all Lucent
network elements.
- The customer must obtain record definitions from other vendors and
provide those to Lucent. Lucent will then provision record template
definitions for other vendors' network elements.
- Lucent will work with the customer to define requirements for output
records and the criteria to map an input record an output record ???
format. The customer must engage other vendors to participate in this
task if necessary.
- Lucent will provision and test all format mapping criteria. It is the
customer's responsibility to provide data to test record template
definitions and format conversions. To completely test the format
conversions, the output produced by the Data Manager must be
processed by the respective downstream application.
- Lucent will be engaged in this activity until the customer accepts
the Data Manager system or live data is passed through the Data
Manager. After this time, additional engineering services can be
contracted through Lucent at d??? rate.
- Lucent's effort in this area only includes engineering services to
provision record template definitions, to consult ??? defining
formatting requirements and to provision formatting criteria. This
effort does not include any software development activity.
Note:
BILLDATS Professional Services timelines may, or may not, coincide with the
Data Manager deployment timeline; project schedules are determined by staff
availability and the complexity of ATG requirements.
10.0 CUSTOMER ACCEPTANCE PROCESS
The Lucent Technologies BILLDATS(R) Product Team adheres to a formal customer
acceptance process. This process serves to ensure ATG's satisfaction with the
deployment, and gates the warranty period. ATG, following a set of written
procedures, activates the Data Manager processes and purchased optional
features. A formal acceptance document is jointly signed after all purchased
functionality of the product has been successfully demonstrated. The customer
acceptance process is completed after the turn-up of one Lucent 5ESS Switch
Interface in the ATG network on the Data Manager platform. The closure of the
acceptance process initiates the Data Manager software warranty period.
PROPRIETARY - LUCENT TECHNOLOGIES
V.L. SEARS - MARCH 16, 1999
<PAGE> 114
ATG - LNM99NMY09ATG, Exhibit D-2 11
BILLDATS(R) Data Manager Proposal
August 24, 1998
Final Revision March 16, 1999
- --------------------------------------------------------------------------------
11.0 CUSTOMER RESPONSIBILITIES
- - ATG is responsible for the activation and correct configuration of network
elements/switches to support teleprocessing.
- - Record structure population in GRID is required to support data collection
and data management functionality such as filter format. Record structure
information for Lucent Technologies 5ESS switches is pre-populated in GRID;
if any non-Lucent Technologies network elements are added to the ATG
network, it is assumed that ATG will perform the initial GRID population
work. It is also assumed that ATG will provide on-going support for GRID
updates for any non-Lucent Technologies switches and network elements.
- - ATG will create and manage all Specialized Processing Module definitions as
required - such as format mappings, filter criteria, etc.
- - ATG is responsible for the assignment of one knowledgeable ATG employee to
the BILLDATS(R) Data Manager ??? implementation project, to serve as a
single-point of contact and liaison to ATG management for the duration of
the implementation.
- - ATG will provide for hardware staging and support via sales agreement with
Sun Microsystems or the VAR of their choice. (Sun hardware staging and
support costs have been included with the sample hardware platform
configuration included with the quotation).
- - It is ATG's responsibility to maintain the integrity of the AMA data. ATG
is responsible for understanding their AMA data collection/distribution,
service environment, and revenue assurance procedures thoroughly, and
identifying the appropriate time and intervals in the process for the
BILLDATS(R) Technical Support Engineer to complete implementation
activities.
Lucent Technologies is not responsible for lost and/or damaged AMA data.
- - This BILLDATS(R) Data Manager proposal does not include network facilities
or data communication devices. It is ATG's responsibility to provide these
services and the associated data communications equipment. The BILLDATS(R)
Technical Support team is available for data communications equipment
recommendations.
PROPRIETARY - LUCENT TECHNOLOGIES
V.L. SEARS - MARCH 16, 1999
<PAGE> 115
ATG-LNM99NMY09ATG, Exhibit D-2 12
BILLDATS(R) Data Manager Proposal
August 14, 1998
Final Revision March 16, 1999
- --------------------------------------------------------------------------------
12.0 WARRANTY
12.1 BILLDATS(R) DATA MANAGER APPLICATION SOFTWARE WARRANTY
Lucent Technologies stands behind its quality Communications Software products
by offering ATG a comprehensive ninety (90) day New Product Warranty. The
Warranty period is initiated by successful completion of the Data Manager
Acceptance Process or 30 days after completion of software load & test and
polling activation, whichever occurs firsts.
Terms of the BILLDATS(R) Data Manager Gold level software warranty are:
- - Hotline support, for severity levels 1-4 from 8 AM to 5 PM EST, Monday through
Friday, excluding holidays. All system problems are reported by the customer
to the Lucent Technologies 1-800-WE2-CARE Hotline and tracked through
resolution Experienced software engineers are available to provide technical
and consultative services, and problem diagnosis.
- - Optional on-site service support is also available (pending resource
availability). On-site services are billed in 8 hour day increments at the
established Time and Material rate. In addition, reasonable travel and living
expenses incurred by the BILLDATS(R) Software Engineers will be billed to ATG.
- - Established performance objectives for all calls for assistance (per Severity
Level).
- - Periodic BILLDATS(R) Product Updates (if released during warranty period).
12.2 INFORMIX(R) WARRANTY
The BILLDATS(R) Data Manager uses the Informix database product to store
administrative data required to track and manage the usage data files. The
Informix software is supplied as part of the Base BILLDATS Data Manager
package. Lucent Technologies handles the licensing and any warranty costs
associated with the INFORMIX(R) database product. The INFORMIX(R) restricted
license supports only BILLDATS(R) Data Manager use of the database. Any other
use of the database requires the purchase of a general INFORMIX(R) license. A
general INFORMIX(R) license is not included in this proposal.
12.3 HARDWARE PLATFORM WARRANTY
The warranty for the BILLDATS(R) Data Manager hardware platform is per
agreement between the hardware vendor and ATG.
12.4 ADAX WARRANTY (X.25 BOARDS)
ADAX boards are orderable through Lucent Technologies and initially installed
by Lucent Technologies during staging of the BILLDATS(R) Data Manager. ADAX
boards are covered by a one year parts-only warranty; the installation of cards
replaced unwarranty is not included in the warranty. (Installation of the cards
is not included in standard Sun warranty or Sun post-warranty support
agreements).
13.0 POST WARRANTY SUPPORT SERVICES
13.1 BILLDATS(R) DATA MANAGER APPLICATION SOFTWARE
Lucent Technologies offers the continuation of high quality software support
after warranty expiration through two Post Warranty Support Services Options -
Gold Uplift and Gold. Information on the Gold option is provided in this
proposal; Gold Uplift Support Services information is available upon request
from your Lucent Technologies Account Manager.
BILLSDATS(R) Data Manager maintenance point releases are released as necessary,
averaging two releases per year. BILLDATS(R) Data Manager customer under New
Product warranty or supported by a valid post-warranty software support
agreement receive point releases as part of the warranty or post warranty
agreement.
13.2 INFORMIX(R) POST WARRANTY SUPPORT SERVICES
Post warranty support for INFORMIX(R) (BILLDATS(R) Data Manager restricted
license) is included in BILLDATS(R) Data Manager application software post
warranty support services.
PROPRIETARY - LUCENT TECHNOLOGIES
V.L.SEARS - MARCH 16, 1999
<PAGE> 116
ATG - LNM99NMY09ATG, Exhibit D-2 13
BILLDATS(R) Data Manager Proposal
August 24, 1998
Final Revision March 16, 1999
- --------------------------------------------------------------------------------
13.3 HARDWARE PLATFORM POST WARRANTY SUPPORT SERVICES
Post-warranty hardware support services for the BILLDATS(R) Data Manager
hardware platform should be negotiated directly the selected hardware vendor
prior to the expiration of the hardware platform warranty.
14.0 TERMS AND CONDITIONS
This quotation and the associated Lucent Technologies BILLDATS(R) Data Manager
application software prices are valid for a period of sixty (60) days after
issuance date (March 16, 1999 through May 16, 1999) and will become void after
this time May 16, 1999) unless written Lucent acceptance of a
quotation extension of ATG is issued by Lucent Technologies.
The hardware prices in this quotation are planning estimates only and are not
necessarily reflective of the hardware platform price (Sun Microsystems Inc.)
that ATG will actually incur. It is expected that ATG will negotiate their own
firm price quotation for the Data Manager platform, including hardware staging
and support, with the hardware vendor of their choice.
PROPRIETARY - LUCENT TECHNOLOGIES
V.L. SEARS - MARCH 16, 1999
<PAGE> 117
ATG - LNM99NMY09ATG, Exhibit D-2 14
BILLDATS(R) Data Manager Proposal
August 24, 1998
Final Revision March 16, 1999
- --------------------------------------------------------------------------------
ATTACHMENT A - ESTIMATED HARDWARE CONFIGURATION
PROPOSED APPLICATION: BILLDATS(R) Data Manager Core
AMATPS input interface
Direct Link (standard FTP) output interface
SAMPLE HARDWARE PLATFORM: Sun Ultra 2
<TABLE>
<CAPTION>
- -----------------------------------------------------------------------------------------------------------
UNIT EXTENDED
PRODUCT LIST LIST
ITEM NUMBER DESCRIPTION QTY PRICE PRICE
- -----------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C>
1.0 A14-UEC2-9S-512CJ Sun Ultra Enterprise 2 1 [*] [*]
Model 2300 with two 300
MHz UltraSPARC processor,
2Mbyte UltraCache, 512-
Mbyte, 9.1-Gbyte 7200RPM 1-
inch high internal UltraSCSI
Disk, Internal SunCD 32
- -----------------------------------------------------------------------------------------------------------
2.0 X55229A Internal 9.1-Gbyte 7200 RPM 1 [*] [*]
UltraSCSI disk drive, 1" high
- -----------------------------------------------------------------------------------------------------------
3.0 X3655A TurboGXplus 8 bit color 1 [*] [*]
graphics card, cables &
documentation
- -----------------------------------------------------------------------------------------------------------
4.0 X7119A 19 inch color monitor 1 [*] [*]
- -----------------------------------------------------------------------------------------------------------
5.0 SG-XTAP4MM-011A 12-24GB 4 mm DDS-3 in a 1 [*] [*]
UniPack desktop enclosure
- -----------------------------------------------------------------------------------------------------------
6.0 X3856A Fast-Wide 68-68pin SCSI 1 [*] [*]
cable and GEO specific power
cord
- -----------------------------------------------------------------------------------------------------------
7.0 SOLMS-26oW9999 Solaris 2.6 Standard 1 [*] [*]
English Server Media Kit
- -----------------------------------------------------------------------------------------------------------
8.0 X3540A Type 5 Country Kits for U.S. 1 [*] [*]
and Canada Only UNIX
- -----------------------------------------------------------------------------------------------------------
9.0 VMR9S-260-R999 Sun StorEdge Volume 1 [*] [*]
Manager for Solaris SPARC
2.4/2.5/2.5.1/2.6 CD-ROM
media and hardcopy doc
- -----------------------------------------------------------------------------------------------------------
10.0 OVMR9S-260-W999 Sun StorEdge Volume 1 [*] [*]
Manager 2.6 for Solaris
SPARC, license for
workstations and workgroup
servers, RTU only
- -----------------------------------------------------------------------------------------------------------
11.0 LT1-U1-U2-STAGING 1 [*] [*]
- -----------------------------------------------------------------------------------------------------------
12.0 LT1-U1-U2-SUPPORT 1 [*] [*]
- -----------------------------------------------------------------------------------------------------------
13.0 SUN U.S. LIST TOTAL [*]
- -----------------------------------------------------------------------------------------------------------
14.0 ADAX X.25 board ADAX board plus licensing fees [*]
- -----------------------------------------------------------------------------------------------------------
15.0 HARDWARE TOTAL US LIST SUN + ADAX [*]
- -----------------------------------------------------------------------------------------------------------
</TABLE>
- --------------------
[*] Information redacted pursuant to a confidential treatment request
throughout this exhibit.
PROPRIETARY - LUCENT TECHNOLOGIES
V.L. SEARS - MARCH 16, 1999
<PAGE> 118
ATG - LNM99NMY09ATG, Exhibit D-2 15
BILLDATS(R) Data Manager Proposal
August 24, 1998
Final Revision March 16, 1999
- --------------------------------------------------------------------------------
Sun Hardware Configuration Notes:
- - Sun Ultra Enterprise 2 pricing shown here is U.S. List for planning
purposes. No discount has been applied. ATG should negotiate the discount
directly with the selected hardware vendor.
- - Approximately 5 days of data storage provided at 3.7 million records per
day. Data retention period can be increased by adding more disk to the
configuration. Retention period should be finalized prior to hardware
order. Disk space can also be impacted by utilization of the "N to 1" File
Merging optional (billable) feature available in BILLDATS(R) Data Manager
Release 5.5.
- - ATG must provide hardware staging and support through Sun Microsystems
(included with Sun suggested hardware configuration) or through the Value
Added Re-Seller of their choice.
ADAX BOARDS - X.25 PORTS
<TABLE>
<CAPTION>
- --------------------------------------------------------------------------------
PART COMCODE DESCRIPTION QTY UNIT EXTENDED
NUMBER PRICE PRICE
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C>
87-4045-28 407-802-263 V.35 ADAX board, X.25, 1 [*] [*]
2 port o/w cables
- --------------------------------------------------------------------------------
09-516404-400 407861749 Base License 1 [*] [*]
64 lcn
(One license per Data
Manager system)
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
09-516404-500 407861764 Board License 1 [*] [*]
64 lcn
(One per ADAX board)
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
EXTENDED TOTAL [*]
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
</TABLE>
ADAX NOTES:
- - One board provides 2 - X.25 ports; a second board could be added for
redundancy.
- - One year parts-only warranty; installation of replacement boards not
included in warranty.
- - 56K (V.35) board is pricing is provided; low speed boards are also
available.
- - Boards are ordered through Lucent Technologies.
- - ADAX X.25 boards are required in addition to the Sun Ultra 2 platform.
- --------------------
[*] Information redacted pursuant to a confidential treatment request
throughout this exhibit.
PROPRIETARY - LUCENT TECHNOLOGIES
V.L. SEARS - MARCH 16, 1999
<PAGE> 119
ATTACHMENT B:
BILLDATS(R) Data Manager G6.X
PRICING
FOR
ATG
Date of Issue: March 8, 1999/REVISED MARCH 16, 1999
Valid Until May 16, 1999 (good for 2 months)
- --------------------------------------------------------------------------------
THE FOLLOWING TABLE IDENTIFIES THE REQUIRED PARAMETERS USED TO PROVIDE THE DATA
MANAGER RECOMMENDED PRICES.
THE BILLDATS DATA MANAGER SOFTWARE RTU PRICED FOR 20 INTERFACE ELEMENTS (INPUT
NETWORK ELEMENT STREAMS + OUTPUT FEEDS) AND INCLUDE THE COST OF UPCOMING
GENERIC 6.X RELEASES (GA DATE: 7/1999). GENERIC 6 RELEASES (I.E., 6.0, 6.1,
6.2) WILL BE PRICED TO ATG WITH NO COST (FREE OF CHARGE) AS PART OF EXTENDED
MAINTENANCE WARRANTY CONTRACT.
- --------------------------------------------------------------------------------
BILLDATS DATA MANAGER SOLUTION PRICING PARAMETERS
<TABLE>
<CAPTION>
- -------------------------------------------------------------------------------------------------------
PARAMETERS REQUIREMENTS
- -------------------------------------------------------------------------------------------------------
<S> <C>
Total IEs: 20 Minimum configuration of 20IEs
- -------------------------------------------------------------------------------------------------------
Switch/NE Types 5ESS
switches
- -------------------------------------------------------------------------------------------------------
Downstream Applications Biller
- -------------------------------------------------------------------------------------------------------
Input Interface Type AMADNS/AMATPS input interface, and
Connect:Direct input
- -------------------------------------------------------------------------------------------------------
Output Interface Type Direct-Link (FTP Out), and Connect:Direct output
- -------------------------------------------------------------------------------------------------------
Requested Specialized Processing Modules Format, Filter, Search,
Browser
- -------------------------------------------------------------------------------------------------------
Requested Features Generic Tape reader
- -------------------------------------------------------------------------------------------------------
Training Data Manager Operation, Grid, format, search,
browser
- -------------------------------------------------------------------------------------------------------
Customized Developments None
- -------------------------------------------------------------------------------------------------------
Create customized GRID database None
- -------------------------------------------------------------------------------------------------------
Consulting Services None
- -------------------------------------------------------------------------------------------------------
Project Management Professional Services None
- -------------------------------------------------------------------------------------------------------
Format Conversion Turn-Key solution services None
- -------------------------------------------------------------------------------------------------------
Edit & Validation Turn-Key solution services None
- -------------------------------------------------------------------------------------------------------
Format Record Definition (beyond 80 hrs) None
- -------------------------------------------------------------------------------------------------------
Filter Record Definition (beyond 40 hrs) None
- -------------------------------------------------------------------------------------------------------
Disaster Recovery Feature None
- -------------------------------------------------------------------------------------------------------
Disaster Recovery Data Base setup services None
- -------------------------------------------------------------------------------------------------------
Number of Hardware Platforms/Systems 1 Billdats Data Manager System
- -------------------------------------------------------------------------------------------------------
</TABLE>
<PAGE> 120
BILLDATS
PRICING
BASE BILLDATS(R) DATA MANAGER SOFTWARE &
SERVICES
<TABLE>
<CAPTION>
- ------------------------------------------------------------------------------------------------------------------------------------
ITEM QUANTITY EXTENDED NOTES/ACTIONS
PRICE
- ------------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C>
BILLDATS Data Manager Core RTU 1 [*] - Core RTU for BILLDATS Data Manager Generic 6.X
Generic Release 5.5 is currently available - These
prices are relative to Generic 6.X. Generic Release 6.0
planned for 6/99 will be provided upon availability.
- Support for 20 interface elements
- Year 2000 compliance
- Generic Record Identification Definition - GRID
- Format & Filter Access to External Tables (G 6.0)
- Core RTU valid only for hardware platform specified
as part of purchase agreement.
- ------------------------------------------------------------------------------------------------------------------------------------
AMATPS Input Interface Type 1 [*] Included in Core RTU.
- ------------------------------------------------------------------------------------------------------------------------------------
AMADNS Input Interface Type 1 [*] Included in Core RTU.
- ------------------------------------------------------------------------------------------------------------------------------------
Direct-Connect Input Interface Type 1 [*]
- ------------------------------------------------------------------------------------------------------------------------------------
FTP Output Interface Type (Direct-Link-FTP Out) 1 [*] Included in Core RTU.
- ------------------------------------------------------------------------------------------------------------------------------------
Direct-Connect Output Interface Type 1 [*] The price does not include the required 3rd
Party Sterling Software cost.
- ------------------------------------------------------------------------------------------------------------------------------------
Output File Merger 1 [*]
- ------------------------------------------------------------------------------------------------------------------------------------
Filter Test Tool 1 [*]
- ------------------------------------------------------------------------------------------------------------------------------------
Grid & Format Conversion Turn-Key Solution Services 1 [*] [*] (Billdats-Kenan Integration)
Engineering services to provision record template
definitions, to consult on defining formatting
requirements and to provision formatting criteria as it
is described in Note 1.
(EXCLUDING SOFTWARE DEVELOPMENT)
- ------------------------------------------------------------------------------------------------------------------------------------
Tape Writer Module 1 [*] Included in Core RTU.
- ------------------------------------------------------------------------------------------------------------------------------------
</TABLE>
- --------------------
[*] Information redacted pursuant to a confidential treatment request
throughout this exhibit.
<PAGE> 121
<TABLE>
<CAPTION>
<S> <C> <C> <C>
Documentation 1 [*] Included in core RTU. One set of
Paper Documentation will be provided
in English per Site.
Informix S/W Data Manager Restricted License 1 [*] Included in Core RTU.
SPM Bundled Package (Format Production, 1 [*] _ Production Format includes Format
Filter Production, Search and browser definition services of 40 hours
Modules) (Mon-Fri 8am-5pm EST.) via phone
during warranty period.
_ Production Filter includes Filter
definition services of 80 hours
(Mon-Fri 8am-5pm EST.) via phone
during warranty period.
_ Production Search
_ Production Browser
Generic Tape Reader 1 [*] Supports any tape drive that the
vendors Operating System Interface/
drivers officially recognizes at the
Data Manager. Customer Configures
hardware platform to include Correct
tape device to meet sites requirements.
Warranty support (90 days) CORE RTU 1 [*] Included in Core RTU. Warranty support
(Warranty support starts with 90 Days of assumes customer has been through
Installation Date or After Signing Accept- standard BILLDATS training and does
ance Test Plan Whichever comes First) not include any on-site support or
associated travel and living expenses.
Software Integration Engineering Services 1 [*] Data Manager software installation and
(includes on-site software load and turn-up services; does not include
start-up support, turn-up support for hardware and operating system
first switch interface of each type, installation services.
product support during customer acceptance Assumes that hardware is up and
testing). Maximum 1 staff week of deploy- running properly with operating system
ment resource per s installed prior to Data Manager
installation
Training Services 1 [*] _ Data Manager Operation Training
(OS7733A) 2 days
_ Generic Record Identification (GRID)
Training (OS7733C) 1 day
- Production Filter (OS7733D)
Training - 1 day
_ Production Browser Training
(OS7733E) - 1/2 day
_ Production Format Training
(OS7733G) - 2 days
_ Production Search Training
(OS7733G) - 1 day
_ Conducted weekdays between 8am-5pm
_ Price covers 6 students. Each
additional student is [*] per student
per course per day. Maximum class size
is 12.
_ Training will be provided in Customer
facilities.
_ Excludes Lucent's travel and living
expenses.
Nine (9) months additional Extended 1 [*] Additional product team support costs
Warranty support - Gold for 9 months extended warranty. This
is the Gold extended warranty at [*]
of software offered price, includes
40-hour (5 Days by 8 Hours M-F)
coverage.
</TABLE>
- --------------------
[*] Information redacted pursuant to a confidential treatment request
throughout this exhibit.
<PAGE> 122
<TABLE>
- --------------------------------------------------------------------------------
<S> <C> <C>
Sub-Total: n/a [*]
- --------------------------------------------------------------------------------
</TABLE>
NOTE 1: GRID & FORMAT CONVERSION TURN-KEY SOLUTION SERVICES
PROVISIONING MEDIATION CRITERIA
Provisioning of mediation criteria mostly involves defining input and output
record definition templates and logic to convert an input record to a record
format. This effort can be performed by the customer through the Data Manager's
application GUI or it can be contracted through Lucent. If the customer decides
to undertake this effort, Lucent will provide 80 hours of consultation.
If the customer wants to contract the work through Lucent, a flat fee will be
charged to provide this effort. Lucent's provisioning effort will be bounded by
the following:
- - Lucent will provide all record template definitions for all Lucent network
elements.
- - The customer must obtain record definitions from other vendors and provide
those to Lucent. Lucent will then provision record template definitions for
other vendors' network elements.
- - Lucent will work with the customer to define requirements for output records
and the criteria to map an input record to an output record format. The
customer must engage other vendors to participate in this task if necessary.
- - Lucent will provision and test all format mapping criteria. It is the
customer's responsibility to provide data to test the record template
definitions and format conversions. The completely test the format
conversions, the output data produced by the Data Manager must be processed
by the respective downstream application.
- - Lucent will be engaged in this activity until the customer accepts the Data
Manager system or live data is passing thru the Data Manager. After this
time, additional engineering services can be contracted through Lucent at
daily rate [*]
- - Lucent's effort in this area only includes engineering services to provision
record template definitions, to consult on defining formatting requirements
and to provision formatting criteria. This effort does not include any
software development activity.
- --------------------
[*] Information redacted pursuant to a confidential treatment request
throughout this exhibit.
<PAGE> 123
STATEMENT OF WORK FOR PHASE ONE OPERATIONS PLANNING AND IMPLEMENTATION
- -------------------------------------------------------------------------------
Pricing and other critical elements of this Statement of Work ("SOW") are based
upon the binding, non-conflicting terms and conditions of the Letter of Intent
("LOI") between Advanced TelCom Group, Inc. ("ATG") and Lucent Technologies Inc.
("Lucent"). Amending the "Services" definition in Exhibit C, "General Terms and
Conditions" to include additional Services as stated herein and extending said
LOI until the earlier of written termination by either party in accordance with
Section 3.3 of the LOI or execution of the definitive agreement described
therein. Lucent, acting through its Global Services Provider Group, will perform
and ATG will procure the operations planning Services described in this SOW. By
ordering or using these Services from Lucent, including changes or additional
orders, ATG agrees to be bound to the terms of this SOW. Lucent reserves the
ability to amend its pricing or other conditions if changes to the attached SOW
make such amendment advisable. Please reference this SOW by title and number on
any order or correspondence to Lucent.
SCOPE OF WORK
- -------------------------------------------------------------------------------
In order to meet ATG's operational milestones and provide Services to ATG as
described in Section 3.6, "Network Operations services" of the LOI, Lucent's
Global Network Operations team, a division of the Network Reliability Center
("NRC"), will perform Phase One of the Operations Planning and Implementation
Services prior to execution of the definitive agreement. In consideration for
the pricing tendered herein, ATG agrees to procure and the NRC Global Network
Operations team agrees to provide such Services to ATG. If either party
terminates the LOI in accordance with Section 3.3, ATG agrees to pay Lucent,
immediately upon termination, for all unpaid Services performed prior to
termination, including all reasonable travel and living expenses incurred by
Lucent in providing these Services.
BUSINESS OBJECTIVE ANALYSIS (BOA) AND PRESENT METHOD OF OPERATIONS ANALYSIS
(PMO) OVERVIEW
- -------------------------------------------------------------------------------
During this phase, the NRC will work with ATG to establish a specific Network
Operations Plan addressing the "full spectrum" of operations components related
to the NRC's service offerings, including personnel, organizations, processes,
and telecommunications technology, to effectively perform activities related to
developing, deploying and managing ATG's telephone network on an outsourced
basis. These activities include network monitoring and surveillance, service
order entry, service order processing, service and inventory (facilities and
equipment) provisioning, service activation, trouble management (trouble
ticketing and customer care) and inventory management (end-to-end tracking of
equipment, facilities, and telephone numbers).
Lucent's Global Network Operations team will apply its proven Operations
Planning Methodology to produce a Business Objective Analysis (BOA) and Present
Method of Operations Analysis (PMO). At the conclusion of these steps, Lucent's
Global Network Operations will provide a written estimate of the work needed to
complete the Future Methods of Operation (FMO) phase of the project.
BUSINESS OBJECTIVE ANALYSIS
Lucent's Global Network Operations team will examine ATG's business strategy,
focusing on the following areas:
*Identification of business goals
*Identification of business objectives
*Determination of critical success factors
Lucent Technologies and Advanced TelCom Group -- Confidential and Proprietary
Page 1
<PAGE> 124
- - Identification of business functions and processes
- - Identification of major unaddressed critical business issues
- - Identification of key organizational metrics
Lucent's Global Network Operations will use a number of techniques to gather
information for this project:
- - Examining existing documents such as business cases and strategic plans (need
to list documents used for this purpose)
- - Interviewing key executives of ATG
- - Interviewing key managers of ATG
- - Interviewing key third party consultants of ATG
- - Working with the Lucent customer team dedicated to ATG
- - Working with the American Management Systems team dedicated to ATG
Lucent's Global Network Operations will analyze the information gathered,
produce models and document this analysis.
PRESENT METHOD OF OPERATIONS
Lucent's Global Network Operations team will document a number of processes to
implement during the operations of resale and initial ISP services of ATG's
business. These processes are:
- - Service Order Entry, Processing, Confirmation, Activation, Tracking,
Fulfillment
- - Provisioning (includes "all" required ATG and third-party interfaces and
systems)
- - Customer Care (CSR viewpoint and NRC viewpoint)
- - Trouble Management (trouble ticketing, trouble identification, trouble
resolution)
- - Billing Operations
- - Inventory Management (ISP "packet switching" facilities, equipment and IP
addressing), if applicable
- - Enterprise Network Interconnection (ATG sites, NRC site, AMS site)
In addition, Lucent's Global Network Operations team will produce Methods and
Procedures for the following functions:
- - Trouble Management
- - Service Order Function (New Service, Moves, Changes, Disconnects)
Lucent's Global Network Operations team will also produce some recommendations
on how to improve the current processes.
PHASE ONE DELIVERABLES
- --------------------------------------------------------------------------------
Lucent's Global Network Operations will produce the following SOW deliverables:
1. A BUSINESS OBJECTIVES ANALYSIS DOCUMENT CONTAINING THE FOLLOWING INFORMATION:
- Executive Summary
- Value Chain Analysis
- Business Factor Analysis
- Goals and Objectives
- Functions
Lucent Technologies and Advanced TelCom Group -- Confidential and Proprietary
Page 2
<PAGE> 125
- Critical Success Factors (CSFs)
- Problems
- Competitive Environmental Analysis
- Strengths, Weaknesses, Opportunities and Threats
- Competitive Forces Analysis
- Strategy Analysis
- Major unaddressed critical business issues
- Key organizational metrics
2. A PRESENT METHOD OF OPERATIONS DOCUMENT CONTAINING THE FOLLOWING INFORMATION:
- Process Flows
- Process Descriptions
3. METHODS AND PROCEDURES
- Trouble Management
- Service Order Function (New Service, Moves, Changes, and Disconnects).
4. RECOMMENDATIONS FOR PROCESS IMPROVEMENT
- Organizational structure in place versus required
- Organizational roles and responsibilities in place versus required
SCHEDULE AND FEES
- --------------------------------------------------------------------------------
Lucent's Global Network Operations team plans to complete Phase One before
March 31, 1999. Upon completion of Phase One, ATG shall promptly remit payment
to Lucent in the amount of [*], after which Lucent shall begin the work effort
stated in Section 3.6, "Network Operations Services" of the LOI for Phase Two.
Changes to the SOW requested by ATG shall be considered change orders to be
billed as incurred.
Lucent's Global Network Operations team recognizes the criticality of this
endeavor to ATG and stands ready to help ensure the overall success of this
project. Please indicate ATG's acceptance of this SOW by sending an e-mail
message to Neil Gembrin at [email protected] stating your acceptance or by
signing below and faxing this SOW to (925) 468-3509. If you have any questions
regarding this SOW, please call Rick Cavazos at (303) 368-2575, the Operations
Planning Director for Lucent's Global Network Operations team.
Accepted and concurred by:
LUCENT TECHNOLOGIES INC. ADVANCED TELCOM GROUP, INC.
James P. Goodman Curt Wheeling
- ----------------------------------- ----------------------------------------
PRINTED PRINTED
/s/ JAMES P. GOODMAN /s/ CURT WHEELING
- ----------------------------------- ----------------------------------------
SIGNED SIGNED
Sales VP Sr. VP Marketing
- ----------------------------------- ----------------------------------------
TITLE TITLE
3/22/99 3/18/99
- ----------------------------------- ----------------------------------------
DATE DATE
- --------------------
[*] Information redacted pursuant to a confidential treatment request
throughout this exhibit.
Lucent Technologies and Advanced TelCom Group -- Confidential and Proprietary
Page 3
<PAGE> 126
EXHIBIT E TO THE
GENERAL SUPPLY AGREEMENT
- --------------------------------------------------------------------------------
STATEMENT OF WORK FOR PHASE ONE, "OPERATIONS PLANNING
& IMPLEMENTATION" NO. NRC-990210-ATG-A1
Pricing and other critical elements of this Statement of Work ("SOW") are based
upon the binding, non-conflicting terms and conditions of the Letter of Intent
("LOI") between Advanced Telcom group ("ATG") and Lucent Technologies Inc.
("Lucent"), amending the "Services" definition in Exhibit C, "General Terms and
Conditions" to include additional Services as stated herein and extending said
LOI until the earlier of written termination by either party in accordance with
Section 3.3 of the LOI or execution of the definitive agreement described
therein. Lucent, acting through its Global Services Provider Group, will
perform and ATG will procure the operations planning Services described in this
SOW. By ordering or using these Services from Lucent, including changes or
additional orders, ATG agrees to be bound to the terms of this SOW. Lucent
reserves the ability to amend its pricing or other conditions if changes to the
attached SOW make such amendment advisable. Please reference this SOW by title
and number on any order or correspondence to Lucent.
SCOPE OF WORK
- --------------------------------------------------------------------------------
1. Network Performance Services.
Beginning immediately upon acceptance of this proposal, NRC will provide
consulting services for the installed DMS 250 and its associated network.
These services will analyze current traffic loads and trunk capacities to
make recommendations for short- and long-term network routing and planning.
This work would be provided on an hourly fee basis.
FEES
- --------------------------------------------------------------------------------
2. Price per hour [*] per hour.
Lucent's Global Network Operations team recognizes the criticality of this
endeavor to ATG and stands ready to help ensure the overall success of this
project. Please indicate ATG's acceptance of this SOW by sending an e-mail
message to Neil Gembrin at [email protected] stating your acceptance or by
signing below and faxing this SOW to 925 468 3509.
Accepted and concurred by:
LUCENT TECHNOLOGIES INC. ADVANCED TELCOM GROUP
By: J.P. Goodman By: Luis Aguilar
-------------------------- --------------------------
PRINTED PRINTED
/s/ J.P. GOODMAN /s/ LUIS AGUILAR
-------------------------- --------------------------
SIGNED SIGNED
Sales VP Executive Director
-------------------------- --------------------------
TITLE TITLE
6/28/99 6-22-99
-------------------------- --------------------------
DATE DATE
LUCENT TECHNOLOGIES / ATG - CONFIDENTIAL AND PROPRIETARY
PAGE 1
<PAGE> 127
LUCENT TECHNOLOGIES
GLOBAL SERVICE PROVIDER
NETWORK OPERATIONS
STATEMENT OF WORK
FOR
ADVANCED TELCOM GROUP, INC.
[GRAPHIC]
<PAGE> 128
GLOBAL SERVICE PROVIDERS NETWORK OPERATIONS
TABLE OF CONTENTS
<TABLE>
<S> <C> <C>
1 STATEMENT OF WORK........................................................ 1
2 PHASE TWO: OPERATIONS PLAN OVERVIEW...................................... 1
2.1 INTERIM ORDER MANAGEMENT............................................ 2
2.2 INTERMEDIATE METHOD OF OPERATIONS (IMO)............................. 2
3 CHANGE CONTROL PROCESS................................................... 2
4 OPERATIONS PLANNING APPROACH AND SCOPE................................... 3
5 PHASE TWO: OPERATIONS PLAN DELIVERABLES.................................. 4
5.1 INTERIM ORDER MANAGEMENT............................................ 4
5.2 INTERMEDIATE METHOD OF OPERATIONS................................... 4
6 SCHEDULE AND FEES........................................................ 5
6.1 ATTACHMENT A: CHANGE CONTROL FORM................................... 6
</TABLE>
<PAGE> 129
STATEMENT OF WORK FOR PHASE TWO, "OPERATIONS
PLANNING"
SOW NO. NRC-990517-ATG-A1
Pricing and other critical elements of Statements of Work provided by Lucent to
ATG are based upon the binding, non-conflicting terms and conditions of Letter
of Intent ("LOI") between Advanced Telecom Group, Inc. ("ATG") and Lucent
Technologies Inc. ("Lucent"). This LOI is incorporated herein by reference and
shall be extended until the earlier of written termination by either party in
accordance with Section 3.3 of the LOI or execution of the definitive agreement
described therein. If at the time such definitive agreement is executed
Services under Statements of work are ongoing, the definitive agreement shall
supersede any non-conflicting terms and conditions for such Services. Lucent,
acting through its Global Services Provider Group, will perform and ATG will
procure the Services described in this Statement of Work ("SOW"). By ordering
or using these Services from Lucent, including changes or additional orders,
ATG agrees to be bound to the terms of this SOW. Lucent reserves the ability to
make amendments prior to execution of this SOW, if changes in scope make such
amendments advisable and as agreed by ATG. During the SOW term, changes to this
SOW which are generally available to other Lucent customers will only be made
through the Change Control Process as stated in Section 3, unless otherwise
mutually agreed in writing. Please reference the applicable SOW by title and
number on any order or correspondence to Lucent.
1 Statement of Work
- --------------------------------------------------------------------------------
In order to meet ATG's operational milestones and provide Services to ATG as
described in Section 3.6, "Network Operations Services" of the LOI, Lucent will
perform Phase Two of the Operations Planning Services at its Network
Reliability Center located in Aurora, Colorado ("NRC"). In consideration for
the pricing set forth herein, ATG agrees to procure and Lucent agrees to provide
Phase Two of he Operations Planning Services to ATG. If either party terminates
the LOI in accordance with Section 3.3, ATG agree to pay Lucent, immediately
upon termination, for all unpaid Services performed prior to termination,
including all reasonable travel and living expenses incurred by Lucent in
providing these Services.
This SOW supersedes both the deliverables and remaining unspent dollars
identified in Exhibit G Section 3 "Operations Planning & Implementation"
Sub-Section 3.3 "PHASE TWO: FUTURE METHOD OF OPERATIONS." While this SOW has
attempted to capture all of the relevant deliverables for the IMO, there may
have been an unintentional oversight of required analysis that will not be
deemed a Change order. Such oversight shall be treated as a Change under the
Change Control Process described in Section 3 to determine whether this Change
is an oversight, a Change to an existing order, or an out-of-scope request to
be quoted prior to rendering the service.
2 Phase Two: Operations Plan Overview
- --------------------------------------------------------------------------------
Lucent will provide Operations Plans for Interim Order Management and for an
Intermediate Method of Operations (IMO) analysis to ATG as described below.
PAGE 1
<PAGE> 130
2.1 Interim Order Management
- --------------------------------------------------------------------------------
Lucent will develop an Interim Order Management Function capable of completing
a service order and performing the work necessary to put an end-user customer
into service, subject to the completeness and validity of the customer order
data provided by ATG. Interim Order Management will include order management
functionality for the following services:
- Ordering unbundled loops from the ILEC
- Local Number Portability
- 5ESS(R)-2000 switch and digital cross connect provisioning
- Provisioning of Internet/xDSL services
- E911 interface
- LIDB interface
- Providing order status back to the Order Entry system
- Notification of order completion to initiate billing
Pending general availability of a mechanized order management system through
the NRC, Lucent will manage orders using a predominately manual process
described herein as Interim Order Management.
ATG plans to start full facilities-based service on July 1, 1999. Lucent will
develop an Operations Plan for Interim Order Management to meet ATG's business
needs for the introduction of its facilities-based service by July 1, 1999, or
as otherwise mutually agreed to in writing. Changes and enhancements to these
processes will be quoted separately from this SOW and are not included in the
price quoted herein.
2.2 Intermediate Method of Operations (IMO)
- --------------------------------------------------------------------------------
The IMO will document processes in the initial state of the facilities-based
model. Lucent will produce methods and procedures and a set of process flows
for the following model features designed to meet ATG's needs for the
introduction of its facilities-based service by July 1, 1999.
- Service Order and Provisioning
- Provisioning
- Inventory Management
- Customer Care and Trouble Management
- Trouble Management
- Dispatch Management
- Network Operations / Performance
- Interfaces to other processes
Changes and enhancements to the processes will be quoted separately from this
SOW and are not included in the price quoted herein.
3 Change Control Process
- --------------------------------------------------------------------------------
Changes requested by either party shall be submitted to the receiving party on
Attachment A, "Change Control Form." Changes by Customer shall be processed
pursuant to Lucent's quotation. All changes shanges shall evaluated and
responded to on a date mutually agreed by the parties.
PAGE 2
<PAGE> 131
"Change(s)" means any new process, modification, addition, and/or other change
to Services, Service-related documentation cited hereunder, and any associated
equipment on orders.
"Change Control Process" is the process used to effectively manage changes to
the technical scope (such as upscopes), schedule and cost of the Services
provided hereunder.
Changes to existing orders shall be treated as new orders and shall be
submitted to the following address:
(Primary Contact)
-----------------
Neil Gembrin
Offer Management Representative for the ATG Account
Lucent Technologies, Inc.
4637 Chabot Drive, Suite 213
Pleasanton, CA 94588
Facsimile: 925-468-3509
(Secondary Contact)
-------------------
Shari Rogers
Operations Planning Manager
Lucent Technologies, Inc.
11900 East Cornell Avenue
Room MN02
Aurora, Colorado 80014
Facsimile: (303) 368-2388 or (303) 368-2464
Each of the parties shall be entitled to propose Changes to this SOW by
utilizing the Change Control Process. Proposed Changes shall be made in writing
and submitted to the other party. Such proposal shall document the
justifications for the Change. If the receiving party requires additional
information to consider the proposal, such information shall be requested
within (5) five business days of receiving the proposal. The party initiating
the proposed Changes shall respond to the request for additional information
within (5) five business days of receiving the request for additional
information. If the receiving party has sufficient information, the receiving
party shall respond in writing to the furnishing party within five (5) business
days of receiving such proposed Changes.
4 Operations Planning Approach and Scope
- --------------------------------------------------------------------------------
Lucent will apply its Operations Planning Methodology to produce an Operations
Plan Phase Two. Lucent will use a number of techniques to gather information
for this project including:
- Examining existing documents such as the BOA, PMO and M&Ps
- Meeting with operational process owners at ATG
- Interfacing with AMS, Quintessent and DCI
- Interfacing with SCC Communications, Illuminet, Octel and others as
required
- Working with the Lucent Customer Team
- Working closely with the NRC in Denver
- Meeting with operational process owners at ATG
- Working with the other Lucent teams engaged on this project
Lucent will analyze the information gathered, produce models and document their
analysis.
PAGE 3
<PAGE> 132
5 Phase Two: Operations Plan Deliverables
- --------------------------------------------------------------------------------
Lucent will provide Interim Order Management and IMO documentation as identified
in the below Sections 5.1, "Interim Order Management" and 5.2 "Intermediate
Method of Operations":
5.1 Interim Order Management
- --------------------------------------------------------------------------------
The Operations Plan documenting Interim Order Management shall contain the
following information:
o Executive Summary
o Introduction
- References
- Assumptions
- Data Collection
- Services Offered
- Organizational Structure
_ IT Infrastructure/Architecture -- physical and logical
elements
o High-Level Process Flows
- Description
- Performance Characteristics
- Assumptions
o Low-Level Process Flows
- Process Flows
- Descriptions
o Detailed description, function, and interaction of external
interfaces to the Lucent NRC
o Analysis of external interface agreements
o Issues
o Operational model for ATG/Lucent NRC/AMS Enterprise
5.2 Intermediate Method of Operations
- --------------------------------------------------------------------------------
1. IMO documentation shall contain the following information
o Executive Summary
o Introduction
- References
- Assumptions
- Data Collection
- Services Offered
- Organizational Structure
- IT Infrastructure
o Process Flows (for the processes described below in item #2
below)
- Process Flows
- Descriptions
o Interfaces to the Lucent NRC
o Other Interfaces
o Issues
PAGE 4
<PAGE> 133
2. Methods and Procedures for ATG for the following processes at the same level
as have been produced for the Resale phase ATG's business:
o Service Order and Provisioning
- Provisioning
- Inventory Management
o Customer Care and Trouble Management
- Trouble Management
- Dispatch Management
o Network Operations / Performance
o Interfaces to other processes
3. Lucent will provide support for the implementation of these processes until
July 31, 1999.
6 Schedule and Fees
- --------------------------------------------------------------------------------
Lucent plans to complete Phase Two, "Operations Plan" before July 31, 1999,
assuming a March 22, 1999 start date. Upon completion of the Phase Two
Operations Plans, ATG shall promptly remit payment to Lucent as detailed below.
This price assumes that ATG will start the facilities-based phase of their
business on July 1, 1999. If this date is delayed, then the cost and schedule
described below may change. In addition, changes to the SOW requested by ATG
shall be considered change orders to be billed as incurred.
<TABLE>
<CAPTION>
Service Price
------- -----
<S> <C>
Interim Order Management Operations Plan [*]
Intermediate Method of Operations Plan [*]
</TABLE>
Please indicate ATG's acceptance of this SOW by sending an e-mail message to the
Lucent Offer Manager, Neil Gembrin, at [email protected] stating your
acceptance or by signing below and faxing this SOW to (925) 468-3509. If you
have any questions regarding this SOW, please call the Lucent Operations
Planning Manager, Shari Rogers, at (303) 368-2055.
Accepted and concurred by:
LUCENT TECHNOLOGIES INC. ADVANCED TELCOM GROUP, INC.
By: S. Tim Gropp By: Michael Black
- ------------------------------- --------------------------------
PRINTED PRINTED
/s/ S. TIM GROPP /s/ MICHAEL BLACK
- ------------------------------- --------------------------------
SIGNED SIGNED
CT VP -- ESP WEST SVP
- ------------------------------- --------------------------------
TITLE TITLE
7/29/99 6/22/99
- ------------------------------- --------------------------------
DATE DATE
- -----------------------
[*] Information redacted pursuant to a confidential treatment request
throughout this exhibit.
PAGE 5
<PAGE> 134
6.1 ATTACHMENT A: CHANGE CONTROL FORM
CUSTOMER SECTION
Customer Name: _______________________ Customer PO#: _____________________
Requester Name: _______________________ Date of Request: _____________________
Requester Title: _______________________
Description Of Change: _________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
Reason for Change: _____________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
Requested Implementation Date: ______________
Reference SOW Title and Number: _________________
LUCENT TECHNOLOGIES SECTION
Lucent Technologies Order #: _____________________ Date: ___________________
Change Impact:
Scope: ______________________________________________________________________
______________________________________________________________________
______________________________________________________________________
Schedule: ______________________________________________________________________
______________________________________________________________________
______________________________________________________________________
Revised Price: ___________________________________
Lucent Representative: _______________________________________
APPROVAL SECTION
Customer: _______________________ Lucent Technologies: ____________________
Name: _______________________ Name: __________________________
Signature: _______________________ Signature: __________________________
Date: _______________________ Date: __________________________
THE ABOVE PRICES ARE GOOD FOR _____ DAYS AFTER ___/___/_____.
<PAGE> 135
EXHIBIT F
TO THE
GENERAL SUPPLY AGREEMENT
CHECKMATE DIRECT AND INDIRECT ELEMENTS
CHECKMATE DIRECT ELEMENTS:
CHECKMATE Direct - are elements owned by Lucent. The CHECKMATE Direct
elements to be covered by this MDF are listed below and are effective upon
execution of the General Agreement.
CODE: CHECKMATE ELEMENT/DESCRIPTION QTY VALUE
- ----- ----------------------------- --- -----
REFER TO THE CHECKMATE PROPOSAL MAY 29, 1998 ATTACHED HERETO.
TOTAL CHECKMATE DIRECT VALUE PROVIDED _______________________ $________.
In the event Customer elects to obtain additional CHECKMATE Direct
elements as set forth in the aforementioned Exhibit C to the General Agreement,
the value of these additional elements shall also be debited against Customer's
MDF balance.
Changes to the CHECKMATE DIRECT elements (e.g., quantities, items) shall
require the written approval of the Lucent Technologies Customer Team, the
CHECKMATE Marketing Team and the Customer.
The CHECKMATE Marketing Team will provide the selected element(s) to the
customer upon receipt of an approved Purchase Order from the Customer.
CHECKMATE INDIRECT ELEMENTS
CHECKMATE Indirect - These are CHECKMATE elements that are supplied by a
CHECKMATE consortium of vendor partners. The CHECKMATE indirect elements are
covered by this MDF are listed below. The respective CHECKMATE vendor partner
upon their receipt of an approved purchase order will provide the selected
element(s) to the Customer. The respective CHECKMATE vendor partner will bill
the customer, and payment will be made directly by the Customer to the CHECKMATE
vendor partner. Upon pre-approval by Lucent the Customer shall apply to Lucent
for credit toward future billing. When the Customer's MDF has accrued sufficient
marketing credits to cover the paid invoice(s), the Lucent MDF administrator
shall issue a Credit Certificate Form to the Customer which shall be applied
toward future billing.
Within the CHECKMATE MDF program, the following CHECKMATE Indirect
elements will be provided to Customer as set forth in the Addendum Section
entitled, "CHECKMATE Marketing and Business Solutions Program - Marketing
Development Fund Allowance"
<PAGE> 136
The cost for the following CHECKMATE Indirect Elements shall be covered
from the available balance in Customer's MDF. Pre-approval is required as stated
herein.
Listed below is a list of the applicable CHECKMATE Indirect Elements:
CODE: Checkmate Element:
- ----- ------------------
No Indirect Elements Apply
Any CHECKMATE Indirect Elements must be purchased directly by Customer from the
respective CHECKMATE vendor partner.
<PAGE> 137
CHECKMATE PROPOSAL MAY 29, 1998
<TABLE>
<CAPTION>
ITEM VALUE CLEC CLEC TOTAL
# INDIVIDUAL CHECKMATE ELEMENTS PROPOSITION PRICING QTY PRICE
- ---- ------------------------------------ ----------- ------------- --------- -----------
<S> <C> <C> <C> <C> <C>
201 DUN & BRADSTREET & PNR CUSTOMER PROSPECT RECORDS [*] [*] 650,000 [*]
Includes the following PNR Models:
1. Estimated Number of Access Lines by Building
2. Estimated Number of Access Lines by Customer
3. Estimated Total Toll Bill used by a Single Business
4. Estimated Intralata Toll Minutes used by a Single Business
5. Percent of Probability of PBX or CTX by Business
MINIMUM ORDER OF $500.00 or 1666 RECORDS
202 PRECISION MAPPING PROGRAM
Mapping Tool (without BLR Boundry Files) First seat [*] [*] 1 [*]
Mapping Tool (each additional seat) [*] 19 [*]
**** Each additional MSA [*] 0 [*]
**** Each additional STATE [*] 0 [*]
**** Six (6) States [*] 0 [*]
**** National [*] 1.3 [*]
203 Options:
Redistricting Module [*] 1 [*]
Training on site 2nd day plus (plus T&L) [*] 0 [*]
Wire Center/Tandem Module [*] 20 [*]
GDT Wire Center Premium State [*] 0 [*]
Region Six States [*] 0 [*]
United States [*] 0 [*]
GDT Wire Center Basic State [*] 0 [*]
Region Six States [*] 0 [*]
United States [*] 1.3 [*]
204 Run Time version of Map Info [*] 19 [*]
Map Info Professional [*] 1 [*]
LOCAL EXCHANGE ROUTING GUIDE (LERG) - LICENSE FEE [*] 1 [*]
TELEMARKETING, LEAD QUALIFICATION & GENERATION [*] [*] 0 [*]
203A Leads faxed directly to AE or Sales Office (Per Location) [*] 0 [*]
301 MULTI-MEDIA CUSTOMER PRESENTATION PACKAGE (CORP LICENSE) [*] [*] 0 [*]
-Includes Tool-Kit, IAP Services Guide & Forms & 20 CD's
Additional CD's [*] 0 [*]
302 MULTI-MEDIA CUSTOMER PRESENTATION SYSTEM (CORP LICENSE) [*] [*] 1 [*]
-Corporate License includes 20 CD's
Additional CD's [*] 30 [*]
303 SALES TOOL-KIT (CORP LICENSE) [*] [*] 0 [*]
-Includes Tool-Kit, (AP Services Guide & Forms & 20 CD's
Additional CD's [*] 0 [*]
304 SALES PROCESS SYSTEM GUIDES (CORP LICENSE) [*] [*] 1 [*]
-Includes AE, Sales Manager & Branch Manager Guides
and 20 CD's
Additional CD's [*] 30 [*]
401 INTRODUCTION TO TELECOM FOR SALES PERSONNEL (CBI) [*] [*] 1 [*]
-Customer License (Includes 20 CD's)
-each additional CD [*] 30 [*]
-Inclusion of course Item #402 [*] 1 [*]
402 INTRODUCTION TO TELECOM FOR SALES PERSONNEL SELF-PACED [*] [*] 0 [*]
-Student Guide w/Power/Point Presentation
-Customer License (Includes 20 Guides and
and Diskettes
-each additional Guide [*] 0 [*]
</TABLE>
Page 1 of 3
<PAGE> 138
CHECKMATE PROPOSAL MAY 29, 1998
<TABLE>
<CAPTION>
CLEC
VALUE CLEC TOTAL
ITEM PROPOSITION PRICING QTY PRICE
- ---- ----------- ------- --- -----
<S> <C> <C> <C> <C>
E INDIVIDUAL CHECKMATE ELEMENTS
- each additional Diskette set [*] 0 [*]
- inclusion of course item ? 401 [*] 0 [*]
403 INTRODUCTION TO CENTREX FEATURES AND EQUIPMENT & TELEPHONE [*] [*] 0 [*]
Systems & How They Work (self-paced student guide each topic)
- Customer License (includes 20 sets of Guides)
- each additional set of Guides [*] 0 [*]
404 CENTREX APPLICATIONS (INSTRUCTOR LED TRAINING) [*] [*] 0 [*]
- Includes Delivery Fee & 10 Student Guides [*]
- Guide books (one per student) OVER 10 [*] 0 [*]
405 INTEGRATED ACCESS PLATFORM (CBT) [*] [*] 1 [*]
- Customer License (includes 20 CD's)
- each additional CD [*] 30 [*]
IAP Strategy to Market and Use of its US Patent [*] [*] [*]
406 MARKETPLACE (CBT) [*] [*] 1 [*]
- Customer License (includes 20 CD's)
- each additional CD [*] 30 [*]
501 INTEGRATED ACCESS PLATFORM TRAINING [*] [*] 20 [*]
(2 days - instructor led)
- Per session
(includes travel, lodging, & all materials)
502 INTEGRATED ACCESS PLATFORM - NEW CITY ROLLOUT [*] [*] 20 [*]
(3 days - instructor led)
- Per session
(includes travel, lodging, & all materials)
503 ISDN CONFIGURATOR [*] [*] 1 [*]
- Includes Customer License, 10 Disks & Job Aids
- Additional Job Aids (each) [*] 0 [*]
504 LEXICAT (1-19 SEATS) [*] [*] 0 [*]
504A LAN Based [*] 0 [*]
504M Maintenance Updates [*] 0 [*]
20 and over [*] [*] 100 [*]
600 CHECKMATE MARKETING CONSULTING SERVICES
- negotiated at the project level (per day) [*] [*] 0 [*]
601 CHECKMATE MARKETING MISCELLANEOUS SERVICES [*] [*] [*]
</TABLE>
Page 2 of 3
- --------------------
[*] Information redacted pursuant to a confidential treatment request
throughout this exhibit.
<PAGE> 139
CHECKMATE PROPOSAL MAY 29, 1998
<TABLE>
<CAPTION>
CLEC
VALUE CLEC TOTAL
ITEM PROPOSITION PRICING QTY PRICE
- ---- ----------- ------- --- -----
<S> <C> <C> <C> <C>
# INDIVIDUAL CHECKMATE ELEMENTS
- negotiated at the project level (per day)
TOTALS [*] [*]
============= ===========
701
702
703
</TABLE>
Page 3 of 3
- --------------------
[*] Information redacted pursuant to a confidential treatment request
throughout this exhibit.
<PAGE> 140
EXHIBIT G
- -------------------------------------------------------------------------------
LUCENT TECHNOLOGIES
Global Service Provider
Network Operations
Statement of Work
for
Advanced TelCom Group, Inc.
[PHOTO]
- -------------------------------------------------------------------------------
Exhibit G
<PAGE> 141
EXHIBIT G
NRC SERVICE OFFERINGS
Table of Contents
<TABLE>
<CAPTION>
Section Page
- ------- ----
<S> <C> <C>
1 SCOPE OF WORK...................................................... 1
2 NETWORK OPERATIONS SERVICES SUMMARY................................ 2
3 OPERATIONS PLANNING & IMPLEMENTATION............................... 6
3.1 SCOPE OF WORK................................................... 6
*3.2 PHASE ONE: A BUSINESS OBJECTIVE ANALYSIS (ALSO "BOA") AND
PRESENT METHOD OF OPERATIONS ANALYSIS (ALSO "PMO") OVERVIEW............ 6
3.2.1 Business Objective Analysis for Phase One.................... 7
3.2.2 Present Method of Operations for Phase One................... 7
3.2.3 Phase One Deliverables....................................... 8
3.3 PHASE TWO: FUTURE METHOD OF OPERATIONS.......................... 9
3.4 OPERATIONS PLANNING AND IMPLEMENTATION PRICING.................. 10
4 NETWORK INTEGRATION AND CUTOVER.................................... 11
4.1 NETWORK INTEGRATION CUSTOMER PREREQUISITES...................... 11
4.1.1 Facility Orders.............................................. 11
4.1.2 SS7 Links Ordered And Installed.............................. 11
4.1.3 Office Records............................................... 12
4.1.4 Work Area And Telecommunications............................. 12
4.1.5 Contact Information For Other Service Providers.............. 12
4.1.6 Alarm Assignments............................................ 12
4.1.7 Call Flow Diagrams........................................... 13
4.1.8 Transmission Test Equipment Provided by the Customer......... 13
4.2 SERVICE DELIVERY MANAGEMENT..................................... 13
4.3 NETWORK ACCEPTANCE TESTING / E&I................................ 14
4.4 SWITCH ACCEPTANCE TESTING IS.................................... 14
4.5 TRANSMISSION TESTS (DCS) IS..................................... 15
4.6 SLC SERIES TEST................................................. 15
4.7 POWER TESTS AND VERIFICATIONS................................... 15
4.8 ALARM PROVISIONING.............................................. 16
4.9 EMERGENCY ENGINE/GENERATOR TESTING:............................. 16
4.10 NETWORK ELEMENT AND SYSTEMS CONNECTIVITY........................ 16
4.11 LEC / IXC / OTHER SERVICE PROVIDERS............................. 17
4.12 OPERATIONAL SUPPORT SYSTEMS..................................... 17
4.13 SIGNALING SYSTEM 7 TESTING...................................... 17
4.14 TRUNK TESTING................................................... 17
4.15 AMA VERIFICATION................................................ 18
4.16 ROUTING TESTS................................................... 18
4.17 FEATURE TESTING................................................. 18
4.18 EMERGENCY RECOVERY TESTS........................................ 19
4.19 NETWORK INTEGRATION COMPLIANCE.................................. 19
4.20 NETWORK INTEGRATION COMPLIANCE - CO ADMINISTRATION.............. 20
</TABLE>
- --------------------------------------------------------------------------------
Exhibit G - i
<PAGE> 142
EXHIBIT G
<TABLE>
<S> <C> <C>
4.21 CUT-OVER PLAN TABLE OF CONTENTS................................. 20
4.22 NETWORK INTEGRATION, CUTOVER SERVICES PRICE..................... 22
5 CUSTOMER REQUIREMENTS / CONNECTIVITY - SERVICE ACTIVATION.......... 23
5.1 OBTAINING THE LATEST SITE CONFIGURATIONS / GROWTH............... 23
5.2 ESTABLISHING CUSTOMER CONNECTIVITY.............................. 24
5.3 CONNECTIVITY PRICING............................................ 27
6 NETWORK MONITORING & SURVEILLANCE.................................. 28
6.1 COMPONENT SERVICES.............................................. 28
6.2 NRC STANDARD ESCALATION GUIDELINES.............................. 29
6.2.1 5ESS(R)-2000 Problem Escalation and Notification
Guidelines........................................................... 29
6.2.2 Network Monitoring and Surveillance Pricing.................. 30
7 NETWORK PERFORMANCE SERVICES....................................... 33
7.1 TRAFFIC DATA COLLECTION......................................... 33
7.2 CAPACITY MANAGEMENT............................................. 33
*7.3 NETWORK MANAGEMENT.............................................. 33
7.4 SPECIAL STUDIES................................................. 34
7.5 D&F SERVICES.................................................... 34
7.6 NETWORK RELIEF PLANNING......................................... 34
7.7 NETWORK PERFORMANCE SERVICES PRICING............................ 35
8 SERVICE PROVISIONING AND INVENTORY................................. 36
8.1 SERVICE ORDER DESCRIPTION....................................... 36
8.2 SERVICE ORDER HOURS OF OPERATION................................ 36
8.3 SERVICE ORDER VOLUMES PER HOURS OF OPERATION.................... 36
8.4 NEW SERVICE ORDER INITIATIVES................................... 36
8.5 STANDARD SERVICE ORDERS......................................... 36
8.6 SPECIAL SERVICE ORDERS.......................................... 37
8.7 TRUNK SERVICE PROVISIONING AND INVENTORY MANAGEMENT............. 37
8.8 LINE SERVICE PROVISIONING....................................... 38
8.9 TEST AND TURN UP................................................ 38
8.9.1 Test and Turn Up Description................................. 39
8.9.2 Test and Turn Up Prerequisites............................... 39
8.9.3 Test and Turn Up Hours of Operations......................... 39
8.10 SERVICE ORDER PROVISIONING PRICING.............................. 39
9 TRANSLATIONS AND SWITCH INVENTORY.................................. 40
9.1 COMPLEX TRANSLATIONS............................................ 41
9.2 TRANSLATIONS PRICING............................................ 42
10 TROUBLE MANAGEMENT SUPPORT......................................... 43
10.1 CUSTOMER CARE SUPPORT........................................... 43
10.2 TROUBLE MANAGEMENT PRICING...................................... 44
</TABLE>
- --------------------------------------------------------------------------------
Exhibit G - ii
<PAGE> 143
EXHIBIT G
1 SCOPE OF WORK
All Services and pricing associated with this proposal are subject to
change based on Customer's requirements and/or specifications. "Services"
for this Statement of Work includes the Professional Services as stated
herein. The pricing in this Agreement is valid only for 1999, pending
execution of the definitive Agreement(s) between Customer and Supplier.
Lucent and ATG will meet in September/October 1999, to review the work
performed under this agreement and at that time a true up or price
adjustments, up or down, as necessary to reflect additional or deleted
equipment or hours required to perform these services on a longer term
basis. For Services performed at Customer's request, Supplier will invoice
and Customer will promptly remit payment Services performed on a monthly,
time and materials basis. Customer may request additional Services from
Supplier not covered in this Statement of Work or beyond 1999. If Supplier
agrees to furnish such additional Services, the charges thereof shall be
at Supplier's prevailing time and material rates in effect when Services
are rendered. If Supplier is providing Services and the definitive
Agreement term expires, the Parties agree to automatically extend the
non-conflicting terms and conditions of the definitive Agreement until
such time as the Parties mutually agree upon similar terms and conditions
for on-going or new Services. In this event, the Parties agree to promptly
negotiate similar terms and conditions.
SERVICES PRICING AS PROVIDED IN THIS STATEMENT OF WORK DOES NOT INCLUDE
TRAVEL AND LIVING EXPENSES, WHICH WILL BE BILLED TO CUSTOMER AS INCURRED.
Exhibit G - 1 of 47
<PAGE> 144
EXHIBIT G
2 NETWORK OPERATIONS SERVICES SUMMARY
Network Operations Services is a group of services designed to help
ATG bring their network into service as fast as possible by
outsourcing its Network Operations Center (NOC) functions. Lucent
Technologies provides numerous choices. These options are designed to
meet your evolving needs and help you activate services quickly. We
understand that you need to put networks in service with quality and
speed. In response, Lucent's services are available today offering ATG
world class expertise, resources and facilities ready to support you.
Service options that are not defined in this Statement of Work may be
added based on ATG's written request. Any service not defined in this
Statement of Work can be developed and priced separately from the
scope and pricing within this document upon written request from ATG.
Services offered in this proposal consist of providing Asymmetrical
Digital Subscriber Line (ADSL) services and traditional voice 5ESS
services for ATG.
ATG has chosen to provide their own On-Site Technicians who will be
responsible for maintaining their 5ESS switch sites and ATG provided
Customer Premises Equipment.
Exhibit G - 2 of 47
<PAGE> 145
EXHIBIT G
[DIAGRAM]
- --------------------------------------------------------------------------------
Exhibit G - 3 of 47
<PAGE> 146
EXHIBIT G
[DIAGRAM]
- --------------------------------------------------------------------------------
Exhibit G - 4 of 47
<PAGE> 147
EXHIBIT G
[DIAGRAM]
- --------------------------------------------------------------------------------
Exhibit G - 5 of 47
<PAGE> 148
EXHIBIT G
3 OPERATIONS PLANNING & IMPLEMENTATION
Pricing and other critical elements of this Statement of Work ("SOW") are
based upon the binding, non-conflicting terms and conditions of the Letter
of Intent ("LOI") between Advanced Telcom Group, Inc. ("ATG") and Lucent
Technologies Inc. ("Lucent"). Amending the "Services" definition in Exhibit
C, "General Terms and Conditions" to include additional Services as stated
herein and extending said LOI until the earlier of written termination by
either party in accordance with Section 3.3 of the LOI or execution of the
definitive agreement described therein. Lucent, acting through its Global
Services Provider Group, will perform and ATG will procure the operations
planning Services described in this SOW. By ordering or using these
Services from Lucent, including changes or additional orders, ATG agrees to
be bound to the terms of this SOW. Lucent reserves the ability to amend its
pricing or other conditions if changes to the attached SOW make such
amendment advisable. Please reference this SOW by title and number on any
order or correspondence to Lucent.
3.1 SCOPE OF WORK
- --------------------------------------------------------------------------------
In order to meet ATG's operational milestones and provide Services to ATG
as described in Section 3.6, "Network Operations Services" of the LOI,
Lucent's Global Network Operations team, a division of the Network
Reliability Center ("NRC"), will perform Phase One of the Operations
Planning & Implementation Services prior to execution of the definitive
agreement. In consideration for the pricing tendered herein, ATG agrees to
procure and the NRC Global Network Operations team agrees to provide such
Services to ATG. If either party terminates the LOI in accordance with
Section 3.3, ATG agrees to pay Lucent, immediately upon termination, for
all unpaid Services performed prior to termination, including all
reasonable travel and living expenses incurred by Lucent in providing these
Services.
3.2 PHASE ONE: A BUSINESS OBJECTIVE ANALYSIS (ALSO "BOA") AND PRESENT
METHOD OF OPERATIONS ANALYSIS (ALSO "PMO") OVERVIEW
- --------------------------------------------------------------------------------
During this phase, the NRC will work with ATG to establish a specific
Network Operations Plan addressing the "full spectrum" of operations
components related to the NRC's service offerings, including personnel,
organizations, processes, and telecommunications technology, to effectively
perform activities related to developing, deploying and managing ATG's
telephone network on an outsourced basis. These activities include network
monitoring and surveillance, service order entry, service order processing,
service and inventory (facilities and equipment) provisioning, service
activation, trouble management (trouble ticketing and customer care) and
inventory management (end-to-end tracking of equipment, facilities, and
telephone numbers),
- --------------------------------------------------------------------------------
Exhibit G - 6 of 47
<PAGE> 149
EXHIBIT G
Lucent's Global Network Operations team will apply its proven
Operations Planning Methodology to produce a Business Objective
Analysis (BOA) and Present Method of Operations Analysis (PMO). At
the conclusion of these steps, Lucent's Global Network Operations
will provide a written estimate of the work needed to complete the
Future Methods of Operation (FMO) phase of the project.
3.2.1 BUSINESS OBJECTIVE ANALYSIS FOR PHASE ONE
Lucent's Global Network Operations team will examine ATG's business
strategy, focusing on the following areas:
- Identification of business goals
- Identification of business objectives
- Determination of critical success factors
- Identification of business functions and processes
- Identification of major unaddressed critical business issues
- Identification of key organizational metrics
Lucent's Global Network Operations will use a number of techniques
to gather information for this project:
- Examining existing documents such as business cases and
strategic plans (need to list documents used for this purpose)
- Interviewing key executives of ATG
- Interviewing key managers of ATG
- Interviewing key third party consultants of ATG
- Working with the Lucent customer team dedicated to ATG
- Working with the American Management Systems team dedicated to
ATG
Lucent's Global Networking Operations will analyze the information
gathered, produce models and document this analysis.
3.2.2 PRESENT METHOD OF OPERATIONS FOR PHASE ONE
Lucent's Global Network Operations team will document a number of
processes to implement during the operations of resale and initial
ISP services of ATG's business. These processes are:
- Service Order Entry, Processing, Confirmation, Activation,
Tracking, Fulfillment
- Provisioning (includes "all" required ATG and third-party
interfaces and systems)
- Customer Care (CSR viewpoint and NRC viewpoint)
- Trouble Management (trouble ticketing, trouble identification,
trouble resolution)
- Billing Operations
- --------------------------------------------------------------------------------
Exhibit G - 7 of 47
<PAGE> 150
EXHIBIT G
- Inventory Management (ISP "packet switching" facilities, equipment and IP
addressing), if applicable
- Enterprise Network Interconnection (ATG sites, NRC site, AMS site)
In addition, Lucent Global Network Operations team will produce Methods and
Procedures for the following functions:
- Trouble Management
- Service Order Function (New Service, Moves, Changes, Disconnects)
Lucent's Global Network Operations team will also produce some
recommendations on how to improve the current processes.
3.2.3 PHASE ONE DELIVERABLES
Lucent's Global Network Operations will produce the following SOW deliverables:
1. A Business Objectives Analysis document containing the following information:
- Executive Summary
- Value Chain Analysis
- Business Factor Analysis
- Goals And Objectives
- Functions
- Critical Success Factors (CSFs)
- Problems
- Competitive Environment Analysis
- Strengths, Weaknesses, Opportunities and Threats
- Competitive Forces Analysis
- Strategy Analysis
- Major unaddressed critical business issues
- Key organizational metrics
2. A Present Method of Operations Document containing the following information:
- Process Flows
- Process Descriptions
3. Methods and Procedures
- Trouble Management
- Service Order Function (New Service, Moves, Changes, Disconnects)
4. Recommendations for Process Improvement
- Organizational structure in place versus required
- --------------------------------------------------------------------------------
Exhibit G - 8 of 47
<PAGE> 151
EXHIBIT G
- Organizational roles and responsibilities in place versus required.
3.3 PHASE TWO: FUTURE METHODS OF OPERATIONS
- -------------------------------------------------------------------------------
Lucent's Global Network Operations team will document a number of
processes in the facilities-based-phase of ATG's business. These processes
are:
- Order Management (Interim) - This includes the following areas:
- Service Order Processing, Confirmation, Activation and Fulfillment
- Provisioning (includes "all" required ATG and third-party interfaces
and systems)
- Inventory Management (ISP "packet switching" facilities, equipment
and IP addressing), if applicable
- Trouble Management - This includes the following areas:
- Trouble Identification Trouble Ticketing, Case Management, Dispatch,
Trouble Resolution
- Network monitoring and surveillance
- Network performance services
This phase will be further defined in an additional Statement of Work to follow.
- --------------------------------------------------------------------------------
Exhibit G-9 of 47
<PAGE> 152
EXHIBIT G
3.4 OPERATIONS PLANNING AND IMPLEMENTATION PRICING
Lucent's Global Network Operations Team plans to complete Phase One
before March 31, 1999. Upon completion of Phase One, ATG shall promptly
remit full payment to Lucent for this phase as detailed below.
For Phase 2, [*] of the amount shall be payable on June 1, 1999. The
remainder shall be payable at the conclusion of the project, estimated
to be June 30, 1999.
Phase Price
---------- --------------------
Phase 1 [*]
Phase 2 [*]
*This scope of work will be refined by April 1, 1999 and the price
adjusted accordingly.
These prices assume that ATG will begin offering facilities-based
services on July 1, 1999. If there is a delay, Lucent will occur
additional costs which be passed on the ATG.
- --------------------------------------------------------------------------------
Exhibit G - 10 of 47
- --------------------
[*] Information redacted pursuant to a confidential treatment request
throughout this exhibit.
<PAGE> 153
EXHIBIT G
4 NETWORK INTEGRATION AND CUTOVER
Lucent Technologies' Network Integration and Cutover Services group will
provide the critical functions needed by Customer to integrate network
node equipment into an operational node on an end-user customer's
network. This Service will include a dedicated Integration Team, who
remains on site with the network, and in direct contact with Customer's
organization, from Turnover to Cutover. For each switch location, a
Cut-Over Plan will be developed; progress and performance will be
monitored with the Cut-Over Plan. During the final phases of
installation, Professional Services will perform integration of Network
elements specified in the Cut-Over Plan. The Cut-Over will be considered
complete when the plan is signed as approved by Lucent Technologies and
Customer.
4.1 NETWORK INTEGRATION CUSTOMER PREREQUISITES
The following Prerequisites will be provided by customer for the
Integration Process prior to the start of Cutover Services, 6.1.1
through 6.1.8:
- Site equipment installation complete.
- 5ESS(R) -2000 switch installation complete and FULLS loaded.
- Transport equipment installation complete.
- Cross connect equipment installation complete.
- Timing source tested, wired to equipment, and synchronization
active.
- All 3rd party supplied equipment installation complete and in a
normal operating condition.
- All 3rd party documentation for respective elements must be on hand,
and a company contact or on-site representative available upon
request.
4.1.1 FACILITY ORDERS
(DS-3's, DS-1's and DS-0's) placed with due dates on or before the
start of integration interval.
- Facilities will appear within the locatio, and be terminated on the
appropriate frames.
- Due dates for facilities should coincide with the start of the
integration interval.
- Due dates from trunk orders should be during the integration
interval, at least two weeks prior to Cutover.
4.1.2 SS7 LINKS ORDERED AND INSTALLED
- Due dates for SS7 links should be on or before the start of the
integration interval.
- --------------------------------------------------------------------------------
Exhibit G - 11 of 47
<PAGE> 154
EXHIBIT G
- Diversity of the SS7 links should be planned for and provided.
4.1.3 OFFICE RECORDS
Need to be available at the start of the integration interval.
- Facility assignment records (e.g., DLRs, CLRs) need to be available
at the site at the beginning of the integration interval.
- Trunk layout records, which associate the trunks with the facilities
they will ride, need to be available.
- Any changes to facility or trunk assignments must be accompanied by
updated records.
4.1.4 WORK AREA AND TELECOMMUNICATIONS
- Customer shall provide sufficient quantities of tables and desks for
Supplier's integration crew. This is in addition to the maintenance
center.
- Customer shall provide sufficient telecommunications resources to
support the expected population of the site during the interval. The
integration crew needs a minimum of two (2) lines (hunting), which
appear in the maintenance center area and near the transport
equipment, and two (2) lines (hunting) which only appear in the
maintenance center. The integration crew shall use these lines in
completing the integration process.
- If other people will be at the location during the integration
process, Customer shall provide separate lines.
- Customer shall install telephone lines required for remote access
(e.g., SCANS, AMA, NRC and remote TLWS) to the site prior to Supplier
initiating the integration work effort.
4.1.5 CONTACT INFORMATION FOR OTHER SERVICE PROVIDERS
- Telephone numbers for vendor contacts should be obtained when
facilities or circuits are ordered. This should include contacts for
initial testing of circuits, ongoing maintenance, and escalation
information.
- Contact information for the SS7 provider is required.
4.1.6 ALARM ASSIGNMENTS
- At the beginning of the integration effort, Customer shall provide a
list of miscellaneous alarms, such as building and environmental
alarms.
- If a specific layout on the alarm page is desired, Customer shall
provide this information at the start of the integration interval.
- Customer shall place alarm leads from miscellaneous equipment on the
main distributing frame or other cross connect bays for Supplier to
connect to the 5ESS(R)-2000 switch(es).
- --------------------------------------------------------------------------------
Exhibit G - 12 of 47
<PAGE> 155
EXHIBIT G
- Customer shall make appropriate arrangements with third-party
vendors of miscellaneous equipment such as air conditioning and
fire detection to perform alarm tests from the equipment.
4.1.7 CALL FLOW DIAGRAMS
- The call-through test plan is based upon the call flow diagrams
provided by Customer.
- Call flow diagrams must be provided two weeks prior to the start
of the integration interval to allow time to develop a size
specific plan.
- If other equipment is to be tested (e.g., calls requiring
interaction with a SCP), a detailed plan, complete with specific
numbers to be called must be provided prior to the start of the
integration interval.
4.1.8 TRANSMISSION TEST EQUIPMENT PROVIDED BY THE CUSTOMER
(TTC310, 224, 500 and 650 or like) available on-site.
4.2 SERVICE DELIVERY MANAGEMENT
As Customer's single point of contact, the Service Delivery
Manager will provide the total assurance and coordination of the
Integration Process; Functions of the Service Delivery Manager
are as follows:
- Customer Single Point Of Contact
- Leader Cut-Over team
- Pre Cut-Over plan development
- Coordinates all activities associated with Cut-Over
- Manage all Multi-Vendor activities
- Oversee acceptance testing
- Publish Status Reports on Cut-Over Activities
- Manage customer Acceptance / Cut-Over Plan Completion
- Responsible for Turn-Over to customers a Ready For Service switch
- --------------------------------------------------------------------------------
Exhibit G - 13 of 47
<PAGE> 156
EXHIBIT G
4.3 NETWORK ACCEPTANCE TESTING / E&I
- --------------------------------------------------------------------------------
Acceptance testing will be the observation and review of installation
Services, switching, transmission and power equipment installed in the
central office during switch installation. These items are as follows:
- Office Drawings
- Office Records
- Office Telephones
- DACS IV Cross Connect Printout
- DACS IV Mapping Printout
- Diagram of all Frame Blocks
- Permanent T-Berd Test Site equipment
- Central Office Repair Person Toolkit
- Copy of all Circuit CLRs
- Call Out Escalation List
- Line Assignment Log Class 5
- Office Equipment Assignments Log Class 5
- Trunk Group Inventory Records
- DACS IV Office Assignments for DS1/DS3 Packs
- Circuit Pack Inventory
- Spares Assessment & Inventory
- Trouble referral Process
4.4 SWITCH ACCEPTANCE TESTING IS...
- --------------------------------------------------------------------------------
- Verifying summary status display
- Verifying recent change
- Verifying protection A/C
- Testing 16A announcement units
- Testing switch fan units
- Testing switch fuse alarms
- Testing office alarms
- Testing SN516 control and display circuit packs
- Performing trunk and line work station procedures
- Generating Local AMA tape
- Communication modules
- Dual link interfaces
- MCTSI
- Local digital service units
- Global digital service units
- Digital line and trunk units
- --------------------------------------------------------------------------------
Exhibit G - 14 of 47
<PAGE> 157
EXHIBIT G
- Metallic service units
- Digital carrier line units
- Directly connected test units
- Packer switch units
- Integrated digital carrier units
- Digital network units - SONET
- Common Network interface units.
4.5 TRANSMISSION TESTS (DCS) IS...
- --------------------------------------------------------------------------------
- Visual inspection
- Link Operation Control Complexes
- Frame alarm operation
- Inter-bay cables: DS-1 interface module
- Inter-bay cables: DS-3 interface module
- External cables
- Fan assemblies
- Alarm and telemetry outputs
- Protection switch function
- Print out DS-1 cross connects
- NRC access to DACS 14 days before Cut-Over
- Site mapping complete, with copy on site and NRC.
4.6 SLC SERIES TEST
- --------------------------------------------------------------------------------
- Visual inspection and power
- Looped back acceptance
4.7 POWER TESTS AND VERIFICATIONS
- --------------------------------------------------------------------------------
- Verify plant capacity appropriate for office load
- Verify correct float voltage
- Test alarms
- Test battery connections
- Verify correct grounding for power bays and battery stands
- Test load sharing on rectifiers
- Test alarms on disconnect to batteries
- Inspect cabling from batteries to rectifiers
- Inspect load cabling connections
- Verify cabling has 145c tags and accuracy of designations
- Overall installation quality check.
- --------------------------------------------------------------------------------
Exhibit G - 15 of 47
<PAGE> 158
EXHIBIT G
4.8 ALARM PROVISIONING
- --------------------------------------------------------------------------------
Local alarms will be monitored through the switching equipment. The
customer will ensure alarms will be in place at start of work. Included
are building, power, environmental and miscellaneous alarms. Activities
undertaken by Supplier to establish connectivity between the alarms and
the switch include:
- Running jumpers from the alarm appearance on the CDF to the alarm
point within the switch
- Assigning the alarm within the switch's miscellaneous alarm tables
- Simulating an alarm condition to verify the switch's ability to detect
and report the alarm.
The following list is not complete but provides various examples:
<TABLE>
<CAPTION>
BUILDING & POWER ALARM TEXT
---------------------- ------------------
<S> <C>
Fire FIRE
Fire Alarm Trouble FIRE ALARM TROUBLE
Battery Discharge BAT DSCHG
Power Monitor Battery Discharge PMBD
Battery Discharge Fuse Bay BDFB
ENVIRONMENTAL ALARM TEXT
------------------- ----
Door DOOR
Low Temperature LOTP
High Temperature HITP
MISCELLANEOUS ALARM TEXT
------------------- ----
Digital Access Cross Connect DACS
Clock CLK
Service Control Point SCP
</TABLE>
The above list is not complete. Supplier understands that the offices may
have more, less, or different alarms.
4.9 EMERGENCY ENGINE/GENERATOR TESTING:
- --------------------------------------------------------------------------------
- Start engine on manual, followed by auto start check
- Observe proper load transfer to generator
- Monitor switch performance during and after load transfer to generator
power
- Shut engine down and observe transfer back to commercial power
- Monitor switch performance during and after transfer back to commercial
power.
4.10 NETWORK ELEMENT AND SYSTEMS CONNECTIVITY
- --------------------------------------------------------------------------------
Supplier will make physical connections of the network elements and related
systems to establish logical connectivity both within and external to the
central office. End to
- --------------------------------------------------------------------------------
Exhibit G - 16 of 47
<PAGE> 159
EXHIBIT G
end connectivity of the hardware and software elements within the
central office will be established and verified:
- Set options in the switching and transport equipment
- Establish physical cross connects between switching and transport for
test lines and trunks
- Establish recorded announcements by:
- Running analog trunk jumpers
- Recording the actual recordings on each channel
- Setting the transmission level on each channel.
For non Lucent supplied equipment the provider will establish and
test the functionality of each of the provided elements in
conjunction with the testing performed by the Lucent integration
team.
4.11 LEC / IXC / OTHER SERVICE PROVIDERS
- Establish Cross Connects to Inter Office Facility
- Establish Cross Connects in Office
- Verify Trunk Group Software Assignments
- Establish 800-900 Service Routing
4.12 OPERATIONAL SUPPORT SYSTEMS
Establish and test connections to the Operational Support Systems (OSS)
for NRC and AMA functions which interface with the central office
associated network elements. The activities conducted by Supplier are:
- Establishing the required cross connects in the office
- Create the translations that define the OSS in the switch
- Test with distance end to ensure the switch and OSS are communicating
properly.
4.13 SIGNALING SYSTEM 7 TESTING
Supplier shall perform SS7 integration testing with the SS7 provider.
Supplier shall enable and support the SS7 provider's test program
throughout the activity by trouble shooting any Supplier equipment
and/or software related problems. SS7 testing must be accomplished
before any trunks which use the SS7 signaling can be tested.
4.14 TRUNK TESTING
Supplier will test all working trunks with the distant end at Cut-over.
- Diagnostics will be run on all outgoing and two way trunks
- Levels will be measured on all outgoing and two way trunks
- --------------------------------------------------------------------------------
Exhibit G - 17 of 47
<PAGE> 160
EXHIBIT G
o Coordinate with distant end to ensure that they have tested their outgoing
portion of the trunks
o Correct problems discovered during the trunk testing process.
4.15 AMA VERIFICATION
- --------------------------------------------------------------------------------
Supplier will test to ensure that data resulting from calls made from the switch
is accurate for billing. A quiet period on the switch is required, with the
exception of test calls. The testing will include:
o Making sample calls outgoing and incoming to all rate areas translated on the
switch and all Line Class Code over various trunk groups
o Providing Customer reports so Customer can compare records between those test
calls recorded and the records that are returned from the billing center
o Making sure that each outgoing and incoming call gets logged on the AMA tape.
4.16 ROUTING TESTS
- --------------------------------------------------------------------------------
Testing will be conducted by Supplier to verify the routing translations on the
switch. Test calls, as defined by customer and as agreed to by Supplier, are
placed to verify that traffic correctly routed from Customer central office
through LEC and IXC networks and from LECs and IXC carriers to customer
customers. This will include the following:
o Place a call to valid NXX in the home NPA
o Place a call to valid NPA (for six digit translations for multiple NPAs, each
valid NXX in those NPAs must be called)
o Place a call without a 10XXX or 101XXXX prefix (ensure that call goes to the
PIC) for each PIC identified by customer for the central office location
o Place a call with 101XXXX prefix
o Place a 911 call to test 911 Service
o Place calls to 0 and 011 to test operator Services.
4.17 FEATURE TESTING
Supplier will conduct feature testing of Services ordered by customer. Customer
will purchase the needed equipment (analog cards or RT, such as a SLC96) to have
lines available in each office for the testing. Supplier will conduct tests
from a switch site specific test plan jointly developed and agreed to by
customer and Supplier. Testing of features interaction will be limited to
recognition of the numerous combinations possible, to reduce impact on the
turnover interval.
o Build a test CENTREX, using central office line, to test dialing plan and
features
o Equip a full feature ISDN terminal in the central office and test ISDN
functionality on the switch
o Equipment test line in the central office to test CLASS features as well as
basic switch hook features on the switch
o Test Caller ID
- --------------------------------------------------------------------------------
Exhibit G - 18 of 47
<PAGE> 161
EXHIBIT G
* Other features to be identified by customer and approved by Supplier
which approval shall not be unreasonably withheld
* Testing shall continue until all features are operational and up to the
standards in the industry. The number of features to be tested should be
done on a switch basis not to exceed a total of twenty work hours per
switch site.
4.18 EMERGENCY RECOVERY TESTS
This testing ensures the emergency recovery features of the switch are
working properly. It is performed close to Cut-Over, after most of the
translations and other testing work has been completed, to ensure that the
testing interval activities did not disable any of the switch's emergency
recovery capabilities. This testing cannot be performed after Cut-Over of
Service as it is definitely Service affecting. Supplier recovery testing
will perform the various levels of initialization to verify proper
recovery.
4.19 NETWORK INTEGRATION COMPLIANCE
Supplier will schedule the Network Integration activities to be completed
based on the agreed schedule approved by Lucent Technologies and customer.
If delays occur in activities to be performed by customer, (or other
vendors providing services for customer other than Supplier employees,
consultants, or agents) which impact Supplier's ability to perform the
standard interval Network Integration activities, the process outlined
below will be implemented provided that such delays are not attributable to
anything done or not done (which should have been done) by Supplier:
* customer will provide 72 hour's notification of a delay that would
materially impact integration testing
* Supplier will schedule the completion Network Integration turnover to
Cut-Over activities based on the defined window as determined by switch
size, and the agreed upon schedule approved by Supplier technologies and
customer, of the targeted Cut-Over dates for each site. A pre-deployment
conference call between the integration team leader, Customer
representatives will be held twenty-four (24) hours before integration
team's departure, to review the readiness of Customer site for
undertaking the scheduled integration activities. See Prerequisites
section 6.
* After Supplier's arrival at the site, should Supplier be delayed in
performing the integration Services, customer may choose the following:
(a) to send Supplier's personnel home and customer will pay for their
transportation (limited to 4 people), or, (b) have Supplier personnel
stand by during the delay in which case customer will pay [*] per
day per person (limited to 4 people), plus such personnel's travel and
living expenses.
* Supplier's Network Integration team is dedicated to performing the
integration activities set forth in the Agreement; if customer requires
the team to perform additional activities, customer will first inform
Supplier and receive concurrence
- --------------------
[*] Information redacted pursuant to a confidential treatment request
throughout this exhibit.
- --------------------------------------------------------------------------------
Exhibit G - 19 of 47
<PAGE> 162
EXHIBIT G
on the impact to the integration schedule before proceeding and will
agree in writing on the amount of payment due.
4.20 NETWORK INTEGRATION COMPLIANCE - CO ADMINISTRATION
- --------------------------------------------------------------------------------
The central office administration consists of putting in place all the
necessary documents, records, and test equipment to ensure the office is ready
for operation. It includes the activities listed below which will be performed
by Supplier:
- Filing any paper trunk records and a complete copy of CLR records of
DACS cross-connections, or establishing electronic access to those records.
- Inventory spare packs
- Inventory test equipment
Establishing switch room telecommunications as specified by Supplier
Following is a description of the Contents of the Cut-Over Plan; Only the
progress and performance portion of the Cut-Over Plan will remain on-site at
Customer's location.
4.21 CUT-OVER PLAN TABLE OF CONTENTS
- --------------------------------------------------------------------------------
* INTRODUCTION
* DELIVERABLES OF INTEGRATION PROCESS
* PREREQUISITES FOR INTEGRATION PROCESS
* SITE INFORMATION
* INTEGRATION TURNOVER TO CUTOVER TEAM
* SWITCH LOCATION ESCALATION LISTS
* SWITCH DIAGRAM
* MILESTONES
* SITE ACCEPTANCE
* CUSTOMER NAME / CONNECTIVITY
* 5ESS ACCEPTANCE
* TRANSPORT ACCEPTANCE
* VERIFICATION OF 3RD PARTY EQUIPMENT TESTING
* CHECK LIST OF ALL 3RD PARTY EQUIPMENT TEST RESULTS
FROM ALL LOCATIONS
* LOCAL ALARMS
* INTEGRATION END-TO-END TRUNK TESTING
* MISCELLANEOUS
- --------------------------------------------------------------------------------
Exhibit G - 20 of 47
<PAGE> 163
EXHIBIT G
* NRC REQUIREMENTS
* TEST NUMBER ASSIGNMENTS
* RECORDED ANNOUNCEMENT VERIFICATION
* ASSIGNMENT DRAWINGS
* NORMAL OFFICE CODE ASSIGNMENTS
* SYNC/TIMING
* STP INFORMATION
* CALL THROUGH TEST
* BRCS / LASS FEATURE TESTING
* DIAL PLAN
* E911 CALLING
* OPERATOR SERVICES TEST PLAN
* ODA VERIFICATION
* CUTOVER TROUBLE TRACKING LOG
- --------------------------------------------------------------------------------
Exhibit G - 21 of 47
<PAGE> 164
EXHIBIT G
4.22 NETWORK INTEGRATION, CUTOVER SERVICES PRICE
- --------------------------------------------------------------------------------
Billing for the 5ESS Integration occurs at the completion of each 5ESS Switch
Site.
The following pricing is a one-time charge for integration of the 5ESS switch
and associated equipment located at a host site.
<TABLE>
<CAPTION>
Santa Rosa Salem Tacoma Host Total
----------- ----------- ----------- -----------
<S> <C> <C> <C> <C>
5ESS switch [*] [*] [*] [*]
Jetstream [*] [*] [*] [*]
Cerent [*] [*] [*] [*]
Cisco ATM [*] [*] [*] [*]
----------- ----------- ---------- --------
Total [*] [*] [*] [*]
=========== =========== ========== ========
</TABLE>
The following pricing is a one-time charge for each CoLo cage that is connected
back to the host 5ESS:
<TABLE>
<CAPTION>
Cerent Diamond Lane Fast Shelf CoLo Total
---------- ------------ ---------- ----------
<S> <C> <C> <C> <C>
Santa Rosa
(Third Street) [*] [*] [*] [*]
Rohnert Park [*] [*] [*] [*]
Cotati [*] [*] [*] [*]
Petaluma [*] [*] [*] [*]
Tacoma 62nd Ave [*] [*] [*] [*]
Tacoma Fawcett [*] [*] [*] [*]
Tacoma J St. [*] [*] [*] [*]
Olympia [*] [*] [*] [*]
Puyallup [*] [*] [*] [*]
Salem [*] [*] [*] [*]
Eugene [*] [*] [*] [*]
Springfield [*] [*] [*] [*]
---------- ---------- ---------- --------
Total [*] [*] [*] [*]
========== ========== ========== ========
</TABLE>
- --------------------
[*] Information redacted pursuant to a confidential treatment request
throughout this exhibit.
- --------------------------------------------------------------------------------
Exhibit G - 22 of 47
<PAGE> 165
EXHIBIT G
5 CUSTOMER REQUIREMENTS / CONNECTIVITY - SERVICE ACTIVATION
The NRC will start customer service activities upon establishing and certifying
connectivity between the required NRC operations support systems and customer
provided central office and transport equipment. Once the T1 Frame Relay
Network is in place, tested, and connected to the customer's host switch and
transport network elements (NE), the NRC operations team will begin providing
customer requested services. At this point in the process the monthly
connection charges to the customer begin. The following steps are involved in
providing a reliable network.
NOTE - CONNECTIVITY / SERVICE ACTIVATION IS A 60 DAY PROCESS. ALL REQUIREMENTS
FOR CUSTOMER INFORMATION MUST BE RECEIVED BY THE NRC prior to the placement of
the circuit order in order to meet the customer's time to market requirements.
STEP #1 Obtaining The Latest Site Configurations
STEP #2 Establishing Customer Connectivity
STEP #3 Responsibility Matrix
5.1 OBTAINING THE LATEST SITE CONFIGURATIONS/GROWTH
- --------------------------------------------------------------------------------
All work performed by the NRC will be based upon the latest site
configurations. Any configuration changes must be provided to the NRC in
writing and are subject to engineering and pricing reviews to ensure capacity
availability. If the NRC has an existing router capacity at the customer host
site and at the Denver NRC to support the addition of a new element, then only
the one time new element connectivity fee will be charged. If the NRC does not
have enough router capacity at the customer site or the Denver NRC location the
new element and element connectivity fees will be quoted separate from the final
statement of work. Please allow up to three weeks to connect a new network
element, if the NRC has existing capacity.
The customer will be responsible to provide the 5ESS switch packs and cables to
support their desired services as described in Table A.
o The NRC requires growing all ports below during the Engineering and Design
phase.
- --------------------------------------------------------------------------------
Exhibit G - 23 of 47
<PAGE> 166
EXHIBIT G
NRC PORTS AND CABLES REQUIREMENTS FOR 5ESS
Table A
<TABLE>
<CAPTION>
Switch
NRC Service Appearance Circuit Pack IOP/Comm/
Usage NRC System (Grow AS) Loc. Slot/Channel Circuit Pack: Cable ID:
- ---------------- ---------- ---------- ------------ ------------ ------------- ---------
<S> <C> <C> <C> <C> <C> <C>
5ESS Switch: (5ESS Cable
ED5D500-21)
5ESS NFM (TNM) SCC0 19-094 0/0/0/1 UN583 G-38A(2)
Surveillance SCC1 45-094 1/0/0/1 UN583 plus one spare
Translations for ConnectVu TOPAS 28-110 0/2/2/3 UN582/X.25 SDL G-43C
Trunk & Line ATP & ATPRC 45-118 1/0/3/2 UN582/X.25 SDL G-43C
Provisioning ANCM Echo Back 28-102 0/2/1/3 UN582/TTY G-39F
RSTLWS Terminal RSTLWS 0 28-102 0/2/1/1 UN582/TTY G-39F
Server RSTLWS 1 28-102 0/2/1/2 G-39F
RSTLWS 2 53-094 1/2/0/1 UN582/TTY G-39F
RSTLWS 3 53-094 1/2/0/2 G-39F
Recent Change Terminal RCV 28-102 0/2/1/0 UN582/TTY
VFY Server 53-094 1/2/0/3 UN582/TTY
5ESS Loop MLT4 MLT4 28-110 0/2/2/0 UN582/SDL G-43C
Testing
Traffic Data Traffic TDMS/EDAS 28-110 0/2/2/2 UN582/SDL G-43C
Information Netminder
Spare Pack 45-118 1/0/3/3 UN582/SDL
</TABLE>
<TABLE>
<CAPTION>
TRANSPORT EQP. Application Ports Cable
- -------------- ----------- ----- -----
<S> <C> <C> <C>
DDM-2000 Async & X.25 ports Standard RS232M/RS232M
cable (2 cables)
</TABLE>
5.2 ESTABLISHING CUSTOMER CONNECTIVITY
- --------------------------------------------------------------------------------
Lucent will order, install, test, and maintain Frame Relay and ISDN backup
circuits along with their associated equipment for each customer location. The
NRC, will direct its network provider to have the local exchange company (LEC)
install the Frame Relay and ISDN circuits at the customer provided LEC
demarcation point. The circuit will be extended from the demarcation point to
the dataset cabinet by a Lucent Technician. Circuits will be ordered when: the
full site address location; phone number; and on-site customer contact
information is provided to the NRC, (see customer responsibilities below). Upon
placement of the circuits and after ensuring that the pre-installation and
certification criteria is met, the NRC will dispatch a connectivity
installation team. The connectivity installation team will install, test and
turn-up all required Frame Relay and ISDN equipment. Upon completing the work
at the customer site, additional work and testing will be completed at the
Denver NRC site. This work includes connecting the circuits to the required
Operations Support Systems and making the necessary database configuration
settings. The NRC will establish an ISDN backup circuit that will ensure NRC
visibility of the customer network elements if the primary link is not
operational. The connectivity drawing below outlines a typical NRC to customer
site circuit configuration. The actual equipment used and network elements
connected to the NRC
- --------------------------------------------------------------------------------
Exhibit G - 24 of 47
<PAGE> 167
EXHIBIT G
are based upon customer provided configurations. The NRC will connect directly
to all major network elements, except for nodes on a SONET ring.
[GRAPHIC]
NRC RESPONSIBILITIES INCLUDE:
- -----------------------------
1. Cabling the Frame Relay & ISDN circuits from the LEC's demarcation
point to the dataset cabinet that contains the NRC equipment.
2. Install the NRC Frame relay equipment, which include the Multi
Protocol Router, Cisco Router and terminal server and Hub, Frame Relay
DSU, ISDN, DSU, and any required modems.
3. Cable the NRC equipment to all the required Network elements. See
table A below for details. The NRC will provide all cables, except
5ESS cables noted in Table A.
4. Test circuits to ensure the functionality and reliability of the
Frame Relay and ISDN backup circuits.
5. Configure the Denver NRC operations support systems to receive
customer's network elements and environmental alarms.
6. Perform overall End-to-End testing of network connectivity and
functionality.
ATG RESPONSIBILITIES INCLUDE:
- -----------------------------
- --------------------------------------------------------------------------------
Exhibit G - 25 of 47
<PAGE> 168
EXHIBIT G
Connectivity/Service Activation requires 60 days from the time the NRC receives
the customer specific information for each site. See requirements below:
1. Local Service Office - NPA-NXX (LSO). This is a local number provided by
the LEC.
2. Local On - Site Contact names and numbers:
3. Provide all Engineers, Furnish and Install (EF&I) 5ESS IOP circuits packs
and cables as described in table A.
4. Provide 1 23" Dataset cabinet to install NRC equipment.
5. Provide 50' of cables for all 5ESS IOP connections. Please cable 5ESS
circuit packs to the dataset cabinet tagged for NRC use.
6. Provide four shelves in the dataset cabinet for NRC use.
7. Provide 8 amps 110/120 AC (IKVA) protected power and backup inverter.
Provide 12 AC power outlets.
8. Provide a site layout drawing and detail any special cable requirements.
9. Cable all environmental alarms and scan points to the 5ESS switch.
10. Provide all adapters or converters on Transport equipment that will allow
the NRC to connect to RS 232 DB25 sync connections.
11. Provide four analog telephone lines and modems for NRC remote in dial
access. The NRC recommends adding additional 3811 modems to the existing 3000
carrier.
12. Ensure Lucent installation team to connect the 5ESS cables to the 5ESS
switch IOP ports.
13. Assign a customer onsite point of contact to assist in completion of the
site survey and help resolve installation issues.
14. Terminal ID (TID) numbers for all transport equipment.
Exhibit G - 26 of 47
<PAGE> 169
EXHIBIT G
5.3 CONNECTIVITY PRICING
- ------------------------------------------------------------------------------
The following pricing is a one-time charge for establishing connectivity to the
5ESS switch and associated equipment located at a host site:
<TABLE>
<CAPTION>
- -------------------------------------------------------
Santa Rosa Salem Tacoma Host Total
- -------------------------------------------------------
<S> <C> <C> <C>
[*] [*] [*] [*]
- -------------------------------------------------------
</TABLE>
The following pricing is a one-time charge for establishing connectivity for
each CoLo cage that is connected back to the host 5ESS:
<TABLE>
<S> <C>
- ----------------------------------
Santa Rosa [*]
(Third Street)
- ----------------------------------
Rohnert Park [*]
- ----------------------------------
Cotati [*]
- ----------------------------------
Petaluma [*]
- ----------------------------------
Tacoma 62nd Ave [*]
- ----------------------------------
Tacoma Fawcett [*]
- ----------------------------------
Tacoma J St. [*]
- ----------------------------------
Olympia [*]
- ----------------------------------
Puyallup [*]
- ----------------------------------
Salem [*]
- ----------------------------------
Eugene [*]
- ----------------------------------
Springfield [*]
- ----------------------------------
Total [*]
- ----------------------------------
</TABLE>
- --------------------
[*] Information redacted pursuant to a confidential treatment request
throughout this exhibit.
- ------------------------------------------------------------------------------
Exhibit G - 27 of 47
<PAGE> 170
EXHIBIT G
6 NETWORK MONITORING & SURVEILLANCE
Lucent Technologies' Remote Monitoring and Surveillance Services will be
provided based on the Service package chosen by Customer. Remote Surveillance
capabilities for monitoring Customer's network, including all associated
Supplier network elements (excluding any non-Supplier network elements, which
must be approved in writing by the Lucent Technologies NRC prior to initiating
Monitoring Services). Monitored conditions will include Service interruptions,
alarm reporting, system outages, call processing loss, initializations, and
duplex hardware failures. Problems may be addressed and resolved remotely or
on-site, or trouble notifications may be provided to Supplier and/or Customer-
specified personnel for resolution.
6.1 COMPONENT SERVICES
o Alarm Testing. Critical, major, minor and fuse alarm status
indicators are tested on an agreed upon basis not to exceed one (1)
time each Term year. Environmental alarm conditions are monitored on
an on-going basis.
o Alarm Resolution. The NRC will initiate corrective action in response
to critical, major, and minor alarm conditions identified during
remote and/or on-site surveillance periods.
o Trunk Maintenance. The NRC will respond to switch, customer, and
repair Service-reported trunk problems.
o Escalation and Resolution of Network Problems. The NRC will initiate
corrective action in response to any alarm condition. In line with
Customer-specific escalation plans, unresolved problems will be
escalated to the appropriate Lucent Technologies Technical Assistance
organization as necessary, including Bell Laboratories. When Customer
has selected Lucent Technologies for Case Management of each problem,
the NRC will retain ownership of the problem through resolution.
o Software Updates. Supplier plans to correct generic program software
problems and provide feature enhancements in Customer's network system
and maintain associated history logs.
o Emergency Recovery Procedures. If Customer's 5ESS(R)-2000 switch is
unable to automatically recover from fault conditions or
initializations, Supplier will deploy manual procedures to clear
failures, restore operation, and minimize Service interruptions.
o Dispatch of On-Site Technical Personnel. Depending on Customer's
selection of on-site support, Supplier can dispatch designated
technical personnel to the affected site to resolve hardware problems.
o Alarm and Service Outage Analysis. The NRC will conduct root-cause
analysis of system initializations, maintenance interrupts, major
alarms, and software and hardware failures, utilizing chronological
data of system activity to assist in avoiding similar recurrences of
system failures. These root-cause analysis reports will be limited to
Severity levels which result in a loss of call processing. Lucent
Exhibit G - 28 of 47
<PAGE> 171
EXHIBIT G
Technologies will be responsible for determining the extent and frequency
of the analysis.
o Diagnostic Failures. Routine automatic and manual diagnostic procedures
will be conducted to detect 5ESS(R)-2000 switching hardware faults.
o Memory Administration. The NRC will monitor Customer's network to ensure
that adequate memory capacity is available for system operation.
If the NRC identifies the need for an on-site dispatch and Customer has
arranged for third party on-site coverage, the NRC will direct the dispatch to
Customer's help desk or other mutually agreed-upon central source.
The current Escalation criteria documented below may be modified to meet
Customer's expectations. A detailed Customer internal escalation process will
be established to ensure that Customer personnel are properly notified in the
event of a Service-affecting activity.
6.2 NRC STANDARD ESCALATION GUIDELINES
- -------------------------------------------------------------------------------
The following items will be used as criteria for establishing what
constitutes a Service-affecting incident. Incidents which fall into these
categories shall be reported to Tier III (RTAC) immediately without regard
to cause or resolution.
o DMERT init level two or higher.
o AM application software init level S5 or higher.
o AM application hardware init level H3 or higher.
o SM init level FG1, S1, and F1.
o AMA duplex failure for more than two (2) minutes.
o Duplex failure of any peripheral frame affecting call processing.
6.2.1 5ESS(R)-2000 PROBLEM ESCALATION AND NOTIFICATION GUIDELINES
<TABLE>
<CAPTION>
PROBLEM TYPE SEVERITY NRC TIME NRC TO RTAC
------------ -------- --------- ----------
<S> <C> <C> <C>
Frame/item 1E Notification and/or
processor equipment escalation to failure state On-site NRC TIER III, IV
5ESS(R)-2000 Call processing ASAP ASAP
AMA Total ASAP ASAP
ADMINISTRATIVE MODULE
---------------------
CU Duplex ASAP ASAP
Simplex 1 hour 3 hours
DFC Duplex ASAP ASAP
Simplex 1 hour 3 hours
MHD Duplex ASAP ASAP
</TABLE>
Exhibit G - 29 of 47
<PAGE> 172
EXHIBIT G
<TABLE>
<CAPTION>
- ------------------------------------------------------------------------------
PROBLEM TYPE SEVERITY NRC TIME NRC TO RTAC
- ------------------------------------------------------------------------------
<S> <C> <C> <C>
Simplex 1 hour 3 hours
- ------------------------------------------------------------------------------
IOP Duplex ASAP ASAP
-------------------------------------------------------
Simplex 2 hours 5 hours
- ------------------------------------------------------------------------------
IOP sub-unit Duplex ASAP ASAP
-------------------------------------------------------
Simplex 4 hours 12 hours
- ------------------------------------------------------------------------------
IOP sub-device Duplex ASAP ASAP
-------------------------------------------------------
Simplex 4 hours 12 hours
- ------------------------------------------------------------------------------
COMMUNICATION MODULE
- ------------------------------------------------------------------------------
MSCU Duplex ASAP ASAP
-------------------------------------------------------
Simplex 1 hour 3 hours
- ------------------------------------------------------------------------------
MSPU Duplex ASAP ASAP
-------------------------------------------------------
(MMP, FCP, PPC) Simplex 4 hours 18 hours
- ------------------------------------------------------------------------------
ONTC Duplex ASAP ASAP
-------------------------------------------------------
(MICU/TMS/DLI) Simplex 1 hour 3 hours
- ------------------------------------------------------------------------------
SWITCHING MODULE
- ------------------------------------------------------------------------------
Controller Duplex ASAP ASAP
-------------------------------------------------------
(MP,SP,TSI,ECT) Simplex 4 hours 24 hours
- ------------------------------------------------------------------------------
Line Unit/ISLU 512 circuits ASAP 1 hour
-------------------------------------------------------
Grid 64 circuits ASAP 3 hours
-------------------------------------------------------
Channel Board 8 circuits 1 hour 4 hours
- ------------------------------------------------------------------------------
Trunk Unit 64 circuits 6 hours 24 hours
- ------------------------------------------------------------------------------
Digital 240 circuits 2 hours 8 hours
- ------------------------------------------------------------------------------
Line/Trunk Unit
(DLTU) DFI 24 circuits 6 hours 24 hours
- ------------------------------------------------------------------------------
Digital CXR/Line Unit
(DCLU) 576 ciruits ASAP 1 hour
- ------------------------------------------------------------------------------
Remote Terminal (SLO) 96 circuits ASAP 3 hours
- ------------------------------------------------------------------------------
</TABLE>
6.2.2 NETWORK MONITORING AND SURVEILLANCE PRICING
Seven-by-Twenty-Four-Hour (7 X 24) Monitoring & Surveillance Services
pricing below includes those Services as stated above in Section 6.1,
"Component Services." Component Services.
The recurring monthly charge for each host site (including the monthly circuit
charge) is:
- ------------------------------------------------------------------------------
Exhibit G - 30 of 47
<PAGE> 173
EXHIBIT G
<TABLE>
<CAPTION>
- -----------------------------------------------------------------------------
Santa Rosa Salem Tacoma Host Total
- -----------------------------------------------------------------------------
<S> <C> <C> <C> <C>
5ESS switch [*] [*] [*] [*]
- -----------------------------------------------------------------------------
Jetstream [*] [*] [*] [*]
- -----------------------------------------------------------------------------
Cerent [*] [*] [*] [*]
- -----------------------------------------------------------------------------
Cisco ATM [*] [*] [*] [*]
- -----------------------------------------------------------------------------
Total [*] [*] [*] [*]
- -----------------------------------------------------------------------------
</TABLE>
Assuming that operations commence on July 1, 1999 the total charge for the
remainder of 1999 for each host (including the monthly circuit charge) is:
<TABLE>
<CAPTION>
- -----------------------------------------------------------------------------
Santa Rosa Olympia Tacoma Host Total
- -----------------------------------------------------------------------------
<S> <C> <C> <C> <C>
5ESS switch [*] [*] [*] [*]
- -----------------------------------------------------------------------------
Jetstream [*] [*] [*] [*]
- -----------------------------------------------------------------------------
Cerent [*] [*] [*] [*]
- -----------------------------------------------------------------------------
Cisco ATM [*] [*] [*] [*]
- -----------------------------------------------------------------------------
Total [*] [*] [*] [*]
- -----------------------------------------------------------------------------
</TABLE>
ATG will only be billed for these services from the date that operations
commence.
- --------------------
[*] Information redacted pursuant to a confidential treatment request
throughout this exhibit.
Exhibit G - 31 of 47
<PAGE> 174
EXHIBIT G
The recurring monthly charge for each co-locate site (including the monthly
circuit charge) is:
<TABLE>
<CAPTION>
- ------------------------------------------------------------------------------
Cerent Diamond Lane Fast Shelf CoLo Total
- ------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Santa Rosa [*] [*] [*] [*]
(Third Street)
- ------------------------------------------------------------------------------
Rohnert Park [*] [*] [*] [*]
- ------------------------------------------------------------------------------
Cotati [*] [*] [*] [*]
- ------------------------------------------------------------------------------
Petaluma [*] [*] [*] [*]
- ------------------------------------------------------------------------------
Tacoma 62nd Ave [*] [*] [*] [*]
- ------------------------------------------------------------------------------
Tacoma Fawcett [*] [*] [*] [*]
- ------------------------------------------------------------------------------
Tacoma J St. [*] [*] [*] [*]
- ------------------------------------------------------------------------------
Olympia [*] [*] [*] [*]
- ------------------------------------------------------------------------------
Puyallup [*] [*] [*] [*]
- ------------------------------------------------------------------------------
Salem [*] [*] [*] [*]
- ------------------------------------------------------------------------------
Eugene [*] [*] [*] [*]
- ------------------------------------------------------------------------------
Springfield [*] [*] [*] [*]
- ------------------------------------------------------------------------------
Total [*] [*] [*] [*]
==============================================================================
</TABLE>
Assuming that operations commence on July 1, 1999 the total charge for the
remainder of 1999 for each co-location site (including the monthly circuit
charge) is:
<TABLE>
<CAPTION>
- ------------------------------------------------------------------------------
Cerent Diamond Lane Fast Shelf CoLo Total
- ------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Santa Rosa [*] [*] [*] [*]
(Third Street)
- ------------------------------------------------------------------------------
Rohnert Park [*] [*] [*] [*]
- ------------------------------------------------------------------------------
Cotati [*] [*] [*] [*]
- ------------------------------------------------------------------------------
Petaluma [*] [*] [*] [*]
- ------------------------------------------------------------------------------
Tacoma 62nd Ave [*] [*] [*] [*]
- ------------------------------------------------------------------------------
Tacoma Fawcett [*] [*] [*] [*]
- ------------------------------------------------------------------------------
Tacoma J St. [*] [*] [*] [*]
- ------------------------------------------------------------------------------
Olympia [*] [*] [*] [*]
- ------------------------------------------------------------------------------
Puyallup [*] [*] [*] [*]
- ------------------------------------------------------------------------------
Salem [*] [*] [*] [*]
- ------------------------------------------------------------------------------
Eugene [*] [*] [*] [*]
- ------------------------------------------------------------------------------
Springfield [*] [*] [*] [*]
- ------------------------------------------------------------------------------
Total [*] [*] [*] [*]
==============================================================================
</TABLE>
ATG will only be billed for these services from the date that operations
commence.
- --------------------
[*] Information redacted pursuant to a confidential treatment request
throughout this exhibit.
Exhibit G - 32 of 47
<PAGE> 175
EXHIBIT G
7 NETWORK PERFORMANCE SERVICES
Network Performance Services will consist of six component Services
essential to Customer's ability to manage the investment in their network
and to maximize their service to end-users and/or resellers.
7.1 TRAFFIC DATA COLLECTION
- --------------------------------------------------------------------------------
This Service provides the collection of real time traffic data from network
elements and related facilities within the network Collection of data will
be on 5ESS(R)-2000 switch components, trunk groups, and 5ESS(R)-2000 switch
performance.
Traffic Data Collection includes:
o Connectivity and scheduling
o Establishing thresholds
o Time consistent and true busy hour reports
o Exception reports based on threshold items
o Exception report analysis
o Data retention - 45 days of raw data, 13 months of summarized data
(on-line), 5 years of summarized data (off line)
7.2 CAPACITY MANAGEMENT
- --------------------------------------------------------------------------------
The NRC will perform capacity management on Customer's networks. Using
data collected, weekly and monthly reports will be generated as follows:
o Switch Performance
o Switch Components
o Trunk Groups
o Threshold Exception Trending
o Memory Administration
Supplier will analyze note recommendations and items requiring attention on
the monthly reports sent to Customer.
7.3 NETWORK MANAGEMENT
- --------------------------------------------------------------------------------
The NRC will use real-time surveillance and monitoring of message traffic
(5 minute data) to allow for network control capabilities and for the
patterning of network call irregularities. The systems will use manual and
automatic/dynamic control capabilities to maximize call-carrying capacity
and to interact with the network to minimize the adverse effects of traffic
overloads and disaster situations such as switch, signaling or facility
failures.
- --------------------------------------------------------------------------------
Exhibit G - 33 of 47
<PAGE> 176
EXHIBIT G
7.4 SPECIAL STUDIES
- --------------------------------------------------------------------------------
Special Studies deliverables fall into two categories - Customer and
Equipment/Network
Customer Special Studies includes data on a particular customer group such
as Single Line, Series Complete, MLHG, SFG, or customer TGN. This data will
be a one week study that will include graphical as well as summarized data
by hour for a specific customer. The data includes peg count, overflow,
usage and grade of service recommendations. This data includes both peak
and time consistent busy hour. These studies can be used for internal
administration as well as marketing data for Customer sales teams.
The Equipment/Network Special Studies includes any study that is not part
of the normal capacity monitoring package, such as studies on TR008/TR303
Remote Terminals, specific type or group of switch peripherals, and special
switch interactions.
7.5 D & F SERVICES
- --------------------------------------------------------------------------------
Planning, designing and engineering the configuration of the network is a
multifaceted discipline. Supplier will provide information on installed and
working components of Supplier equipment to enable Customer to utilize the
engineered capacity and plan for timely relief.
The NRC's D & F (Demand and Facility) Service will provide the following
information to enable Customer to properly administer and plan for timely
relief:
o Develop Demand and Facility (Capacity) charts for port limited switch
components. These components include:
DNU-S
IDCU
DCS
This Service complements the information provided on traffic sensitive
components in the Capacity Management Services offering.
This information will be provided on a monthly basis. Additional components
will be provided as part of the network special study category of the SOW.
7.6 NETWORK RELIEF PLANNING
- --------------------------------------------------------------------------------
The NRC's goal in providing Relief Planning Services is to determine the
amount of equipment required to meet the increased end-user service demands in
a timely fashion while minimizing Customer's total network costs. This Service
is provided as an additional offering to those customers who have subscribed
to the D & F Services and Capacity Management Services.
- --------------------------------------------------------------------------------
Exhibit G - 34 of 47
<PAGE> 177
EXHIBIT G
To accomplish this:
o Supplier and customer will jointly develop the thresholds (75%, 85%, etc.)
at which time a relief job will be triggered or recommended. The size of
switch addition will be based either on historical trends and/or customer
forecast as well as agreed upon relief interval.
o Depending on the agreed upon process/procedure, customer can be provided
with a recommendation of equipment to be ordered or even a TEO to be
reviewed, approved and ordered by Customer:
Combined with Capacity Management Services and D & F Services, this Service will
allow Customer to effectively and efficiently manage its capital investments
while continuing to meet the demands of its end-users while offering a specific
grade of service to end-user customers.
7.7 NETWORK PERFORMANCE SERVICES PRICING
- --------------------------------------------------------------------------------
The monthly recurring price for this service is [*] per switch per month
for 1999.
<TABLE>
<CAPTION>
Host Location Monthly Charge Charge for six months
- ------------- -------------- ---------------------
<S> <C> <C>
Santa Rosa [*] [*]
Salem [*] [*]
Tacoma [*] [*]
------ -------
Total [*] [*]
====== =======
</TABLE>
ATG will only be billed for these services from the date that operations
commence.
- --------------------
[*] Information redacted pursuant to a confidential treatment request
throughout this exhibit.
- --------------------------------------------------------------------------------
Exhibit G - 35 of 47
<PAGE> 178
EXHIBIT G
8 SERVICE PROVISIONING AND INVENTORY
Lucent Technologies' Network Reliability Center (NRC) will provide the
Customer with Service Provisioning as described below. These Services will
be directed from the NRC Service Order Processes will be jointly designed,
documented as mutually agreed by Customer and Supplier. These processes
will include the following Service order functions: review, acceptance
confirmation, network element (NE) assignment, switch and transport
translations, record inventory and order completion. The manner in which
orders are received can be manual, mechanized or automated, based on
Customer's data communication capabilities.
8.1 SERVICE ORDER DESCRIPTION
- ------------------------------------------------------------------------------
A "Service Order" is any extension or order submitted by Customer and
accepted by the NRC which is a new, change to new, or change to an
existing order. Service Orders will be billed as described below.
8.2 SERVICE ORDER HOURS OF OPERATION
- ------------------------------------------------------------------------------
The NRC Service Order Provisioning center hours of operation are Monday
through Friday, 6:00 a.m. MST to 10:00 p.m. MST (excluding any holidays
recognized by Supplier). If received after 10:00 p.m. MST, orders will
be processed after 6:00 a.m. MST on the next business day.
8.3 SERVICE ORDER VOLUMES PER HOURS OF OPERATION
- ------------------------------------------------------------------------------
The maximum number of orders (Standard and Special) Supplier will accept
during the Service Order Provisioning Centers upon agreement between both
parties in a Joint Service Level Agreement Hours of Operation listed
above may not exceed a quantity; orders in excess of the daily agreement
shall be carried over to the next business day.
8.4 NEW SERVICE ORDER INITIATIVES
- ------------------------------------------------------------------------------
Future market initiatives outside of the Standard and Special Service
order descriptions listed above will be renegotiated for price, completion
intervals, billing intervals and process, and must be pre-approved in
writing by the Lucent Technologies NRC prior to implementing the
initiative.
8.5 STANDARD SERVICE ORDERS
- ------------------------------------------------------------------------------
Standard Service Orders (also known as "Plain Old Telephone Service" or
"POTS") will be no more than five (5) lines and will be billed at the
rate of [*] per line. Any incorrect POTS orders will be billed at an
additional [*] per line and processed with the correct information, a copy
of the error and corrected information to be provided to Customer
documenting the error and billing. Any orders received as an
Escalated/Expedited order will be billed at an additional [*] per line.
Customer will provide a pre-approval list of names designating personnel
authorized to escalate an
- --------------------
[*] Information redacted pursuant to a confidential treatment request
throughout this exhibit.
- --------------------------------------------------------------------------------
Exhibit G - 36 of 47
<PAGE> 179
EXHIBIT G
order. All Escalated order requests must be accompanied by a signed approval
for the Escalation.
Incorrect orders are defined as: any order containing any invalid mismatch of
facility/equipment, or telephone number or channel, or Service Promised to a
customer by Customer.
Escalated/Expedited orders are defined as: any order with a request to complete
prior to the standard intervals.
8.6 SPECIAL SERVICE ORDERS
- --------------------------------------------------------------------------------
o Hunt Groups
o Centrex
o LDP (ANI Table updates & PIC changes)
o LD
o LNP
o ISDN
o Millennium Voice/Data Orders
Special Service Orders will be no more than fifteen (15) lines and billed at [*]
per line. Any orders received incorrectly will be billed at an additional [*]
per line. Incorrect orders will be processed with the correct information with a
copy of the error and corrected information provided to Customer documenting the
error and billing. Any orders received as an Escalated/ Expedited order will be
billed at an additional [*] per line. There will be a pre-approval list of names
provided by Customer of who can escalate an order. All Escalated order requests
must be accompanied by a signed approval for the Escalation.
Incorrect orders are defined as any order containing any invalid mismatch of
facility/equipment, telephone number or channel, or Service promised to an
end-user customer by Customer.
Escalated/Expedited orders are defined as any order or Customer requests to be
completed in less time than Supplier's standard intervals.
8.7 TRUNK SERVICE PROVISIONING AND INVENTORY MANAGEMENT
- --------------------------------------------------------------------------------
The NRC will work with Customer to identify and track managed network
facilities. Customer must first provide accurate and timely inventories of
Customer's network equipment first. Customer must update and compare inventories
on a monthly basis to ensure accuracy. The NRC will also create and maintain the
inventory records used for assigning these network facilities. Record
requirements will be mutually defined by Customer and the NRC. The network
element data, which is managed by Customer, will be combined with the NRC
- --------------------
[*] Information redacted pursuant to a confidential treatment request
throughout this exhibit.
- --------------------------------------------------------------------------------
Exhibit G - 37 of 47
<PAGE> 180
EXHIBIT G
information to provision service orders. Services can include any or all of
the following:
o Inventory Management - Create, organize, and maintain physical and
administrative telecommunications records (unbundled loop, network
facilities, telephone numbers, circuit identifiers and trunk group
ids)
o Facility Management - Select from a customer provided list of
transport facilities. This information will be used to establish
service for a customer. Track all changes in the status and
availability of these transport facilities.
o Translate trunk information into appropriate switch.
o Translate Electronic Cross Connects information for the specified
network elements.
o Provide support for Trunk maintenance and turn-up.
o Provide service request completion information to customer when
requested.
8.8 LINE SERVICE PROVISIONING
Line Service Provisioning will include the establishment of network
connectivity, for the purpose of originating or terminating calls. This
service will provide activities in response to service order requests for
adds, moves, and changes to customer services. Line service provisioning
includes:
o Electronic receipt of service requests from customer or their
representative.
o Acknowledgement of order receipt.
o Analysis of service request for accuracy.
o Telephone number/network resource management assignment, aging and
database administration.
o Translation of Centrex feature groups and dialing plans.
o Assignment and tracking of multi-line hunt groups.
o Identification of service request jeopardous. And notification to
Customer.
o Provide information for the creation and issuance of circuits design
records. This record will be used by Customer, the NRC and the NRC
trouble management teams.
o Assignment of network resources and/or telephone numbers to service
requests.
o Distribution of service request to defined personnel if required.
o Input and validation of required standard switch translations.
o Dispatch management of vendors providing inside premise wiring for
customers.
o Initial tests of unbundled loop to validate good facilities.
o Acknowledgment to customer of service request completion.
8.9 TEST AND TURN-UP
Lucent Technologies' Network Reliability Center (NRC) will provide the
Eagle Test & Turn Up support as described below. These Services will be
directed from the NRC.
Exhibit G - 38 of 47
<PAGE> 181
EXHIBIT G
Test & Turn Up processes will be designed, documented and accepted by
Customer and the NRC.
8.9.1 TEST AND TURN UP DESCRIPTION
These processes will include the following Test & Turn Up functions:
review, acceptance confirmation, network element (NE) assignment,
switch and transport translations, record inventory, complete service
turn up with field technician and order completion.
8.9.2 TEST AND TURN UP PREREQUISITES
o Completed LTR (Line Trunk Record), Provided by Eagle
o Completed DVA (Design Verity Assign), Completed by NRC
Provisioning.
o Provisioning translations completed (Except LNP translations).
o Completed CLR (Circuit Layout Record), Completed by Eagle.
o CLR delivered to NRC Test and Turn Up and Eagle switch technician.
o Facility tested end to end.
o DCS cross-connects complete.
o Field technician dispatch list delivered to the NRC Test and Turn
Up 24 hour prior to field technician dispatched. (Advanced
notification of large projects for timely completion of work).
8.9.3 TEST AND TURN UP HOURS OF OPERATION
The NRC Test & Turn Up Order Center hours of operation are Monday through
Friday, 6:00 a.m. MST to 7:00 p.m. MST (excepting any Supplier recognized
Holidays). Turn Up orders received after 7:00 p.m. MST will be processed
the following business day.
8.10 SERVICE ORDER PROVISIONING PRICING
- --------------------------------------------------------------------------------
Standard Service Orders
Special Service Orders
Standard Orders (5 or less lines per order);
[*] per line per order.
Order is based on the entire order process: from the initial order receipt
throughout the processing, activation, and testing time of the order.
ANY ORDER RECEIVED WITH INCORRECT DATA:
[*] additional per line per order.
ANY ORDER WITH AN ESCALATION REQUEST:
[*] additional per line per order.
- --------------------
[*] Information redacted pursuant to a confidential treatment request
throughout this exhibit.
- --------------------------------------------------------------------------------
Exhibit G - 39 of 47
<PAGE> 182
EXHIBIT G
COMPLEX SERVICE ORDERS (15 OR LESS LINES PER ORDER)
[*] per line per order.
Order is based on the entire order process: from the initial order receipt
throughout the processing, activation, and testing time of the order.
ANY ORDER RECEIVED WITH INCORRECT DATA:
[*] additional per line per order.
ANY ORDER WITH AN ESCALATION REQUEST:
[*] additional per line per order.
TEST AND TURN UP PRICING FOR STANDARD AND COMPLEX ORDERS
[*] per line additional for Standard or Complex orders
[*] per line additional for incorrect or escalated orders
Standard or Complex
9. TRANSLATIONS AND SWITCH INVENTORY
The NRC will perform on-going Switch Software Translations which will
enable the switch to perform call processing. This assumes all initial data
bases have been established, and the switch is switching calls. On-going
provisioning must be done to reflect changes in switch equipment and
changes in customer information.
The NRC will maintain records inventory and changes to the switch data
bases. The office specific data records capture the equipment in the
central office.
TRANSLATION ORDER DESCRIPTION
A Translation Order is described as any order received by the NRC from ATG
as a new, change to new, change to existing, and an extension to a new,
existing, or changed order and will be billed as described below.
TRANSLATION ORDER HOURS OF OPERATION
The NRC Translations Order center hours of operation are; Monday through
Friday, 6:00 a.m. MST to 7:00 p.m. MST (excluding any Lucent recognized
Holidays). No order will be processed, until 6:00 a.m. MST the following
business day, if received after 10:00 p.m. MST.
- --------------------
[*] Information redacted pursuant to a confidential treatment request
throughout this exhibit.
Exhibit G - 40 of 47
<PAGE> 183
EXHIBIT G
NEW TRANSLATIONS ORDER INITIATIVES.
Any Future Market initiatives outside of the Translations order
descriptions listed, will be renegotiated in the areas of: price,
completion intervals, billing intervals and process, and must be
pre-approved in writing by the Lucent Technologies NRC, prior to the start
of the initiative.
Complex Translations Orders (as defined below) will be negotiated for
completion intervals and billed in 1 hour increments. Total time charged to
a complex order is based on the entire order process from initial order
receipt throughout the processing, activation, and testing time of the
order. Any orders received incorrectly will be billed at no less than a 3
hour increment. Incorrect orders will be processed with the correct
information and a copy of the error and corrected information will be
provided to ATG as backup documentation to the error and billing. Any
orders for translations received as an Escalated/Expedited order will be
billed at no less than a 4 hour increment. There will be a pre approval
list of names provided by ATG of who can escalate an order. All
Escalated/Expedited order requests must be accompanied by a signed approval
for the Escalation.
Complex Translations are defined below:
9.1 COMPLEX TRANSLATIONS
The below translations efforts are efforts that will be negotiated for
completion at the time of request. They will not be billed or tracked
as listed above and will require a negotiated time frame prior to the
beginning of the project. The efforts listed below will retire hours
from the Translations blocks of hours as per the negotiated time
frames per incident.
o Building Rate Centers
o Rating
o LNP Implementation on New Switches
o LNP NOC
o LNP Routing
o LDP Routing
o LDP Additional Trunk Group Routing
o LERG Administration
o Line Class Codes
o SS7 Trunking, Point Code Additions and Routing
o NPA Splits in the same LATA
o NPA Splits in ATG Rate Centers
o NPA NXX Additions
o OPERATOR and 911 Additions, Changes and Testing
o Preparation of Large Terminal Growth - After preparation is
complete the NRC passes off the Growth to the Software Evolution
Group in Lisle, ILL.
Exhibit G - 41 of 47
<PAGE> 184
EXHIBIT G
This group contacts the customer for scheduling of actual growth. This
growth is an additional charge to the customer from the Software Evolution
Group in Lisle, ILL.
o Translations Consulting and Analyzation
9.2 TRANSLATIONS PRICING
- ------------------------------------------------------------------------------
Translations 500 hour block [*] per block
One-time set-up fee [*]
Billable in 1 hour increments:
Total time charged per Translation order is based on the entire order
process: from the initial order receipt throughout the processing,
activation, and testing time of the order.
Any order received with incorrect data will be billed at no less than
a 3 Hour minimum.
Any order with an escalation request will be billed at not less than
a 4 Hour minimum.
A review will be held monthly with ATG to review usage of hours with
the ability for ATG to add additional hours upon request.
- --------------------
[*] Information redacted pursuant to a confidential treatment request
throughout this exhibit.
- --------------------------------------------------------------------------------
Exhibit G - 42 of 47
<PAGE> 185
EXHIBIT G
10 TROUBLE MANAGEMENT SUPPORT
All information in this section is contingent upon Customer obtaining and being
responsible for all interface agreements, negotiations and execution of the
definitive agreements with all other service providers with whom the NRC will
communicate on behalf of Customer. Customer is also responsible for providing
all necessary system interfaces between Customer's order management offices and
the NRC.
Total time charged to a trouble ticket is based on the entire process, from
initial trouble ticket receipt throughout the duration processing, testing, and
resolution time of the ticket. Any trouble tickets received as an Escalated
request will be billed at no less than a two (2) hour increment. There will be a
pre-approval list of names provided by Customer of who can escalate a trouble
ticket. All Escalated trouble tickets must be accompanied by a signed approval
for the Escalation. Supplier's NRC will, in every case, treat each trouble
ticket with the utmost importance. Each trouble ticket will be logged and
processed as soon as it is received by the NRC Trouble Management personnel.
ADSL Service Assurance (or Maintenance Testing) is process of performing tests
on a line when a customer calls in with a trouble, or if there is trouble noted
by the Monitoring & Surveillance group. The objective of such testing is to
isolate trouble so that the proper repair personnel can be dispatched to the
correct location with the appropriate equipment. The objective of ADSL service
assurance is to provide this level of detail automatically in a manner similar
to that done currently for POTS and ISDN services. Unlike special services
testing, the tester is not required to know the details of the test process or
the interconnections which makes it appropriate choice for automation and
flow-through processes.
The ADSL signature detection feature and the ADSL wideband access and test
features are also appropriate to the service assurance process. Together with
the digital testing capabilities (described next) and the enhanced narrowband
test capabilities (such as load coil detection), they provide a complete
solution for ADSL Service assurance.
10.1 CUSTOMER CARE SUPPORT
- ------------------------------------------------------------------------------
Supplier shall provide Around-the-Clock (also referred to as "7 x 24")
Customer Care Support Service to Customer and Customer's end-user
customers via a toll-free access line for problem and trouble reporting.
o At Customer's request, Supplier shall answer calls in the name of
"Advanced TelCom Group, Inc."
o Caller data will be validated for purposes of entitlement.
o For ISP trouble calls, only Tier 1 support will be provided. Tier 1
support is defined as receipt of trouble calls, screening of the
trouble based on a script provided by ATG and transfer of the call to
the ATG ISP technical services group if the trouble cannot be
resolved using the script.
- --------------------------------------------------------------------------------
Exhibit G - 43 of 47
<PAGE> 186
EXHIBIT G
o For technical and/or network malfunction problems, resolution is
either initiated directly by the NRC, or forwarded to Customer-
designated source (including third party vendors) for resolution
and/or disposition.
o If all Switching equipment functions are working properly, MLT tests
can be initiated to further define the nature of the trouble.
o For administrative, billing, and procedural inquiries, the NRC will
either respond directly to the end-user or forward the caller to
Customer's organization (as contractually agreed).
o On-Site dispatch, when required, will be scheduled in accordance with
customer's on-site coverage parameters.
o Trouble Ticket Database Management. NRC personnel will create, track,
and retain all pertinent data associated with each trouble and/or
inquiry. Such database is summarized monthly and a report is generated
highlighting call volume, failure data, resolution times, and type of
inquiry. Monthly activity reports will be made available to Customer.
o Customer Notification. For each technical trouble or network
malfunction, current status, call completion, and trouble resolution
information will be provided to Customer, either on a scheduled daily
basis, or in accordance with documented and mutually agreed-upon
escalation and notification plans and processes.
o End-User Notification. End-users will be notified upon resolution of
each technical problem or network malfunction.
o Case Management. In accordance with documented and mutually
agreed-upon escalation and notification plans and processes,
resolution of technical and/or network malfunction problems is either
initiated directly by the NRC, or forwarded to Customer-designated
source (including third party vendors) for resolution and/or
disposition. In line with this offering, the NRC will retain ownership
of each problem through the resolution process. Current status, call
completion, and trouble resolution information will be provided to
Customer, either on a scheduled basis, or as documented in formal
escalation and notification plans. Response and service level
commitments will be in accordance with the parameters of each vendor's
agreement.
10.2 TROUBLE MANAGEMENT PRICING
- --------------------------------------------------------------------------------
The price for Trouble Management is [*] for a block of 1,500 hours to be
used prior to December 31, 1999.
There will also be a one-time setup charge of [*]. This includes the
interface to the ATG ISP Remedy trouble system and the Remedy application
image file.
- --------------------
[*] Information redacted pursuant to a confidential treatment request
throughout this exhibit.
- --------------------------------------------------------------------------------
Exhibit G - 44 of 47
<PAGE> 187
EXHIBIT G
If Customer retires this 1,500 block of hours and requests additional Trouble
Management Services during 1999, Supplier shall provide Trouble Management
Services under a renewed block at the same price for the remainder of 1999.
Services provided beyond 1999 or for professional services not covered in this
Statement of Work shall be provided in increments of 1,500 blocks of hours at
Supplier's time and material rate in effect at the time such additional
services are rendered.
- --------------------------------------------------------------------------------
Exhibit G - 45 of 47
<PAGE> 188
EXHIBIT G
Lucent's Global Network Operations team recognizes the criticality of this
endeavor to ATG and stands ready to help ensure the overall success of this
project. Please indicate ATG's acceptance of this SOW by sending an e-mail
message to Neil Gembrin at [email protected] stating your acceptance or by
signing below and faxing this SOW to 925 468 3509.
Accepted and concurred by:
LUCENT TECHNOLOGIES INC. ADVANCED TELCOM GROUP
By: James P. Goodman By: Curt Wheeling
- ------------------------------- ---------------------------------
PRINTED PRINTED
/s/ JAMES P. GOODMAN /s/ CURT WHEELING
- ------------------------------- ---------------------------------
SIGNED SIGNED
Sales VP Sr. VP Marketing
- ------------------------------- ---------------------------------
TITLE TITLE
3/22/99 3/18/99
- ------------------------------- ---------------------------------
DATE DATE
- --------------------------------------------------------------------------------
Exhibit G - 46 of 47
<PAGE> 189
EXHIBIT H
TO THE
GENERAL SUPPLY AGREEMENT
STATEMENT OF WORK FOR ORDER MANAGEMENT
1. STATEMENT OF WORK
Lucent Network Reliability Center (NRC) will provide an Order Management
function for Advanced TelCom Group, Inc. (ATG) utilizing both the Digital
Counterpart Inc. (DCI) eC.Order product along with newly created or existing NRC
manual processes. This Order Management System is intended to be for an interim
period only; pending general availability of a completely mechanized order
management system, Lucent NRC will manage orders using a mixture of manual and
automated processes. Order Management will provide the capability to complete
and track a service order and perform the work necessary to put an ATG end-user
customer into voice and/or data service. Order Management will include order
management functionality described below:
- Ordering unbundled loops from the ILECs (e.g., Pacific Bell and US
West);
- Local Number Portability (Interface to Illuminet and switch
provisioning);
- 5ESS-2000 switch provisioning (Lucent 5ESS-2000 and AnyMedia FAST);
- SONET electronics and digital cross connect provisioning (Cerent);
- Provisioning of Internet/xDSL services ( Nokia/Diamond Lane and
various selected xDSL CPE suppliers);
- Interface with ATG INOC for ATM routing (Cisco), Modem Pooling (Port
Master IV) and ATM-to-TR-303 Conversion (Jetstream);
- Interface for long distance provisioning (Qwest and other DBAs);
- Calling Card Fulfillment interface;
- Voice and Fax Messaging interface (Octel MCS);
- E911 interface (SCC Communications);
- LIDB interface (Illuminet);
- All physical and logical inventories, including network transport,
to support provisioning and capacity planning functions above;
- Providing order status back to the Order Creation system (eC.Order);
- Notification of order completion to ATG to initiate billing (Arbor
BP).
2. ORDER MANAGEMENT PROCESS FLOWS
See Attachment of written and graphical representations.
3. REPORTING PROCESS
ATG will receive daily and weekly performance reports for the first thirty (30)
business days from the Lucent NRC that will quantify actual time spent for each
task on a daily basis as required for the Order Management process for each
service performed. These performance reports will also include the specific work
performed and who performed the work. Further, summary reports will provide the
number of minimum billing increments (15 minutes) plus total cumulative hours
consumed for each type of work. Upon consuming the first thirty (30) business
days worth of hours, the NRC and ATG will continue tracking hours in this same
manner until such time as ATG and NRC can agree to convert, with sufficient data
collected during the first
<PAGE> 190
thirty (30) business days to develop metrics allowing such change, to a fixed
fee, transaction based pricing model.
4. SCHEDULE AND FEES
Lucent's NRC will start the Order Management process on July 1, 1999 and
continue using the above noted reporting process for thirty (30) business days
or until a fixed-fee, transaction based pricing model is agreed to or for no
more than ninety (90) business days. It is hoped that by no later than September
1999, the process will be reviewed and from data compiled, transition to a more
mechanized and transaction-based process and pricing model.
The price for this service starting July 1, 1999 is to be based on a [*] per
hour fee for each resource with a cap of five hundred (500) total hours [*]. ATG
will issue a purchase order for this amount, Lucent will immediately issue an
invoice upon receipt of purchase order (due via fax within two (2) business
days), and ATG will remit payment on net thirty (30) day terms. ATG agrees to
issue subsequent purchase orders for similar amounts (based on previous month's
history) for each following monthly period or until the transaction based
pricing model is implemented. Billing will be calculated in 15-minute increments
or multiples of 15-minute increments. The goal is to match daily, weekly,
monthly reporting detail with each invoice.
Please indicate ATG's acceptance of this SOW by sending an e-mail message to the
Lucent Offer Manager, Neil Gembrin, at [email protected] stating your
acceptance or by signing below and faxing this SOW to (925) 468-3509.
Accepted and concurred by:
LUCENT TECHNOLOGIES INC. ADVANCED TELCOM GROUP, INC.
By: JAMES P. GOODMAN By: MICHAEL R. BLACK
- ----------------------------------- ---------------------------------------
PRINTED PRINTED
/s/ J. P. GOODMAN /s/ MICHAEL R. BLACK
- ----------------------------------- ---------------------------------------
SIGNED SIGNED
SALES VP SENIOR VICE PRESIDENT
- ----------------------------------- ---------------------------------------
TITLE TITLE
7/22/99 7/12/99
- ----------------------------------- ---------------------------------------
DATE DATE
- --------------------
[*] Information redacted pursuant to a confidential treatment request
throughout this exhibit.
<PAGE> 191
[DIAGRAM]
<PAGE> 192
HIGH-LEVEL FACILITIES-BASED CUSTOMER SERVICE FULFILLMENT PROCESS
This narrative describes the steps outlined in the accompanying flowchart.
1.1 PRE-SALE CHECKLIST PROCESS
Sales will gather information for the customer as they do in resale. There
will be different sales package for facilities that will require additional
information based upon the services ordered. Telephone numbers will be assigned
from an available inventory at this stage. Requests for vanity numbers may be
addressed with the Telephone Number Inventory administrator. Requests by Sales
to override the standard equipment configuration for an order will be
negotiated with Engineering.
1.2 SALES PACKAGE
The completed sales package will be sent to the Customer Service organization
where it will be entered into eC.Order by the CSR.
1.3 PROVISIONING
The order will be sent from eC.Order to the Lucent NRC for fulfillment. The
NRC will update the status of the order in eC.Order so that it can be viewed by
the CSR. If there are errors on the order or insufficient information to
complete the order it will be referred back to the Customer Service organization
(with error reason) for correction/completion.
If the promised delivery timeframe cannot be met or the requested equipment is
not available, the order will be referred back with a jeopardy code.
Once the order is completed, eC.Order will pass data to Kenan to initiate (or
change or stop) customer billing.
1.4 EXTERNAL SYSTEMS INTERFACE
The NRC will handle all of the external interfaces necessary to provision an
order with the exception of Directory Listings that will be handled by the
Customer Service Organization in each Branch.
1.4.1 E911 -- For emergency location of customers (via SCC)
1.4.2 LNP -- Local Number Portability for transferring numbers from one
carrier to another (via Illuminet)
1.4.3 LIDB -- For authorization of 3rd party calls etc. (via Illuminet)
1
<PAGE> 193
1.4.4 Octel -- For VoiceMail
1.4.5 Qwest -- For Long Distance Service
1.4.6 Other IXC PIC Care -- For customers who select a different long
distance carrier than ATG.
1.5 EQUIPMENT PROVISIONING
This covers the assignment of all the physical equipment necessary to provision
an order.
1.5.1 LOOP ASSIGNMENT
The NRC will order the unbundled loop from the ILEC (if necessary).
1.5.2 TRANSLATIONS
The NRC will perform the switch translations for this order.
1.5.3 TRANSPORT
The NRC will provision all of the transport equipment needed for the order
(Diamond Lane, Pairgain, etc.)
1.5.3 TEST & TURN-UP
The NRC will notify the Local Field Organization if they have to perform work
to turn-up the customer's service and will coordinate testing. The LFO will
perform the work at the customers location including the installation of any
required CPE.
1.6 SUPPLEMENTS FOR DD CHANGE, CANCEL, OTHER
Supplements may be issued against the order if there is a change in the due
date or the order is canceled.
2
<PAGE> 194
EXHIBIT J
to the
General Supply Agreement
LUCENT CO-MARKETING PROGRAM
TERMS AND CONDITIONS (JP/MDF)
1. Term
This Agreement shall be effective for a term of <ONE YEAR> from the
date of Lucent's acceptance of Buyer's enrollment form (as used herein "Buyer"
shall refer to the company submitting the enrollment form regardless of how
such company may be referred to in other documents), unless terminated earlier
in accordance with these Terms and Conditions. This Agreement may be renewed
for successive <ONE YEAR> terms upon thirty days notice.
2. Lucent's Obligations and Miscellaneous Program Items
a. Lucent shall provide copies of its "Co-Marketing Program Guidelines"
and "Co-Marketing Program Brand & Logo Usage Guidelines" (these and
all other documentation regarding the Program as they may now or in
the future exist shall be called "Program Documentation").
b. Lucent shall provide copies of its Co-Marketing Brand and/or logo
materials in electronic format or on printed logo sheets at no cost to
Buyer.
c. Lucent will provide funding support by reimbursing Buyer for all
qualified promotion activities according to the guidelines identified
in the Program Documentation at the reimbursement percentage specified
in the Enrollment Form up to the accrued and available allowance. THE
ACCRUAL PERCENTAGE REIMBURSEMENT PERCENTAGE AND IDENTIFICATION OF
PRODUCTS OR CONTRACTS ELIGIBLE FOR ACCRUAL ARE MATERIAL ELEMENTS OF
THIS AGREEMENT AND MUST BE IDENTIFIED ON THE ENROLLMENT FORM. IF ANY
ONE OF THESE ITEMS IS NOT COMPLETED ON THE ENROLLMENT FORM, THEN THIS
AGREEMENT IS VOID AND OF NO FORCE AND EFFECT UNTIL SUCH ITEMS ARE
CONFIRMED IN A WRITING EXECUTED BY BOTH PARTIES.
d. Lucent shall have the right in its sole discretion to modify or
replace the Co-Marketing Brand and/or logo materials at any time.
e. Lucent shall have the right in its sole discretion to modify or cancel
the Program or modify or amend the Program Documentation upon sixty
(60) days notice without further obligation to Buyer.
3. Buyer's Obligations
a. Buyer shall abide by terms and conditions set forth in the
Program Documentation as it exists or shall be modified from time
to time as permitted by this Agreement,
Page 1 of 8
<PAGE> 195
including, but not limited to, the guidelines for accruals and
reimbursements of qualifying promotional activities and the
procedures and documentation necessary for such reimbursements.
b. Without limiting the foregoing or anything in this Agreement, Buyer
expressly agrees to submit all proposed usage of Lucent's Indicia (as
defined in Article 5) for approval by the Lucent Co-Marketing Program
Office on such forms as may be developed by Lucent from time to time,
and shall not use such Indicia unless and until the Lucent
Co-Marketing Program Office grants such approval.
c. Without limiting the foregoing or anything in this Agreement, Buyer
acknowledges it has no ownership or other interest in the Indicia and
shall make no claim to such Indicia.
d. Without limiting the foregoing or anything in this Agreement, Buyer
expressly agrees that accruals shall be only for qualifying
purchasers of specific products for its own use and not for resale.
e. Without limiting the foregoing or anything in this Agreement, Buyer
expressly agrees to submit requests for reimbursement for qualifying
promotions within ninety days after deployment of the subject
promotional activity and to utilize reimbursement funds within one
year of the time the accruals is reported to Buyer.
4. Relationship of the Parties
a. The relationship of the parties under this Agreement shall be and at
all times remain one of independent contractors and shall not create
the relationship of franchisor and franchisee, joint venturer or
principal and agent. Buyer shall not have authority to assume or
create obligations on Lucent's behalf with respect to the Products,
Licensed Materials, or Services furnished by Lucent hereunder or
otherwise, and Buyer shall not take any action which has the effect
of creating the appearance of having such authority. Buyer has not
paid Lucent any fee in consideration of this Agreement.
b. All persons furnished by Buyer shall be considered solely Buyer's
employees or agents, and Buyer shall be responsible for payment of
all unemployment, Social Security and other payroll taxes including
contributions from them when required by law.
c. Buyer agrees that it has no exclusive right to use of Indicia as
defined herein in any geographical area or for any product identified
herein. Lucent expressly reserves the right to contract with others
to promote, market, sell and/or install Products, to use the Indicia
and to permit others to engage in such activities at any time and in
any place.
5. Use of Marks
The use of Lucent's tradenames, trademarks, trade devices, logos, codes,
Co-Marketing Brand and logo or other symbols (collectively "Indicia") shall be
solely for the purpose of and in the manner permitted by the Program
Documentation. Lucent hereby grants Buyer permission to use Indicia in Buyer's
marketing and advertising of, and in Buyer's publicity relating to, the Products
and Agreements identified in Program Documentation, PROVIDED such use conforms
to Lucent standards and guidelines contained in the Program Documentation which
Lucent may furnish from time to time. Without limiting the terms of such Program
Documentation, the
Page 2 of 8
<PAGE> 196
following shall also apply: (1) Buyer may not conduct business under Lucent's
name or logo; (2) Buyer may not use any of Lucent's Indicia or variations
thereof to identify Buyer or Buyer's products or services except as
specifically permitted by the Lucent's Co-Marketing Program Office identified
in the Program Documentation; and (3) Buyer may not use any of Lucent's Indicia
in a manner that is likely to confuse the public concerning the relationship of
the parties. Buyer's use of Indicia shall inure to the benefit of Lucent and
shall not invest in Buyer any rights in or to the Indicia. All users of Indicia
by Buyer shall be subject to prepublication or pre-use review and written
approval buy Lucent. If, in Lucent's judgment, any use of Indicia by Buyer is
deemed detrimental to the Indicia or Lucent's reputation, or is deemed
otherwise undesirable, Lucent may withdraw such permission without liability as
a result thereof.
6. Confidentiality of Information
Buyer and Lucent shall, except to allow Buyer to represent itself to the
public in accordance with the Program or as otherwise agreed in writing, keep
this Agreement and all Program Documentation confidential. Where mandated by
law, this Agreement may be disclosed to any court or legislative body or filed
with, or disclosed to, any governmental organization or agency, in which case
the party making the disclosure shall promptly inform the other of such
disclosure and the disclosing party shall, at the request of the other party,
take all reasonable steps to preserve the confidential nature of this Agreement
and its contents including, without limitation, seeking to obtain a protective
order or similar confidential treatment.
7. Infringement
a. Lucent will defend all suits against Buyer alleging that any Indicia
furnished hereunder infringes any United States patent, or United
States trademark, and will pay direct damages and costs which, by
final judgments, are awarded against Buyer on account of such
infringement, provided that:
i.) Lucent has been given prompt written notice of all claims
of such infringement and suits by Buyer and the full
opportunity and authority in the name of the Buyer or
otherwise to assume the sole defense of and to settle or
compromise such suits;
ii.) Lucent has been furnished by Buyer, upon request, all
information and assistance available to the Buyer for such
defense, including abstention from making any admissions to
claimant regarding the claim; and
iii.) Lucent's responsibility hereunder shall not exceed the
purchase price of the allegedly infringed items.
b. If any item in such suit is held to constitute infringement and the
use of said Indicia is enjoined, or in Lucent's opinion is likely to
be enjoined, Lucent will, at its sole option, either:
i.) replace the Indicia with a non-infringing one;
ii.) procure for Buyer the right to continue using said Indicia;
iii.) modify the Indicia so that it becomes non-infringing; or,
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<PAGE> 197
iv.) remove the Indicia.
c. The obligation set forth in this Paragraph 7 shall not apply to the
extent that such infringement arises from:
i.) Lucent's adherence to specifications or drawings supplied by
Buyer; or
ii.) the sale or use of any item not supplied or specified by Lucent
in combination with product supplied by Lucent
THE FOREGOING STATES THE ENTIRE LIABILITY OF LUCENT FOR PATENT OR TRADEMARK
INFRINGEMENT BY ANY INDICIA.
8. Limitation Of Liability
LUCENT AND ITS AFFILIATES AND THEIR EMPLOYEES, AGENT AND SUPPLIERS SHALL IN NO
EVENT BE LIABLE TO BUYER, ITS AFFILIATES OR ITS END-USER CUSTOMERS FOR INDIRECT,
SPECIAL, RELIANCE, INCIDENTAL OR CONSEQUENTIAL LOSS OR DAMAGE ARISING OUT OF
THIS AGREEMENT OR FROM THE USE OR PERFORMANCE OF ANY LUCENT INDICIA, PRODUCTS OR
SERVICES WHETHER IN AN ACTION FOR OR ARISING OUT OF BREACH OF WARRANTY, BREACH
OF CONTRACT, DELAY, STRICT LIABILITY, OR OTHERWISE.
No action or proceeding against Lucent, its Affiliates, or its suppliers may be
commenced more than twenty-four (24) months after the claim arises.
This Paragraph 8, entitled "Limitation Of Liability" shall survive failure of
an exclusive remedy.
9. Indemnity by Buyer
Buyer agrees to indemnify and save harmless Lucent from and against any
losses, damages, claims, demands, suits and liabilities (including reasonable
attorneys' fees) that arise out of or result from injuries or death to persons
or damage to property caused by Buyer's acts or omissions, or those of persons
furnished by Buyer or in any way arising out of the Buyer's performance of this
Agreement; or assertions made by persons furnished by Buyer under Workers'
Compensation or similar acts; or claims, demands, suits, liabilities or costs
arising out of or in any way relating to the Buyer's performance or failure of
performance under this Agreement. Buyer agrees to defend Lucent at Lucent's
request against any such claims, demands or suits. Buyer's obligation to
indemnify and save Lucent harmless shall survive the expiration or earlier
termination of this Agreement. In the event Lucent permits Buyer to select
counsel, such selection shall be subject to Lucent's approval.
Lucent agrees to notify Buyer within a reasonable time of any written
claims or demands against Lucent for which Buyer is responsible under this
clause.
10. Termination Of Agreement
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<PAGE> 198
Either party may terminate this Agreement without cause or reason upon
thirty (30) days written notice to the other party given at any time.
Either party may terminate this Agreement for material breach or default of
any term or condition of this Agreement if such breach or default is not cured
within thirty (30) days of written notice of such breach or default from the
non-breaching party.
In the event of change in the controlling ownership of Buyer, if such
change is perceived as unacceptable to Lucent, or in the event of a sale of all
or substantially all of the assets of Buyer, Lucent shall have the right to
terminate this Agreement, immediately, on twenty-four (24) hour written notice.
Either party may terminate this Agreement, on twenty-four (24) hour written
notice, if the other party files a petition in bankruptcy, or is adjudicated
bankrupt, or makes a general assignment for the benefit of creditors, or becomes
insolvent, or is otherwise unable to meet its business obligations for a period
of three (3) consecutive months.
Upon the expiration or earlier termination of this Agreement, Buyer shall
immediately:
a) discontinue any and all use of Indicia (as defined in Article 5)
including, but not limited to, such use in advertising or business material of
Buyer;
b) return to Lucent or destroy at Lucent's request, any and all
promotional material supplied without charge by Lucent;
c) cease engaging in any promotional activities involving Lucent's
Indicia;
d) notify and arrange for all publishers and others who may identify,
list or publish Buyer's name with Lucent's Indicia including, but not limited
to, publishers of telephone directories, yellow pages and other business
directories to discontinue such listings;
e) return, upon request, all Lucent's Information and cease using said
Information except that which Lucent agrees is necessary to operate and maintain
previously furnished Products; and
Upon expiration or earlier termination of this Agreement pursuant to this
Article 23, neither party shall be liable to the other, either for compensation
or for damages of any kind or character whatsoever, whether on account of the
loss by Lucent or Buyer of present or prospective profits on sales or
anticipated sales, or expenditures, investments or commitments made in
connection therewith or in connection with the establishment, development or
maintenance of Buyer's business, or on account of any other cause or thing
whatsoever, provided that termination shall not prejudice or otherwise affect
the rights or liabilities of the parties with respect to transactions hereunder
prior to such termination.
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Expiration or termination of this Agreement shall not relieve the parties
of their obligations due at the time of such expiration or termination, nor
shall such expiration or termination prejudice any claim of either party
accrued, or to accrue, on account of any default or breach by the other.
11. Survival of Obligations
The respective obligations of Buyer and Lucent under this Agreement, which
by their nature would continue beyond the termination, cancellation or
expiration hereof, shall survive termination, cancellation or expiration
hereof, including by way of example and not by limitation, Use of Information,
Limitation of Liability, Use of Marks and Arbitration.
12. Force Majeure
Neither party shall be held responsible for any delay or failure in
performance to the extent that such delay or failure is caused by fires,
strikes, embargoes, explosion, earthquakes, floods, wars, water, the elements,
labor disputes, government requirements, civil or military authorities, acts of
God or by the public enemy, inability to secure raw materials or transportation
facilities, acts or omissions of carriers or suppliers or other causes beyond
its control whether or not similar to the foregoing. If any Force Majeure
condition occurs, the party delayed or unable to perform shall give immediate
notice to the other party, stating the nature of the Force Majeure condition
and any action being taken to avoid or minimize its effect.
13. Assignment
Except as provided in this clause, neither party shall assign this
Agreement or any right or interest under this Agreement, nor delegate any work
or obligation to be performed under this Agreement, (an "assignment") without
the other party's prior written consent (which consent shall not be
unreasonably withheld). Any attempted assignment in contravention of this shall
be void and ineffective. Nothing shall preclude a party from employing a
subcontractor in carrying out its obligations under this Agreement. A party's
use of such subcontractor shall not release the party from its obligations
under this Agreement.
Lucent shall have the right to assign this Agreement and to assign its
rights and delegate its duties under this Agreement, in whole or in part, at
any time and without Buyer's consent, to any corporate parent or to any present
or future Affiliate of Lucent or to any combination of the foregoing. Lucent
shall give buyer prompt written notice of the assignment.
For purposes of this clause, the term "Agreement" includes this Agreement,
any subordinate contract placed under this Agreement and any order placed
under such Agreement or subordinate contract.
14. Severability.
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<PAGE> 200
If any of the provisions of the Agreement shall be invalid or unenforceable
such invalidity or unenforceability shall not invalidate or render
unenforceable the entire Agreement, but rather the entire Agreement shall be
construed as if not containing the particular invalid or unenforceable
provision or provisions, and the rights and obligations of each party shall be
construed and enforced accordingly. However, in the event such provisions is
considered an essential element of this Agreement, the parties shall promptly
negotiate a replacement thereof.
15. Releases Void
Neither party shall require releases or waivers of any personal rights
from representatives of the other in connection with visits to its premises and
both parties agree that no such releases or waivers shall be pleaded by them in
any action or proceeding.
16. Non-Waiver
No course of dealing, course of performance or failure of either party
strictly to enforce any term, right or condition of this Agreement shall be
construed as a waiver of any term, right or condition.
17. Choice Of Law
The construction, interpretation and performance of this Agreement shall
be governed by the law of New Jersey except for its choice of law rules.
18. Notices
All notices under this Agreement shall be in writing and shall be given by
confirmed facsimile, by nationally recognized overnight courier or by certified
or registered mail, addressed to the addresses set forth immediately below or
to such other address as either party may designate by notice pursuant hereto.
Such notices shall be deemed to have been given when received.
To Lucent: To Buyer:
Alan Aiken TO THE NAME AND ADDRESS
Lucent Technologies Inc. SET FORTH ON THE
283 King George Road (Room A2C22) ENROLLMENT FORM
Warren, NJ 07059
Telephone No.: (908) 559-7208
Facsimile No.: (908) 559-3994
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<PAGE> 201
20. Headings
The headings contained in this Agreement are for convenience only and are
not intended to affect the meaning or interpretation of this Agreement.
21. Entire Agreement
The terms and conditions contained in this Agreement which consist of the
Enrollment Form and these Terms and Conditions supersede all prior oral or
written understandings between the parties and shall constitute the entire
Agreement between them concerning the subject matter of this Agreement and
shall not be contradicted, explained or supplemented by any course of dealing
between Lucent or any of its Affiliates and Buyer or any of its Affiliates.
Lucent's employees' statements and its advertisements or description do
not constitute warranties or other contractual obligations and shall not be
relied upon by Buyer as such. There are no understandings or representations,
express or implied, not expressly set forth in this Agreement. This Agreement
shall not be modified or amended except by a writing signed by the party to be
charged, and no changes or additions to this Agreement shall be binding upon
either party unless signed by an authorized representative of such party.
ADVANCED TELCOM GROUP INC. LUCENT TECHNOLOGIES INC.
By: By:
---------------------- ---------------------
Name: Name:
-------------------- -------------------
Title: Title:
------------------- ------------------
Date: Date:
-------------------- -------------------
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<PAGE> 202
[LUCENT TECHNOLOGIES LOGO] CO-MARKETING PROGRAM
ENROLLMENT FORM
(JOINT PROMO/MDF)
- -------------------
COMPANY INFORMATION
- -------------------
<TABLE>
<CAPTION>
<S> <C>
Company Name: Primary Contact
-----------------------------------
DBA: Name:
-------------------------------------------- --------------------------------------------------
Business Address: Title:
------------------------------- -------------------------------------------------
Phone: Fax: E-mail:
- ------------------------------------------------ ------------- ------------- ------------
Address (if different from left):
- ------------------------------------------------ ----------------------
City: State: Zip:
--------------- ----- ------------- -------------------------------------------------------
</TABLE>
- ---------------------
LUCENT REPRESENTATIVE
- ---------------------
<TABLE>
<CAPTION>
<S> <C>
Name: Signature: Date:
------------------------------- ----------------------------- -----------------
Address:
-----------------------------------------------------------------------------------------
Phone: Fax: E-mail:
------------------------ ---------------------- ----------------------------------
</TABLE>
- -------------------------
REIMBURSEMENT INFORMATION
- -------------------------
<TABLE>
<CAPTION>
<S> <C>
Contract No.: Total Contract Amount:
------------------------------- -------------------------------
Co-Marketing Program Model: Co-Marketing Accrual %:
----------------- ------------------------------
Reimbursement %: Payment Method:
---------------------------- --------------------------------------
Products or Contract No. for which reimbursement will accrue:
- -------------------------------------------------------------------------------------------------
Make reimbursements payable to (if different from above):
----------------------------------------
Finance Department Contact
Name: Title:
-------------------------------------- -----------------------------------------------
Phone: Fax: E-mail:
------------------- ----------------------------------- --------------------------
Address (if different from left):
----------------------------------------------------------------
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================================================================================
In order to participate in the Lucent Technologies Co-Marketing Program, your
company must agree to the following:
Enrollment: To participate in this program, customer will complete and forward
this Co-Marketing Program Enrollment Form to Lucent's Co-Marketing Program
Office. Only when signed by Lucent and returned to customer from Lucent is
customer formally enrolled in the program. No use by customer of the Lucent
Technologies Co-Marketing logo and/or the Lucent Technologies brand name and/or
trademarked Lucent product names is authorized or will be reimbursed until:
1. Customer is formally notified by Lucent by return of customer's approved
enrollment form that they are accepted within the program, and
2. Customer has received prior approval from the Lucent Co-Marketing Program
Office for any planned creative and media placements
Creative Terms and Conditions: If the Lucent Technologies Co-Marketing logo
and/or the Lucent Technologies brand name and/or trademarked Lucent product
names are used in a customer promotion, customer agrees that the right to use
these trademarked properties of Lucent Technologies is limited exclusively to
this program. Customer agrees to adhere strictly to the creative guidelines
identified Lucent's Co-Marketing Brand and Logo Usage Guidelines document.
Violation of these creative guidelines can result in Lucent Technologies
suspending or removing customer from the Lucent Co-Marketing Program. Or, Lucent
can temporarily or permanently withdraw the rights of customer from using the
Lucent Technologies Co-Marketing logo and/or the Lucent Technologies name and/or
the name of trademarked Lucent products in customer's promotions. Customer
agrees that every usage of the Lucent Technologies Co-Marketing logo and/or the
Lucent Technologies brand name and/or trademarked Lucent product names will
require prior approval by Lucent. Customer will abide by the complete creative
approval process as identified within Lucent's Co-Marketing Brand and Logo Usage
guidelines document.
BY SIGNING BELOW, THE CUSTOMER AGREES TO ABIDE BY THE LUCENT TECHNOLOGIES
CO-MARKETING PROGRAM GUIDELINES, CO-MARKETING BRAND AND LOGO USAGE GUIDELINES AS
THEY EXIST OR MAY BE AMENDED FROM TIME TO TIME. THE TERMS AND CONDITIONS
SUPPLIED HEREWITH, AND FURTHER AGREES TO SUBMIT ANY NEW CREATIVE MATERIAL
BEARING THE LUCENT CO-MARKETING LOGO, LUCENT TECHNOLOGIES NAME AND/OR TRADEMARKS
TO THE LUCENT TECHNOLOGIES CO-MARKETING PROGRAM OFFICE PRIOR TO PLACING THE
CREATIVE MATERIAL IN ANY MEDIA.
Customer Signature: PLEASE FAX OR MAIL THIS FORM TO:
--------------------------- LUCENT TECHNOLOGIES
Printed Name: ATTN: ALAN AIKEN
--------------------------------- 283 KING GEORGE RD., RM. A2C22
Title: Date: WARREN, NJ 07059
---------------------- -------------
- -----------------------------------------------------------------
Co-Marketing Program Office Appvl::
------------------------------
Co-Marketing Acct. No.: Date:
--------------------- ----------------
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<PAGE> 203
[ATG LOGO]
EXHIBIT K
TO THE
GENERAL SUPPLY AGREEMENT
ADVANCED TELCOM GROUP, INC.
OPERATIONAL READINESS PLAN
BUSINESS OBJECTIVE ANALYSIS
FINAL VERSION
April 30, 1999
PREPARED IN COOPERATION WITH
LUCENT TECHNOLOGIES INC.
Global Network Operations
<PAGE> 204
TABLE OF CONTENTS
<TABLE>
<S> <C>
1 EXECUTIVE SUMMARY ....................................................................... 1
1.1 OBJECTIVE OF THE OPERATIONAL READINESS PLAN ........................................ 1
1.2 OBJECTIVE OF THE BUSINESS OBJECTIVE ANALYSIS (BOA) PHASE ........................... 2
1.3 BARRIERS TO SUCCESS ................................................................ 2
1.4 CONCLUSIONS ........................................................................ 3
2 VALUE CHAIN ANALYSIS .................................................................... 5
3 BUSINESS FACTOR ANALYSIS ................................................................ 7
3.1 GOALS AND OBJECTIVES ............................................................... 7
3.1.1 Goals .......................................................................... 8
3.1.2 Objectives ..................................................................... 9
3.2 FUNCTIONS .......................................................................... 9
3.3 CRITICAL SUCCESS FACTORS (CSFS) .................................................... 10
3.4 PROBLEMS ........................................................................... 11
4 COMPETITIVE ENVIRONMENT ANALYSIS ........................................................ 13
4.1 STRENGTHS, WEAKNESSES, OPPORTUNITIES, THREATS ...................................... 13
4.2 COMPETITIVE FORCES ANALYSIS ........................................................ 15
5 STRATEGY ANALYSIS ....................................................................... 19
5.1 KEY STRATEGIC DIRECTIONS ........................................................... 19
5.2 SIGNIFICANT RELATIONSHIPS .......................................................... 20
5.2.1 Corporate Strategies Important For Achievement Of Strategic Goals .............. 21
5.2.2 Corporate Strategies Important For Achieving Critical Success Factors (CSFs).... 22
5.2.3 Corporate Strategies Important For Addressing Problems ......................... 23
5.2.4 Functions Supporting Strategy Execution ........................................ 24
5.3 OBJECTIVES BY FUNCTION ............................................................. 27
APPENDIX A: HOW THE BUSINESS OBJECTIVE ANALYSIS REPORT WAS PRODUCED ............................ 29
APPENDIX B: SOURCES OF INFORMATION ............................................................. 31
</TABLE>
<PAGE> 205
Table of Figures
<TABLE>
<S> <C>
Figure 1. Operational Readiness Planning Process ........................ 2
Figure 2. ATG Value Chain ............................................... 6
Figure 3. Business Factors Model ........................................ 7
Figure 4. ATG Objectives ................................................ 9
Figure 5. SWOT Analysis 13
Figure 6. Competitive Forces Model ...................................... 15
Figure 7. Strategies supporting Goals matrix ............................ 21
Figure 8. Strategies supporting CSFs Matrix ............................. 22
Figure 9. Strategies addressing Problems matrix ......................... 23
Figure 10. Functions supporting Strategy execution matrix ................ 24
Figure 11. Strategy Weights .............................................. 25
Figure 12. Impact of Strategies on Business Factors chart ................ 25
Figure 13. Relationship of Functions to Strategies and Business Factors... 25
Figure 14. Impact of Functions on Stated Strategies matrix ............... 26
Figure 15. Impact of Functions on Stated Strategies chart ................ 27
</TABLE>
<PAGE> 206
1 EXECUTIVE SUMMARY
1.1 OBJECTIVE OF THE OPERATIONAL READINESS PLAN
Advanced TelCom Group, Inc. (ATG) has contracted with Lucent Technologies
Professional Services to provide a full range of Network Reliability Center
(NRC) services. These services include a team of professionals to work with ATG
management to develop an Operational Readiness Plan. The Operational Readiness
Plan collects valuable information, performs some analysis and serves as a
useful document to assist ATG management with the successful implementation of
their entry into offering communications services.
Initially, these service offerings will be provided by ATG in three markets. At
start-up in April of this year, ATG will resell Incumbent Local Exchange Carrier
(ILEC) services to its customers and dial-up internet service. Later in the
year, ATG will implement their own network and will be offering the following
services:
- Local phone service
- Long distance phone service
- Voice mail
- Packet-Switched services
- XDSL
- Dial-up
- Web hosting
- Etc.
ATG is also investigating other services that may be offered over their network
including video-on-demand.
The three phases that the Operational Readiness Plan encompasses are:
- Business Objective Analysis (BOA)
- Present Method of Operation (PMO): describes the resale and
initial ISP phase of the business
- Future Method of Operations (FMO): describes the
facilities-based ATG network
This document describes the BOA phase of the Operational Readiness Planning
project.
Advanced TelCom Group, Inc. - Confidential and Proprietary Page 1
<PAGE> 207
FIGURE 1. OPERATIONAL READINESS PLANNING PROCESS
[OPERATIONAL READINESS PLANNING PROCESS CHART]
1. A Business Objective Analysis (BOA). The BOA is the first step
in the Operational Readiness Plan. The BOA provides an analysis
of corporate objectives and strategic directions as they have
been understood by ATG's management team. The BOA is part of the
Operational Readiness Plan and as such is not an independent
document that defines strategies, planning or specific actions.
2. A Present Method of Operation (PMO). As the second step in the
Operational Readiness Plan, Lucent will develop process models
that describe the way ATG will be doing business in the Resale
phase of their business
3. A Future Method of Operations (FMO). As a third component of the
Operational Readiness Plan, Lucent will deliver to ATG a
document which: (1) will analyze the gaps between the Present
Method of Operations and where ATG wishes to be after the
implementation of the Lucent network; (2) documents ATG's
business processes in the Facilities-based environment; and (3)
may make recommendations to improve the efficiency and
effectiveness of ATG's business operations.
1.2 OBJECTIVE OF THE BUSINESS OBJECTIVE ANALYSIS (BOA) PHASE
The intent of this phase is to understand and document ATG's day-to-day and
strategic directions. Both these long-term and short-term business perspectives
(i.e., goals, objectives, critical success factors and problems) will be used to
prioritize and guide the development of the Future Method of Operations model
that will support the implementation of the Facilities-based environment. The
information contained in this document was gathered in a series of interviews
conducted with
Advanced TelCom Group, Inc. - Confidential and Proprietary Page 2
<PAGE> 208
ATG executives and managers. The information obtained in the interviews was then
analyzed and the models described below were produced. Dan Cruz guided the BOA
team in determining the list of interviewees and was responsible for reviewing
early drafts of this document.
1.3 BARRIERS TO SUCCESS
During the interview process and based upon the observations and analysis of the
BOA team, there are a number of critical issues that have not been addressed or
do not seem to be receiving the appropriate level of attention.
Revenue Assurance - ATG needs to be able to reconcile what it is paying for vs.
what it is billing for. This includes unbundled loops from the ILECs, LD usage,
etc. This will be almost impossible to do manually and will require a dedicated
resource with support from appropriate information systems.
Inventory - In discussions of inventory between ATG and the NRC, no request was
made to maintain a physical inventory of equipment (model numbers, serial
numbers, location, etc.) This will become an especially serious issue if ATG
starts providing CPE (e.g. xDSL modems).
Telemarketing - The stated strategy is that those customers with 1 -3 business
lines will be telemarketed. No one in the organization appears to have decided
whether this will be done internally or outsourced.
Quality and Service - ATG is pursuing a differentiation strategy based on
quality and service over price. Specific instances include short provisioning
intervals, accuracy (orders, bills) and superior customer service. However those
things that will provide quality and service such as information systems are not
in place. This compounded by the aggressive implementation schedule. This could
be overcome by hiring a large number of staff, but this is both difficult and
contrary to ATG's goal of minimizing the number of in-house staff.
ISP Marketing Strategy - There seems to be some confusion over the marketing
strategy for Packet-switched services. The initial roll-out is going to be
dial-up access at 56k. This would seem to attract the residential rather than
the business customer. Will ATG be selling to business-only or business and
residence customers? Also, there is uncertainty across the organization about
how service is being sold - will the same sales force be used as for telephony
or will there be a dedicated sales force?
ISP Support - Since ATG has made the decision to enter the dial-up ISP market,
it is possible that the company will attract a large customer base. In this case
there is the potential for a high volume of inquiry and trouble calls. Although
the Lucent NRC is providing Tier 1 support, many call swill still have to be
fielded by ATG. There is unlikely to be a sufficiently large staff in place to
handle these calls effectively. This could lead to significant customer service
issues.
Service Intervals - There do not deem to be any predefined intervals for how
long it will take to provide service to a customer. The sales force will need to
make a commitment to the customer as to when their ATG service will start,
especially for customers that do not currently have ILEC service.
No predefined metrics - Most managers felt that metrics would be developed later
from actual results. An initial set of measurements should be defined and
captured. These can be refined as
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<PAGE> 209
the business matures. If no metrics are in place it is impossible to tell how
well a job is being performed or to measure improvement.
Absence of Key Executives - ATG is at a critical stage in developing its
business, organizational and operational business model. However, at least two
critical executive positions are not in place. A Chief Operating Officer should
be overseeing the development and implementation of operating practices and
procedures. A Chief Financial Officer should be taking the lead on revenue
assurance and other finance-related matters.
1.4 CONCLUSIONS
As described in more detail in the rest of this document, ATG has adopted a
combination of market niching and product and service differentiation strategies
to support the primary goal of becoming the number one CLEC in Tier 3 and Tier 4
markets. The company has a lot of strengths, especially in the experience and
contacts that the senior management team brings to the table. Thorough market
research and a local focus are other areas that can help ATG be a success.
This analysis identified a number of problems that could hinder ATG's success
that are not being addressed by ATG's current strategies. The most immediate of
these are:
(1) THE DIFFICULTY OF ATTRACTING AND RETAINING THE NUMBER AND QUALITY OF STAFF
needed to meet ATG's aggressive expansion plans. This is particularly true in
the areas of technical staff (e.g. 5ESS technicians), sales (people with both
local knowledge and technical expertise) and General Managers (assuming that the
Brooks pipeline of proven talent is tapped out). This problem can be attributed
to a number of factors including the smaller labor pool in smaller cities and a
general shortage of many of these kinds of resources. This problem is difficult
to overcome but could be ameliorated by an extensive and comprehensive internal
training program.
(2) THE ONGOING RELIANCE OF ATG ON THE INCUMBENT CARRIERS. The foundation of
ATG's business rests with ILEC facilities for the "final mile". ATG's ability to
offer quality service in a timely fashion is totally dependent upon the ILEC's
willingness to provide timely access to their facilities, co-location space and
speedy resolution of problems. This could be partially addressed by seeking new
technological solutions to providing access such as LMDS. In the short term it
is essential to keep comprehensive records of ILEC performance to ascertain
compliance to interconnect agreements and regulations.
(3) THE LACK OF BUSINESS AND OPERATIONS SUPPORT SYSTEMS. Quality customer
service, speed of provisioning and convergent billing are all part of ATG's
differentiation strategy. These are almost impossible to achieve without the
support of robust, flexible OSSs. This will become especially apparent if the
business grows as rapidly as predicted. This is being addressed to a high degree
by partnerships with AMS and Lucent.
Advanced TelCom Group, Inc. - Confidential and Proprietary Page 4
<PAGE> 210
2 VALUE CHAIN ANALYSIS
A company's value chain consists of the key activities or functions that it
performs that add value to the product and services the company brings to the
marketplace. An understanding of ATG's value chain can help determine which
functions of the organization give it a competitive edge in the marketplace. It
can also indicate how to maximize ATG's competitive ability by introducing new
technology to support the functions that make up ATG's value chain.
Function analysis is especially important given the entrepreneurial nature of
ATG. As an entrepreneurial company, the organizational structure is always in
flux and the company operates without a formal chain of command. Rather people
step into the breach and take on duties as the need arises. It is therefore more
helpful to analyze what is done (functions performed) rather than the
organizational structure of ATG.
The Value Chain Analysis highlighted eleven functions that are central to ATG
delivering its products and services to its customers. The value chain model
describes two major categories of functions or activities that a company
performs to provide value to its customers:
PRIMARY FUNCTIONS are the key functions that are directly related to the
production and delivery of products and services. For ATG, there are six primary
functions:
1. SERVICE ACQUISITION - this includes acquiring components of ATG's
service offerings from external sources, e.g. Qwest, Verio, US West.
2. NETWORK DEVELOPMENT - puts in place the needed infrastructure upon which
ATG will build its products and services. In the Value Chain model
Network Development provides the basic physical network infrastructure
from design and build through integration testing.
3. SERVICE ASSURANCE - is the production engine that operates and maintains
the network upon which services are built and provided to the company's
subscribers.
4. MARKETING - anticipates demand to determine the requirements and
characteristic of products needed to serve the company's customers now
and more importantly in the future. The product and service requirements
developed by the marketing function drive the network infrastructure
needed to meet these requirements.
5. SALES - is responsible for bringing the products and services defined by
Marketing to the end customer.
6. CUSTOMER SERVICE - is the function that interfaces with the subscribers
and users of telecommunications service and ensures that the products
and services are sold, perform correctly and meet the needs of the
customer.
SUPPORT FUNCTIONS are activities performed by the organization in support of the
primary functions. Support functions are not less important than primary
functions. In fact, they may be crucial to the successful operation of the
primary and support activities.
If an organization is especially skillful at one or more of these activities,
it can give the primary activities a competitive advantage over competitors who
are less skilled. Such a company is considered to have a "core competency" that
its competitors do not have.
For example, an organization that is extremely good at attracting and retaining
key employees has an advantage over its competitors in marketplaces where key
skilled individuals are scarce. This
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"core competency" for attracting and
retaining skilled employees allow the company's primary functions to operate
more effectively than those of its competitors do.
The key support functions for ATG are:
1. MARKET DEVELOPMENT - the identification and development of new markets
in which to do business.
2. OUTSOURCING - the procurement of relationships to perform portions of
business operations.
3. HUMAN RESOURCES - deals with hiring, training, developing and separation
of employees.
4. SYSTEMS DEVELOPMENT - deals with establishing and maintaining the
computer hardware and software that are needed by all functions within
the ATG value chain. This includes acquisition and development of
application programs and operational systems needed to support both the
primary and support functions of ATG.
5. FINANCIAL AND CORPORATE MANAGEMENT - deals with the basic financial and
accounting functions needed by the firm. Also includes other Corporate
functions such as securing funding and regulatory affairs.
FIGURE 2. ATG VALUE CHAIN
[ATG VALUE CHAIN CHART]
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3 BUSINESS FACTOR ANALYSIS
The business factors analyzed in this section are Goals and Objectives, Critical
Success Factors and Problems. Goals and Critical Success Factors indicate what a
company needs to achieve to be successful. In section 5, these business factors
will be related to ATG's Strategies. Strategies indicate what the company will
do to ensure that goals are achieved, Critical Success Factors are met and
problems are overcome. The following model illustrates the relationship between
these factors:
[BUSINESS FACTORS MODEL CHART]
FIGURE 3. BUSINESS FACTORS MODEL
3.1 GOALS AND OBJECTIVES
"Goal" and "Objective" have very specific definitions as they are used in this
document:
<TABLE>
<CAPTION>
TERM DEFINITION
- ---- ----------
<S> <C>
GOAL A summarized statement of a major business aim that
supports the overall purpose and mission of the
organization.
OBJECTIVE A more detailed business aim that is measurable and/or
quantifiable and that directly supports the achievement
of a goal.
</TABLE>
COMPARISON OF TERMS
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3.1.1 GOALS
The following items describe the major ATG goals that were identified during the
data gathering process. These goals are supported by quantifiable Objectives,
which are described below:
BECOME THE NUMBER ONE CLEC IN TIER 3 AND TIER 4 MARKETS
ATG is targeting Tier 3 (100,000 - 249,000 population) and Tier 4 (20,000 -
99,999) markets. These markets are typically not targeted by current CLECs. ATG
will concentrate on serving these markets and wishes to become the largest CLEC
serving these markets.
BECOME THE NUMBER ONE CLEC IN EACH MARKET ENTERED
ATG will usually enter a market only if there is no competition from other
CLECs. ATG wishes to become so successful in these markets that it discourages
other CLECs from attempting to enter a city in which ATG is doing business.
QUICKLY EXPAND THE NUMBER OF MARKETS SERVED
ATG is entering three markets initially (Santa Rosa, CA, Tacoma, WA & Salem,
OR). It wants to expand the number of markets rapidly over the next five years.
PROVIDE A UNIQUE COMBINATION OF SERVICE OFFERINGS
ATG will provide a unique combination of services that cannot be obtained from
any other single vendor. These are local phone service, long distance, voice
mail and high-speed internet access.
PROVIDE TOP QUALITY PACKET-SWITCHED SERVICES
ATG will offer leading edge packet-switched services to its customers including
ADSL, SDSL and derived voice in addition to more standard services such as
dial-up access and web hosting.
PROVIDE EXCELLENT CUSTOMER SERVICE
ATG will provide excellent customer service by having well-trained sales and
customer service staff who are knowledgeable about both ATG's product offerings
and the local community. The customer service staff will also need convenient
access to all of the systems and data they need to do their job.
PRODUCE AN ACCURATE CONVERGENT BILL (ONE BILL, MANY SERVICES
ATG wishes to produce a single bill per customer that will contain information
about all the services provided to the customer.
FOLLOW THE BUSINESS PLAN
Although most of the goals detailed above refer to elements of the Business Plan
"Follow the Business Plan" appears to be a universal sentiment. This includes
not only the things listed above but also making sure that investments are in
line with revenue (i.e. don't spend $20m on systems when there is only $1m in
revenue), verifying that the business plan assumptions are accurate as actual
data becomes available and meeting revenue, new market and subscriber goals.
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3.1.2 OBJECTIVES
The following chart shows the objectives that support each of the goals
described above:
<TABLE>
<CAPTION>
Goals Supporting objectives
----- ---------------------
<S> <C>
1. Become the number one CLEC in Tier 3 and Tier 4 markets -> Be in 50 markets by 2005
-> Generate over $1 billion per year in revenue by 2005
-> Break even on cash flow within 24-27 months
2. Become the number one CLEC in each market entered -> 2 1/2% of residence lines in 5 years
-> 20% of business lines in 5 years
3. Quickly expand the number of markets served -> Enter 5 markets in 1999
-> Add 2 new markets per quarter
-> Be in 50 markets by 2005
-> Have 20 markets in the pipeline at all times
4. Provide a unique combination of service offerings -> Provide local phone service, long distance service, voice mail
and packet-switched services
5. Provide top quality packet-switched services -> Network available 99.97% of the time
-> Begin providing service in April 1999
-> Provide leading-edge technology
6. Provide excellent customer service -> Provide customer service support 7 x 24
-> Visit all targeted business customers within two months
-> Resolve customer problems with one call resolution
-> Install service on-time
7. Produce an accurate, multi-service bill -> Produce bills on-time
-> Minimize customer bill inquiry calls
-> Present all ATG services on a single bill
-> Provide internet access to billing information
8. Follow the business plan -> Be in 50 markets by 2005
-> Generate over $1 billion per year in revenue by 2005
-> Enter 5 markets in 1999
-> Add 2 new markets per quarter
-> Adjust business plan to market dynamics
</TABLE>
FIGURE 4. ATG OBJECTIVES
3.2 FUNCTIONS
Functions are different from organizational units, such as Departments or
Divisions. Functions are what a company does, while organizations are how the
company organizes itself to perform the functions. An organization chart
reflects the organizational structure of the company.
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Functions are reflected in the numerous processes that are performed and linked
within the company to bring products and services to the marketplace.
"Marketing" is an example of a function.
ATG Functions are described in Section 2, Value Chain Analysis.
3.3 CRITICAL SUCCESS FACTORS (CSFS)
Critical Success Factors are key factors that the organization must achieve to
ensure success in meeting its goals or objectives. An example of a CSF might be
the completion of a management training program for all first level managers.
GET THE NETWORK FACILITIES UP AND RUNNING ON SCHEDULE
In order to meet the revenue and penetration goals for 1999 the network
facilities that are going to allow for the generation of significant revenue
must be in place and working in accordance with the schedule.
IMPLEMENT EFFICIENT AND ACCURATE OPERATIONAL SUPPORT SYSTEMS (OSS)
In order to provide a high-level of customer service, fast and accurate
provisioning and billing, the appropriate OSS must be in place to support the
business. Especially important are Inventory Management, Order Management and
Billing.
MAKE THE FIRST THREE MARKETS A SHOWCASE FOR THE COMPANY
ATG's performance in the first three markets is necessary for its future
success. If these are not a success then it will not be possible to raise
additional investment to expand the business.
DIFFERENTIATE ATG FROM THE ILEC AND OTHER CLECS IN MARKETS
In the eyes of the customer ATG must differentiate itself from other carriers by
means other than price. This will be achieved by having a focus on building
relationships within the community and providing the highest quality customer
service.
NEED ACCESS TO THE RIGHT CAPITAL
In order to meet the company's expansion plans, including acquisitions, ATG must
be able to get capital at a reasonable cost at the right time.
DEVELOP APPROPRIATE PARTNERSHIPS
ATG does not wish to develop a huge staff or operations infrastructure so it is
relying on partners such as Lucent, Qwest, Verio and AMS to provide products and
services.
INTEGRATION OF ACQUISITIONS
ATG is planning to expand by acquiring existing companies as well as building
its own network. It is essential that the customers served by the acquired
companies be integrated as seamlessly as possible into the ATG environment
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INTEGRATION OF THE PACKET-SWITCHING AND VOICE LINES OF BUSINESS
Traditionally, telephone companies and internet services companies have been run
in quite different manners. This is due to a number of factors including the
degree of regulation and the costs associated with developing a network and
providing service. In order to be successful, ATG needs to bring these two
cultures together to produce a seamless service offering to the end customer.
SPEED TO MARKET
ATG follows a very rigorous qualification process to determine if a market
should be developed. This includes the absence of CLEC competition. Once a
market has been selected it is critical that service be offered there as soon as
possible before another CLEC decides to target that market.
3.4 PROBLEMS
A problem is defined as a set of factors that hinder the ability of an
organization to achieve its objectives and critical success factors. An example
of a problem is poorly trained employees. The major problems identified at ATG
are listed below.
LACK OF QUALIFIED STAFF
With the growth of the CLEC and wireless telephony markets, it is becoming
increasingly difficult to find qualified telecom personnel at reasonable
salaries, especially outside of major metropolitan areas. Consequently, it will
be difficult to find the quality and quantity of people needed to run the
business in line with the aggressive expansion goals. A qualified staff is
needed if ATG is going to compete on the basis of quality. Additionally, a
current overall lack of staff is resulting in people being overworked and
possibly "spread too thinly" to do all the work that needs to be done
comprehensively.
COST AND PRICING OF SERVICES
The high cost of unbundled local loops, especially in California, makes it very
difficult to make money. Additionally, the ILECs have been pricing xDSL services
very aggressively, which makes it difficult to compete on price in this arena.
ILEC ROADBLOCKS
The ILECs obviously do not have any incentive to cooperate with ATG. Issues
concerning the availability of co-location space will most likely continue to be
an issue. It is unrealistic to expect that they will perform any better than the
worst case scenario dictated in interconnection agreements. This puts additional
emphasis on ATG to excel so that the ILEC has all the information they need
correctly the first time, so they will have no excuse for performing up to the
level of their agreements. Additionally, some ILECs have resisted swift and
robust implementation of interconnect agreements and new FCC requirements. There
have also been problems with the quality of their outside plant.
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NO TRACK RECORD
ATG has no track record of offering services in any market. This makes it hard
to persuade customers, especially business customers, to put their business in
the hands of an unproven company. Since ATG is not employing a low-price
strategy, which might entice some customers, this may make breaking into the
markets even more difficult.
LACK OF OPERATIONS SUPPORT SYSTEMS (OSS) AND BUSINESS SUPPORT SYSTEMS (BSS)
ATG needs to build a portfolio of OSSs and BSSs to support both current
operations and future growth. Some systems are available but many others such as
an integrated order management system and a system to compare ILEC unbundled
loop charges to ATG customers will have to be developed.
INTEGRATION OF ACQUISITIONS BEFORE OPERATIONS ARE STABLE
ATG's expansion plans call for the acquisition of other CLECs and ISPs to
facilitate rapid growth. If these acquisitions are made before ATG has a stable
set of business processes and information systems the changes of a smooth
integration are severely jeopardized.
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4 COMPETITIVE ENVIRONMENT ANALYSIS
The BOA Team collected information dealing with the competitive environment in
which ATG operates and the problems and opportunities posed by that environment.
The team analyzed the ability of ATG to compete in the telecommunications
environment.
As an aid to analyzing this information, the BOA team developed the following
models:
1. Strengths, Weaknesses, Opportunities, Threats ("SWOT") Analysis
2. Competitive Forces Analysis
4.1 STRENGTHS, WEAKNESSES, OPPORTUNITIES, THREATS
From the information collected as part of the Business Objective Analysis, the
BOA team completed a SWOT analysis model again based on the Porter constructs.
SWOT stands for Strengths, Weaknesses, Opportunities and Threats. The diagram
depicts the SWOT analysis that the BOA team performed on the information gained
from interviews and documents supplied by ATG.
The BOA Team developed a high-level model of the SWOT for ATG. This model
provides the Team with an overall picture of ATG's planned business environment.
This analysis is only a starting point and is not an in-depth analysis. It will
help the ATG Executive Team capitalize on Strengths and Opportunities and
position itself to overcome Weaknesses and Threats. The following diagram
depicts the results of the SWOT analysis.
FIGURE 5. SWOT ANALYSIS
[SWOT ANALYSIS CHART]
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STRENGTHS - These are the strengths of the organization, which allow it to
effectively compete in the marketplace. Strength should be built upon,
especially if the competitors are weak in the area that the company is strong.
The key strengths of ATG are:
1. Start-up Funding: The company has acquired the funding it needs
to begin business and is well on the way to securing additional
funding.
2. Experienced Executive Team: The executive team and many of the
employees have been with a start-up company before and
understand what it takes to make this kind of business
successful.
3. Unique Service Offering (Internet, Local and Long Distance
Packages): - The combination of these services is currently not
available from any single provider.
WEAKNESSES - The weaknesses of the organization can put it at a disadvantage,
especially if competitors are strong in the areas in which the company is weak.
Many of these weaknesses offset the strengths that ATG has and limit its
capabilities to capitalize on the opportunities presented to the Company. The
key weaknesses of ATG are:
1. ILEC Cooperation - The ILECs have little or no incentive to
provide exceptional service to ATG. Since ATG will be reliant on
the ILECs to provide service to their end-customers, this could
become a serious problem.
2. Brand New Organization - It is always a challenge to build an
organization from ground zero. Many new personnel have to be
hired and integrated into the business quickly.
3. New Operations Systems and Processes - An entirely new set of
operations systems and operational processes can be both a
strength and a weakness. However, the goal of excellent customer
service could initially be compromised if the implementation of
new systems and processes does not go well.
OPPORTUNITIES - These are environmental and internal factors which present
opportunities for the firm to capitalize on and allow it to gain a competitive
advantage. The key opportunities for ATG are:
1. Develop Partnerships - ATG is entering into agreements with
Lucent and AMS to outsource segments of their operations.
Drawing on the experience of these companies provides an
opportunity to benefit from their experience with other
companies in the field.
2. Convergent billing - If ATG can produce a single bill for all of
the services they provide in a timely fashion this will provide
a significant competitive advantage.
3. State-of-the-art Technology - ATG is starting its internet
business at the same time as xDSL technology is starting to
mature. ATG has the opportunity to offer products and services
in this arena that were not previously available.
4. Automation - Since ATG has no legacy systems or processes, it
can take a "green-field" approach to developing them. This
allows for the opportunity to automate as much of the operations
as possible, reducing costs and headcount. An example of this is
"flow-through" provisioning.
5. Industry Consolidation - The CLEC industry has spawned many new
entrants over the past few years and more companies enter the
fray every day. In these situations there tends to be a process
of consolidation with a large number of companies eventually
combining into a smaller number. This provides the opportunity
for ATG to purchase other CLECs to rapidly increase its size or
for ATG to be acquired and maximize investor return.
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THREATS - These are environmental and internal factors that can present threats
to the competitive ability or profitability of the company. The key threats
faced by ATG are:
1. Rapidly changing technology - ATG is investing a lot of money to
build a brand new network. Although ATG is using the most
up-to-date technology available, the marketplace is changing so
rapidly now that it is hard to judge how quickly the network may
be outdated.
2. Broad range of competitors - Although no one company can provide
all of the services that ATG can, there are many companies that
can provide some of these services. However, new CLECs with
these capabilities are entering the market all the time.
3. Funding uncertainty - Although ATG has proved to have extremely
good contacts in the investment community, the current economic
situation is subject to rapid change. This could easily effect
both the availability and cost of funds for future investment.
4.2 COMPETITIVE FORCES ANALYSIS
This analysis looks at five of the forces that may affect ATG as it competes for
market share in the telecommunications marketplace. This analysis is only a
starting point to help identify processes and areas where ATG may place
additional emphasis, to strengthen its position in the markets that it has
chosen. The forces considered include Customers, Suppliers, Competitors and
Regulators. The following diagram summarizes the competitive forces model.
FIGURE 6. COMPETITIVE FORCES MODEL
[COMPETITIVE FORCES MODEL CHART]
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CUSTOMERS
Companies may have marketing segments in which the customer has strong
bargaining power. This is true if the customer has multiple companies from which
to obtain the needed products and services. Buyer power influences the prices
that firms can charge.
Potential customers for ATG's services will certainly have a choice of
providers. The ILEC, various IXCs and ISPs will all be vying for a piece of the
pie even if there are no other CLECs. This gives the customer a strong
bargaining position. It is crucial to ATG's success that they are able to
effectively differentiate themselves to the consumer from their competitors.
SUPPLIERS
This area of the model deals with the bargaining power of a company's suppliers
and is a key factor that dictates how a company can function in the marketplace.
This is especially true if the suppliers have great bargaining power and can
dictate prices or quantities supplied. Environments where only one or two
suppliers are the source of needed resources can be extremely constraining on
the competitive strategy of a company. Such suppliers can demand high prices for
their products or limit supply. For example, ATG is particularly reliant on the
ILECs as suppliers of the local loop and also co-location space.
Environments where there are many suppliers who compete heavily among themselves
are least restrictive. Forming strong alliances with key suppliers is an
effective strategy many U.S. companies are implementing to ensure a source of
supply at reasonable prices and with the quality needed. If ATG meets its growth
projections it will have significant bargaining power with other categories of
suppliers such as equipment manufacturers (e.g. Lucent, Diamond Lane) and Long
Distance carriers (e.g. Qwest).
COMPETITORS
These are the other companies that offer the same or similar products. The
effectiveness of these competitors and the strategies they employ (e.g., low
cost, product and service differentiation, targeting niches of customers)
dictate how the company must react to overcome the threats posed by these
competitors. The key competitors faced by ATG are:
~ Incumbent Local Exchange Carriers (ILECs)
~ Other CLECs - As of 1/5/99 there are 90 facilities-based CLECs doing
business in California, and 87 resellers. In Washington state there were
52 facilities-based CLECs (12/23/98).
~ Inter Exchange Carriers (IXCs)
-> Sprint
-> AT&T
-> MCI-Worldcom
~ Wireless Companies
~ Internet Service Providers (ISPs) for xDSL services e.g. CNM Network,
Pages3, DSLnetworks, ILECs.
Although none of these competitors can singly offer the same services and
billing arrangements as ATG, they can between them provide significant price
competition.
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REGULATORS
In many industries, regulatory agencies greatly influence the environment in
which competitors operate. The telecommunications industry in the U.S. is a
prime example of such an environment. Telecommunications companies who can
interact effectively with the regulatory bodies often position themselves
competitively in the industry. Regulatory decisions often affect the directions
of the entire industry.
There are many unresolved issues as a result of the 1996 Telecom Act and the
picture has been clouded further by Supreme Court ruling on the regulatory
control of the Telecom Act and the pricing of unbundled network elements (UNEs).
ATG is especially sensitive to these issues, as it will be relying on the ILEC
for the local loop, at least in the short to medium term. Changes in pricing and
access could have a significant effect on ATG's business plan.
SUBSTITUTE PRODUCTS
It is important to analyze the development of substitute products as they can
change the whole nature of competition in an industry. Wireless technology can
be viewed as a substitute product that could radically change the environment in
which ATG operates. The advent of cheaper and more effective cellular and fixed
wireless technology could challenge the current network infrastructure that ATG
has put in place. Customers of the future may not be burdened with having to
have wires to communicate. More importantly, future customers of wireless may
not need to obtain service from a telephone company that is geographically
located close to the customer. Customers with such a capability will have a
great deal of bargaining power in obtaining their telecommunication services.
Internet telephony is another possible substitute for traditional telephone
service. This service is growing rapidly in popularity and currently operates in
an unregulated environment.
Cable Modems can provide the same high-speed internet access as the xDSL
technology being employed by ATG. AT&T's acquisition of TCI and alliances with
other cable companies such as Time Warner will probably speed the availability
of telephony services through cable plant. However, the small business segment
of the market that ATG is targeting is not currently well served by the cable
industry.
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5 STRATEGY ANALYSIS
Strategies set by an organization indicate the broad directions that must be
undertaken in order to:
- -> Achieve the organizational goals
- -> Ensure that critical success factors are met
- -> Capitalize on opportunities presented to the company
- -> Leverage the company's strengths
- -> Overcome problems and company weaknesses
- -> Meet threats facing the company
Goals, Critical Success Factors and opportunities are indicators of what it is
important for a company to achieve. Strategies indicate how the company will go
about achieving what it considers important.
5.1 KEY STRATEGIC DIRECTIONS
The first thing a company must do is to determine whether it will complete
broadly in its marketplace or to concentrate or segments of its marketplace
(Niching). Once that decision is made then the company must decide if it will
compete by being the low cost producer of services or by differentiating its
product or service to the marketplace it competes in.
A differentiation strategy concentrates on valuing or differentiating the
product or service in the eyes of the buyer. If done successfully the service is
so prized that the buyer is willing to pay a premium for the product.
ATG has chosen a niche strategy by concentrating on providing service to small
business / high-end residential market segment within specific geographical
markets where there is minimal CLEC competition. To execute this strategy
requires that ATG choose suitable markets and provide an attractive combination
of services that the customer cannot receive elsewhere. Key supporting
strategies to accomplish this are:
1. CONCENTRATE ON TIER 3 AND TIER 4 MARKETS
~ Tier 3: 154 cities with a population of (epsilon)100,000
< 249,000
~ Tier 4: 1152 cities with a population of (epsilon)29,000
< 100,000
~ (epsilon) 50,000 business lines
~ (epsilon) 100,000 residence lines
2. PERFORM IN-DEPTH MARKETING ANALYSIS TO QUALIFY MARKETS
~ Minimal CLEC presence
~ Cooperative local government
~ Favorable regulatory climate
~ Favorable ILEC tariff structure
3. PROVIDE A UNIQUE MIX OF TELECOMMUNICATIONS PRODUCTS TO CUSTOMERS
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~ Local
~ Voice mail
~ Internet Services
~ Long Distance
~ Convergent bill
ATG is also pursuing a strategy of differentiation from its competitors based on
a local presence and excellent customer service. Key supporting strategies to
accomplish this are:
1. PUT THE "LOCAL" BACK IN LOCAL SERVICE
~ Having a downtown ATG office where customers can pay
their bill or talk to an ATG representative.
~ Having sales representatives personally visit all
customers with 4 or more lines
~ Hiring people with knowledge of the geographic area in
which they are working.
2. PROVIDE EXCELLENT CUSTOMER SERVICE
~ Hiring knowledgeable people.
~ Resolving as many issues as possible with only one call
to ATG.
~ Always having the phone answered by a human being (not
voice mail).
3. PROVIDE LEADING-EDGE PACKET-SWITCHED PRODUCTS
~ Currently ADSL and SDSL.
~ Become an early adopter of new technologies.
Additional key strategies that are required of ATG to achieve the desired goals,
meet Critical Success Factors and overcome the identified problems are
summarized as follows:
1. STRATEGIC OUTSOURCING OF OPERATIONS WHERE IT MAKES ECONOMIC AND
BUSINESS SENSE
~ Outsourcing network operations to providers of
networking services such as Lucent who can provide more
sophisticated network provisioning and maintenance at
low cost due to economies of scale they have by
providing services to a broad range of telephone
companies. This will also allow ATG to minimize the size
of its internal organization.
~ Outsourcing billing and billing mediation operations to
AMS.
5.2 SIGNIFICANT RELATIONSHIPS
The following key relationships between strategies, goals, and functions have
been identified:
1. Strategies key to attaining goals set by ATG
2. Strategies key to ensuring critical success factors are met
3. Strategies key to overcoming problem areas
4. Functions most important to the successful execution of the strategies.
These relationships are described in detail below.
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5.2.1 CORPORATE STRATEGIES IMPORTANT FOR ACHIEVEMENT OF STRATEGIC GOALS
There is a key relationship between corporate strategies and ATG's goals. The
strategies are essential to achieving the goals. Furthermore, the goals have an
impact on how the strategies themselves are devised and executed.
In the following matrix, strategies are listed horizontally and goals are listed
vertically. If the BOA team found that a goal is supported by a strategy, they
checked the appropriate row and column. The more checks in a row, the more
important a strategy is to meeting the goals of the organization.
FIGURE 7. STRATEGIES SUPPORTING GOALS MATRIX
<TABLE>
<CAPTION>
GOALS
--------------------------------------------------------------------------------------------
Unique Top quality Excellent Accurate Follow
#1 CLEC in #1 CLEC in Expand # service Internet customer Multi-service Business
MAJOR STRATEGIES Tier 3 & 4 market markets offerings service service bill Plan
- ---------------- ---------- ------ ------- --------- ------- ------- ---- ----
<S> <C> <C> <C> <C> <C> <C> <C> <C>
Concentrate on Tier 3 & 4 Markets X X X
Pre-qualify markets X X X X
Provide unique product mix X X X X
Emphasize local service X X X
Differentiate through excellent
customer service X X X
Provide "leading edge" technology X X X
Strategic outsourcing X X X
</TABLE>
This matrix shows that most of the corporate strategies are directed at the
following Corporate goals:
1. Become the #1 CLEC in Tier 3 & 4 Markets
2. Become the #1 CLEC in each market entered
The following goals have the fewest supporting strategies:
1. Provide top quality packet-switched service
2. Produce an accurate, multi-service bill
The two strategies most key to achieving the strategic goals of the company are:
1. Perform In-depth market analysis
2. Provide a unique mix of telecommunications products to customers
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5.2.2 CORPORATE STRATEGIES IMPORTANT FOR ACHIEVING CRITICAL SUCCESS FACTORS
(CSFS)
Corporate strategies have been derived from the interviews conducted with
various ATG executives. The relationship between corporate strategies and
critical success factors is important because specific strategies will be
instrumental in ensuring the Critical Success Factors are met. The relationships
have been established from interviews and various documents provided by ATG and
are documented in the following matrix
FIGURE 8. STRATEGIES SUPPORTING CSFS MATRIX
<TABLE>
<CAPTION>
CSFS
------------------------------------------------------------------------------------------------------------
1st 3 Access to
Network on Efficient markets quality Integrate Merge Voice Speed to
MAJOR STRATEGIES schedule OSS showcase Differentiate capital Partnerships Acquisitions & Internet Market
- ---------------- -------- --- -------- ------------- ------- ------------ ------------ ---------- ------
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C>
Concentrate on Tier
3 & 4 Markets X
Pre-qualify markets X X X
Provide unique product
mix X X
Emphasize local service X X
Provide excellent
customer service X X X
Provide "leading edge"
technology X X X
Strategic outsourcing X X X X X
</TABLE>
In this matrix, strategies are listed horizontally and Critical Success Factors
are listed vertically. If the BOA team found that a strategy helps fulfill a
CSF, they checked the appropriate row and column. The more checks in a column,
the more important is a strategy to ensuring that Critical Success Factors are
met.
The matrix identifies that most strategies will play a key role in meeting the
following Critical Success Factors:
1. Make the first three markets a showplace for the company
2. Differentiate ATG from the ILEC and other CLECs in the market
The following Critical Success Factors have the least number of supporting
strategies
1. Get network facilities up and running on schedule
2. Implement efficient and accurate Operational Support Systems
3. Develop appropriate partnerships
4. Integration of the Internet and Voice lines of business
5. Speed to market
Advanced TelCom Group, Inc. - Confidential and Proprietary Page 22
<PAGE> 228
The strategies most key to meeting the critical success factors are:
1. Strategic outsourcing
2. Perform In-depth market analysis
3. Provide excellent customer service
4. Provide leading-edge packet-switched products
5.2.3 CORPORATE STRATEGIES IMPORTANT FOR ADDRESSING PROBLEMS
Mapping corporate strategies to problems highlights those strategies which are
key to addressing problems that will prevent the meeting of goals.
In the following matrix, strategies are listed horizontally and problems
affecting the attainment of goals are listed vertically. If the BOA team found
that a strategy could help overcome a problem, they checked the appropriate row
and column. The more checks in a column, the more important the strategy is to
overcoming problems.
FIGURE 9. STRATEGIES ADDRESSING PROBLEMS MATRIX
<TABLE>
<CAPTION>
PROBLEMS
------------------------------------------------------------------------------
Lack of Cost & No Lack
Qualified Pricing of ILEC track of Premature
MAJOR STRATEGIES Staff Services Cooperation record OSS Integration
- ---------------- ----- -------- ----------- ------ --- -----------
<S> <C> <C> <C> <C> <C> <C>
Concentrate on Tier 3 & 4 Markets
Pre-qualify markets
Provide unique product mix X X
Emphasize local service X X
Provide excellent customer service X X
Provide "leading edge" technology X X
Strategic outsourcing X X X
</TABLE>
This matrix identifies that the most strategies are directed at the following
problems:
1. Cost and Pricing of services
2. No track record
The following problems have the least number of supporting strategies:
1. ILEC roadblocks
2. Lack of qualified staff
3. Lack of OSS
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The strategy most key to overcoming problems is:
1. Strategic outsourcing
5.2.4 FUNCTIONS SUPPORTING STRATEGY EXECUTION
Strategies are what the company does to achieve its goals, ensure the Critical
Success Factors are met and address the major problems facing it. Functions are
groupings of major activities performed within the organizational structure of
the company. Organizations performing functions are how a company goes about
executing its strategies.
Mapping corporate strategies to functions performed by the enterprise highlights
those functions that are key to successful execution of the corporate
strategies. The matrix below indicates which of the ATG value chain functions
play a role in carrying out the major strategies of the company.
FIGURE 10. FUNCTIONS SUPPORTING STRATEGY EXECUTION MATRIX
<TABLE>
<CAPTION>
FUNCTIONS
----------------------------------------------------------------
Service Network Service Customer
MAJOR STRATEGIES Acquisitions Development Assurance Marketing Sales Service
- ---------------- ------------ ----------- --------- --------- ----- -------
<S> <C> <C> <C> <C> <C> <C>
Concentrate on Tier 3 & 4 Markets X
Pre-qualify markets
Provide unique product mix X X X
Emphasize local service X X X X
Provide excellent customer service X X X
Provide "leading edge" technology X X X
Strategic outsourcing X X
</TABLE>
<TABLE>
<CAPTION>
FUNCTIONS
-------------------------------------------------------------
Market Human Systems Corporate
MAJOR STRATEGIES Development Outsourcing Resources Development Management
- ---------------- ----------- ----------- --------- ----------- ----------
<S> <C> <C> <C> <C> <C>
Concentrate on Tier 3 & 4 Markets X
Pre-qualify markets X X
Provide unique product mix X
Emphasize local service
Provide excellent customer service X X X
Provide "leading edge" technology X X
Strategic outsourcing X X
</TABLE>
The columns of this matrix list the ATG functions while the strategies are
listed in the rows of the matrix. If the BOA team found that a function supports
a strategy, they checked the appropriate row and column. The more checks in a
column, the more important a function is to the execution of the ATG strategic
directions.
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<PAGE> 230
To properly assess the importance of a function, we need to understand how
important a strategy is to achieving goals, meeting Critical Success Factors and
overcoming problems. The following table indicates how many goals, Critical
Success Factors and problems are addressed by each strategy. This table was
derived from the matrices developed earlier in this chapter. The numeric weight
column represents an overall importance of a strategy derived by adding the
number of goals, Critical Success Factors and problems addressed by that
strategy.
FIGURE 11. STRATEGY WEIGHTS
<TABLE>
<CAPTION>
STRATEGIES GOALS CSFS PROBLEMS WEIGHT
---------- ----- ---- -------- ------
<S> <C> <C> <C> <C>
Concentrate on Tier 3 & 4 Markets 3 1 0 4
Pre-qualify markets 4 3 0 7
Provide unique product mix 4 2 2 8
Emphasize local service 3 2 2 7
Provide excellent customer service 3 3 2 8
Provide "leading edge" technology 3 3 2 8
Strategic outsourcing 3 5 3 11
</TABLE>
The following chart pictorially depicts the importance of each strategy to
addressing the goals, CFSs and problems of ATG:
[IMPACT OF STRATEGIES ON BUSINESS FACTORS CHART]
FIGURE 12. IMPACT OF STRATEGIES ON BUSINESS FACTORS CHART
As can be seen, the strategies contributing the most to addressing the major
goals, Critical Success Factors and problems of ATG are:
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1. Strategic outsourcing
2. Provide excellent customer service
3. Provide unique product mix
4. Provide leading-edge internet products
The following diagram illustrates the relationship between functions and
strategies:
[RELATIONSHIP OF FUNCTIONS TO STRATEGIES AND BUSINESS FACTORS CHART]
FIGURE 13. RELATIONSHIP OF FUNCTIONS TO STRATEGIES AND BUSINESS FACTORS
Applying the weight of each strategy to the functions that play a role in
executing the strategy provides us with view of the relative importance of each
function to strategy execution:
<TABLE>
<CAPTION>
Service Network Service Customer
Strategies Acquisition Development Assurance Marketing Sales Service
- ---------- ----------- ----------- --------- --------- ----- --------
<S> <C> <C> <C> <C> <C> <C>
Concentrate on Tier 3 & 4 Markets 4
Pre-qualify markets
Provide unique product mix 8 8
Emphasize local service 7 7 7 7
Provide excellent customer service 8 8 8 8
Provide "leading edge" technology 8 8 8
Strategic outsourcing 11 11
Total 27 16 34 19 15
</TABLE>
<TABLE>
<CAPTION>
Market Human Systems Corporate
Strategies Development Outsourcing Resources Development Management
- ---------- ----------- ----------- --------- ----------- ----------
<S> <C> <C> <C> <C> <C>
Concentrate on Tier 3 & 4 Markets 4
Pre-qualify markets 7 7
Provide unique product mix 8
Emphasize local service
Provide excellent customer service 8 8 8
Provide "leading edge" technology 8 8
Strategic outsourcing 11 10
Total 11 27 8 24 17
</TABLE>
FIGURE 14. IMPACT OF FUNCTIONS ON STATED STRATEGIES MATRIX
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The following chart pictorially depicts the importance of functions to
addressing the currently stated strategies of ATG:
[IMPACT OF FUNCTIONS ON STATED STRATEGIES CHART]
FIGURE 15. IMPACT OF FUNCTIONS ON STATED STRATEGIES CHART
The chart above shows us that the functions of Service Assurance, Service
Acquisition, Outsourcing and Systems Development are most key to the execution
of strategies that will ensure that ATG's key goals are attained, the critical
success factors are met and the major problems facing the company are overcome.
5.3 OBJECTIVES BY FUNCTION
The following are objectives that must be met by the specified functions in
order for ATG to be successful:
<TABLE>
<CAPTION>
FUNCTION OBJECTIVES
- -------- ----------
<S> <C> <C>
SERVICE ACQUISITION 1. Select and negotiate agreements with IXCs
2. Negotiate agreement with Verio
NETWORK DEVELOPMENT 1. Deliver initial 3 networks on time
2. Provide dial-up internet services by 4/1/99
SERVICE ASSURANCE 1. Provision service within 24 hours
2. Network up 99.97% of the time
3. 7 X 24 hour operation for customer calls
4. Always have phone answered by a person
</TABLE>
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<PAGE> 233
<TABLE>
<CAPTION>
FUNCTION OBJECTIVES
- -------- ----------
<S> <C> <C>
MARKETING 1. Develop product catalog
2. Develop service metrics
SALES 1. $1-1/2 to 2-1/2 million in sales in 1999
2. 25% Business lines in 5 years
3. 2-1/2% Residence lines in 5 years
4. Sign up 10% of community
5. Telemarket all customers with 1-3 lines
6. Sales Reps visit 12 accounts daily
7. Visit all customers > 3 lines within the first two months of operations
CUSTOMER SERVICE 1. M & P's in place at start-up
2. Provide excellent customer service
3. Order rejection errors 10% or less
4. Produce accurate, timely bill
MARKET DEVELOPMENT 1. 20 markets in funnel
2. Identify and qualify new markets
3. Be in 50 markets in 5 years
OUTSOURCING 1. Negotiate and monitor billing agreement with AMS
2. Negotiate and monitor services agreement with Lucent
HUMAN RESOURCES 1. Hire resources in timely fashion as needed
2. Develop training plans
3. Develop employee retention programs
SYSTEMS DEVELOPMENT 1. Provide accurate billing 5/1/99
2. On-line billing service
3. Produce multi-service bill
4. Provide flow-through provisioning solution
FINANCIAL AND 1. Raise required capital
CORPORATE MANAGEMENT 2. Satisfy PUC and FCC requirements
3. Control fixed assets
4. Obtain certification in target states
5. Ensure ILEC compliance to Interconnect agreements
6. Ensure all ILEC-billed lines and LD billed usage is billed to ATG customers
</TABLE>
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APPENDIX A: HOW THE BUSINESS OBJECTIVE ANALYSIS REPORT WAS PRODUCED
The process of preparing this document was divided into four stages:
-> Gather data
-> Analyze the information
-> Summarize and consolidate the information
-> Develop this Business Objective Analysis to present the team's
conclusions.
INFORMATION GATHERING BY INTERVIEWS
To gather key business information, the project team arranged interviews with
executives throughout ATG. Before the start of the interviews, questionnaires
were developed. The questions that were asked during the executive interviews
are listed in Appendix A.
The project team then met with the executives who were to be interviewed to
discuss and explain each question and document their answers. A total of 20
interviews were conducted with senior and operational executives. After each
interview, the interview team met to consolidate their notes into a single view
of the questionnaire.
INFORMATION GATHERING BY DOCUMENT REVIEW
Along with the interviews, there were key documents that were a valuable source
of information for the Business Operations Analysis. Please see Appendix A for a
list. The project team reviewed each of these documents to identify executive
strategies and key business perspectives. Similar to the interview
questionnaires, these documents were used as a reference for the documentation
and analysis of key relationships.
INFORMATION ANALYSIS BY TELECOMMUNICATIONS SUBJECT MATTER EXPERTS
The BOA team includes telecommunications subject matter experts. They have broad
experience in telephone company operations and are able to provide insights into
methods, information needs and customer service operations. They were able to
build models of processes that make up a modern phone company and apply their
knowledge of current trends to the development of this document.
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INFORMATION ANALYSIS, CONSOLIDATION AND DOCUMENTATION OF CONCLUSIONS
Information from interviews, documents and subject matter experts was collated.
It was then used to create ATG Strategy Models, which are representations of
business factors such as ATG goals, objectives, critical success factors etc.
These Strategy Models are known as "objects'.
<TABLE>
<CAPTION>
OBJECT DEFINITION
------ ----------
<S> <C>
Problems Difficulties within the ATG business environment
Critical Success Factors What is critical to the success of ATG
Functions What ATG does to deliver products and services
Opportunities Events that ATG should capitalize on
Objectives Measurements to track the success of ATG business
Goals What ATG wants to achieve
</TABLE>
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<PAGE> 236
APPENDIX B: SOURCES OF INFORMATION
The following sources of information were used for the analysis that leads to
the conclusions in the Business Objective Analysis.
INTERVIEW QUESTIONNAIRE
ATG OPERATIONAL EXECUTIVE INTERVIEW QUESTIONS
The following questions were used to guide the information gathering during the
interviews with operational executives:
1. What is the primary business function that your organization supports?
2. What are the major goals of your organization?
3. For each goal, please list measurable and / or quantifiable objectives
that are necessary to achieve each goal?
4. What are the most important factors ("critical success factors") that
are under your control and that are absolutely necessary to achieve your
goals (i.e. what things absolutely must happen in order to achieve your
goals)?
5. What other groups within ATG does your organization interact with, and
for what purpose?
6. What are the major problems (internal or external) that are limiting
your organization's ability to meet its goals?
7. What do you think is the solution to each of these problems?
8. What are your organization's priorities during the next 12 months?
9. What are your organization's priorities over the next 5 years?
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DOCUMENTS
The following ATG documents were consulted in the course of gathering
information:
<TABLE>
<CAPTION>
ATG DOCUMENTS
<S> <C>
1. Advanced TelCom Group - Building on Success ... Creating the #1 CLEC in
Tier 3 & 4 Markets (Presentation)
2. Advanced TelCom Group, Inc. - Market Selection Process, 12/14/98
(Presentation)
3. ATG Information Technology Plan, January 28, 1999 (Presentation)
4. ATG High-Level OSS / BSS Project Scope, December 1998
5. 1999 New Market Development Goals
6. An ATG CSR Perspective - Customer Management Systems and Procedures
7. ATG Customer and Line Forecast
8. ATG - Competitive Local Exchange Carrier Business Functions
9. ATG Draft v.01 OSS/BSS IT Architecture - Resale Only
10. ATG Draft v.03 OSS/BSS IT Architecture
11. ATG's High Availability Server Architecture Santa Rosa, CA Dec. 1, 1998
12. ATG Product Codes
13. ATG Site Roll-out 12/10/98
14. RESALE SERVICE QUESTIONS FOR ATG
15. DATA EXCHANGE AGREEMENT FOR THE DISTRIBUTION OF INTRALATA MESSAGE DETAIL
AND/OR THE SETTLEMENT OF INTRALATA MESSAGE REVENUE BETWEEN PACIFIC BELL
AND .........
16. Resale User Guide Basic Information and Order Preparation Pacific Bell
Industry Operations October 12, 1998
17. Colorado US West Interconnect Agreement
18. Idaho US West Interconnect Agreement
19. Nevada Bell Proposed Interconnect Agreement
20. Oregon US West Interconnect Agreement
21. Washington US West Interconnect Agreement
22. Olympia, Washington Business Plan, 12/8/1998
23. ATG's Packet Switched Services (Presentation)
</TABLE>
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INTERVIEWEES
<TABLE>
<CAPTION>
PERSON TITLE COMPANY FUNCTIONAL AREA PHONE
------ ----- ------- --------------- -----
<S> <C> <C> <C> <C> <C>
1 Bruce Peterson VP Engineering DCI Order Management (206) 447-9620
(425) 269-3426
2 Charlene Curry Controller ATG Finance & Accounting (707) 535-8998
3 Chris Ward VP Internet Services ATG Internet Network, (707) 535-8915
Products & Services
4 Chuck Seefloth Exec. Dir. Field & Engineering Operations ATG Voice Network & (707) 535-8943
Field Operations
5 Curt Wheeling Sr. VP Marketing & Business Development ATG Voice Product (707) 535-8935
Marketing
6 Dan Cruz VP & Chief Systems Officer ATG Enterprise network, (707) 535-8902
OSS, BSS, &
Corporate Operations
7 Dan Fee Regional VP (CA) ATG Sales & Field Operations (707) 568-3888
8 Dave Anderson Principal AMS Billing, mediation, & (703) 227-7546
CABS (202) 253-5912
9 Dave Henderson Sr. Principal AMS Information Technology & (972) 569-9190
external interfaces
10 Dean Handy Dir. Switch Engineering ATG Switching, mediation, (707) 535-8969
external interfaces
11 Gary Hunt Manager Shared Tenant Services ATG Sales, voice products, 707-535-8945
voice service
offerings, training
12 John Harkin Dir. Internet Technology ATG Internet network & (707) 535-8914
service delivery
technology
13 Kath Thomas VP Regulatory & Public Policy ATG Regulatory Affairs (707) 535-8999
14 Lee Hsaio Manager Internal Information Technology ATG Internal IT network (707) 535-8980
(LAN/WAN), servers
& desktops
15 Luis Aguilar Exec. Dir. Sales & Field Operations ATG Business development, (707) 535-8940
mergers, acquisitions,
sales, & field
operations
16 Mark Ritter VP New Market Development ATG Expansions & (703) 421-5249
Acquisitions (707) 535-8975
17 Mike Black Sr. VP Sales & Field Operations ATG Sales and Field (520) 571-7185
Operations (707) 535-8905
18 Mike Kimsey Exec. Dir. Customer Service ATG Corporate and Field (916) 631-1731
Customer Services (707) 535-8955
19 Ron Wynes Dir. Transmission Engineering ATG Network co-location, (707) 535-8911
transmission, transport
& access
</TABLE>
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<PAGE> 239
<TABLE>
<CAPTION>
PERSON TITLE COMPANY FUNCTIONAL AREA PHONE
------ ----- ------- --------------- -----
<S> <C> <C> <C> <C> <C>
20 Scott Shultis Manager Internet Products & Services ATG Internet Products & (707) 535-8916
Services
21 Sheila Botein Sr. Principal AMS Resale requirements, (650) 508-5332
methods & procedures
22 Steve Farmiloe Sales Manager ATG Sales (707) 568-3888
23 Steve Roth Regional VP (OR) & (WA) ATG Sales & Field (360) 570-1504
Operations
24 Tony Rivera Exec. Dir. Long Distance Services ATG Long distance (707) 535-8950
products & services
25 Traci Johnson HR Manager ATG Human Resources (707) 535-8906
</TABLE>
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[ATG LOGO[
EXHIBIT L
TO THE
GENERAL SUPPLY AGREEMENT
ADVANCED TELCOM GROUP, INC.
OPERATIONS READINESS PLAN
PRESENT METHOD OF OPERATIONS
Version 1.5 (Draft for Review)
June 04, 1999
Prepared In Cooperation With
LUCENT TECHNOLOGIES INC.
Global Network Operations
Advanced TelCom Group, Inc. - Confidential and Proprietary
<PAGE> 241
Table of Contents
<TABLE>
<S> <C>
1 EXECUTIVE SUMMARY.................................................................3
1.1 OBJECTIVE OF THE OPERATIONAL READINESS PLAN...................................3
1.2 OBJECTIVE OF THE PRESENT METHOD OF OPERATIONS (PMO) PHASE.....................5
1.3 SCOPE.........................................................................5
1.4 APPROACH......................................................................5
1.5 PROCESSES MODELED.............................................................7
2 INTRODUCTION......................................................................8
2.1 REFERENCES....................................................................8
2.2 DATA COLLECTION...............................................................9
2.3 ACRONYMS.....................................................................11
3 EXISTING INFRASTRUCTURE..........................................................13
3.1 INFORMATION SYSTEMS..........................................................13
3.2 SERVICE PROVIDERS............................................................13
3.3 NETWORK INFRASTRUCTURE.......................................................14
3.4 SERVICES OFFERED.............................................................15
4 ORGANIZATIONAL STRUCTURE ANALYSIS................................................16
4.1 CORPORATE ORGANIZATIONAL STRUCTURE...........................................16
4.2 CURRENT BRANCH ORGANIZATION..................................................19
4.2.1 Specific Job Responsibilities............................................19
4.3 OUTSOURCED OPERATIONS........................................................21
4.3.1 Trouble Management.......................................................21
4.3.2 Billing Operations.......................................................21
4.4 ORGANIZATIONAL RECOMMENDATIONS...............................................22
5 PROCESS FLOWS....................................................................24
5.1 PROSPECTING..................................................................25
5.2 PRE-ORDER....................................................................27
5.3 ORDER MANAGEMENT FOR MIGRATE AS IS ORDERS....................................30
5.4 ORDER MANAGEMENT FOR MOVE/ADD/CHANGE ORDERS..................................32
5.5 ISP ORDER MANAGEMENT.........................................................34
5.6 TELEPHONY TROUBLE MANAGEMENT.................................................36
5.7 ISP TROUBLE MANAGEMENT.......................................................39
</TABLE>
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1 EXECUTIVE SUMMARY
1.1 OBJECTIVE OF THE OPERATIONAL READINESS PLAN
Advanced TelCom Group, Inc. (ATG) has contracted with Lucent Technologies
Professional Services to provide a full range of Network Reliability Center
(NRC) services along with American Management Systems (AMS) providing billing
and other revenue assurance outsourcing services and Digital Counterpart Inc.
(DCI) providing an order entry and order tracking solution. These services
include a team of professionals to work with ATG management to develop an
Operational Readiness Plan. The Operational Readiness Plan collects valuable
information, performs analysis and serves as a useful document to assist ATG
management with the successful implementation of their entry into offering
integrated communications services. Initially, these service offerings will be
provided by ATG in three markets. At start-up in April of this year, ATG will
resell Incumbent Local Exchange Carrier (ILEC) and Internet Dial-up services to
its customers. As resale and Dial-up services are being delivered to business
customers, ATG will be building their own network and will be in the final
stages of offering the following Facilities-based services:
- Local phone service
- Long distance phone service
- Voice mail
- Internet services (Dial-up, xDSL, Web Hosting, Web Content,
etc.)
The four phases that the Operational Readiness Plan encompasses are:
- Business Objective Analysis (BOA)
- Present Method of Operations (PMO): describes the ILEC resale
and Internet dial-up phase of the ATG business
- Interim Method of Operations (IMO): describes the continued
resale and initial facilities-based phase of the ATG business
- Future Method of Operations (FMO): describes the predominantly
facilities-based phase of the ATG business. This phase will be
covered as part of Project Cabernet which will produce a fully
automated Order Management solution.
This document describes the PMO phase of the Operational Readiness Planning
project.
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[FLOW CHART]
1. A BUSINESS OBJECTIVE ANALYSIS (BOA). Completion of the BOA on April 15,
1999 was the first step in the Operational Readiness Plan. The BOA
provides an analysis of corporate objectives and strategic directions as
they have been understood by ATG's management team. The BOA is part of
the Operational Readiness Plan and as such is not an independent
document that defines strategies, planning or specific actions.
2. A PRESENT METHOD OF OPERATION (PMO). As the second step in the
Operational Readiness Plan, Lucent will develop process models that
describe the way ATG will be doing business in the Resale and Internet
Dial-up phase of their business.
3. AN INTERIM METHOD OF OPERATIONS (IMO). As a third component of the
Operational Readiness Plan, Lucent will deliver to ATG a document which:
(1) will analyze the gaps between the Present Method of Operations and
where ATG wishes to be after the implementation of the Lucent network;
(2) documents ATG's business processes in the Facilities-based
environment; and (3) may make recommendations to improve the efficiency
and effectiveness of ATG's business operations.
There may be additional iterations of the IMO as a result of
opportunities for continuous process improvement during the early stages
of the Facilities-based environment.
4. A FUTURE METHOD OF OPERATIONS (FMO). In this phase, the Plan will be
updated to reflect the changes that are introduced as a result of the
mechanization of the Order Management function (Project Cabernet).
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1.2 OBJECTIVE OF THE PRESENT METHOD OF OPERATIONS (PMO) PHASE
The intent of this phase is to understand and document ATG's business plans and
strategies for entering the telecommunications market by reselling ILEC voice
services and offering ATG Internet dial-up data services to its customers. This
information will be used in constructing the future state processes in the FMO
phase. The specific Process Flows include Prospecting, Pre-Order, Order
Management, Customer Service, Customer Care/Trouble Management, and Billing.
This valuable information will be used for gap analysis that must be addressed
in the FMO.
1.3 SCOPE
The PMO initiative and this document only pertains to those start-up services
offered for resale and Internet dial-up by ATG in the markets it is entering.
ATG plans to resell certain ILEC services and offer ATG branded Internet dial-up
data services in the three market areas identified for start-up, while the
Lucent switches are being installed and processes and procedures are developed
to begin offering integrated voice and data services in a Facilities-based
environment. The ILEC services that ATG plans to offer for resale during this
start-up phase include POTS lines, business trunks, Centrex services, ISDN
services, Voice Mail services, and Internet (standard dial-up and ISDN
connectivity). During facilities-based operations, ATG be required to continue
to offer voice services via ILEC Unbundled Network Elements (UNEs) often
referred to as Unbundled Loops.
1.4 APPROACH
The PMO was developed using the following approach:
1. IDENTIFY THE START-UP SERVICES AND PRODUCTS TO BE OFFERED
After several key meetings and working sessions with the appropriate ATG
managers it was determined that ATG's start-up offering would be as a reseller
of ILEC and ATG branded Internet Dial-up services to its customers.
2. EXAMINE EXISTING DOCUMENTS, PROCESSES AND DATA
Draft Requirements, Methods, and Procedures developed by AMS and DCI were
reviewed and updated, and ATG Business Plans and Market Selection processes were
reviewed to develop process work flows and analyze the present method of
operation. This analysis provides an assessment of how well the goals and
objectives of ATG, as identified in the BOA are likely to be met.
3. MEET WITH KEY ATG MANAGERS
The Lucent Team conducted or participated in strategy sessions and meetings with
ATG managers and Subject Matter Experts (SMEs) to discuss plans for customer
service, processing information for Local, Internet and Long Distance services
and merging these procedures for operations usability. Most of the process data
was extracted from information provided by other partners who had previously
developed some ATG operations methods and procedures for use during the voice
resale and dial-up data phase.
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4. CONDUCT A STRATEGY SESSION WITH THE NRC
Using information collected from the previous steps, a meeting was held with NRC
Managers, to define the procedures and to discuss anticipated results of the NRC
handling the Trouble Management/Customer Care responsibilities.
5. DEVELOP PROCESS WORK FLOWS
Flows were developed for each of the major processes.
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1.5 PROCESSES MODELED
The following processes were modeled as part of this phase:
<TABLE>
<CAPTION>
Process Name Process Description
- ------------ -------------------
<S> <C>
Prospecting Interest ILEC customers in transferring to ATG. and
signing up for ATG Internet Dial-up data services.
Pre-Ordering Assemble ILEC-specific forms and gather credit
information about customer to complete customer order
package. This also holds true for potential Internet
Dial-up data.
Migrate As-is Telephony Includes entering the order into the ILEC order system
Order or order form, working with the ILEC to change the
billing information of the customer from the ILEC to
ATG, and updating the internal ATG order management
and billing systems with the customer's information.
Move Add Change (MAC) Making changes to a customer's telephony service
Telephony Order after they have been migrated to ATG.
ISP Order Take an order to establish a customer's ISP service.
Telephony Trouble Includes referring a telephony trouble report to the
Management NRC, monitoring the problem until the customer's
problem is resolved, and confirming with the customer
that their service has been restored to their
satisfaction.
ISP Trouble Management Includes referring an ISP trouble
report to the NRC, transferring the call to the ATG
INOC if necessary and confirming with the customer
that their service has been restored to their
satisfaction.
</TABLE>
Page 7 Advanced TelCom Group, Inc. - Confidential and Proprietary
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2 INTRODUCTION
The PMO phase of the Operational Readiness Plan models services and network
operations for the resale to its customers of ILEC services, as is planned for
start-up by ATG in May, 1999. The intent of this phase is to understand and
document ATG's business plans and strategies to perform gap analysis and
evaluate the probable success rate for this market entry. This detail permits:
- Review of essential day-to-day service activities to develop key
performance indicators to be detailed in the FMO.
- Identify opportunities for development of additional processes
and procedures that may be vital to a successful implementation.
- Review of the quantity and quality of the staff required, and in
place, to meet the business needs and the needs of the customer.
- Identify the required interactions and information flows between
ATG corporate, ATG market, NRC services, and AMS services
affecting end-to-end service delivery.
To proceed with the analysis, the PMO Team used various documents and reference
material supplied by ATG and information collected from interviews with the ATG
executives and subject matter experts. The project team reviewed each of the
following documents to identify executive strategies and key business
perspectives relating to the planned PMO. Similar to the interview
questionnaires, these documents were used as a reference for the documentation
and analysis of key relationships.
2.1 REFERENCES
The following key ATG documents were utilized while gathering information for
the PMO:
<TABLE>
<CAPTION>
ATG DOCUMENTS
- --------------------------------------------------------------------------------
<S> <C>
1. Advanced TelCom Group - Building on Success ... Creating the #1 CLEC in
Tier 3 & 4 Markets (Presentation)
2. Advanced TelCom Group, Inc. - Market Selection Process, 12/14/98
(Presentation)
3. ATG Information Technology Plan, January 28, 1999 (Presentation)
4. ATG High-Level OSS / BSS Project Scope, December 1998
5. 1999 New Market Development Goals
6. An ATG CSR Perspective - Customer Management Systems and Procedures
7. ATG Customer and Line Forecast
8. ATG - Competitive Local Exchange Carrier Business Functions
9. ATG Draft v.01 OSS/BSS IT Architecture - Resale Only
10. ATG Draft v.03 OSS/BSS IT Architecture
11. ATG's High Availability Server Architecture Santa Rosa, CA Dec. 1, 1998
12. ATG Product Codes
13. ATG Site Roll-out 12/10/98
14. RESALE SERVICE QUESTIONS FOR ATG
15. DATA EXCHANGE AGREEMENT FOR THE DISTRIBUTION OF INTRALATA MESSAGE DETAIL
AND/OR THE SETTLEMENT OF INTRALATA MESSAGE REVENUE BETWEEN PACIFIC BELL
AND .........
</TABLE>
Page 8 Advanced TelCom Group, Inc. - Confidential and Proprietary
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<TABLE>
<CAPTION>
ATG DOCUMENTS
- --------------------------------------------------------------------------------
<S> <C>
16. Resale User Guide Basic Information and Order Preparation Pacific Bell Industry
Operations October 12, 1998
17. Colorado US West Interconnect Agreement
18. Idaho US West Interconnect Agreement
19. Nevada Bell Proposed Interconnect Agreement
20. Oregon US West Interconnect Agreement
21. Washington US West Interconnect Agreement
22. Olympia, Washington Business Plan, 12/8/1998
23. ATG's Packet Switched Services (Presentation)
24. Methods and Procedures developed for ATG's Resale Business.
</TABLE>
2.2 DATA COLLECTION
As discussed in Section 1.4.3, the Lucent PMO Team met with key ATG managers
responsible for implementing the strategies and procedures for the start-up
resale service, to identify and verify existing processes and procedures. After
these processes and procedures were reviewed for completeness, workflow diagrams
were developed for to identify the work activities that must happen at each
step. In addition to this data collection and development, some information
collected by the Lucent BOA Team was also reviewed to complete the data
collection for the PMO. A list of the ATG executives and subject matter experts
interviewed by the BOA Team follows:
<TABLE>
<CAPTION>
PERSON TITLE COMPANY FUNCTIONAL AREA PHONE
------ ----- ------- --------------- -----
<S> <C> <C> <C> <C> <C>
1 Bruce Peterson VP Engineering DCI Order Management (206) 447-9620
(425) 269-3426
2 Charlene Curry Controller ATG Finance & Accounting (707) 535-8998
3 Chris Ward VP Internet Services ATG Internet Network, (707) 535-8915
Products & Services
4 Chuck Seefloth Exec. Dir. Field & ATG Voice Network & (707) 535-8943
Engineering Field Operations
Operations
5 Curt Wheeling Sr. VP Marketing & ATG Voice Product (707) 535-8935
Business Development Marketing
6 Dan Cruz VP & Chief Systems ATG Enterprise network, (707) 535-8902
Officer OSS, BSS, &
Corporate Operations
7 Dan Fee Regional VP (CA) ATG Sales & Field (707) 568-3888
Operations
8 Dave Anderson Principal AMS Billing, mediation, (703) 227-7546
& CABS (202) 253-5912
9 Dave Henderson Sr. Principal AMS Information (972) 569-9190
Technology &
external interfaces
10 Dean Handy Dir. Switch ATG Switching, (707) 535-8969
Engineering mediation, external
interfaces
11 Gary Hunt Manager Shared ATG Sales, voice 707-535-8945
Tenant Services products, voice
service offerings,
training
</TABLE>
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<TABLE>
<S> <C> <C> <C> <C> <C>
12 John Harkin Dir. Internet ATG Internet network & (707) 535-8914
Technology service delivery
technology
13 Kath Thomas VP Regulatory & ATG Regulatory Affairs (707) 535-8999
Public Policy
14 Lee Hsaio Manager Internal ATG Internal IT network (707) 535-8980
Information (LAN/WAN), servers &
Technology desktops
15 Luis Aguilar Exec. Dir. Sales & ATG Business (707) 535-8940
Field Operations development,
mergers,
acquisitions, sales,
& field operations
16 Mark Ritter VP New Market ATG Expansions & (703) 421-5249
Development Acquisitions (707) 535-8975
17 Mike Black Sr. VP Sales & Field ATG Sales and Field (520) 571-7185
Operations Operations (707) 535-8905
18 Mike Kimsey Exec. Dir. Customer ATG Corporate and Field (916) 631-1731
Service Customer Services (707) 535-8955
19 Ron Wynes Dir. Transmission ATG Network co-location, (707) 535-8911
Engineering transmission,
transport & access
20 Scott Shultis Manager Internet ATG Internet Products & (707) 535-8916
Products & Services Services
21 Sheila Botein Sr. Principal AMS Resale requirements, (650) 508-5332
methods & procedures
22 Steve Farmiloe Sales Manager ATG Sales (707) 568-3888
23 Steve Roth Regional VP (OR) & ATG Sales & Field (360) 570-1504
(WA) Operations
24 Tony Rivera Exec. Dir. Long ATG Long distance (707) 535-8950
Distance Services products & services
25 Traci Johnson HR Manager ATG Human Resources (707) 535-8906
</TABLE>
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2.3 ACRONYMS
<TABLE>
<CAPTION>
Acronym Description
------- -----------
<S> <C>
AMS American Management Systems
ARBOR/BP Biller Software Product (from Kenan Systems)
ARS Action Request System (trouble management software from Remedy
Corporation)
ATG Advanced TelCom Group, Inc.
BOA Business Objective Analysis
CLEC Competitive Local Exchange Carrier
CSC Customer Service Coordinator
CSR Customer Service Representative / Customer Service Record
DCI Digital Counterpart Inc. (order entry and tracking system vendor)
DS1 Transmission facility operating at 1.544 Mbps
DS3 Transmission facility operating at 45 Mbps
DSL Digital Subscriber Line
eC.Order Order Entry System (DCI)
FCC Federal Communications Commission
FMO Future Method of Operations
256K Frame Relay A streamlined packet switching protocol
designed to provide high-speed frame or packet switching
with minimal delay and efficient bandwidth usage
ILEC Incumbent Local Exchange Carrier
IMA Interconnection Mediation Access (US West)
INOC Internet Network Operations Center
ISDN Integrated Services Digital Network
ISDN BRI ISDN Basic Rate Interface
ISDN PRI ISDN Primary Rate Interface
ISP Internet Service Provider
IXC Inter-eXchange Carrier
KENAN Kenan Systems Corporation (biller system vendor)
LD Long Distance
LEX LSR eXchange System
LOA Letter of Agreement / Agency
LSR Local Service Request
MAC Move, Add, Change
MACD Move, Add, Change, Delete
MAI
NRC Network Reliability Center
OCSR Outside Customer Service Representative
OE Order Entry
OMS Order Management Specialist
OT Order Tracking
PBSM Pacific Bell Service Manager
PBX Private Branch Exchange
PMO Present Method of Operations
POS Point Of Service (Pacific Bell)
</TABLE>
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<TABLE>
<S> <C>
POTS Plain Old Telephone Service
PUC Public Utility Commission
Qwest Branded ATG long distance service provider
REMEDY Remedy Corporation (trouble administration/management software)
SME Subject Matter Expert
SR Sales Representative
TSA Telecommunications Service Agreement
UBL Unbundled Loops
UNE Unbundled Network Element
VERIGATE (Pacific Bell)
</TABLE>
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3 EXISTING INFRASTRUCTURE
3.1 INFORMATION SYSTEMS
During the resale phase, the following systems have been identified for use by
ATG:
1. Arbor/BP - a billing system. This system will be supplied by Kenan
Systems and operated by AMS on a service bureau basis. Arbor/BP will be
the repository for the ATG product catalog and all customer information
as well as produce bills.
2. IMA - This is US West's system for accepting Unbundled Network Element
(UNE) orders from CLECs.
3. LEX/Verigate and PBSM - These are Pacific Bell's system's for accepting
UNE orders from CLECs.
4. eC.Order - An order entry and order tracking system being developed by
Digital Counterpart for ATG internally.
5. ARS - Remedy Corporation software used by the Lucent NRC to assist in
trouble management.
3.2 SERVICE PROVIDERS
LOCAL TELEPHONY SERVICE
During this phase, ATG will be reselling local telephone service from the ILECs.
For Santa Rosa, CA this will be Pacific Bell, and for Salem, OR and Olympia, WA
this will be US West.
LONG DISTANCE SERVICE
ATG WILL BE RESELLING LONG-DISTANCE SERVICES FROM QWEST AND WILL BILL FOR
THESE SERVICES ON AN ATG-BRANDED BILL. QWEST WILL ALSO BE PROVIDING
ATG-BRANDED TELEPHONE CALLING CARDS.
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3.3 NETWORK INFRASTRUCTURE
The following diagram represents the high-level infrastructure of the Business
Support Systems to support ATG's business in the Resale and Internet dial-up
phase.
[FLOW CHART]
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3.4 SERVICES OFFERED
ATG plans to offer both the resale of ILEC telephony services and the direct
sale of dial-up ISP services in the time period between entry into a market and
the full availability of their own network facilities. Specifically, the
services offered will be:
<TABLE>
<CAPTION>
Type Services
---- --------
<S> <C>
Telephony
Business Analog Line
Digital DID Trunk
Centrex
Analog PBX Trunk
Analog DID Line
ISDN BRI
ISDN PRI
Centrex
Long Distance
Calling Cards
Internet
Personal Advantage Analog or ISDN (2 e-mail boxes)
Business Advantage Analog or ISDN (5 e-mail boxes, 5 aliases, 0 IP)
LAN-Advantage Analog or ISDN (10 e-mail boxes, 5 aliases, 6 IP)
</TABLE>
In addition the following telephony features will be available. Not all features
are available with all services:
- Hunting
- 3-Way Calling
- Speed Calling 30
- Block Services
- Remote Call Forwarding
- Priority Ringing
- Call Waiting
- Speed Calling 8
- Auto Busy Redial
- Call Forwarding
- Call Block
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4 ORGANIZATIONAL STRUCTURE ANALYSIS
4.1 CORPORATE ORGANIZATIONAL STRUCTURE
With ATG offering Local, Long Distance, and Internet services at start-up, many
executives, departments and organizations (functional areas) have been
identified. Other major roles have been identified, although specific job
descriptions have not been developed, nor in some cases, knowledgeable staff
hired to fill these positions. The following organizations exist today in ATG:
- - Marketing and Sales
- - Customer Service
- - Human Resources
- - Financial and Corporate Management
- - Internet Services and Technology
- - Field Operations
- - Regulatory Affairs
- - Business Development
- - Expansions and Acquisitions
- - Collocation and Transport
- - Long Distance
- - Information Technology
ATG CORPORATE ORGANIZATIONAL STRUCTURE
[FLOW CHART]
Page 16 Advanced TelCom Group, Inc. - Confidential and Proprietary
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Marketing
This function analyzes customer's needs and anticipates the products and
services needed to serve customers and potential customers now and in the
future. The objectives of the business plan are to market services using a
city-centric approach, with skilled people to take customers orders and put them
through the system without error. The sales team will call on customers with 4
lines or more and will conduct telemarketing for customers with 1-3 lines.
Another group responsible for sales and marketing is the Shared Tenant
organization who will be targeting office parks and business complexes. This
team must know the products, be well trained and possess outstanding customer
skills.
Internet Services and Technology
This group will build the Internet backbone and server complex and provide all
Internet access services. The objective is to be a top quality, leading edge
Internet provider becoming an early adopter and provider of new technology
services.
Long Distance
This function manages the Long Distance Services, negotiating contracts,
negotiating with vendors, monitoring service levels and providing high quality
LD service.
Regulatory Affairs
These functions include all interaction required from a regulatory perspective
of the FCC and PUC, as well as contract agreements and escalation problems with
ILECs.
Financial and Corporate Management
This function is responsible for all the financial and accounting needs of the
business. These include:
- Purchasing
- Fixed asset management
- Financial Reporting
- Billing, credit and collections policies
- Matching revenue to billing and to costs
- Taxes
Customer Service
There will be a centralized organization that will ensure standardization of
procedures, sales forms, and policies for all Branches. Additionally, there will
be a customer service organization in each branch. This organization will
include customer service representatives and an order management group to ensure
intervals are met as well as customer expectations, monitor billing, collections
and interface with the NRC for trouble management.
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Field Operations
These functions include engineering and construction of the transport and
switched networks. This group is responsible for new installations, maintenance,
product selection & building lease agreements.
Expansions and Acquisitions
The function of this organization is to identify and evaluate all appropriate
Tier 3 markets and determine the appropriate ones for entry. This determination
is based on criteria including size of city, competition already in place, city
clustering capabilities, fiber in place, etc. A six-step process is in place for
deciding on a market before submitting the recommendation for Board approval.
Business Development
The function of this organization is to develop strategies to interconnect
cities, connect markets, develop concepts for moving from a resale CLEC to a
facilities CLEC, pursue revenue opportunities and generally grow all markets.
Systems
This organization is responsible for the selection and acquisition of strategic
partners to supply information systems to support ATG's business.
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4.2 CURRENT BRANCH ORGANIZATION
The current ATG organization places the responsibility for operational success
on these organizations within each region.
[FLOW CHART]
4.2.1 SPECIFIC JOB RESPONSIBILITIES
The following specific job responsibilities have been identified within each
branch:
4.2.1.1 SALES ORGANIZATION
ACCOUNT REPRESENTATIVE
The Account Representative (AR) is the initial point of interaction between ATG
and the customer. The AR will be given a list of all businesses in their
territory and will visit all of them personally. The Sales Representative
reports to the Sales Manager in each Branch. Specific responsibilities include:
- - Inform the customer about ATG's products and services
- - Obtain the customer's signature on the LOA
- - Obtain customer's signature on TSA
- - Notify customer if deposit is required
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- - Act as primary customer interface
SALES ADMINISTRATOR
The Sales Administrator reports to the Sales Manager in each Branch. Their
primary responsibility is to support the sales process. Specific
responsibilities include:
- - Validates that ATG can provide same services as ILEC
- - Prepares TSA
- - Performs Credit Check
- - Determines if Deposit is required
- - Assembles Order Package
SALES ENGINEER
The Sales Engineer reports to the Sales Manager in each Branch. Their primary
responsibility is to provide technical support to the sales process. Specific
responsibilities include:
- - Validate that the order is technically feasible and complete
- - Validate with Operations Manager that the services being offered within the
order are being delivered via the most appropriate and cost effective
solution
- - Answer technical questions for a customer
4.2.1.2 OPERATIONS ORGANIZATION
The Operations Organization does not play a role in the resale environment.
4.2.1.3 CUSTOMER SERVICE ORGANIZATION
CUSTOMER SERVICE REPRESENTATIVE (CSR)
The CSR reports to the Customer Service Manager in each Branch. One of their
responsibilities is the receipt & review of the Order package from the Sales
Group. The CSR then needs to insure that the cover sheet containing the
authorization signatures is present from the Sales Manager and from the Customer
Service Manager.
One major function will be to answer incoming phone calls from the outside
world, primarily from the Customers. These calls may require the Soft handoff to
the NRC for trouble resolution. Other responsibilities include:
- - Verify that the order packages contains the required forms for the
appropriate order type and service ordered.
- - Verify all information is correct & that all required fields on the forms
are completed.
- - Note missing, incomplete or incorrect information.
- - Return the package to the Sales Group if there are any discrepancies that
can not be easily resolved by simple means. (phone call, etc)
- - Forward-approved order packages to the Order Management Specialist.
- - Interact with the Sales Group & the CSC.
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CUSTOMER SERVICE COORDINATOR (CSC)
The CSC reports to the Customer Service Manager in each Branch. The CSC' primary
task is to create the inputs for the Order Entry System (OE) after receiving the
order package from the CSR. Other responsibilities include:
- - After the entry of the appropriate forms, the CSC would start the tracking
process of the orders utilizing the Order Tracking System (OT).
- - The CSC may be required at times to manually prepare the forms & fax to the
ILEC, the ISP, or to Qwest.
- - The CSC will make the original entry (MAI) into the Arbor BP system and any
updates to that system required due to additional orders. (MAC)
- - The CSC would be the recipient of any rejected order due to errors after the
order was submitted to the ILEC.
- - Inform the Outside CSR that the order has been completed by the ILEC so that
notification can be given to the Customer.
4.3 OUTSOURCED OPERATIONS
The following operations are outsourced in the Resale timeframe:
- Trouble Management
- Billing Operations
4.3.1 TROUBLE MANAGEMENT
Lucent Technologies Network Reliability Center (NRC) will be performing trouble
management functions for ATG on an outsourced basis. This will include the
following activities:
- Taking customer trouble calls for telephony and ISP service
- Provide 1st level support only for ISP calls (2nd level calls
transferred to Internet Network Operations Center (INOC) for
resolution)
- Case management for all telephony calls (Interface with ILECs and LD
carriers to resolve problem)
- Enter all trouble calls into Remedy ARS system
4.3.2 BILLING OPERATIONS
American Management Systems (AMS) is performing billing operations for ATG on an
outsourced basis. This will include the following activities:
- Collection of call detail records from the ILECs and Qwest
- Maintenance of the product catalog in Arbor BP
- Processing of customer payments through the lock box
- Running bill production
- Bill verification
- Sending bills to the customer
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4.4 ORGANIZATIONAL RECOMMENDATIONS
ROLES OF CENTRALIZED AND LOCAL ORGANIZATIONS
In the current organization, both the customer service and field support
organizations in each region report up through the general manager. If this
structure is to be maintained then the corporate customer service and field
support organizations must still play a significant role in the management of
these groups (dotted line responsibility). It is recommended that the corporate
organizations play a policy making and quality assurance role with respect to
the local organizations. Specifically:
- - Establishing policies and procedures
- - Training
- - Establishing job descriptions and levels
- - Determining metrics and measurement criteria
- - Evaluation of effectiveness of current processes
- - Establishing escalation scenarios
If ATG is to successfully expand into a large number of markets, there must be a
high degree of standardization. This will make entry into these markets much
smoother. This, of course, must be balanced against the need to make adjustments
for local conditions.
CUSTOMER ADVOCATE / OPERATIONS MANAGER
The day-to-day operations of ATG are spread out over a number of organizations
and executive responsibilities. It is important to have a single individual
responsible for operations as opposed to policy-making and business development.
This person's primary responsibility would be to ensure customer satisfaction
from the initial sales visit through establishment of service and including
ongoing contact such as receiving bills, trouble calls and customer service
activity.
VENDOR MANAGEMENT
Since ATG has chosen to outsource major portions of their operations, Vendor
Management becomes even more important than usual. A manager should be appointed
to manage the ongoing relationship with major vendors, especially Lucent, AMS
and DCI.
ATG PROJECT MANAGERS
ATG has outsourced the project management role to its vendors for both the
Resale and Facilities phases of the project. These endeavors are so important to
ATG that the person in charge should be a key ATG executive. Progress in these
areas may have suffered because close ATG oversight was not available.
LACK OF RESOURCES
It is part of ATG's business philosophy not to build a vast internal
organization, hence the outsourcing of large portions of the business to Lucent
and ATG. Also, since there is no revenue currently flowing into the company it
is understandable that ATG would want to keep costs down. However, in almost all
areas of the organization there appears to be insufficient staff to
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perform the work at hand, or to handle the potential level of business that is
anticipated. This has been a contributing factor to missing deadlines and
delaying the start of business.
If the Internet business is successful, the Internet Network Operations Center
(INOC) will be severely understaffed. If either the Internet or Resale
businesses are successful, then the local branches will find themselves severely
pressed to meet customer commitments. If the business is successful additional
resources will need to be hired anyway. Hiring sooner rather than later will
enhance ATG's chances of providing excellent customer service. Given the
difficulty of hiring qualified staff, it is better to be out in front of this
issue.
Building a telephone and an Internet company from scratch is a complex
operation. It will be difficult to achieve successfully without the right type
and number of resources.
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5 PROCESS FLOWS
This following section documents the PMO process flows for those services and
processes that have been identified as being needed to provide the resale of
ILEC services. The process flows modeled are:
<TABLE>
<CAPTION>
Process Name Process Description
- ------------ -------------------
<S> <C>
Prospecting Interest ILEC customers in transferring to ATG.
Pre-Ordering Assemble ILEC-specific forms and gather credit
information about customer to complete customer order
package.
Migrate As-is Telephony Includes entering the order into the ILEC order system or
Order order form, working with the ILEC to change the billing
information of the customer from the ILEC to ATG, and
updating the internal ATG order management and
billing systems with the customer's information.
Move Add Change Delete Making changes to a customer's telephony service after they
(MACD) Telephony Order have been migrated to ATG.
ISP Order Take an order to establish a customer's ISP service.
Telephony Trouble Includes referring a telephony trouble report to the NRC,
Management monitoring the problem until the customer's problem is
resolved, and confirming with the customer that their
service has been restored to their satisfaction.
ISP Trouble Management Includes referring an ISP trouble report to the NRC,
transferring the call to the ATG INOC if necessary
and confirming with the customer that their service
has been restored to their satisfaction.
</TABLE>
These process flows are not a comprehensive list of all business processes
performed by ATG. The information contained in these flows will be updated in
the Future Method of Operations (FMO) phase to reflect the changes necessary to
operate during the conversion to the facilities phase.
NOTE: WHEN THESE FLOWS WERE DESIGNED IT WAS ASSUMED THAT EC.ORDER WOULD BE IN
PLACE. IT WAS DETERMINED AT LAUNCH DATE THAT eC.ORDER WOULD NOT BE DEPLOYED FOR
THE TIME BEING. CONSEQUENTLY, ANY OPERATIONS DESCRIBED AS BEING PERFORMED BY
EC.ORDER IN THESE FLOWS IS BEING DONE MANUALLY TODAY.
Page 24 Advanced TelCom Group, Inc. - Confidential and Proprietary
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5.1 PROSPECTING
1. OBTAINS SIGNATURE
The Sales Representative obtains Prospect's signature on Part 1 of the LOA to
request a copy of the Customer Service Record from ILEC.
2. OBTAIN ILEC INVOICE
The Sales Representative requests a copy of the Prospect's ILEC invoice to
determine what services the Prospect is being billed for by the ILEC.
3. CUSTOMER ACCEPTS OFFER
The Sales Representative compares the Prospect's invoice with the ATG list of
services available for resale.
4. OBTAIN BILLING INFORMATION
The Sales Representative asks the Prospect for his/her billing information and
enters on the ATG Subscriber Information form.
5. PROVIDE LOA & FORMS
The Sales Representative provides Part I and Part II, of the Letter of Agency
(LOA), the Prospect's invoice, and the ATG Subscriber Form to the Sales
Administrator.
6. RETRIEVE CSR
The Sales Administrator retrieves the Customer Service Record (CSR) from the
ILEC system.
7. VERIFIES INVOICE AGAINST CSR
The Sales Administrator reviews the Prospect's invoice to the ILEC CSR to
determine if the USOCs and FIDs on the CSR match those on the Prospect's
invoice.
8. PREPARES & SENDS MIGRATE ORDER PACKAGE
The Sales Administrator prepares the Migrate Order Package & Sends to the Sales
Representative for obtaining the Customers Signature.
9. OBTAIN CUSTOMER SIGNATURE
The Sales Representative obtains the Prospect's signature on the Order Package,
which concludes the Prospecting process.
Page 25 Advanced TelCom Group, Inc. - Confidential and Proprietary
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[FLOW CHART]
Page 26 Advanced TelCom Group, Inc. - Confidential and Proprietary
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5.2 PRE-ORDER
1. OBTAIN AND PRINT CUSTOMER'S CREDIT REPORT
The Sales Administrator obtains and prints the Dun and Bradstreet Credit Report
and checks the credit score. If there is no D&B, the Sales Administrator obtains
a Credit Score from other information provided by the customer.
2. APPLY RISK MITIGATION
The Sales Administrator (SA) applies the risk mitigation strategy to calculate
the necessary deposit required by the customer. The SA compares the credit score
to the ATG Deposit Matrix and determines the amount of the deposit. If the SA
has no credit score information, he/she uses the worst case scenario from the
deposit matrix.
3. DETERMINE DEPOSIT REQUIRED
The SA reviews the credit information and determines the deposit required from
the customer.
4. NOTIFY ACCOUNT REP. TO CONTACT CUSTOMER
The SA notifies the Account Representative that a deposit is required and the
amount of the deposit.
5. NOTIFIES CUSTOMER OF DEPOSIT REQUIRED
The Account Representative notifies the Customer of the amount of deposit.
6. COLLECT DEPOSIT
The Account Representative collects the deposit from the Customer.
7. ASSEMBLE ORDER PACKAGE
After receipt of the deposit from the Customer, the SA assembles the order
package. The order package includes:
- - Telecommunications Service Agreement (TSA) signed properly
- - Completed Letter of Agreement (LOA) with appropriate sections initialed
- - Printed copy of Dun & Bradstreet Report
- - Printed copy of the CSR
- - Credit Bureau Score reflecting the deposit amount required (if applicable)
- - Deposit payment from Customer
- - Sales Package with applicable product-specific information and billing forms.
8. OBTAINS APPROVAL
The Sales Administrator contacts the Sales Manager and obtains his/her approval
and signature on the sales package.
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9. APPROVES AND FORWARDS
The Sales Manager approves the Order Package and forwards to Order Management.
10. FORWARD ORDER PACKAGE TO ORDER MANAGEMENT
The Sales Administrator passes the complete order package to Order Management.
This completes the Pre-Order process.
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5.3 ORDER MANAGEMENT FOR MIGRATE AS IS ORDERS
1. RECEIVE MIGRATE ORDER PACKAGE
The Customer Service Representative (CSR) receives and reviews the completed
order package from the Sales Group and sends to the Order Management Specialist
(CSC).
2. OCSR ASSIGNED
Assign Outside Customer Service Representative.
3. INPUTS TO eC.ORDER SYSTEM
The CSC completes and submits the service order forms into the eC.Order System.
4. RETRIEVES eC.ORDER INFORMATION
The CSC retrieves the completed order forms and prepares the necessary forms for
submittal to the ILEC.
5. SUBMITS FORMS TO ILEC
The CSC submits the forms to the ILEC using the appropriate ILEC OSS.
6. TRACK AND POST STATUS IN eC.ORDER
The ILEC issues the Firm Order Completion (FOC) with the order Due Date and
other related pertinent information. The CSC updates and posts order status and
other pertinent information in the eC.Order System.
7. ADD CUSTOMER TO ARBOR BP
The CSC receives completion notification and posts the updated information in
the eC.Order system. The CSC enters the customer record information the Arbor BP
system. The customer billing is activated.
8. NOTIFY OUTSIDE CUSTOMER SERVICE REPRESENTATIVE (OCSR)
The CSC notifies the OCSR of the order completion.
9. OCSR NOTIFIES CUSTOMER
The OCSR notifies the customer the order activity is completed.
10. OCSR DELIVERS FIRST BILL
The OCSR hand delivers the first bill to the customer.
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5.4 ORDER MANAGEMENT FOR MOVE/ADD/CHANGE ORDERS
1. RECEIVE MAC ORDER PACKAGE
The Customer Service Representative (CSR) receives and reviews the completed
order package from the Sales Group and sends to the Order Management Specialist
(CSC).
2. INPUTS TO eC.ORDER SYSTEM
The CSC completes and submits the service order forms into the eC.Order System.
The eC.Order System reformats the information into ILEC format.
3. RETRIEVES eC.ORDER INFORMATION
The CSC retrieves the completed order forms and prepares the necessary forms for
submittal to the ILEC.
4. SUBMITS FORMS TO ILEC
The CSC submits the forms to the ILEC using the appropriate ILEC OSS. The ILEC
receives and reviews the submitted orders for correctness and makes any
appropriate corrections. The ILEC issues the Firm Order Completion (FOC) with
the order Due Date and other related pertinent information.
5. TRACK AND POST STATUS IN eC.ORDER
The CSC updates and posts order status and other pertinent information in the
eC.Order System.
6. UPDATE RECORD IN ARBOR BP
The CSC receives completion notification and posts the updated information in
the eC.Order system. The CSC enters the customer record information in the Arbor
BP system. The customer is billed for the move/add/change activity on their
bill.
7. NOTIFY OUTSIDE CUSTOMER SERVICE REPRESENTATIVE (OCSR)
The CSC notifies the OCSR of the order completion.
8. OCSR NOTIFIES CUSTOMER
The OCSR notifies the customer the order activity is completed.
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5.5 ISP ORDER MANAGEMENT
1. COMPLETES TSA & ATTACHMENT
If the customer is ordering internet service with telephony the required sales
forms should be filled out at the customer's site and submitted via the normal
process.
2. FORWARDS TO OM / CSR
The sales organization submits the completed package to Customer Service.
3. COMPLETES TSA, OBTAINS EMAIL INFO
If the customer is ordering internet service alone a customer signature and D&B
credit score are not required. A TSA and Internet Sales Form are required.
4. COMPLETES & CONFIRMS AVAILABILITY
The Order Management Specialist determines if the customer's requested email
address is available. If not, they contact the customer to get a new email
address.
5. ENTERS ORDER
The order is entered into eC.Order system.
6. ENTERS ORDER FOR BILLING
The CSC prints the Arbor data entry forms from the eC.Order system and enters
the information into Arbor/BP.
7. FORWARDS CD AND LETTER
An installation CD and welcome letter is sent to the customer
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5.6 TELEPHONY TROUBLE MANAGEMENT
1. RECEIVES REPAIR REPORT
Receive trouble call from subscriber. Determine nature of problem. Verify
subscriber's records to confirm ATG subscriber
2. ONLINE TRANSFER TO THE NRC
After confirming ATG subscriber, On-line transfer to NRC stating subscriber's
name, telephone number and describing problem. Note subscriber's account of call
and referral date and time
3. RECEIVES REPAIR REPORT
Receive call as on-line transfer from Customer Service Representative or from
ATG subscriber. Access subscriber's records. Verify subscriber is an ATG
customer.
4. CREATES TICKET IN REMEDY
Create Remedy ticket
5. REFERS TICKET TO ILEC/LD CARRIER
Refer repair problem to ILEC/LD Carrier. Follow up to assure repaired within
approved intervals. The ILEC will confirm receipt of repair report with NRC &
perform testing and diagnostics. The ILEC will dispatch or exercise resolution
methods, as appropriate & notify the NRC of resolution.
6. RECEIVE DAILY LOG
The NRC will send a log listing calls received, customer name, and repair
problem to CSR each morning.
7. RECEIVES NOTIFICATION
The NRC will receive notification from ILEC of resolution.
8. CALLS END USER TO CONFIRM RESOLUTION
Call subscriber and confirm problem is resolved.
9. NOTIFIES CSR OF RESOLUTION
The NRC will notify Customer Service Representative with resolution information.
Note daily report with resolution and date and time ticket closed. Note
resolution on Remedy ticket and close ticket.
10. NOTES CUSTOMER RECORDS
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Receive daily log from NRC listing calls received, customer name, and repair
problem each morning. Receive notification from NRC that problem is resolved.
Note subscriber's records of resolution.
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5.7 ISP TROUBLE MANAGEMENT
1. RECEIVES REPORT AND VALIDATES CUSTOMER
Receives ISP trouble repair call from customer. Validates that customer calling,
is ATG's ISP customer. Uses an ATG supplied ISP script and qualifies that there
is a legitimate ISP problem.
2. WARM TRANSFERS TO ISP TECHNICAL GROUP
Warm transfers the customer to the ISP Technical Group providing the customer
record information (customer's name, telephone number, address) and nature of
the ISP problem.
3. RECEIVES REPORT, QUANTIFIES AND VALIDATES
Receives out of hours or overflow ISP trouble repair calls from ISP customer.
Validates that customer calling is ATG's ISP customer. Uses an ATG supplied ISP
script and qualifies that there is a legitimate ISP problem.
4. CREATES REMEDY TICKET
Creates Remedy ticket
5. RESOLVES OR FORWARDS TO ISP GROUP
Resolves problem if able, or forwards it to ATG ISP Technical Group. For calls
received out of hours, sends an activity list to the ISP Technical Group in the
morning.
6. RECEIVES OR CREATES TROUBLE TICKET
Receives trouble ticket from NRC or creates one in ATG's Remedy for customers
transferred by the CSR.
7. UPDATES REMEDY
Updates and closes ticket in Remedy when trouble is resolved.
8. RESOLVES AND UPDATES REMEDY
Resolves ISP problem, updates and closes ticket in Remedy when fixed.
9. RECEIVES NOTIFICATION
Receives notification from NRC and/or ISP Technical group that the trouble has
been resolved and closed.
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10. CALLS CUSTOMER TO CONFIRM AND INFORM
Calls ISP customer to inform them that the trouble is fixed and to confirm that
they agree, and are satisfied.
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Page 42 Advanced TelCom Group, Inc. - Confidential and Proprietary
<PAGE> 1
EXHIBIT 10.15
E9-1-1 CLEARINGHOUSE SERVICES
AGREEMENT
BETWEEN SCC COMMUNICATIONS,
INC. AND
ADVANCED TELCOM GROUP,
INC.
- --------------------
[*] Information redacted pursuant to a confidential treatment request
throughout this exhibit.
<PAGE> 2
E9-1-1
CLEARINGHOUSE
SERVICES
MASTER CONTRACT
TERMS AND CONDITIONS
[SCC LOGO]
6285 LOOKOUT ROAD
BOULDER, COLORADO, U.S.A. 80301-3343
(303) 581-5600
<PAGE> 3
TABLE OF CONTENTS
<TABLE>
<S> <C>
RECITALS ................................................................. 4
1. DEFINITIONS .......................................................... 4
1.1 Services ........................................................... 4
1.2 New Services ....................................................... 4
1.3 Add-On Services .................................................... 4
1.4 Modification Order ................................................. 5
1.5 Project ............................................................ 5
1.6 PSAP ............................................................... 5
1.7 Base Record ........................................................ 5
1.8 ATGI Affiliate ..................................................... 5
1.9 Subscriber ......................................................... 5
2. STATEMENT OF WORK .................................................... 6
2.1 Responsibilities ................................................... 6
2.2 Project Implementation Plan ........................................ 6
2.3 Project Management ................................................. 6
2.4 Progress Meetings .................................................. 6
2.5 Training ........................................................... 7
2.6 New Services ....................................................... 7
2.7 Add-On Orders ...................................................... 7
2.8 Modification Orders ................................................ 7
2.9 Letter Of Agency ................................................... 7
2.10 Electronic Exchange ................................................ 8
2.11 Uniformity ......................................................... 8
3. ATGI RESPONSIBILITIES ................................................ 8
4. TERM AND TERMINATION ................................................. 8
4.1 Term ............................................................... 8
4.2 Termination......................................................... 8
4.3 Orderly Transition ................................................. 9
</TABLE>
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SCC PROPRIETARY & CONFIDENTIAL
<PAGE> 4
<TABLE>
<S> <C>
5. PRICE AND PAYMENT ..................................................... 9
5.1 Services Fees ....................................................... 9
5.2 Audits .............................................................. 10
5.3 Set-Off ............................................................. 11
5.4 Disputed Invoices.................................................... 11
5.5 Taxes ............................................................... 11
5.6 Other Charges ....................................................... 11
6. LICENSE AND DEVELOPED INFORMATION ..................................... 12
6.1 Licenses ............................................................ 12
6.2 Developed Information - Definitions ................................. 12
6.3 Developed Information - Rights ...................................... 13
7. SYSTEM SECURITY ....................................................... 13
7.1 SCC and ATGI Data ................................................... 13
7.2 Address Verification ................................................ 13
8. CONFIDENTIALITY ....................................................... 14
8.1 Confidential Information ............................................ 14
8.2 Employees ........................................................... 14
8.3 Exceptions .......................................................... 14
8.4 Ownership of Confidential Information ............................... 15
9. WARRANTIES ............................................................ 15
9.1 Warranty By SCC ..................................................... 15
9.2 Warranty By ATGI .................................................... 16
9.3 Exclusion ........................................................... 16
10. INDEMNIFICATION ....................................................... 17
10.1 General Indemnification ............................................. 17
10.2 Intellectual Property Indemnification ............................... 17
10.3 ATGI Immunity ....................................................... 18
11. LIMITATION OF LIABILITY ............................................... 18
11.1 Consequential Damages ............................................... 18
</TABLE>
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<PAGE> 5
<TABLE>
<S> <C>
11.2 Maximum Liability ........................................................... 18
12. INSURANCE ..................................................................... 19
12.1 Insurance Coverage .......................................................... 19
12.2 Evidence of Coverage ........................................................ 19
13. RECURRING SERVICE ERROR/LIQUIDATED DAMAGES..................................... 19
13.1 Recurring Service Error ..................................................... 19
13.2 Liquidated Damages .......................................................... 19
14. GENERAL PROVISIONS ............................................................ 19
14.1 Advertising and Publicity ................................................... 19
14.2 Assignment .................................................................. 20
14.3 Authority ................................................................... 21
14.4 Company Rules ............................................................... 21
14.5 Escalation Procedures ....................................................... 21
14.6 Force Majeure ............................................................... 21
14.7 Governing Law ............................................................... 21
14.8 Independent Contractors ..................................................... 21
14.9 Joint Work Product .......................................................... 22
14.10 Laws, Regulations, Permits .................................................. 22
14.11 Notices ..................................................................... 22
14.12 Remedies .................................................................... 23
14.13 Non-Waiver .................................................................. 23
14.14 Severability ................................................................ 23
14.15 Binding Effect .............................................................. 23
15. ENTIRE AGREEMENT .............................................................. 24
EXHIBIT A STATEMENT OF WORK
EXHIBIT B FEES AND PAYMENT SCHEDULE
EXHIBIT C MODIFICATION ORDER
EXHIBIT D ESCALATION PROCEDURES
EXHIBIT E LETTER OF AGENCY
</TABLE>
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SCC PROPRIETARY & CONFIDENTIAL
<PAGE> 6
CLEARINGSHOUSE SERVICES AGREEMENT BETWEEN
SCC COMMUNICATIONS CORP. AND ATGI
THIS AGREEMENT is made this __ day of May, 1999, (the "Effective Date")
between SCC Communications Corporation, ("SCC") a Delaware Corporation, with its
principal offices located at 6285 Lookout Road, Boulder, Colorado 80301, and
Advanced TelCom Group, Inc. ("ATGI"), a Delaware corporation having its
corporate offices located at 100 Stony Point Road, Suite 130, Santa Rosa,
California, 95401, who are collectively referred to herein as "the Parties" or
individually as "Party."
RECITALS
WHEREAS, ATGI wishes to procure from SCC the enhanced 9-1-1 data base
management services described herein; and
WHEREAS, SCC wishes to provide such services (defined herein as
"Services").
NOW, THEREFORE, in consideration of the mutual promises and covenants
set forth herein and for good and valuable consideration, the sufficiency of
which is hereby acknowledged, SCC and ATGI, (the "Parties"), agree as follows:
1. DEFINITIONS
1.1 SERVICES
"Services" means the services described in the "Statement of Work"
("SOW"), attached as Exhibit A, which Services are intended to enable ATGI to
implement and maintain an E9-1-1 system for all of ATGI's Subscribers (as
defined herein). "Services" shall also include those New Services and Add-On
Services that are added to this Agreement pursuant to a duly executed
Modification Order.
1.2 NEW SERVICES
"New Service" means those services developed by SCC in its sole
discretion which modify, improve or add functionality, of any level, kind or
version, to the Services and which are offered to and accepted by ATGI pursuant
to subsequent agreement of the Parties.
1.3 ADD-ON SERVICES
"Add-On Service" means services that are not Services or New Services
initially contemplated herein, but which are developed by SCC as a result of
ATGI's explicit request for specific modifications, improvements or additional
functionality to the Services or New Services
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SCC PROPRIETARY & CONFIDENTIAL
<PAGE> 7
and which are added to same pursuant to subsequent agreement of the Parties.
1.4 MODIFICATION ORDER
"Modification Order" means a document that, by its formal execution,
obligates the Parties with respect to the addition, or modification, of New
Services or Add-On Services described in such document. Such Modification Order
shall be subject to the terms and conditions hereof, shall be prepared in
substantially the same form as that set forth in Exhibit C and shall become
effective only when fully executed by the authorized representatives of each
Party as evidenced thereon.
1.5 PROJECT
"Project" means the undertaking of the tasks and duties necessary to
implement and provide the Services.
1.6 PSAP
"PSAP" means Public Safety Answering Point as that phrase is commonly
known in the telecommunications industry.
1.7 BASE RECORD
"Base Record" means a database record that includes the name, address
or address equivalent, and the telephone number of a Subscriber.
1.8 ATGI AFFILIATE
"ATGI Affiliate" means any entity that directly, or indirectly through
one or more intermediaries, controls or is controlled by or is under common
control with ATGI, as well as any successor to ATGI, whether by change of name,
dissolution, merger, consolidation, reorganization or otherwise.
1.9 SUBSCRIBER
"Subscriber" means each ATGI customer whose address falls within the
municipal, county or other jurisdictional boundary served by a PSAP.
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SCC PROPRIETARY & CONFIDENTIAL
<PAGE> 8
2. STATEMENT OF WORK
2.1 RESPONSIBILITIES
The Statement of Work attached hereto, incorporated herein and marked
as "Exhibit A" is a complete description of the Services. The Parties shall
perform their respective duties described therein during the Project. The
Parties further agree to jointly develop, and in good faith negotiate, a
detailed statement of work for any Add-On Services which shall be appended to
and incorporated into the appropriate Modification Order, which itself shall be
incorporated into this Agreement. All requests for additional services,
conversion of additional records, training, and enhancements shall be
coordinated through the Project Managers and handled in accordance with this
Agreement. All requests by either Party shall be considered and negotiated in
good faith and incorporated into this Agreement if mutually agreed to in
writing.
SCC will, at all times relevant hereto, maintain a sufficient number of
employees in its discretion to adequately perform the Services, and if
applicable, New Services and Add-On Services.
2.2 PROJECT IMPLEMENTATION PLAN
A fully detailed Implementation Plan shall be negotiated by the Parties
as specified in the SOW, which Implementation Plan shall define the specific
tasks, responsibilities, performance dates of each Party, the specific services
to be provided, performance requirements, and objectives for the provisioning of
the Services according to Exhibit A. Any subsequent changes to the
Implementation Plan shall be mutually agreed to in writing.
2.3 PROJECT MANAGEMENT
SCC and ATGI shall each designate an individual, or individuals as may
be changed from time to time, as the Party's respective Project Manager, who
will act as the primary interface between the Parties. The Project Managers
shall be responsible for insuring the continuity of communications between the
Parties as the Project proceeds. The Escalation Procedures contained in "Exhibit
D" attached hereto and incorporated herein shall be included as part of the
Statement of Work.
2.4 PROGRESS MEETINGS
On a periodic basis, the Project Managers shall meet in order for the
Parties to inform each other of the status of the Project, of each Party's
respective tasks and responsibilities, as well as ATGI's future roll-out plans.
At ATGI's request, each Party shall provide to the other written status reports
on the work being performed. ATGI may elect to forego all or some of such
meetings and may direct SCC to provide it with periodic written or oral reports
on the status of the Statement of Work.
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<PAGE> 9
2.5 TRAINING
In connection with the Implementation Plan described in Exhibit A, SCC
shall provide training to ATGI's personnel. The Parties shall subsequently
negotiate the dates and times of such training, and unless otherwise agreed,
training shall take place in Boulder, Colorado at SCC's offices. If SCC
ultimately agrees to provide training at any other location, SCC shall be
reimbursed for its costs of travel, which costs shall not exceed the allowances
for same as set forth in ATGI's then-current, standard travel policy. Once
scheduled, training classes may be canceled by ATGI without penalty upon ten
(10) business days prior written notice to SCC. For cancellations with less than
ten (10) business days prior written notice, ATGI shall be liable to SCC for
SCC's time and its cost of travel and training materials actually incurred by
SCC in preparation for the course only for those costs not otherwise recoverable
by SCC.
2.6 NEW SERVICES
At SCC's sole discretion, New Services will be periodically offered to
ATGI by SCC hereunder based on additional products SCC develops, also at SCC's
sole discretion. All requests for New Services shall be coordinated through the
Project Managers and handled in accordance with the terms of this Agreement.
2.7 ADD-ON ORDERS
ATGI may request in writing specific modifications or improvements to
the Services at any time. SCC shall consider each in good faith and provide to
ATGI a quotation to include at a minimum, the description of the Add-On Service,
date of availability, proposed implementation schedule, initial charges and/or
additional recurring charges, and other fees as are reasonably required. SCC and
ATGI shall negotiate in good faith the final terms and an additional statement
of work.
2.8 MODIFICATION ORDERS
If ATGI elects to purchase from SCC New Services or Add-On Services,
ATGI will deliver to SCC a completed Modification Order form substantially
similar to that which is set forth in Exhibit C. The parties will negotiate in
good faith the terms and conditions relating to the provision of such services,
which shall include at a minimum: (1) a description of the requested service;
(2) a projected date of its availability; (3) a proposed implementation
schedule; (4) the initial non-recurring charges and/or additional recurring
charges associated with the service; and (5) any other information deemed
appropriate by the Parties. Modification Orders will not be effective or binding
upon the parties unless signed by an authorized individual from ATGI.
2.9 LETTER OF AGENCY
Parties agree that a Letter of Agency ("LOA") has already been executed
by the Parties and is attached to this Agreement as Exhibit E, which letter will
enable SCC to perform the Services as a limited agent for ATGI. The LOA shall:
(1) not be released by SCC or used except as
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SCC PROPRIETARY & CONFIDENTIAL
<PAGE> 10
authorized by this Agreement; (2) be deemed revoked upon termination of this
Agreement or delivery to SCC of written notice of ATGI's election in this
regard; and (3) be returned to ATGI upon ATGI's request, upon termination of
this Agreement or upon delivery of a revocation notice as described herein.
2.10 ELECTRONIC EXCHANGE
Except as may otherwise be provided herein, the Parties will use and
implement electronic automation procedures to facilitate communication,
coordination, maintenance, and management of the Services. In addition, if
either party modifies any of the software, protocols, systems, data
communications or other crucial aspects which relate to the provision of SCC's
Services or New Services, the party initiating such modification shall provide
to the other party written notice of such modification not less than ninety
(90) days prior to such modification, and the other party shall have not less
than one hundred eighty (180) days to implement the changes necessary to
accommodate such modification. Responsibility for payment of any additional
costs for the non-initiating Party in order to accommodate such change shall be
negotiated by the Parties in good faith.
2.11 UNIFORMITY
The Services shall not be either province, state, or regionally
specific unless it is legally mandated by the legal governing body.
3. ATGI RESPONSIBILITIES
ATGI'S contractual obligations and responsibilities are those stated in
this Agreement and its Exhibits, as may be amended by mutual written agreement
of the Parties.
4. TERM AND TERMINATION
4.1 TERM
The term of this Agreement shall begin upon the Effective Date as first
stated above and continue for a period of three (3) years thereafter unless
earlier terminated under the terms of this Agreement ("Initial Term"). Following
the Initial Term, the Agreement shall automatically renew for continuous one
(1) year terms unless terminated at the end of a renewal term upon no less than
180 days advance written notification by the terminating Party.
4.2 TERMINATION
Either party may terminate this Agreement in the event that the other
Party is in default under the terms or conditions of this Agreement including,
but not limited to, any amendments thereto or any terms and conditions
contained in the SOW, any other authorized exhibits or
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<PAGE> 11
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amendments thereto. The non-defaulting Party shall promptly provide written
notice of default to the defaulting Party. Except for a default alleging
non-payment, the defaulting Party shall have thirty (30) days from the
effective date of the written notice to cure such default or to provide a plan
to cure same which plan must be accepted in writing by the non-defaulting
Party. For a default for non-payment, the defaulting Party shall have fifteen
(15) days in which to cure such default. If a timely cure is not made as
provided herein, then this Agreement may be terminated at the option of the
non-defaulting Party.
4.3 ORDERLY TRANSITION
Upon expiration or proper termination hereof, SCC will cooperate in the
orderly transition of the Services to ATGI or its agent and will make reasonable
efforts to minimize any disruption of ATGI's E9-1-1 service. At such time, and
with respect to the ATGI-relevant data and databases that SCC legally controls
hereunder, SCC will deliver to ATGI such data contained in such databases, and
other information that is necessary to allow ATGI to be substituted for SCC in
this regard; provided, however, that SCC shall not be obligated to do so if such
delivery or other performance would violate the confidentiality provisions of
this Agreement, result in a breach of contract to which SCC is a party as of the
Effective Date hereof, violate any other law or private right, convey to ATGI
any intellectual property or other right to which ATGI is otherwise un-entitled
hereunder, or otherwise unreasonably subject SCC to civil or criminal
prosecution. Such data and information shall include but not be limited to ATGI
Results (as defined herein) along with the data needed to perform said Services,
all in a readable file or files of reasonable structure and convertible with
commercially available software, which data and information shall be current as
of the date of such transition.
If ATGI requests that SCC continue, beyond the effective date of
expiration or termination, to provide any portion or all of the Services that
SCC would not otherwise be contractually obligated to provide under the terms
and conditions of this Agreement, ATGI shall compensate SCC for such Services
at the same rate as otherwise would be applicable under this Agreement for such
Services for so long as such Services or portions thereof are being provided.
5. PRICE AND PAYMENT
5.1 SERVICES FEES
The Fee and Payment Schedule, attached hereto, marked as Exhibit B and
incorporated herein, sets forth the charges and fees payable by ATGI to SCC for
the Services.
5.1.2 ATGI's OPTION FOR "PRICING ADJUSTMENT."
ATGI will initially pay the rates pertaining to the MBFs as set forth in
Exhibit B based on the number of ATGI's actual Base Records. Unless ATGI
exercises its option described herein, ATGI will, for the duration of this
Agreement, pay such rates based on the number of ATGI's actual Base Records. If
ATGI exercises such option, the MBFs shall be determined in the
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<PAGE> 12
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manner set forth below.
At ATGI's sole option, ATGI may invoke a "Pricing Adjustment", as described
below, by electing to pay MBFs at the rates set forth in Exhibit B based on the
number of ATGI's projected Base Records instead of the number of ATGI's actual
Base Records. If ATGI exercises such option, then no later than sixty (60) days
prior to the effective date of the Pricing Adjustment, ATGI will provide SCC
with ATGI's forecast of ATGI's projected number of Base Records which ATGI
expects will exist one (1) year following the Pricing Adjustment. Such forecast
shall be in writing and delivered to SCC's Vice President of Sales pursuant to
the Notice requirements of this Agreement. ATGI's Projected Base Records shall
be reasonable and shall be consistent with ATGI's overall business plans, and
SCC shall be given a reasonable opportunity to verify this criteria for
reasonableness and consistency.
If ATGI exercises its option to invoke the Pricing Adjustment, and, if at
the end of the fifth (5th) month following the Pricing Adjustment, ATGI's actual
Base Records are not equal to or greater than [*] of the number of Projected
Base Records, then: (a) ATGI will thereafter pay the MBFs based on the actual
number of ATGI's actual Base Records, and (b) ATGI will be invoiced
retroactively for the preceding five (5) months in the amount of the difference
between the MBFs based on the Projected Base Records and the MBFs based on the
actual number of Base Records.
If ATGI exercises its option to invoke the Pricing Adjustment, and, if at
the end of the fifth (5th) month following the Pricing Adjustment, ATGI's actual
Base Records are equal to or greater than [*] of the total number of the
Projected Base Records, ATGI shall continue to pay the MBFs based on the number
of Projected Base Records instead of the number of actual Base Records; provided
that if the number of ATGI's actual Base Records exceed ATGI's Projected Base
Records, ATGI will pay based on the number of actual Base Records. Regardless of
the outcome of the exercise by ATGI of its option, the rate at which ATGI shall
be obligated to pay MBFs, after the first (1st) year following the Pricing
Adjustment and beyond, will be based on actual Base Records.
5.2 AUDITS
At its sole expense, SCC shall maintain complete and accurate books and
records with respect to the Project and the Services, and said books and
records shall be maintained in accordance with generally accepted accounting
principles. Each Party shall have the right to audit the books and records of
the other that relate specifically to the calculation of the number of
Subscribers and related fees. In addition, ATGI shall have the right to audit
the books and records of SCC that relate to SCC's data-protection and security
obligations hereunder. Such audits may be performed at the premises of the
other Party, shall be limited to once per calendar year (except for good cause
reasonably demonstrated) and shall only be allowed with not less than fifteen
(15) days advance written notice to the audited Party. Each Party will be
responsible for its own costs related to such audits. "Undisputed" invoices, as
defined herein, which are not adjusted within eighteen (18) months of the date
of such invoice shall be deemed accepted by the Parties, regardless of whether
such invoice was included in a prior or subsequent audit.
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[*] Information redacted pursuant to a confidential treatment request
throughout this exhibit.
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5.3 SET-OFF
All legitimate and reasonable claims for money due or to become due from
ATGI shall be subject to deduction or set-off by ATGI by reason of any such
amounts due ATGI pursuant to this Agreement; however no set-off or
"cross-collateralization" shall be permitted hereunder in connection with
amounts that may be in dispute or owed pursuant to any other transaction or
agreement between the Parties.
5.4 DISPUTED INVOICES
In the event of a disputed invoice, ATGI shall notify SCC within twenty
(20) days of the receipt of any such invoice and identify the nature of the
dispute or inaccuracy. ATGI shall pay any undisputed amounts set forth in said
invoice in accordance with the provisions hereof pertaining to normal payment
of invoices. Both parties shall in good faith investigate and attempt to
resolve the outstanding disputed amount, and once resolved, any payments owed
shall be promptly paid.
5.5 TAXES
Fees and charges payable hereunder shall not include any sales, use,
excise, transaction or other similar taxes levied against or upon the
furnishing or receipt of Services. Further, the amounts payable by ATGI
hereunder shall not include any federal, state and local taxes, taxes that are
based on SCC's net or gross receipts, franchise taxes or other taxes based on
SCC's corporate existence or status, personal property taxes on licensed
software and taxes that may be due in whole or in part because of any failure
by SCC or its agents to file any return or information required by law, rule or
regulation. If any sales or other taxes related to SCC's provision of Services
are payable or mandated by current or prospective application of law, they
shall be separately stated on the monthly invoice to ATGI, and ATGI shall be
responsible for paying same in accordance with the terms and conditions set
forth in this Section 5 for payment of invoices. ATGI shall reimburse SCC for
any penalties or interest actually levied upon SCC with respect to such taxes
only if ATGI's acts or omissions solely caused such penalty or interest to be
levied.
5.6 OTHER CHARGES
Charges for miscellaneous services not contemplated herein will be offered
to ATGI on a time-and-materials basis using SCC's then-current rates for same.
In the event ATGI requests that SCC provide such services, SCC shall first
furnish ATGI with an estimate of the amount of such charges (the "Other
Charges"), which, upon written agreement of the Parties, may include travel and
other related expenses, and shall specify a reasonable "not-to-exceed" billable
amount. Billings of Other Charges for the requested services shall not exceed
the specified amount without ATGI's prior written approval. Other Charges shall
be billed in arrears, after provision of the relevant services, and ATGI shall
pay Other Charges within thirty (30) days of ATGI's receipt of invoices related
to such services. SCC shall be responsible for the normal, non-fixed costs and
fees for acquiring MSAGs ("Master Street Address Guides") in an amount not to
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exceed [*] per MSAG, as described in Exhibit A. ATGI shall be responsible for
paying the amount, if any, in excess thereof.
6. LICENSE AND DEVELOPED INFORMATION
6.1 LICENSES
Except as may otherwise be set forth herein or in a fully executed
Modification Order, nothing in this Agreement shall be construed to grant ATGI
any right, title or interest in or license to any SCC Furnished Technology (as
defined herein), SCC hardware or software products or services used in the
provision of Services, New Services, any other SCC proprietary information or
intellectual property, or SCC-owned Proprietary Rights (as defined herein).
Nothing in this Agreement shall be construed to grant SCC any right, title or
interest in ATGI Furnished Technology (as defined herein), ATGI proprietary
information, intellectual property, any data being provided to SCC by ATGI for
use in the provision of Services, New Services, Add-On Services or ATGI-owned
Proprietary Rights (as defined herein).
6.2 DEVELOPED INFORMATION - DEFINITIONS
6.2.1 PROPRIETARY RIGHT
"Proprietary Right" means any patent, copyright, trade secret, trademark
or other intellectual property right that is protected or protectable under the
laws of any governmental authority having jurisdiction.
6.2.2 ATGI FURNISHED TECHNOLOGY
"ATGI Furnished Technology" means any design, specification, know-how,
computer program, computer software, computer hardware, device, technique,
algorithm, method, procedure, discovery or invention, whether or not reduced to
practice, or enhancement, improvement or derivative works thereof that (1) is
protected or protectable under any Proprietary Right, (2) is owned or
controlled (by license or otherwise) by ATGI or any of its affiliates, and (3)
is furnished or to be furnished by ATGI or any of its affiliates to SCC under
this Agreement. ATGI represents that any of its employees or agents who have or
may have a right of interest in or to ATGI Furnished Technology have executed
proper waivers granting all right, title and interest in same to ATGI.
6.2.3 SCC FURNISHED TECHNOLOGY
"SCC Furnished Technology" means any design, specification, know-how,
computer program, computer software, computer hardware, device, technique,
algorithm, method, procedure, discovery or invention, whether or not reduced to
practice, or enhancements, improvements or derivative works thereof that (1) is
protected or protectable under any Proprietary Right, (2) is owned or
controlled (by license or otherwise) by SCC or any of its affiliates, and (3)
is furnished or to be furnished by SCC or any of its affiliates to ATGI under
this Agreement. SCC represents that any of its employees or agents who have or
may have a right or interest in or to SCC Furnished Technology, or those who
are performing Services hereunder,
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have executed appropriate waivers granting all right, title and interest in
same to SCC.
6.2.4 ATGI RESULTS
"ATGI Results" means any data that: (a) is not data that comprises any or
all of the Services, New Services or Add-On Services (as defined herein), and
(b) is not public information, and (c) is not SCC Furnished Technology or the
property of any third party, and (d) is ATGI-specific data.
6.3 DEVELOPED INFORMATION - RIGHTS
6.3.1 ATGI RESERVATION OF RIGHTS
ATGI reserves all of its right, title and interest in all ATGI Furnished
Technology and all Proprietary Rights in same.
6.3.2 SCC RESERVATION OF RIGHTS
SCC reserves all of its right, title and interest in all SCC Furnished
Technology and all Proprietary Rights in same.
6.3.3 OWNERSHIP OF ATGI RESULTS
ATGI will be the exclusive owner of all right, title and interest in the
ATGI Results and all Proprietary Rights in same. To the extent permitted under
the United States Copyright Act (17 U.S.C. Section 101 et seq. and any successor
statutes thereto), the ATGI Results will constitute "works made for hire" and
the ownership of such ATGI Results will vest in ATGI at the time they are
created. In any event, SCC hereby assigns and transfers, and promises to assign
and transfer, to ATGI all SCC's right, title and interest in the ATGI Results
and Proprietary Rights thereto.
7. SYSTEM SECURITY
7.1 SCC AND ATGI DATA
SCC and ATGI acknowledge the importance of maintaining the security and
integrity of the systems and the data of each Party as a result of their access
to those systems and data. In order to protect the data and systems, each Party
shall strictly adhere to the nondisclosure and system security policies in the
performance of its own tasks and the services related to this Agreement. SCC
understands and acknowledges the confidential nature of the ATGI's telephone
subscriber information. SCC and its employees shall not disclose data to which
it has access under this Agreement to any person or entity without the prior
written consent of ATGI except as required in order to fulfill its obligations
under this Agreement.
7.2 ADDRESS VERIFICATION
ATGI acknowledges that SCC may freely use and exchange, according to
standard industry practices, Master Street Address Guide ("MSAG") data with
other service providers, public safety agencies, etc., in order to establish
the proper jurisdiction and call management
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services and as necessary for SCC to provide its Services, New Services and
Add-On Services without the disclosure of Confidential Information as required
under this Agreement.
8. CONFIDENTIALITY
8.1 CONFIDENTIAL INFORMATION
During the course of this Agreement, either Party may receive or have
access to confidential information of the other. "Confidential Information"
means any confidential, private, or proprietary information or data disclosed
by a Party (the "Disclosing Party") to the other Party (the "Recipient") under
or in contemplation of this Agreement which (a) if in tangible form or other
media that can be converted to readable form is clearly marked as Confidential,
proprietary, or private when disclosed, or (b) if oral, or visual, is
identified as Confidential, proprietary, or proprietary on disclosure. The
terms "Disclosing Party" and "Recipient" include each Party's corporate
affiliates that disclose or receive Confidential Information. The rights and
obligations of the Parties shall therefore also inure to such affiliates and
may be directly enforced by or against such affiliates. The Recipient
acknowledges the economic value of the Disclosing Party's Confidential
Information. The Recipient therefore, shall:
(i) use the Confidential Information only in connection with the
Recipient's performance of its obligations or in exercising its rights
under this Agreement;
(ii) restrict disclosure of the Confidential Information to employees of
the Recipient and its affiliates with a "need to know" and not disclose it
to any other person or entity without the prior written consent of the
Disclosing Party;
(iii) advise those employees who access the Confidential Information of
their obligations with respect thereto; and
(iv) copy the Confidential Information only as necessary for those
employees who are entitled to receive it and ensure that all
confidentiality notices are reproduced in full on such copies.
8.2 EMPLOYEES
For the purposes of this Agreement only, "employee" includes third parties
retained by the Parties for temporary administration, clerical, or programming
support. A "need to know" means that the employee requires the Confidential
Information to perform his or her responsibilities in connection with this
Agreement.
8.3 EXCEPTIONS
The obligations of this section shall not apply to any Confidential
Information which the Recipient can demonstrate:
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(i) is or becomes available to the public through no breach of this or
any other agreements;
(ii) was previously known by the Recipient without any obligation to hold
it in confidence;
(iii) is received from a third party free to disclose such information
without restriction;
(iv) is independently developed by the Recipient without the use of
Confidential Information of the Disclosing Party;
(v) is approved for release by written authorization of the Disclosing
Party but only to the extent of such authorization and without any
disassembly, reverse engineering, or similar undertaking by Recipient; or
(vi) is required by law or regulation to be disclosed, but only to the
extent and for the purposes of such required disclosure, and only if the
Recipient first notifies the Disclosing Party of the order and permits the
Disclosing Party to seek an appropriate protective order.
8.4 OWNERSHIP OF CONFIDENTIAL INFORMATION
Confidential Information, including permitted copies, shall be deemed the
property of the Disclosing Party. The Recipient shall, within twenty (20) days
of a written request by the Disclosing Party, return all Confidential
Information (or any designated portion thereof) including all copies thereof,
to the Disclosing Party or if so directed by the Disclosing Party, destroy such
Confidential Information. The Recipient shall also, within ten (10) days of a
written request by the Disclosing Party, certify in writing that it has
satisfied its obligations under this section. If the Recipient fails to abide
by its obligations under this section, the Disclosing Party shall be entitled
to immediate injunctive relief in addition to any other rights and remedies
available to it at law or in equity.
9. WARRANTIES
9.1 WARRANTY BY SCC
9.1.1. SCC warrants and represents to ATGI that any support or other
services that SCC provides to ATGI under this Agreement shall be provided in
accordance with the terms and conditions of this Agreement including that which
is set forth in the Performance Metrics outlined in Exhibit A, which support
and services shall be provided by personnel who are trained and skilled in the
provision of such services and shall be provided in a professional, effective
and efficient manner that equals or exceeds the then-current industry standard
for such services.
9.1.2. SCC further warrants that any computer software used in connection
with Services, New Services and Add-On Services performed hereunder will: (a)
handle date
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information before, during and after January 1, 2000, including accepting date
input, providing date output and performing calculations on dates or portions
of dates; (b) function accurately before, during and after January 1, 2000
without change in operations associated with the advent of the new century; (c)
respond to two-digit year/date input in a way that resolves the ambiguity as to
century in a defined and pre-determined manner; (d) store and provide output of
date information in a way that is unambiguous as to century; and (e) recognize
the year 2000 as a leap year.
9.1.3 SCC has all requisite power and authority and all material
licenses, permits and other authorizations necessary to own an operate its
business and to perform the obligations imposed upon it hereunder and to
provide the Services.
9.1.4 In the event of any breach of the above warranties, and without
limiting any other rights of ATGI under this Agreement, SCC agrees that it
will, at its sole expense, take appropriate corrective action, including repair
or replacement of the system component not meeting such warranty with respect to
hardware or software and with respect to personnel and business operations,
re-performance of Services or such remedial action as will bring such warranty
into compliance.
9.2 WARRANTY BY ATGI
9.2.1 ATGI warrants that it has all requisite power and authority and all
material licenses, permits and other authorizations necessary to own and
operate its business and to perform the obligations imposed upon it hereunder.
9.2.2 ATGI has no knowledge of any existing software viruses contained in
the SCC software or other software used in performing the Services that would
materially impact ATGI's performance hereunder. If ATGI becomes aware of any
such viruses in its software used in connection with its performance hereunder,
it will advise SCC in writing immediately. If SCC's performance hereunder is
materially and negatively impacted by ATGI's failure to notify SCC in a
reasonably timely fashion of its knowledge of such viruses, ATGI shall be
responsible for such reasonable and proximate consequences, and SCC shall be
excused from responsibility hereunder with respect to those matters proximately
affected. Upon learning of such a virus in its software, ATGI shall use its best
efforts to remedy it as soon as possible, at no cost to SCC.
9.3 EXCLUSION
EXCEPT AS EXPRESSLY PROVIDED HEREIN, SCC MAKES NO EXPRESS OR IMPLIED
WARRANTIES, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR
A PARTICULAR PURPOSE, REGARDING THE SERVICES, NEW SERVICES OR ADD-ON SERVICES
PROVIDED BY SCC HEREUNDER. SCC EXPRESSLY DENIES ANY REPRESENTATION OR WARRANTY
THAT THE SERVICES OR RELATED SYSTEMS SHALL OPERATE UNINTERRUPTED OR ERROR-FREE.
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10. INDEMNIFICATION
10.1 GENERAL INDEMNIFICATION
SCC shall indemnify and hold harmless ATGI and its corporate
affiliates and the officers, directors, employees, and agents of ATGI and its
corporate affiliates, and the successors and assigns of all of the foregoing,
against and from any and all actual losses, damages, expenses (including,
without limitation, attorneys' fees and costs), claims, suits and liabilities,
whether based in contract or tort (including strict liability), to the extent
that such losses, damages, expenses, demands, claims, suits and liabilities are
legally-imposed, despite the protections that may be available to ATGI and SCC
described in Section 10.3 herein below, and that arise out of or in connection
with: (1) SCC's negligent or intentional acts or omissions, or those of its
employees or agents or subcontractors, (2) the failure of SCC (or its employees
or agents or subcontractors) to fully comply with the terms and conditions of
this Agreement (including but not limited to each SCC representation and each
SCC warranty under this Agreement), or (3) assertions under Worker's
Compensation or similar laws made by persons furnished by SCC. ATGI shall
promptly notify SCC of any written claim, loss or demand for which SCC is
responsible under this Section. If SCC acknowledges in writing the applicability
of the indemnification provisions of this Section 10.1 to a claim or action, SCC
shall have the right to conduct the defense of such claim or action and all
negotiations for settlement or compromise, unless otherwise mutually agreed to
in writing by the Parties hereto. However, ATGI, at its own expense, shall have
the right to participate in the defense of any such suit or proceeding through
counsel of its choosing.
10.2 INTELLECTUAL PROPERTY INDEMNIFICATION
SCC shall defend, at its sole cost and expense, any claim or action of
any kind against ATGI for alleged violation, infringement or misappropriation of
any patent, copyright, trade secret or other intellectual property right based
on the use of SCC products or services under this Agreement. SCC shall indemnify
and hold harmless ATGI and its officers, directors, employees, and agents and
their successors and assigns against and from any and all actual losses,
liabilities, damages, claims, demands and expenses (including, without
limitation, reasonable attorneys' fees) arising out of or related to any such
claim or action. If SCC acknowledges in writing the applicability of the
indemnification provisions of this Section 10.2 to a claim or action, SCC shall
have the right to conduct the defense of any such claim or action and all
negotiations for settlement or compromise, unless otherwise mutually agreed to
in writing by the Parties hereto. However, ATGI, at its own expense, shall have
the right to participate in the defense of any such suit or proceeding through
counsel of its choosing.
If any SCC product used to provide the Services under this Agreement
becomes involved in any claim or action described above, or is held to
constitute a violation, infringement or misappropriation of a third party's
intellectual property rights and the use thereof is enjoined, then SCC shall, at
SCC's expense and option:
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(1) Procure the right to continue using said product so that its use by SCC for
ATGI is lawful;
(2) Modify such product so that its use by SCC for ATGI is lawful (provided
that such modification does not adversely affect the Services provided); or
(3) Replace such product, at no charge to ATGI, with equally suitable,
compatible and functionally equivalent products that lawfully may be used by SCC
for ATGI.
10.3 ATGI IMMUNITY
To the extent permitted by applicable law, SCC shall be entitled to
not less than the same benefits and protections afforded by any law, regulation,
contract or other applicable rule which extends to ATGI in any form, including
but not limited to governmental or other immunity, indemnification or other
protection which relates to the provision of emergency 9-1-1 services by ATGI
in its capacity as a telecommunications service provider. ATGI acknowledges and
agrees that SCC shall be considered ATGI's authorized agent in this regard.
11. LIMITATION OF LIABILITY
11.1 CONSEQUENTIAL DAMAGES
EXCEPT WITH RESPECT TO SCC'S OBLIGATIONS AS SET FORTH IN SECTIONS 10.1
AND 10.2 TO INDEMNIFY ATGI IN CONNECTION WITH THIRD PARTY CLAIMS AND
INTELLECTUAL PROPERTY INFRINGEMENT, NEITHER PARTY SHALL BE LIABLE TO THE OTHER
FOR ANY INDIRECT, SPECIAL, CONSEQUENTIAL, INCIDENTAL, OR PUNITIVE DAMAGES,
WHETHER BASED UPON LOST GOODWILL, LOST PROFITS, LOSS OF USE OR PERFORMANCE OF
ANY PRODUCTS, SERVICES, OR OTHER PROPERTY, LOSS OR IMPAIRMENT OF DATA OR
SOFTWARE, OR OTHERWISE, AND WHETHER ARISING OUT OF BREACH OF EXPRESS OR IMPLIED
WARRANTY, CONTRACT (INCLUDING THE FURNISHING, PERFORMANCE, OR USE OF ANY
HARDWARE, SOFTWARE OR OTHER PRODUCTS, MATERIALS, OR SERVICES PROVIDED PURSUANT
TO THIS AGREEMENT OR THE PERFORMANCE OR NONPERFORMANCE OF OBLIGATIONS UNDERTAKEN
IN THIS AGREEMENT), TORT, (INCLUDING NEGLIGENCE), STRICT PRODUCT LIABILITY OR
OTHERWISE, REGARDLESS OF WHETHER SUCH PARTY HAS BEEN NOTIFIED OF THE
POSSIBILITY OF SUCH DAMAGES OR IF SUCH DAMAGES COULD HAVE BEEN REASONABLY
FORESEEN.
11.2 MAXIMUM LIABILITY
TO THE EXTENT NOT OTHERWISE GOVERNED BY FEDERAL, STATE OR LOCAL LAW,
SCC'S ENTIRE LIABILITY FOR ANY CLAIM CONCERNING ITS PERFORMANCE OR
NONPERFORMANCE IN CONNECTION WITH THIS AGREEMENT SHALL BE LIMITED TO AN AMOUNT
EQUAL TO THE [*]
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[*]
12. INSURANCE
12.1 INSURANCE COVERAGE
SCC shall maintain during the term of this Agreement: (1) Workers'
Compensation insurance as prescribed by the law of the state or nation in which
the Work is performed; (2) employer's liability insurance with limits of at
least $500,000 for each occurrence; (3) comprehensive automobile liability
insurance if the use of motor vehicles is required, with limits of at least
$1,000,000 combined single limit for bodily injury and property damage for each
occurrence; (4) Commercial General Liability ("CGL") insurance, including
Blanket Contractual Liability and Broad Form Property Damage, with limits of
at least $1,000,000 combined single limit for bodily injury and property damage
for each occurrence; (5) Professional Liability or Errors and Omissions
insurance in the amount of at least $1,000,000 (one million dollars) for each
occurrence; and excess or umbrella liability at a limit of no less than
$5,000,000 per occurrence and aggregate in excess of the underlying coverage
required above. The CGL, employer liability and automobile liability policies
named above shall designate ATGI and its officers, directors and employees (all
herein referred to in this clause as "ATGI") as an Additional Insured. All such
insurance must be primary and required to respond and pay prior to any other
available coverage.
12.2 EVIDENCE OF COVERAGE
Upon ATGI's request, SCC shall furnish certificates evidencing the
foregoing insurance. ATGI shall be notified in writing at least thirty (30) days
prior to any cancellation of the policy.
13. RECURRING SERVICE ERRORS/LIQUIDATED DAMAGES
13.1 RECURRING SERVICE ERROR
If any aspect of the Services are deficient on a recurring basis, as
such deficiency is defined herein below as a "Recurring Service Error", then
upon written notice from ATGI to SCC, SCC shall promptly perform a root cause
analysis, in accordance with the escalation procedures contained in this
Agreement and in the SOW, to determine the cause of such recurring service
errors. A Recurring Service Error is any material non-compliance with the
Services which has repeatedly occurred on at least three separate occasions
during any consecutive three month period. Within seven (7) days of receiving
notice from ATGI of a Recurring Service Error, or upon SCC's own discovery of
same, SCC shall provide ATGI with a written copy of its analysis, which shall
include an action plan containing a reasonably detailed description of
corrective action to be taken by SCC and the date by which such corrective
action shall be completed. SCC shall correct such Recurring Service Error within
thirty (30) days of its
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<PAGE> 22
receipt of such notice to the reasonable satisfaction of ATGI in accordance
with its action plan. ATGI may elect to immediately terminate this Agreement
if SCC fails to cure any Recurring Service Error within said thirty (30) day
period.
13.2 LIQUIDATED DAMAGES
If ATGI elects not to terminate this Agreement as specified herein
above, ATGI may instead elect to compel SCC to pay, or credit, ATGI the
liquidated damages described herein for each Recurring Service Error. Liquidated
damages for each Recurring Service Error shall equal the lesser of: [*] The
Parties acknowledge and agree that all amounts payable to ATGI as "liquidated
damages" under this Article are liquidated damages and not a penalty and are
reasonable and not disproportionate to the presumed damages to ATGI in lost
revenues and other damages that would result from a failure by SCC to comply
strictly with this Agreement. SCC's payment of liquidated damages under this
article shall in no way affect ATGI's right to terminate this Agreement, or any
portion hereof or thereof, or to pursue any other rights except that ATGI's
election of liquidated damages in this regard shall prohibit ATGI from pursuing
any other remedy available to ATGI under this Agreement or applicable law with
respect to recovery of damages related to the particular Recurring Service Error
for which the liquidated damages were paid.
14. GENERAL PROVISIONS
14.1 ADVERTISING AND PUBLICITY
Except for materials already made public, neither Party shall prepare
or distribute any news releases, articles, brochures, speeches, advertisements
or other informational releases concerning this Agreement and the activities
performed hereunder without the prior written consent of the other Party.
Without limiting the generality of the foregoing, neither Party shall publish,
use or disclose the other Party's names or marks (or any variations thereof)
without the prior written consent of the other Party which consent shall not be
unreasonably withheld. ATGI hereby authorizes SCC to utilize ATGI's name as part
of SCC's list of customers in connection with SCC's standard service proposals
and other marketing materials.
14.2 ASSIGNMENT
This Agreement shall be binding upon the successors and assigns of both
parties, provided, however, that no assignment, delegation or other transfer
shall be made by either party without the prior written approval of the other,
which approval shall not be unreasonably
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withheld. Notwithstanding the foregoing, neither party shall be required to
obtain the approval of the other for any assignment, delegation or transfer of
this Agreement to an affiliate of such party, involving a purchase of all or
substantially all of the assets of such party, or any company with which or into
which such party may merge or consolidate.
14.3 AUTHORITY
Each Party represents to the other that it has full authority to enter
into and secure performance of this Agreement and that the person signing this
Agreement on behalf of the Party has been properly authorized to enter into this
Agreement. Each Party further acknowledges that it has read this Agreement,
understands it, and agrees to be bound by all of its terms, conditions, and
provisions.
14.4 COMPANY RULES
SCC's employees and agents shall comply with all of ATGI's security
requirements, rules, and regulations provided to SCC while on ATGI's premises,
and ATGI's employees shall comply with all of SCC's security requirements,
rules, and regulations provided to ATGI while on SCC's premises.
14.5 ESCALATION PROCEDURES
Any dispute between the Parties under the terms of this Agreement shall
be first submitted to the Project Managers for resolution. It is the
understanding of both Parties that in the event of a dispute that cannot be
resolved by the Project Managers, then it shall be escalated up the levels of
management for each Party pursuant to the procedures set forth in Exhibit D.
14.6 FORCE MAJEURE
Neither Party shall be liable to the other for any delay or failure to
perform under this Agreement if the delay or failure to perform is without the
fault or negligence of the Party claiming excusable delay and is due to causes
beyond the control of said Party, including, but not limited to acts of God,
war, acts of the government, fires, floods, epidemics, quarantine restrictions,
strikes, labor disputes (including collective bargaining issues), work
stoppages, and freight embargoes.
14.7 GOVERNING LAW
The validity of this Agreement, the construction and enforcement of
their terms and the interpretation of the rights and duties of the Parties shall
be governed by the laws of the State of Colorado.
14.8 INDEPENDENT CONTRACTORS
The Parties are performing pursuant to this Agreement only as
independent contractors.
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Each Party has the sole obligation to supervise, manage, contract, direct,
procure, perform, or cause to be performed its obligations set forth in this
Agreement, except as otherwise provided herein or agreed upon by the Parties.
Except as specified in this Agreement, including Exhibit E, nothing set forth in
this Agreement shall be construed to create the relationship of principal and
agent between SCC and ATGI, and except as expressly provided in Exhibit E, the
Letter Of Agency, neither Party shall act or attempt to act or represent itself,
directly or by implication, as an agent of the other Party or its affiliates or
in any manner assume or create, or attempt to assume or create, any obligations
on behalf of, or in the name of, the other Party unless so instructed by the
other Party in writing or allowed under this Agreement. Nothing herein is
intended or shall be construed to create any partnership or joint venture
relationship between the Parties. Neither a Party nor a Party's subcontractor,
nor the employees of any of them, shall be deemed for any purpose to be
employees of the other Party. Each Party shall be solely responsible for the
withholding and payment of all applicable federal, state, and local personal
income taxes, social security taxes, unemployment and sickness disability
insurance, and other payroll taxes with respect to its own employees.
SCC acknowledges and agrees that Lucent Technologies and American
Management Systems will act as ATGI's agent in the ordering, provisioning, order
tracking, order status, order management, service activation, and service
fulfillment of the SCC E911 offering. As such, Lucent Technologies and
American Management Systems will be required to contact SCC to obtain technical
assistance and support in connection with this Agreement. To the extent
necessary for Lucent Technologies and American Management Systems to perform
such services, SCC consents to the assignment of ATGI's rights and privileges
under this Agreement.
14.9 JOINT WORK PRODUCT
This Agreement is the joint work product of representatives of ATGI and
SCC. Accordingly, in the event of ambiguities, no inferences will be drawn or
rules of construction applied against either Party, including the Party that
drafted the Agreement in its final form.
14.10 LAWS, REGULATIONS, PERMITS
Each Party shall comply, at its own expense, with all applicable
federal, state, county, and local ordinances, regulations, and codes in the
performance of its obligations under this Agreement, including procurement of
required permits and certificates, the Fair Labor Standards Act, and the
Occupational Safety and Health Act for either Party to do business in the U.S.
14.11 NOTICES
All notices or other communications required or permitted to be given
to a Party under this Agreement (other than communications of a technical
nature, which shall be delivered to such Party's Project Manager) shall be in
writing (unless otherwise specifically provided herein) and delivered or
addressed as follows:
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Standard Contract 22 05/14/99
- --------------------------------------------------------------------------------
SCC PROPRIETARY & CONFIDENTIAL
<PAGE> 25
If to ATGI: If to SCC:
Advanced TelCom Group, Inc. SCC Communications Corp.
Attn: Daniel L. Cruz Attn: General Counsel
100 Stony Point Road, Suite 130 6285 Lookout Road
Santa Rosa, CA 95401 Boulder, Colorado 80301
with a copy to: with a copy to:
Advanced TelCom Group, Inc. SCC Communications Corp.
Attn: Charlene Curry Attn: Chief Financial Officer
100 Stony Point Road, Suite 130 6285 Lookout Road
Santa Rosa, CA 95401 Boulder, Colorado 80301
All notices or other communications shall be deemed effectively given: when
delivered, if personally delivered; or three (3) days after mailing if mailed
first class or certified or registered mail; or when received by the Party for
which notice is intended if given in any other manner.
14.12 REMEDIES
The rights and remedies provided herein shall be cumulative and, except
as otherwise limited herein, in addition to any other remedies available at law
or in equity.
14.13 NON-WAIVER
No course of dealing or failure of either Party to enforce strictly any
term, right, obligation, or provisions of this Agreement or to exercise any
option provided hereunder shall be construed as a waiver of such provision.
14.14 SEVERABILITY
If any provision of this Agreement shall be held invalid or
unenforceable, such provision shall be deemed deleted from this Agreement and
replaced by a valid and enforceable provision which so far as possible achieves
the Parties' intent in agreeing to the original provision. The remaining
provisions of the Agreement shall continue in full force and effect.
14.15 BINDING EFFECT
This Agreement shall be binding on, and inure to the benefit of, the
Parties and their respective successors and permitted assigns.
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Standard Contract 23 05/14/99
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SCC PROPRIETARY & CONFIDENTIAL
<PAGE> 26
15. ENTIRE AGREEMENT
This Agreement, when fully executed, together with any incorporated
exhibits, constitutes the entire agreement between the parties and supersedes
all promises and representations, if any, whether written or oral, between the
Parties with respect to the subject matter hereof. No modification, amendment,
supplement to, or waiver of this Agreement or any of its provisions, shall be
binding upon the Parties unless made in writing and duly signed by an authorized
representative of each Party.
IN WITNESS WHEREOF, the Parties hereto have caused this Agreement to be
executed by their duly authorized representatives.
SCC COMMUNICATIONS CORP. ADVANCED TELCOM GROUP, INC.
/s/ NANCY K. HAMILTON /s/ CURT WHEELING
- ------------------------------ ----------------------------------
Signature Signature
Nancy K. Hamilton/CFO Curt Wheeling, Sr. VP
- ------------------------------ ----------------------------------
Printed Name and Title Printed Name and Title
5/20/99 5/15/99
- ------------------------------ ----------------------------------
Date Date
SCC
- -----------------
TAR 5/20/99
- -----------------
Attorney Approval
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Standard Contract 24 05/14/99
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SCC PROPRIETARY & CONFIDENTIAL
<PAGE> 27
E9-1-1
CLEARINGHOUSE
SERVICES
EXHIBIT A
STATEMENT OF WORK
[SCC LOGO]
6285 LOOKOUT ROAD
BOULDER, COLORADO, U.S.A. 80301-3343
(303) 581-5600
<PAGE> 28
CONFIDENTIAL 05/14/99
TABLE OF CONTENTS
<TABLE>
<S> <C>
INTRODUCTION ..................................................................1
PROJECT INITIATION ............................................................1
Program Management .....................................................1
9-1-1 Coordinator ......................................................2
Service Planning Meetings ..............................................2
Training ...............................................................2
SERVICE IMPLEMENTATION ........................................................3
Data Communication .....................................................3
Data Exchange Requirements .............................................3
Initial Market Area Information Requirements ...........................3
MSAG Data Management ...................................................4
Methods & Procedures ...................................................4
DAILY OPERATIONS ..............................................................4
Subscriber Record Updates (Service Order Input "SOI" File) .............4
Error Processing .......................................................5
Post-Processing Acknowledgment .........................................5
Record Transactions and Handling .......................................6
Data Processing Intervals ..............................................7
Data Exchange ..........................................................7
New Client Markets .....................................................7
MEASURING PERFORMANCE .........................................................8
Performance Metrics ....................................................8
Primary Metric 1 - Elapsed Time to Post Service Orders .................9
Primary Metric 2 - Inbound Correctable Data Error Rates ................9
Primary Metric 3 - Error Resolution by Class of Error ..................9
Primary Metric 4 - Error Resolution Intervals .........................10
Quarterly Alliance Performance Reviews ................................10
Audits ................................................................11
CUSTOMER SUPPORT .............................................................12
Introduction ..........................................................12
Hours of Operation ....................................................12
Overview of Support Plan Activities ...................................12
Support Contact Procedures ............................................13
Support Contact List ..................................................14
Error Severity Levels & Correction Procedures .........................14
SEVERITY LEVEL 1 ......................................................14
SEVERITY LEVEL 2 ......................................................15
Status & Reports ......................................................16
Notification and Escalation Procedures ................................16
RESPONSIBILITIES OF THE PARTIES ..............................................17
</TABLE>
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SCC - ATGI STATEMENT OF WORK ii
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CONFIDENTIAL 05/14/99
INTRODUCTION
This Statement of Work, executed by SCC Communications Corp, is for
delivery of E9-1-1 data management services.
SCC will be Client's agent and single point of contact for E9-1-1
database management and for developing and maintaining the
relationships necessary to provide the Client's customers optimum
access to the 9-1-1 infrastructure. SCC will receive Service Order
Input (SOI) records and validate them against the Master Street
Address Guide (MSAG), correct records which are not MSAG valid, and
distribute the SOI records for updates to the appropriate ALI Provider
(such as an RBOC or other incumbent Independent Telephone Company).
PROJECT INITIATION
PROGRAM MANAGEMENT
SCC has designated a Program Manager to act as the primary interface
between the two companies. Likewise, the Client will also designate a
Program Manager to act as the primary interface between the two
companies. The Program Managers shall be responsible for ensuring the
successful achievement of project milestones as well as communicating
project status within their respective organizations.
The Program Managers shall work together to create an Implementation
Plan within 30 days of contract signing. This Implementation Plan
shall take into account key milestone dates to be achieved in the
project. SCC will have responsibility for maintaining the
Implementation Plan.
SCC and the Client shall meet on a periodic basis either in person or
through teleconferencing. Frequency of meetings shall be mutually
agreed upon by the Program Managers. Each Party shall provide status
on the work being performed in support of the Program. Mutually, the
companies may elect to forego all or some of such meetings in lieu of
periodic status reports.
The Program Managers will maintain and distribute a list of key SCC
and Client contacts (technical, operational, and managerial).
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9-1-1 COORDINATOR
Client will appoint a 9-1-1 Coordinator who will serve as the primary
SCC interface for "daily operations". This person is responsible for
working with SCC in reporting/verifying problems, reviewing/rectifying
error reports and performing system administrative duties (on Client
side) such as data backups, archives, etc. This person will have
primary responsibility for understanding SCC/Client 9-1-1 data
processing, Methods and Procedures, and will facilitate ongoing
communications with SCC (e.g. Quarterly Reviews).
SERVICE PLANNING MEETINGS
During the early stages of the project, the Program Managers will work
together to determine the appropriate planning, design, and
requirements definition meetings to be held to ensure successful
delivery of E9-1-1 data management services.
These planning sessions will be held with the Client's appropriate
technical and operational groups to ensure a solid understanding of
SCC data exchange procedures/requirements and daily operations.
TRAINING
SCC will provide up to two (2) days of 9-1-1 training concurrently to
up to ten (10) designated Client 9-1-1 Coordinator(s) for working with
SCC (data exchange procedures, data processing procedures, new market
entry procedures, escalation procedures, etc.) Training will be
conducted at SCC's headquarters in Boulder, Colorado.
Additional training requested by Client (e.g. training for remote
facilities) will be provided by SCC on a time and materials basis. SCC
shall provide estimated costs in advance of incurring any expenses on
Client's behalf and subject to Client's approval.
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CONFIDENTIAL 05/14/99
SERVICE IMPLEMENTATION
DATA COMMUNICATION
SCC will work with Client to determine the most appropriate method of
electronic data communication. Depending on subscriber record volume,
either Dedicated Circuit or Dial-Up connectivity may be selected.
SCC and Client will establish a Primary and Secondary (Back-up)
method of data communication. Typically, the Secondary method of data
exchange will be Dial-Up connectivity (if Primary is Dedicated
Circuit) or FAX (if Primary is Dial-Up). Data Communications
requirements are detailed in SCC's "Data Exchange Guidelines"
document.
Client will bear data communications facilities costs from Client
location to SCC. SCC will be responsible for identifying, and Client
will be responsible for ordering, any required circuits and ensuring
that the Program Managers are aware of any circuit installation and
testing time requirements.
DATA EXCHANGE REQUIREMENTS
Data exchange requirements (Input and Output files with required data
elements) are provided in SCC's "Data Exchange Guidelines" document
detailing file specifications, service order process, data exchange
requirements and file naming conventions.
INITIAL MARKET AREA INFORMATION REQUIREMENTS
Prior to initiating service in any market area, the Client agrees to
provide SCC with the following:
o Market Areas (counties/communities served; required for MSAG
validation)
o Approximate number of TNs in each Market Area
o All assigned NPA/NXX's and their associated Communities
o Letter of Agency that allows SCC to act on behalf of the Client
to acquire MSAGs from host E9-1-1 database providers
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CONFIDENTIAL 05/14/99
MSAG DATA MANAGEMENT
SCC will work with the appropriate ALI Provider to obtain current
MSAGs for all service areas identified by the Client. SCC utilizes
these MSAGs to validate subscriber addresses on Client SOI data
records as "MSAG correct" before transmitting E9-1-1 database updates
to the appropriate ALI provider. SCC will refresh and update these
MSAGs on a quarterly basis and will provide MSAGs in a standardized
electronic data format conforming to "SCC's Guidelines for Data
Exchange."
METHODS & PROCEDURES
To ensure a high and consistent level of service, SCC has developed
Methods and Procedures to assist Client and SCC when handling specific
9-1-1 data management activities. Methods and Procedures are developed
as operational guidelines that identify the tasks, dependencies, and
the responsibilities of all parties for the completion of specific
activities.
These Methods and Procedures will be reviewed with the Client's
operations group during the early stages of the program.
o New Market Area Testing
o ANI/ALI Error Reporting & Resolution
o After Hours Problem Reporting
o Escalation Procedures
o Record Processing
o NPA Splits for ALECs
o Local Number Portability Data Processing
DAILY OPERATIONS
SUBSCRIBER RECORD UPDATES (SERVICE ORDER INPUT "SOI" FILE)
The largest volume of transactions processed by the NDSC fall into the
category of subscriber record updates. These transactions are
generated as a result of telephone customer requests for new telephone
service or a change in their current service. Service Order Input
"SOI" files are generated and transmitted to SCC's NDSC in NENA II
format.
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CONFIDENTIAL 05/14/99
As SOI files are received by the NDSC, SOI records are processed on
the Transaction Services System (TSS) and matched against the E9-1-1
reference databases (e.g. translation tables, MSAG, prefix tables,
security tables, etc.). Valid SOI data is re-formatted into the
appropriate format for distribution to the appropriate ALI Provider.
ERROR PROCESSING
SOI data not matching the specified and standardized parameters for
valid E9-1-1 data fall out into a controlled, fully traceable error
database in which errors are grouped based on date, type and area.
SCC's standard practice is to correct only MSAG errors, i.e. "701"
errors (House number out of range in MSAG) and "709" errors (Street
not found in MSAG). These are the only errors for which SCC can access
the appropriate data sources for accurate correction. These
corrections are usually completed the same day of error notification.
The Client will make every effort to supply error-free data to SCC.
SCC will document the SCC action taken to correct MSAG errors in an
ANNOTATED ERROR FILE (see "Data Exchange Guidelines" document).
Annotated Error files are returned to Client within 24 hours of error
detection (48 hours after SCC's receipt of SOI file). Client will be
responsible for working with its end-user customers in resolving these
errors. If there is a delay in the creation of the Annotated Error
File, SCC will notify Client's 9-1-1 Coordinator.
POST-PROCESSING ACKNOWLEDGMENT
Once subscriber record update processing is complete, SCC returns
Confirmation(s) and Statistics file(s) to the Client. The STATISTICS
FILE contains the number of records received, the number of records
processed without error, the number of records processed with errors,
and the number of errors by type. The CONFIRMATIONS FILE contains a
copy of each record sent to SCC as input (SOI file) in NENA II format.
The Confirmations file contains an error/status field noting status of
9-1-1 data processing.
Records sent to ALI Providers are sent in a single batch file to each
Provider. SCC routes these records to the appropriate recipient based
on the following categories:
o SCC NDSC TSS System for Ameritech
o SCC NDSC TSS System for US West
o SCC NDSC TSS System for BellSouth
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CONFIDENTIAL 05/14/99
o Other Non-SCC ALI Provider systems (e.g. Pacific Bell, Bell
Atlantic, GTE, NYNEX, Sprint, Southwestern Bell, Cincinnati Bell,
Rochester Telephone, SNET)
Records for each TSS system are processed separately after being
parsed and routed from the original batch file. Thus, SCC returns a
Statistics file and a Confirmations file from each TSS system. These
Statistics and Confirmation files are traceable to the original batch
file by the matching sequence number contained in the file names.
The Confirmation files returned by SCC contain the NENA II record
which includes a status/error field. If errors occurred while
validating the records against the MSAG, SCC populates the
status/error field of the NENA II record along with the appropriate
status/error code (see SCC's "Data Exchange Guidelines" document).
When no error occurs, the status/error field will contain a "000"
(triple zero-confirmation that the records were successfully entered
into host ALI database) for records processed on NDSC E9-1-1
databases, and a "FWD" code (indicating the record validated against
the MSAG and was successfully transmitted to the ALI Provider) for
records transmitted to Non-NDSC E9-1-1 database providers.
RECORD TRANSACTIONS AND HANDLING
SCC will work with Client to determine the most appropriate method of
electronic data communication. Depending on subscriber record volume,
either Dedicated Circuit or Dial-Up connectivity may be selected.
Under normal circumstances, error free records received electronically
by 2:30pm MST, Monday through Friday are prepared and sent the same
day to the host ALI provider using the standard data transmission
procedures.
THE FOLLOWING IS AN EXAMPLE OF A TRANSACTION:
o SCC receives SOI Records via a batch file in NENA II format
o Records are processed on SCC's Transaction Services System and
validated against the appropriate MSAG.
o SCC produces a Statistics File and a Confirmation File with a
"one to one" confirmation for every record sent in SOI file
(status codes = "000", "FWD", or Error Code).
o Records with MSAG-related ("701" & "709") errors are time stamped
and placed into the Error Queue for analysis and correction by
SCC Data Analyst Unit.
o SCC resolves MSAG-related ("701" & "709") errors if possible.
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CONFIDENTIAL 05/14/99
o SCC produces an Annotated Error File detailing the action taken
by SCC to correct MSAG-related errors.
o MSAG valid records are re-formatted per ALI Provider requirements
and transmitted to ALI Provider per ALI Provider data processing
windows.
o SCC archives daily Confirmation and Statistics Files.
DATA PROCESSING INTERVALS
With respect to non-facsimile, i.e., electronic file format;
error-free transactions are processed within 24 hours of receipt. In
regions where SCC maintains ALI records, error-free records are sent
through SCC's TSS and updated in ALI within 24 hours, and for all
other regions, SCC processes records against the appropriate MSAG in
the TSS and prepares error-free records for transmission to the proper
host LEC. In rare cases, routine processing may be suspended for
special operations. These situations are coordinated in advance when
possible. In any situation where data processing may be interrupted
(e.g. Systems Maintenance, NPA Splits or Overlays), the Client's
assigned 9-1-1 Coordinator will be notified. When known, SCC will
provide Client with 72 hours advance notice.
DATA EXCHANGE
Except as otherwise provided herein regarding facsimile exchange of
data during 1998, data (Input and Output files) will be exchanged per
SCC's "Data Exchange Guidelines" document.
NEW CLIENT MARKETS
The Client shall provide SCC with a 45-day written notice for all
prospective market entries. Client will also provide SCC with
information as outlined in the "Initial Market Area Information
Requirements" section of this Statement of Work.
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CONFIDENTIAL 05/14/99
MEASURING PERFORMANCE
PERFORMANCE METRICS
SCC applies a set of standard performance metrics to measure the
E9-1-1 data management services provided to Client. Performance
Metrics are provided to Client once a minimum level of 5000 subscriber
records are under SCC management and are being exchanged in electronic
file format. SCC requires a 90-day period after initiation of data
management services to establish the first "baseline" set of Metrics.
Metrics reports are supplied to Client on a monthly basis.
The Primary Performance Metrics are:
o Elapsed Time to Post Service Order Updates
o Inbound Correctable Data Error Rates
o Error Resolution Interval by Class of Error
o Client Error Resolution Intervals
The Primary Metrics are reported on a variety of criteria. Listed
below are the Primary Metrics and the breakdowns used for each metric.
Additionally, measurable performance standards are shown. Measurable
standards for service order processing, error resolution intervals and
error frequencies by error type define benchmarks against which SCC is
assessed.
<TABLE>
<CAPTION>
PRIMARY PERFORMANCE METRICS
-------------------------------------------------------------------------
METRIC TYPE STATISTICAL BREAKDOWNS POSSIBLE
-------------------------------- ------------------------------------
REGION STATE COMPANY NPA NXX
------ ----- ------- --- ---
<S> <C> <C> <C> <C> <C>
1. Elapsed Time to Post Service
Orders Yes Yes Yes Yes Yes
2. Inbound Correctable Data Error
Rates Yes Yes Yes Yes Yes
3. Error Resolution Interval by
Class Yes Yes Yes Yes Yes
4. Client Error Resolution
Intervals Yes Yes Yes Yes Yes
</TABLE>
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CONFIDENTIAL 05/14/99
PRIMARY METRIC I - ELAPSED TIME TO POST SERVICE ORDERS
Definition:
This metric is the elapsed time from the initial receipt of a valid
service order until that order is processed on TSS and is transmitted
to the appropriate ALI Provider.
Performance Standard:
The elapsed time to post SOI updates is less than twenty-four (24)
hours.
Direct Measurement of Quality
98% of all service orders received are processed on a SCC NDSC E9-1-1
database or are transmitted to the appropriate ALI Provider within 24
hours of receipt.
PRIMARY METRIC 2 - INBOUND CORRECTABLE DATA ERROR RATES
Definition:
The number of correctable data errors received compared to the total
number of records received.
Performance Standard:
The routine reports are broken down by source state. SCC retains data
records to support error analysis by telephone service provider, NPA
NXX, and entity. These reports are run monthly to support error
reduction efforts.
Direct Measurement of Quality
Inbound correctable error rates will not exceed 10% of the total
service orders processed for a given time period.
PRIMARY METRIC 3 - ERROR RESOLUTION BY CLASS OF ERROR
Definition:
This metric is defined as the elapsed time from when SCC receives an
errant service order until the order is corrected and processed on the
Transaction Services System.
Performance Standard:
SCC reports the resolution interval for the six most common error
types. Since both parties contribute to the error resolution interval,
each party commits to an on-going effort to shorten the time
intervals.
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CONFIDENTIAL 05/14/99
Direct Measurement of Quality
The number of unresolved errors in any month are less than 0.2% of the
total number of TNs in the database at the end of the month. Errors
that cannot be resolved and are referred back to the Client for
resolution are not included in this metric.
PRIMARY METRIC 4 - ERROR RESOLUTION INTERVALS
Definition:
This metric is defined as the elapsed time from:
a) When the Customer is notified of the existence of an uncorrectable
error condition;
b) Through the time when the Customer notifies SCC of the correct
resolution to the problem.
Performance Standard:
Notification by SCC occurs within an average of 12 hours after
identifying a problem requiring the Client's intervention. The
Performance Standard for resolution of the problem shall be mutually
agreed upon.
QUARTERLY ALLIANCE PERFORMANCE REVIEWS
While the Performance Metrics are reported to the appropriate
personnel with a predefined frequency, the two companies will meet on
a quarterly basis to formally review the performance of the alliance,
end user customer feedback, upcoming major events, important industry
trends, new government regulations, and the status of new product
introduction plans. SCC will also present Client with process
improvement recommendations intended to lower data errors and improve
data quality.
These review meetings shall alternate between SCC and the Client
facilities (unless mutually agreed otherwise) and be attended by the
appropriate operating management group of each company. The host
company is responsible for the preparation of the agreed upon agenda.
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CONFIDENTIAL 05/14/99
AUDITS
SCC maintains a copy of all TN records submitted by the service order
process including an audit trail for every transaction record. SCC
will perform annual reconciliations of Client source data with ALI
data for data residing on SCC's systems (NDSC regions). For non-NDSC
regions, SCC will perform annual reconciliations or audits when Client
has received the commitment and timeframe from the non-NDSC LEC to
deliver to SCC an ALI extract file of Client data. Client will be
responsible for procurement costs for acquiring the extract file from
non-NDSC LECs.
As part of SCC's standard Clearinghouse Services, SCC performs a
detailed reconciliation of 50% of all Client data each year (based on
number of TNs under SCC management). Reconciliations are staged
throughout the year (approximately 12.5% each quarter); all data to
complete the audit cycle every two (2) years. Problematic errors
identified by either SCC or Client may be subject to more frequent
reconciliations based on mutual agreement to do so. SCC understands
the importance of the reconciliation process and the benefits to the
integrity of the 9-1-1 data that is derived and will work with the
Client in the prioritization and scheduling of reconciliations.
SCC will provide Client with copies of reconciliation reports at the
completion of regional reconciliations. Reconciliation reports will
contain the number of records processed, number of discrepancies by
type, discrepancy resolution status by record (either corrected or
referred to Client).
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CUSTOMER SUPPORT
INTRODUCTION
This support plan represents SCC's commitment to the ongoing support
of the E9-1-1 Services being provided to Client and Client's
customers. The following pages provide useful and important
information for effective and efficient data management services
support. This support plan includes:
o an overview of SCC support plan activities
o support contact procedures
o assigned SCC points of contact
o definitions of errors by severity level and correction
procedures
o status reporting, and
o notification and escalation procedures
HOURS OF OPERATION
SCC analysts provide data management services on a 12 hour (6:00 am to
6:00 pm MST) by 5 day (Monday through Friday) basis. For emergency
situations occurring outside of the 12x5 work hours, SCC will provide
24 hour, seven days per week support services. The computer operations
support staff are available at the NDSC facility around-the-clock for
emergency services. NDSC management teams are also available via a
nationwide radio pager network and supplemental staff are available in
the event specialized services are required to respond to specific
situations.
OVERVIEW OF SUPPORT PLAN ACTIVITIES
When 9-1-1 data problems arise, SCC provides prompt resolution
assistance. For day to day data management and processing matters, the
Client will always contact their designated SCC data analyst for
problem resolution, communication and operational matters.
The SCC data analyst is also the first point of contact for system or
data communication problems that may be impacting the Client's ability
to process service orders that occur within the normal workday. After
business hours, critical problems as defined in the severity level
descriptions below shall be reported to the NDSC Computer Operation's
operator. The on-duty operator will assess the priority of the call,
and when appropriate will page SCC personnel to request assistance for
resolving an urgent problem.
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If a problem is determined to be the responsibility of Client or
Client's customer (Client network, PSAP network, CPE, etc.), SCC
will provide any available information to assist in the resolution of
the problem. SCC expects that Client will have the same resolution
time commitment for Severity Level 1 and 2 problems as are stated in
this support plan.
In the event the Client experiences a critical problem that either
prohibits the transfer of service orders, or requires a backup or
alternate processing method to be invoked, SCC should be notified,
following the support contact procedures outlined below.
SUPPORT CONTACT PROCEDURES
Support is available 24 hours/day, 7 days/week, for reporting network
problems, data communication issues or emergency ALI queries. Client
will designate a primary contact person for working with SCC
(generally the 9-1-1 Coordinator) personnel on support matters.
SCC will log the call, problem description, and other pertinent
information. SCC's response will coincide with the severity level of
the call. Every attempt will be made to answer questions and provide
resolution when the call is received, however, call back situations
may occur particularly after normal business hours.
Examples of emergency situations that are supported by
computer operations staff, for NDSC provisioned systems, on
a 24-hour basis include:
o Network hardware, circuit, or ALI link failure
o ALI node failure on both sides of the PSAP
o Emergency ALI queries during dual ALI node failure
Computer operations staff can complete ALI lookup requests
for the NDSC provisioned ALI databases. ALI queries are
handled after hours on an emergency and exception basis and
in accordance to the operational procedures established by
the ALI host provider.
On non-NDSC systems, computer operators can conduct TSS queries on an
exception and emergency basis. SCC recognizes that the need of
providing this service is infrequent and whenever possible, the ALI
database is the absolute preferred source for such inquires. SCC will
provide our customers with the methods and procedures for requesting
emergency ALI or TSS queries.
SCC only provides the emergency ALI or TSS lookup services to SCC
clients. PSAPs will not be given access to this service.
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<PAGE> 42
CONFIDENTIAL 05/14/99
SUPPORT CONTACT LIST
<TABLE>
<CAPTION>
POINT OF CONTACT TELEPHONE NUMBER
--------------------------------- ------------------
<S> <C>
Business Hours
Data Analyst: (303) -
-------------------- ---- ----
Data Analyst: (303) -
-------------------- ---- ----
After Hours, Holidays and Weekends
NDSC Computer Operations (303) 581-5782
</TABLE>
ERROR SEVERITY LEVELS & CORRECTION PROCEDURES
SCC will correct errors and malfunctions in the service(s) that cause
such service(s) either to be unavailable for use by Client or that
materially fails to conform to the applicable specifications for such
service(s) as described in the Client services agreement.
Client may report errors to SCC either verbally or by written notice.
Likewise, SCC may report errors detected by SCC personnel to Client
either verbally or by written notice. If notice of the error is
initially made verbally, the reporting party shall provide written
notice (facsimile or electronic mail) within 24 hours of the initial
verbal notification. Client shall use reasonable care to verify
whether an error exists in, or is a result from, the service(s) prior
to reporting such to SCC.
The service(s) error correction procedures to be followed are
dependent on the severity of the error as defined below. Each error
severity level defines the actions that will be taken by SCC for
Response Time, Resolution Time and Resolution Procedure.
SEVERITY LEVEL 1
DEFINITION: The E9-1-1 Database Services are severely and critically
impaired, where major functions are completely inoperative and those
major functions are critical to operation of the E9-1-1 Database
Services.
RESPONSE TIME: SCC will acknowledge the issue with a telephone
conference call with Client within 30 minutes of Client's initial
notification to SCC. SCC will notify Client of any service affecting
errors within 30 minutes of the discovery of such errors
- --------------------------------------------------------------------------------
SCC - ATGI STATEMENT OF WORK 14
<PAGE> 43
CONFIDENTIAL 05/14/99
RESOLUTION TIME: SCC will apply all reasonable efforts to provide a
resolution within 6 hours of the notification from Client. If
resolution cannot be provided within 6 hours, SCC will initiate the
internal escalation procedure within the 6-hour period to ensure
resources are appropriately assigned for problem resolution efforts.
RESOLUTION: SCC will correct the service or provide a procedure for
Client to bypass or work around the error condition in order to
continue operations. If a bypass procedure is utilized, SCC will
provide Client an acceptable action plan for the development of the
final error correction activity and SCC will continue error resolution
activity until full service is restored to Client.
Examples of Severity Level 1 conditions:
o Critical network or data communications error on an SCC
system that prevents us from receiving service order
files.
o TSS system failure that prohibits the processing of
service order files within the contractually defined
response times.
SEVERITY LEVEL 2
DEFINITION: The E9-1-1 Database Services are impaired and some
functions are not operating, but those functions are not mandatory or
critical to the operation of the E911 Database Services.
RESPONSE TIME: SCC will respond with a telephone conference call with
Client within 6 business hours of Client's initial notification of
problem or error.
RESOLUTION TIME: SCC will provide resolution within 14 days of the
notification.
Examples of Severity Level 2 conditions:
o Unexpected character in a returned confirmation record
o Inability to post return reports or files for electronic
pick up by the customer.
RESOLUTION: SCC will correct the service or provide Client
with a procedure to bypass or work around the error
condition in order to continue operations. If a bypass
procedure is utilized, SCC will provide Client an acceptable
action plan for the development of the final error
resolution and SCC will continue error resolution activity
until full service is restored to Client.
- --------------------------------------------------------------------------------
SCC - ATGI STATEMENT OF WORK 15
<PAGE> 44
CONFIDENTIAL 05/14/99
STATUS & REPORTS
SCC will provide verbal correction status reports on Severity Level 1
problems at intervals of not less than 4 hours to a designated Client
representative. SCC shall provide verbal correction status reports on
Severity Level 2 errors at intervals of not less than once per week to
a designated Client representative.
Client agrees to provide SCC, at the time of notification, all
pertinent data requested by SCC to properly analyze an error
condition. If SCC is unable to resolve the problem within the
allotted resolution time due to a lack of data required to analyze the
error condition, the internal Escalation Procedures defined below will
be initiated. Client agrees to provide timely assistance if SCC
requests additional information and data concerning the error
condition.
Each month, Client will provide SCC, not later than the 15th day of
the relevant month, a list of Client's operating companies which
report shall detail every NPA/NXX (area code and prefix) associated
with each such company. Upon its receipt of such report in each such
month, SCC will provide Client with a report reflecting the 9-1-1
record counts (access lines), breaking out the NPA/NXX's for each
Client operating company. SCC shall attach its report to the monthly
invoice rendered by SCC pursuant to Exhibit B.
NOTIFICATION AND ESCALATION PROCEDURES
SCC will provide Client with a notification document that includes a
listing of key SCC employees by function, telephone numbers and
24-hour pager numbers. This information is provided to Client in case
an extraordinary situation develops that requires immediate
notification. The Client will provide SCC with a similar list of
contact numbers for emergency situations. It is the responsibility of
each party to update and publish these lists on a regular basis.
In conjunction with the notification process, SCC will provide for
escalation processes within the standard guidelines set forth in the
Clearinghouse Services Methods and Procedures.
- --------------------------------------------------------------------------------
SCC - ATGI STATEMENT OF WORK 16
<PAGE> 45
CONFIDENTIAL 05/14/99
RESPONSIBILITIES OF THE PARTIES
<TABLE>
<S> <C>
TRANSPORT - NETWORK PLANNING
Data Comm from Client to SCC ...........................SCC/Client
Data Comm from SCC to ALI Provider .....................SCC/ALI Provider
Liaison to SCC .........................................Client
TRANSPORT - NETWORK SUPPORT
Data Comm from Client to SCC ...........................Client
Data Comm from SCC to ALI Provider .....................SCC/ALI Provider
Problem Investigation ..................................SCC/ALI Provider/Client
DATABASE SERVICES
Provide Initial Subscriber Records .....................Client
Provide Ongoing Updates to Subscriber Information ......Client
Address Issues/MSAG ....................................SCC/ALI Provider
Initial Database Creation ..............................SCC/ALI Provider
Data Integrity .........................................SCC
Database Maintenance ...................................SCC/ALI Provider/Client
Error Correction .......................................SCC/ALI Provider/Client
"No Record Found" Misroute Investigation ...............SCC/ALI Provider/Client
Data Discrepancy Investigation .........................SCC
Database Reconciliation ................................SCC
OPERATIONS
System/Application Security ............................SCC
Computer Operations ....................................SCC
Support Data Center Issues .............................SCC
Perform Emergency Database Investigations ..............SCC/Client/ALI Provider
ADMINISTRATION
Public Relations .......................................Client/SCC
Public Service Commission Interface ....................Client/SCC
Subscriber Billing .....................................Client
</TABLE>
- --------------------------------------------------------------------------------
SCC - ATGI STATEMENT OF WORK 17
<PAGE> 46
E9-1-1
CLEARINGHOUSE
SERVICES
EXHIBIT B
PRICING & PAYMENT
TERMS
[SCC LOGO]
6285 Lookout Road
Boulder, Colorado, U.S.A. 80301-3343
(303) 581-5600
<PAGE> 47
ATGI CONFIDENTIAL
Exhibit B - Fees and Payment
- --------------------------------------------------------------------------------
EXHIBIT B
FEES AND PAYMENT SCHEDULE
Customer will pay SCC the following fees in the amounts and in the manner
outlined below:
I. NON-RECURRING ENGINEERING FEE (NRE)
A [*] NRE, if not already paid by Customer, is due within thirty (30) days
after the Agreement is fully executed by the parties.
This NRE is a one time charge to initiate the work related to engineering
and implementation of Customer's Clearinghouse Services E9-1-1 solution
described in Exhibit A. This NRE will not be charged on a per market basis for
each market "roll-out." This NRE is non-refundable and payment is not dependent
upon performance of the work associated therewith. The work items covered by
this NRE are fully described in Exhibit A but include the following:
o MSAG data acquisition and build out
o Network Configuration, development of data exchange interfaces to Customer,
hardware preparation and installation
o Primary and Secondary data exchange connectivity configurations
o File transfer testing and integration testing
o System configuration to support Local Number Portability processing
II. MONTHLY BASE SERVICE FEE (MBF) PER BASE RECORD PER MONTH
<TABLE>
<CAPTION>
Total Number of Actual Base Records Fee
- ----------------------------------- -------------------------------
<S> <C>
[*] [*]
[*] [*]
[*] [*]
[*] [*]
[*] [*]
[*] [*]
</TABLE>
This ongoing MBF covers the costs of maintaining Customer's Base Records.
MBFs are invoiced in arrears on a monthly, per Base Record basis, on or about
the 1st day of each month. Payment of such invoices are due thirty (30) days
from the date stated on the relevant invoice. MBFs will begin to accrue in the
first month in which Customer's E911 data is converted to SCC and SCC begins
accepting and managing live E911 data on behalf of Customer; however, if such
date occurs after the tenth (10th) day of such first month, MBFs will begin to
accrue as of the next month.
- --------------------
[*] Information redacted pursuant to a confidential treatment request
throughout this exhibit.
- --------------------------------------------------------------------------------
CUSTOMER - EXHIBIT B PAGE B-1 5/14/99
CONFIDENTIAL
<PAGE> 48
E9-1-1
CLEARINGHOUSE
SERVICES
EXHIBIT C
MODIFICATION ORDER
[SCC LOGO]
6285 Lookout Road
Boulder, Colorado, U.S.A. 80301-3343
(303) 581-5600
<PAGE> 49
ATGI CONFIDENTIAL
EXHIBIT C - MODIFICATION ORDER
- --------------------------------------------------------------------------------
EXHIBIT C - MODIFICATION ORDER
NEW SERVICES - PRODUCT NAME:
- -----------------------------------------
PRODUCT DESCRIPTION:
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
IMPLEMENTATION PLAN (Attached to this Add-On Order)
ANTICIPATED DATE OF SERVICE START:
- --------------------------------------------------------------------------------
NON-RECURRING CHARGES - DESCRIPTION AND AMOUNT:
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
RECURRING CHARGES AND EFFECTIVE DATE:
- --------------------------------------------------------------------------------
This Add-On Order shall be included as Addendum # _____ to the 9-1-1 Services
Agreement.
CUSTOMER, INC. SCC COMMUNICATIONS CORP.
- --------------------------------- -----------------------------------
Signature Signature
- --------------------------------- -----------------------------------
Name/Title Name/Title
- --------------------------------- -----------------------------------
Date Date
- --------------------------------------------------------------------------------
EXHIBIT C PAGE C-1 5/14/99
<PAGE> 50
E9-1-1
CLEARINGHOUSE
SERVICES
EXHIBIT D
ESCALATION PROCEDURES
[SCC LOGO]
6285 Lookout Road
Boulder, Colorado, U.S.A. 80301-3343
(303) 581-5600
<PAGE> 51
ATGI SCC
PROPRIETARY - USE PURSUANT TO INSTRUCTIONS
EXHIBIT D - ESCALATION PROCEDURES
SCC COMMUNICATIONS CLEARINGHOUSE SERVICES
These escalation procedures are intended as a guideline for ensuring problems
are addressed and resolved in a timely fashion. SCC appreciates Client's
cooperation in abiding by these guidelines.
CLIENT - PROCEDURE
1. Client personnel reports a problem to the SCC Clearinghouse Services
Analyst, relaying pertinent information for initial analysis.
2. Depending on the nature of the problem, it may require up to 24 hours
to resolve the problem. Problem resolution may require more than 24
hours if resolution depends on other agencies such as the host ALI
database provider or county coordinator. Client personnel continue to
monitor the trouble and provide additional information necessary for
resolution.
3. If Client does not receive response to --or- resolution of a severity
level 1 or 2 problem within the times specified in the Statement of
Work, the Client may invoke escalation procedures.
o Client invokes escalation procedures by contacting the Clearinghouse
Services Supervisor.
o If Clearinghouse Services Supervisor does not respond or provide
resolution to problem within 4 hours, Client may escalate to
Clearinghouse Services Manager.
o If Clearinghouse Services Manager does not respond or provide
resolution to problem within 24 hours, Client may escalate to Vice
President, NDSC Operations.
ESCALATION CONTACT LIST
The following Clearinghouse Services Escalation list can be used for any issues
requiring immediate action.
<TABLE>
<CAPTION>
Telephone Number Pager
-------------------------------------------
<S> <C> <C> <C> <C> <C>
1st Tier Assigned Analyst Clearinghouse Analyst 303-581-XXXX
Assigned Analyst Clearinghouse Analyst 303-581-XXXX
2nd Tier Susie Anderson Clearinghouse Supervisor 303-581-5618 800-724-3722 Pin #911-0048
3rd Tier Teri Depuy Director, Data Operations 303-581-5621 800-724-3722 Pin #911-0003
Keith Collins Account Manager 303-581-6088 800-724-3722 Pin #911-0084
4th Tier Mike Wright VP NDSC Operations 303-581-5624 800-724-3722 Pin #911-0051
</TABLE>
The 24 hour Service Center Emergency Number is 303-581-5782. This number should
be used outside of normal business hours. The Service Center will log the call
and other pertinent information, and notify the appropriate Clearinghouse
Services personnel. Every attempt will be made to answer questions and provide
resolution when the call is received, however, call back situations may occur.
CUSTOMER, EXHIBIT D PAGE D-1 5/14/99
<PAGE> 52
E9-1-1
CLEARINGHOUSE
SERVICES
EXHIBIT E
LETTER OF AGENCY
[SCC LOGO]
6285 Lookout Road
Boulder, Colorado, U.S.A. 80301-3343
(303) 581-5600
<PAGE> 53
EXHIBIT E
LETTER OF AGENCY
This Letter Of Agency made this 22nd day of March, 1999, and is by and
between SCC Communications Corp. a Delaware Corporation having its principal
offices located at 6285 Lookout Road, Boulder, Colorado 80301 and Advanced
TelCom Group, Inc. ("ATG"), a commercial business enterprise having its
principal offices located at 100 Stony Point Road, Suite 130, Santa Rosa,
California 95401.
ATG hereby authorizes SCC Communications Corp. to act on its behalf for its
use and benefit according to the following instructions:
1. SCC Communications Corp. has agreed to provide certain 911 database
coordination services ("Services" or the "Service") for ATG. SCC's authority to
provide these services is granted by the provisions in the parties Services
Agreement. In order for SCC Communications Corp. to perform such Services, ATG
grants to SCC Communications Corp. the authority to ask for and request
maintaining ATG's rights to the Telephone Subscriber Information, Master Street
Address Guide (MSAG) Information, and daily telephone company service order
update activity used for the purpose of responding to requests for emergency
services for the Local Exchange Provider (LEC) and Emergency Service Provider.
Subscriber information includes, but is not limited to, the collection of names,
addresses, and telephone numbers (whether published, non-published, listed, or
non-listed) for customers of the LEC and Emergency Service Provider, and any
other information associated with and/or supporting the MSAG data for ATG's
customers.
2. SCC Communications Corp. has the authority to procure, receive and collect
from the LEC, the Subscriber Information, and MSAG Information available by law
to ATG for the purpose of providing the E9-1-1 Services. Except as provided that
in paragraph 5.6 of the parties' Service Agreement, SCC Communications Corp. is
responsible for all costs associated with such procurement.
3. SCC Communications Corp. has the authority, on ATG's behalf and as granted by
the provisions specifically provided in the parties' Service Agreement, to
acquire, maintain, and manage the Subscriber Information and MSAG Information
available by law to ATG for the purpose of performing the Services pursuant to
and limited by the provisions of the Services Agreement to which this letter of
agency relates.
4. SCC Communications Corp. hereby agrees to perform its duties hereunder in a
diligent manner, and it is understood by SCC Communications Corp. that ATG may
revoke this letter of agency at any time upon the providing written notice. This
authorization shall remain in force and effect until written notice of
revocation is executed by ATG or by termination of the Services Agreement to
which this letter of agency relates.
SCC COMMUNICATIONS CORP. ADVANCED TELCOM GROUP, INC.:
/s/ GEORGE SCHULZE /s/ DANIEL L. CRUZ
- ----------------------------------- -----------------------------------
Signed Signed
George Schulze Daniel L. Cruz
- ----------------------------------- -----------------------------------
By By
VP Sales VP and Chief Systems Officer
- ----------------------------------- -----------------------------------
Title Title
SCC
-----------------
TAR 3/22/99
-----------------
ATTORNEY APPROVAL
- --------------------------------------------------------------------------------
CUSTOMER/SCC PROPRIETARY
Use pursuant to SCC Instructions
<PAGE> 1
Stony Point Lake
BASIC LEASE
INFORMATION
EXHIBIT 10.16
DATE April 26, 1999
LANDLORD Stony Point East,
a California general partnership
TENANT Advanced Telcom Group,
a Delaware corporation
PREMISES 110 Stony Point Road
Suite: 200 - Approximately 37,568 rentable
square feet
TYPE OF LEASE Full service
USE General office, including, without limitation,
sales marketing and customer service, and for
no other use or purpose
TERM Ten (10) Years
ESTIMATED
COMMENCEMENT DATE January 15, 2000
INITIAL BASE RENT Monthly: [*] per rentable square foot
Annually: [*] per rentable square foot
OPERATING EXPENSES Tenant's Percentage Share: 56.2%
Base Year: 2000
SECURITY DEPOSIT Cash in the amount of [*]
REAL ESTATE BROKER None
ADDRESS FOR NOTICES Landlord: 131 Stony Circle, Suite 480
Santa Rosa, CA 95401
Tenant: 110 Stony Point Road, Suite 200
Santa Rosa, CA 95401
TENANT IMPROVEMENTS Landlord will provide tenant improvements as
shown on Exhibit B-3
EXHIBITS A, B, B-1, B-2, B-3, C, D, E, F, G and
Addendum
SIGNATURES:
/s/ C.G. RANDOLPH /s/ JAMES BRECHT
- ----------------------------------- -------------------------------------
Tenant Landlord
- -----------------------
[*] Information redacted pursuant to a confidential treatment request
throughout this exhibit.
<PAGE> 2
TABLE OF CONTENTS
<TABLE>
<CAPTION>
Section Page
- ------- ----
<S> <C>
1. Premises 1
2. Term 1
3. Rent 1
4. Base Rent 2
5. Additional Rent - Annual Rent Adjustments/Operating Expenses 2
6. Proration of Rent 3
7. Tenant Improvements 3
8. Use of the Premises 3
9. Alterations 4
10. Repairs 5
11. Damage or Destruction 5
12. Eminent Domain 5
13. Indemnity and Insurance 6
14. Assignment or Sublet 7
15. Default 7
16. Landlord's Right to Perform Tenant's Covenants 8
17. Security Deposit 8
18. Surrender of Premises 8
19. Holding Over 9
20. Access to Premises 9
21. Signs 9
22. Waiver of Subrogation 9
23. Subordination 9
24. Transfer of the Property 10
25. Estoppel Certificates 10
26. Mortgagee Protection 10
27. Attorneys' Fees 10
28. Brokers 10
29. Parking 10
30. Utilities and Services 11
31. Tenant Placement 11
32. Acceptance 11
33. Use of Building Name 11
34. Recording 11
35. Quitclaim 11
36. Notices 11
37. Landlord's Exculpation 12
38. Additional Structures 12
39. General 12
</TABLE>
i
<PAGE> 3
EXHIBITS
Exhibit A Site Plan
Exhibit B Work Letter
Exhibit B-1 Building Shell/Site Work Working Drawings
Exhibit B-2 Interior Improvement Working Drawings
Exhibit B-3 Tenant Preliminary Design and Tenant Improvement Specifications
Exhibit C Commencement Date Memorandum
Exhibit D Rules & Regulations
Exhibit E Utilities and Services
Exhibit F Hazardous Substance Disclosure
Addendum to Lease
<PAGE> 4
THIS LEASE, which is effective as of the date set forth in the Basic Lease
Information, is entered by Landlord and Tenant, as set forth in the Basic Lease
Information. Terms which are capitalized in this Lease shall have the meanings
set forth in the Basic Lease Information.
1. PREMISES.
Landlord leases to Tenant, and Tenant leases from Landlord, the Premises
described in the Basic Lease Information, together with the right in
common to use the Common Areas of the Building and the Property (as
shown in Exhibit A). The Common Areas shall mean the areas and
facilities within the Building and the Property provided and designated
by Landlord for the general use, convenience or benefit of Tenant and
other tenants and occupants of the Building (e.g., restroom's;
janitorial, telephone and electrical closets; and unreserved parking
areas). Landlord reserves the right to enlarge, reduce, change or
otherwise alter the Common Areas of the Building and the Property at any
time during the term of this Lease. In addition, Landlord shall have the
right to close temporarily any portion of the Common Areas to make
repairs or changes or to prevent the acquisition of public rights in the
Common Areas. [SEE ADDENDUM]
2. TERM.
a. Lease Term. The Term of this Lease shall commence on the
Commencement Date (as defined in Subsection 2.b.) and, unless
terminated on an earlier date in accordance with the terms of
this Lease, shall extend for the period (i.e., Term) specified
in the Basic Lease Information.
b. Commencement Date. The "Commencement Date" of this Lease shall
be the earliest to occur of the following, as reasonably
determined by Landlord: [Intentionally deleted] [SEE ADDENDUM]
c. Premises Not Delivered. If, for any reason, Landlord cannot
deliver possession of the Premises to Tenant by the Estimated
Commencement Date (as set forth in the Basic Lease Information),
(i) Tenant shall not be obligated to pay Rent until the
Commencement Date; (ii) the Term shall not be extended; (iii)
the failure shall not affect the validity of this Lease, or the
obligations of Tenant under this Lease; and (iv) Landlord shall
not be subject to any liability.
d. Commencement Date Memorandum. When the Commencement Date is
determined, the parties shall execute a Commencement Date
Memorandum, in the form attached hereto as Exhibit C, setting
forth the Commencement Date and the expiration date ("Expiration
Date") of this Lease. [SEE ADDENDUM]
e. Early Entry. If Tenant is permitted to enter the Premises prior
to the Commencement Date for the purposes of fixturing or any
purpose other than occupancy permitted by Landlord, the entry
shall be subject to all the terms and provisions of this Lease,
except that the payment of Rent shall commence as of the
Commencement Date.
f. Adjustment for Calendar Month. If the Commencement Date is not
the first day of a calendar month, the Term shall be deemed to
have commenced on the first day of the next succeeding calendar
month, for purposes of determining any and all renewal dates,
the Expiration Date, notice periods for any options, the
effective date of any increases in Rent (defined in Section 3),
and any other provisions relating to the Term.
3. RENT.
a. Definitions. As used in this Lease, the term "Rent" shall
include: (i) the Base Rent; (ii) Tenant's Percentage Share of
the total dollar increase, if any, in the Operating Expenses
paid or incurred by Landlord during the calendar year over the
Operating Expenses paid or incurred by Landlord during the Base
Year (as set forth in the Basic Lease Information), and (iii)
all other amounts which Tenant is obligated to pay under the
terms of this Lease. All amounts of money payable by Tenant to
Landlord shall be paid without prior notice or demand, deduction
or offset. If any installment of Rent is not paid by the fifth
(5th) day of the month, Tenant shall pay to Landlord a late
payment charge equal to five percent (5%) of the amount of the
delinquent installment, in addition to the installment of Rent
then owing, regardless of whether a notice of default or notice
of termination has been given by Landlord. In addition to the
five percent (5%) late charge, any Rent or other amounts owing
hereunder which are not paid within five (5) days after the date
they are due shall thereafter bear interest at the rate
("Interest Rate") which is the [*]. [SEE ADDENDUM]
- -----------------------
[*] Information redacted pursuant to a confidential treatment request
throughout this exhibit.
1
<PAGE> 5
b. Accord and Satisfaction. No payment by Tenant or receipt by
Landlord of a lesser amount than any installment or payment of
Rent due shall be deemed to be other than on account of the
amount due, and no endorsement or statement on any check or
payment of Rent shall be deemed an accord and satisfaction.
Landlord may accept such check or payment without prejudice to
Landlord's right to recover the balance of such installment or
payment of Rent, or pursue any other remedies available to
Landlord. [SEE ADDENDUM]
4. BASE RENT.
a. Initial Base Rent. Tenant shall pay Base Rent to Landlord (or
other entity designated by Landlord), in advance, on the first
day of each calendar month of the Term, at Landlord's address
for notices (as set forth in the Basic Lease Information) or at
such other address as Landlord may designate. The Initial Base
Rent shall be the amount set forth in the Basic Lease
Information. Upon executing this Lease, Tenant shall pay an
amount equal to the monthly Base Rent stated on the Basic Lease
Information, which shall be credited against the Base Rent due
at the beginning of the Term. [SEE ADDENDUM]
b. [Intentionally deleted] [SEE ADDENDUM]
5. ADDITIONAL RENT - ANNUAL RENT ADJUSTMENTS/OPERATING EXPENSES.
a. Increase in Operating Expenses. Rent shall include Tenant's
Percentage Share of the total dollar increase, if any, in the
Operating Expenses paid or incurred by Landlord during the
calendar year over the Operating Expenses paid or incurred by
Landlord during the Base Year.
b. Operating Expenses. The term "Operating Expenses" shall include
all reasonable expenses and costs of every kind and nature which
Landlord shall pay or become obligated to pay because of or in
connection with the ownership and operation of the Building,
Common Areas and Premises, surrounding property and supporting
facilities. Operating Expenses shall include, without
limitation, the following: (i) all impositions relating to the
Building, Common Areas and Premises, including the Real Property
Taxes (as defined in Section 5.d.); (ii) premiums for insurance
relating to the Building, Common Areas and Premises as set forth
in Sections 13.b., 13.d. and 13.h.; (iii) wages, salaries and
related expenses and benefits of all on-site and off-site
employees engaged in operation, maintenance and security; (iv)
all supplies, materials and equipment rental used in operations;
(v) all maintenance, janitorial, security and service costs;
(vi) a management fee; (vii) legal and accounting expenses,
including the cost of audits by certified public accountants;
(viii) repairs, replacements and general maintenance (excluding
those paid for by proceeds of insurance or other parties, and
alterations attributable solely to other tenants of the
Buildings; (ix) all maintenance costs relating to the Building
and Common Areas, including sidewalks, landscaping, service
areas, mechanical rooms, parking areas, Building exterior and
driveways; [Intentionally deleted] (xi) all other operating,
management and other expenses incurred by Landlord in connection
with operation of the Building and Common Areas; (xii) all
charges for heat, water, gas, electricity and other utilities
used or consumed in the Building and Common Areas, entranceways,
sidewalks, etc.; and (xiii) ground rent payments, if any. [SEE
ADDENDUM]
c. Monthly Increments; Adjustment. Prior to the commencement of
each of Landlord's accounting years, Landlord shall estimate the
amount of the Operating Expenses payable by Tenant for the next
accounting year pursuant to
2
<PAGE> 6
this Section. Tenant shall pay to Landlord, on the first of each
month, in advance, one-twelfth (1/12) of Landlord's estimate.
Within ninety (90) days after (or as soon thereafter as
possible) the close of each accounting year after which this
Lease remains in effect, Landlord shall provide Tenant with a
statement [Intentionally deleted]. Landlord, in Landlord's sole
discretion, shall have the right to reduce the Operating
Expenses to limit the impact (e.g., year to year fluctuations)
resulting from extraordinary or unusual expenses or costs. If
Tenant has overpaid the amount of Operating Expenses owing
pursuant to this Section, Landlord shall credit the overpayment
to Tenant within thirty (30) days after Tenant's receipt of
Landlord's statement; provided, however, that the Rent owed by
Tenant shall never be less than the Base Rent stated in Section
4. If Tenant has underpaid the amount of Operating Expenses
owing pursuant to this Section, Tenant shall pay the amount of
the underpayment to Landlord, as Additional Rent, within thirty
(30) days after Tenant's receipt of Landlord's statement. If
less than one hundred percent (100%) of the rentable area of the
Building is occupied, Operating Expenses shall be adjusted to
equal Landlord's reasonable estimate of Operating Expenses if
one hundred percent (100%) of the total rentable area of the
Building were occupied. [SEE ADDENDUM]
d. Definition of Real Property Taxes. The term "Real Property
Taxes" shall mean any ordinary or extraordinary form of
assessment or special assessment, license fee, rent tax, levy,
penalty (if a result of Tenant's delinquency), or tax, other
than net income, estate, succession, inheritance, transfer or
franchise taxes, imposed by any authority having the direct or
indirect power to tax, or by any city, county, state or federal
government for any maintenance or improvement or other district
or division thereof. The term shall include all transit charges,
housing fund assessments, real estate taxes and all other taxes
relating to the Premises, Building and/or Property, all other
taxes which may be levied in lieu of real estate taxes
(including any increases resulting from changes of ownership),
all assessments, assessment bonds, levies, fees, and other
governmental charges (including, but not limited to, charges for
traffic facilities, improvements, child care, water services
studies and improvements, and fire services studies and
improvements) for amounts necessary to be expended because of
governmental orders, whether general or special, ordinary or
extraordinary, unforeseen as well as foreseen, of any kind and
nature for public improvement, services, benefits or any other
purposes which are assessed, levied, confirmed, imposed or
become a lien upon the Premises, Building or Property or become
payable during the Term. [SEE ADDENDUM]
e. Taxes on Tenant Improvements and Personal Property.
Notwithstanding any other provision hereof, Tenant shall pay the
full amount of any increase in Real Property Taxes during the
Term resulting from any and all alterations and tenant
improvements of any kind whatsoever placed in, on or about the
Premises [Intentionally deleted]. Tenant shall pay, prior to
delinquency, all taxes assessed or levied against Tenant's
personal property in, on or about the Premises. When possible,
Tenant shall cause its personal property to be assessed and
billed separately from the real or personal property of
Landlord. [SEE ADDENDUM]
6. PRORATION OF RENT.
If the Commencement Date is not the first day of the month, Rent
shall be prorated on a monthly basis for the fractional month
during the month which this Lease commences. The termination of
this Lease shall not affect the obligations of Landlord and
Tenant pursuant to Subsection 5.c. which are to be performed
after the termination.
7. TENANT IMPROVEMENTS.
[Intentionally deleted] [SEE ADDENDUM]
8. USE OF THE PREMISES.
a. Use. The Premises shall be used solely for the use set forth in
the Basic Lease Information and for no other use.
b. Rules and Regulations; CC&R's. Tenant shall comply with the
Rules and Regulations attached hereto as Exhibit D. In addition,
Tenant shall comply with [Intentionally deleted] covenants,
conditions and restrictions ("CC&R's") applicable to the
Building, and all rules, regulations and restrictions
(collectively, "Rules") imposed by any association
("Association") formed pursuant to the CC&R's. [SEE ADDENDUM]
c. Compliance. Tenant, at its sole cost and expense, shall promptly
comply with all laws, statutes, ordinances and governmental
rules, regulations or requirements (including the Americans with
Disabilities Act) now in force or which hereinafter may be in
force, with the requirements of any board of fire underwriters
or other similar board now or hereafter constituted, with any
direction or occupancy certificate issued pursuant to any law by
any public officer or officers, as well
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as the provisions of all recorded documents affecting the
Premises, insofar as any thereof relate to or affect the
condition, use or occupancy of the Premises. [SEE ADDENDUM]
D. HAZARDOUS SUBSTANCES.
(i) Hazardous Substances. The term "Hazardous Substances" as
used in this Lease shall mean any product, substance, chemical,
material or waste whose presence, nature, quantity and/or
intensity of existence, use manufacture, disposal,
transportation, spill, release or effect, either by itself or in
combination with other materials expected to be on the Premises,
is either (A) potentially injurious to the public health, safety
or welfare, the environment or the Premises, (B) regulated or
monitored by any governmental authority, or (C) a basis for
liability of Landlord to any governmental agency or third party
under any applicable statute or common law theory. Hazard
Substances include, but are not limited to, hydrocarbons,
petroleum, gasoline, crude oil and any products, by-products or
fractions thereof.
(ii) Duty to Inform Landlord. If Tenant knows, or has reasonable
cause to believe, that a Hazardous Substance, or a condition
involving or resulting from same, has come to be located in, on,
under or about the Premises, other than as previously consented
to by Landlord, Tenant shall immediately give written notice of
such fact to Landlord. Tenant shall also immediately give
Landlord a copy of any statement, report, notice, registration,
application, permit, business plan, license, claim, action or
proceeding given to, or received from, any governmental
authority or private party, or persons entering or occupying the
Premises, concerning the presence, spill, release, discharge of,
or exposure to, any Hazardous Substance or contamination in, on,
under or about the Premises.
(iii) Indemnification. Tenant shall indemnify, protect, defend
and hold harmless Landlord, its agents, employees, and lenders,
if any, and the Premises from and against all loss of rents
and/or damages, liabilities, judgments, costs, claims, liens,
expenses, penalties, permits and attorneys' and consultants'
fees arising out of or involving any Hazardous Substances
brought onto the Premises by or for Tenant or under Tenant's
control. Tenant's obligations under this Section 8.d. shall
include, but not be limited to, the effects of any contamination
or injury to persons, property or the environment created or
suffered by Tenant, and the cost of investigation (including
consultants' and attorneys' fees and testing), removal,
remediation, restoration and/or abatement thereof, or of any
contamination therein involved, and shall survive the expiration
or earlier termination of this Lease. No termination,
cancellation or release agreement entered into by Landlord and
Tenant shall release Tenant from its obligations under this
Lease with respect to Hazardous Substances, unless specifically
so agreed by Landlord in writing at the time of such agreement.
[SEE ADDENDUM]
9. ALTERATIONS.
a. Permitted Alterations. Tenant shall give Landlord not less than
ten (10) days' prior written notice of any alteration Tenant
desires to make to the Premises. Tenant shall not make any
alteration in, on or about the Premises without the prior
written consent of Landlord, which consent shall not be
unreasonably withheld or delayed. Tenant shall comply with all
rules, laws, ordinances and requirements at the time Tenant
makes any alteration and shall deliver to Landlord a complete
set of "as built" plans and specifications for each alteration.
Tenant shall be solely responsible for maintenance and repair of
all alterations made by Tenant. As used in this Section 9, the
term "alteration" shall include any alteration, addition or
improvement. [SEE ADDENDUM]
b. Liens. If, because of any act or omission of Tenant or anyone
claiming by, through, or under Tenant, any mechanic's lien or
other lien is filed against the Premises, the Building, the
Property or against other property of Landlord (whether or not
the lien is valid or enforceable), Tenant shall, at its own
expense, cause it to be discharged of record within a reasonable
time, not to exceed [intentionally deleted] days, after the date
of the filing. In addition, Tenant shall defend and indemnify
Landlord and hold it harmless from any and all claims, losses,
damages, judgments, settlements, costs and expenses, including
attorneys' fees, resulting from the lien. [SEE ADDENDUM]
c. Ownership of Alterations. Any alteration made by Tenant shall
immediately become Landlord's property. Except as provided in
Subsection 9.d., Landlord may require Tenant, at Tenant's sole
expense and by the end of the Term, to remove any alterations
made by Tenant and to restore the Premises to its condition
prior to the alteration. [SEE ADDENDUM]
d. Request Regarding Removal Obligation. At the time that Tenant
requests Landlord's consent to any alteration, Tenant may
request that Landlord notify Tenant if Landlord will require
Tenant, at Tenant's sole expense, to remove any or all of the
alteration by the end of the Term, and to restore the Premises
to its condition prior to the alteration.
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10. REPAIRS.
Tenant, at all times during the Term and at Tenant's sole cost and
expense, shall keep the Premises and every part thereof, including all
telecommunication risers and cabling, in good condition and repair;
ordinary wear and tear, damage by fire, earthquake, acts of God or the
elements excepted. Tenant hereby waives all right to make repairs at the
expense of Landlord or in lieu thereof to vacate the Premises as
provided in California Civil Code Section 1942 or any other law, statute
or ordinance now or hereafter in effect. [SEE ADDENDUM]
11. DAMAGE OR DESTRUCTION.
a. Landlord's Obligation to Rebuild. If the Premises are damaged or
destroyed, Landlord shall promptly and diligently repair the
Premises unless Landlord has the option to terminate this Lease
as provided herein, and Landlord elects to terminate.
b. Right to Terminate. Landlord shall have the option to terminate
this Lease if the Premises or the Building is destroyed or
damaged by fire or other casualty, regardless of whether the
casualty is insured against under this Lease, if Landlord
reasonably determines that the repair of the Premises or the
Building cannot be completed within two hundred seventy (270)
days after the [intentionally deleted] casualty. If Landlord
desires to exercise the right to terminate this Lease as a
result of a casualty, Landlord shall exercise the right by
giving Tenant written notice of its election to terminate within
thirty (30) days after the, in which event this Lease shall
terminate fifteen (15) days after the date of the notice. If
Landlord does not exercise the right to terminate this Lease,
Landlord shall promptly commence the process of obtaining
necessary permits and approvals, and shall commence repair of
the Premises or the Building as soon as practicable and
thereafter prosecute the repair diligently to completion, in
which event this Lease shall continue in full force and effect.
[SEE ADDENDUM]
c. Limited Obligation to Repair. Landlord's obligation, should
Landlord elect or be obligated to repair or rebuild, shall be
limited to the Building shell and any tenant improvements which
are constructed and paid for by Landlord pursuant to Exhibit B.
Tenant, at its option and expense, shall replace or fully repair
all trade fixtures, equipment and other improvements, including
all telecommunication risers and cabling, installed by Tenant
and existing at the time of the damage or destruction.
d. Abatement of Rent. In the event of any damage or destruction to
the Premises which does not result in termination of this Lease,
the Base Rent shall be temporarily abated proportionately to the
degree the Premises are untenantable as a result of the damage
or destruction, commencing from the date of the damage or
destruction and continuing during the period required by
Landlord to substantially complete its repair and restoration of
the Premises; provided, however, that nothing herein shall
preclude Landlord from being entitled to collect the full amount
of any rent loss insurance proceeds. Tenant shall not be
entitled to any compensation or damages from Landlord for loss
of the use of the Premises, damage to Tenant's personal property
or any inconvenience occasioned by any damage, repair or
restoration. Tenant hereby waives the provisions of Section
1932, Subdivision 2, and Section 1933, Subdivision 4, of the
California Civil Code, and the provisions of any similar law
hereafter enacted.
e. Damage Near End of Term and Extensive Damage. In addition to the
rights to termination under Subsection 11.b., Landlord shall
have the right to cancel and terminate this Lease as of the date
of the occurrence of destruction or damage if the Premises or
the Building is [intentionally deleted] made untenantable during
the last twelve (12) months of the Term. Landlord shall give
notice of its election to terminate this Lease under this
Subsection 11.e. within thirty (30) days after Landlord
determines that the damage or destruction would require more
than six (6) months to repair. If Landlord does not elect to
terminate this Lease, the repair of the damage shall be governed
by Subsection 11.a. or 11.b., as the case may be. [SEE ADDENDUM]
f. Insurance Proceeds. If this Lease is terminated, Landlord may
keep all the insurance proceeds resulting from the damage, except
for those proceeds which specifically insured Tenant's personal
property and trade fixtures. [SEE ADDENDUM]
12. EMINENT DOMAIN.
If all or any part of the Premises is taken for public or quasi-public
use by a governmental authority under the power of eminent domain or is
conveyed to a governmental authority in lieu of such taking, and if
[intentionally deleted] the taking or conveyance causes the remaining
part of the Premises to be untenantable and inadequate for use by Tenant
for the purpose for which they were leased, then Tenant, at its option
and by giving written notice within fifteen (15) days after the taking,
may terminate this Lease as of the date Tenant is required to surrender
possession of the Premises. If a part of the Premises is taken or
conveyed but the remaining part is tenantable and
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adequate for Tenant's use, then this Lease shall be terminated as to the
part taken or conveyed as of the date Tenant surrenders possession;
Landlord shall make such repairs, alterations and improvements as may be
necessary to render the part not taken or conveyed tenantable; and the
Rent shall be reduced in proportion to the part of the Premises taken or
conveyed. All compensation awarded for the taking or conveyance shall be
the property of Landlord without any deduction therefrom for any estate
of Tenant, and Tenant hereby assigns to Landlord all its right, title
and interest in and to the award. Tenant shall have the right, however,
to recover from the governmental authority, but not from Landlord, such
compensation as may be awarded to Tenant on account of the interruption
of Tenant's business, moving and relocation expenses and removal of
Tenant's trade fixtures and personal property.
13. INDEMNITY AND INSURANCE.
a. Indemnity. Tenant shall be responsible for, shall insure
against, and shall indemnify Landlord and its constituent parts
and hold them harmless from, any and all liability for any loss,
damage or injury to person or property occurring in, on or about
the Premises, and Tenant hereby releases Landlord and its
constituent parts from any and all liability for the same.
Tenant's obligation to indemnify Landlord and its constituent
parts hereunder shall include the duty to defend against any
claims asserted by reason of any loss, damage or injury, and to
pay any judgments, settlements, costs, fees and expenses,
including attorneys' fees, incurred in connection therewith with
counsel reasonably acceptable to Landlord. [SEE ADDENDUM]
b. Fire and Extended Coverage. Landlord shall procure and maintain
in full force and effect with respect to the Building a policy
or policies of all risk or "Special Term" insurance for the full
insurance replacement value thereof.
c. Public Liability. Tenant, at its own cost and expense, shall
keep and maintain in full force and effect during the Term a
policy or policies of commercial general public liability
insurance, written by an insurance company approved by Landlord,
in the form customary to the locality, insuring Tenant's
activities with respect to the Premises and/or the Building
against loss, damage or liability for personal injury or death
of any person or loss or damage to property occurring in, upon
or about the Premises, covering bodily injury in the amounts of
Two Million Dollars ($2,000,000) per person and Two Million
Dollars ($2,000,000) per occurrence, and covering property
damage in the amount of One Million Dollars ($1,000,000);
provided, however, that if, at any time during the Term, Tenant
shall have in full force and effect a blanket policy of public
liability insurance with the same coverage for the Premises as
described above, as well as coverage of other premises and
properties of Tenant, or in which Tenant has some interest, the
blanket insurance shall satisfy the requirement hereof.
d. Rental Abatement Insurance. Landlord may keep and maintain in
full force and effect during the Term rental abatement insurance
against abatement or loss of Rent in case of fire or other
casualty, in an amount at least equal to the amount of Rent
payable by Tenant during one (1) year of the Term, as reasonably
determined by Landlord.
e. Insurance Certificates. Tenant shall furnish to Landlord, upon
the Commencement Date and thereafter within thirty (30) days
prior to the expiration of each policy, a certificate of
insurance issued by the insurance carrier of each policy of
insurance carried by Tenant pursuant to this Section 13. The
certificates shall expressly provide that the policies shall not
be cancelable or subject to reduction of coverage or otherwise
be subject to modification except after thirty (30) days' prior
written notice to the parties named as additional insured.
Landlord, its successors and assigns, and any nominee of
Landlord holding any interest in the Premises, including,
without limitation, any ground lessor or the holder of any fee
or leasehold mortgage, shall be named as an additional insured
under each policy of insurance maintained by Tenant pursuant to
this Lease.
f. Tenant's Failure. Tenant's failure to maintain any insurance
required by this Lease, shall be a default hereunder, and Tenant
shall be liable for any loss or costs resulting from the
failure.
g. Tenant's Property and Fixtures. Tenant shall assume the risk of
theft or damage to any furniture, equipment, machinery, goods,
supplies or fixtures which are or remain the property of Tenant,
or as to which Tenant retains the right of removal from the
Premises.
h. Earthquake and Flood Insurance. In addition to any other
insurance policies carried by Landlord in connection with the
Building, Landlord may elect to procure and maintain in full
force and effect during the Term with respect to the Building a
policy of earthquake/volcanic action and flood and/or surface
water insurance, including rental value insurance against
abatement or loss of rent in the case of damage or loss covered
under the earthquake/volcanic and flood and/or surface water
insurance, in an amount equal to one hundred percent (100%) of
the full insurance replacement value (including debris removal
and demolition) of the Building. [SEE ADDENDUM]
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14. ASSIGNMENT OR SUBLET.
If Tenant desires to assign this Lease or to sublet the Premises, or any
part thereof, Tenant shall give to Landlord written notice of its intent
at least [Intentionally deleted] days in advance of the date on which
Tenant desires to assign or sublet the Premises. Landlord shall have
thirty (30) days after receipt of Tenant's written notice within which
to notify Tenant in writing that Landlord elects to [Intentionally
deleted] permit Tenant to assign this Lease or sublease the Premises,
subject, however, to Landlord's prior written approval, which approval
shall not be unreasonably withheld. Landlord and Tenant agree that it
shall be reasonable for Landlord to withhold its consent if Landlord
reasonably determines that the proposed assignee or sublessee (A) does
not have the financial ability to fulfill all of the obligations of
Tenant under this Lease, (B) is to use Hazardous Substances in type or
quantity in excess of those used by Tenant, (C) will potentially
increase the Operating Expenses, (D) is a governmental entity,
[Intentionally deleted]. Upon any proposed assignment or sublet, Tenant
shall enter into a written agreement with Landlord requiring that
[Intentionally deleted] of the excess moneys due to Tenant under the
assignment or sublet over the Rent to be required to be paid by Tenant
hereunder shall be paid to Landlord. No consent by Landlord to any
assignment or sublet shall be deemed to be a consent to a use not
permitted under this Lease, to any act in violation of this Lease or to
any subsequent assignment or sublet. No assignment or sublet by Tenant
shall relieve Tenant of any obligation under this Lease. Any attempted
assignment or sublet by Tenant in violation of the terms and covenants
of this Section shall be void. [SEE ADDENDUM]
15. DEFAULT.
a. Tenant's Default. At the option of Landlord, a material breach
of this Lease by Tenant shall exist if any of the following
events (severally, "Event of Default"; collectively, "Events of
Default") shall occur: (i) if Tenant shall have failed to pay
Rent, including Tenant's Percentage Share of increased Operating
Expenses, or any other sum required to be paid hereunder
[Intentionally deleted], together with interest at the Interest
Rate, from the date the amount became due through the date of
payment, inclusive; (ii) if Tenant shall have failed to perform
any term, covenant or condition of this Lease except those
requiring the payment of money, and Tenant shall have failed to
cure the breach within [Intentionally deleted] days after
written notice from Landlord if the breach could reasonably be
cured within the [Intentionally deleted] day period; provided,
however, if the failure could not reasonably be cured within the
[Intentionally deleted] day period, then Tenant shall not be in
default unless it has failed to promptly commence and thereafter
continue to make diligent and reasonable efforts to cure the
failure as soon as practicable as reasonably determined by
Landlord; (iii) if Tenant shall have its assets for the benefit
of its creditors; (iv) if the [Intentionally deleted]
sequestration of, attachment of, or execution on, any material
part of the property of Tenant or on any property essential to
the conduct of Tenant's business shall have occurred, and Tenant
shall have failed to obtain a return or release of the property
within thirty (30) days thereafter, or prior to sale pursuant to
any sequestration, attachment or levy, whichever is earlier; (v)
if Tenant shall have [Intentionally deleted] abandoned
[Intentionally deleted] the Premises; (vi) if a court shall have
made or entered any decree or order adjudging Tenant to be
insolvent, or approving as properly filed a petition seeking
reorganization of Tenant, or directing the winding up or
liquidation of Tenant, and the decree or order shall have
continued for a period of thirty (30) days; (vii) if Tenant
shall make or suffer any transfer which constitutes a fraudulent
or otherwise avoidable transfer under any provision of the
federal Bankruptcy Laws or any applicable state law; or (viii)
if Tenant shall have failed to comply with the provisions of
Sections 23 or 25 of this Lease. An Event of Default shall
constitute a default under this Lease. [SEE ADDENDUM]
b. Remedies Upon Tenant's Default. Upon an Event of Default,
Landlord shall have the following remedies, in addition to all
other rights and remedies provided by law, equity, statute or
otherwise provided in this Lease, to which Landlord may resort
cumulatively or in the alternative:
(i) Landlord may continue this Lease in full force and
effect, and this Lease shall continue in full force and
effect as long as Landlord does not terminate Tenant's
right to possession, and Landlord shall have the right
to collect Rent when due [Intentionally deleted]. No act
by Landlord allowed by this Subsection (i) shall
terminate this Lease unless Landlord notifies Tenant in
writing that Landlord elects to terminate this Lease.
[SEE ADDENDUM]
(ii) Landlord may terminate Tenant's right to possession of
the Premises at any time by giving written notice to
that effect. No act by Landlord other than giving
written notice to Tenant shall terminate this Lease.
Acts of
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maintenance, efforts to relet the Premises or the
appointment of a receiver on Landlord's initiative to
protect Landlord's interest under this Lease shall not
constitute a termination of Tenant's right to
possession. On termination, Landlord shall have the
right to remove all personal property of Tenant and
store it at Tenant's cost and to recover from Tenant as
damages: (a) the worth at the time of award of unpaid
Rent and other sums due and payable which had been
earned at the time of termination; plus (b) the worth at
the time of award of the amount by which the unpaid Rent
and other sums due and payable which would have been
payable after termination until the time of award
exceeds the amount of the Rent loss that Tenant proves
could have been reasonably avoided; plus (c) the worth
at the time of award of the amount by which the unpaid
Rent and other sums due and payable for the balance of
the Term after the time of award exceeds the amount of
the Rent loss that Tenant proves could be reasonably
avoided; plus (d) any other amount necessary to
compensate Landlord for all the detriment proximately
caused by Tenant's failure to perform Tenant's
obligations under this Lease, or which, in the ordinary
course of things, would be likely to result therefrom,
including, without limitation, any costs or expenses
incurred by Landlord: (1) in retaking possession of the
Premises, including reasonable attorneys' fees and costs
therefor; (2) maintaining or preserving the Premises for
reletting to a new tenant, including repairs or
alterations to the Premises for the reletting; (3)
leasing commissions; (4) any other costs necessary or
appropriate to relet the Premises; and (5) at Landlord's
election, such other amounts in addition to or in lieu
of the foregoing as may be permitted from time to time
by the laws of the State of California.
The "worth at the time of award" of the amounts referred
to in Subsections (ii)(a) and (ii)(b) is computed by
allowing interest at the lesser of [Intentionally
deleted] per annum or the maximum rate permitted by law,
on the unpaid Rent and other sums due and payable from
the termination date through the date of award. The
"worth at the time of award" of the amount referred to
in Subsection (ii)(c) is computed by discounting the
amount at the discount rate of the Federal Reserve Bank
of San Francisco at the time of award, plus one percent
(1%). Tenant waives redemption or relief from forfeiture
under California Code of Civil Procedure Sections 1174
and 1179, or under any other present or future law, if
Tenant is evicted or Landlord takes possession of the
Premises by reason of any default of Tenant hereunder.
[SEE ADDENDUM]
c. Landlord's Default. Landlord shall not be deemed to be in default in
the performance of any obligation required to be performed by
Landlord hereunder unless and until Landlord has failed to perform
the obligation within thirty (30) days after receipt of written
notice by Tenant to Landlord specifying wherein Landlord has failed
to perform the obligation; provided, however, that if the nature of
Landlord's obligation is such that more than thirty (30) days are
required for its performance, then Landlord shall not be deemed to
be in default if Landlord shall commence the performance within the
thirty (30) day period and thereafter shall diligently prosecute the
same to completion.
16. LANDLORD'S RIGHT TO PERFORM TENANT'S COVENANTS.
If Tenant shall at any time fail to make any payment or perform any other
act on its part to be made or performed under this Lease, Landlord may,
but shall not be obligated to, make the payment or perform any other act
to the extent Landlord may deem desirable and, in connection therewith,
pay expenses and employ counsel. Any payment or performance by Landlord
shall not waive or release Tenant from any obligations of Tenant under
this Lease. All sums so paid by Landlord, and all penalties, interest and
costs in connection therewith, shall be due and payable by Tenant on the
next day after any payment by Landlord, together with interest thereon at
the Interest Rate, from that date to the date of payment thereof by Tenant
to Landlord, plus collection costs and attorneys' fees. Landlord shall
have the same rights and remedies for the nonpayment thereof as in the
case of default in the payment of Rent. [SEE ADDENDUM]
17. SECURITY DEPOSIT.
Tenant has deposited with Landlord the Security Deposit, in the amount
specified in the Basic Lease Information, as security for the full and
faithful performance of every provision of this Lease to be performed by
Tenant. If Tenant defaults with respect to any provision of this Lease,
Landlord may use, apply or retain all or any part of the Security Deposit
for the payment of any Rent or other sum in default, for the payment of
any amount which Landlord may expend or become obligated to expend by
reason of Tenant's default, or to compensate Landlord for any loss or
damage which Landlord may suffer by reason of Tenant's default. If any
portion of the Security Deposit is used or applied, Tenant shall deposit
with Landlord, within ten (10) days after written demand therefor, cash in
an amount sufficient to restore the Security Deposit to its original
amount. Landlord shall not be required to keep the Security Deposit
separate from its general funds. [Intentionally deleted] [SEE ADDENDUM]
18. SURRENDER OF PREMISES.
By taking possession of the Premises, Tenant shall be deemed to have
accepted the Premises, Building, and the Property in good, clean
[Intentionally deleted] condition [Intentionally deleted]. On the
expiration or early termination of this
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Lease, Tenant shall surrender the Premises to Landlord in its condition as
of the Commencement Date, normal wear and tear excepted. Tenant shall
remove from the Premises all of Tenant's personal property, trade fixtures
and any alterations required to be removed pursuant to Section 9 of this
Lease. Tenant shall repair damage or perform any restoration work required
by the removal. If Tenant fails to remove any personal property, trade
fixtures or alterations after the end of the Term, Landlord may remove the
property and store it at Tenant's expense, including interest at the
Interest Rate. If the Premises are not so surrendered at the termination
of this Lease, Tenant shall indemnify Landlord against all loss or
liability resulting from delay by Tenant in so surrendering the Premises,
including, without limitation, any claims made by any succeeding tenant,
losses to Landlord due to lost opportunities to lease to succeeding
tenants, and attorneys' fees and costs. [SEE ADDENDUM]
19. HOLDING OVER.
If Tenant remains in possession of all or any part of the Premises after
the expiration of the Term or the termination of this Lease, the tenancy
shall be month-to-month only and shall not constitute a renewal or
extension for any further term. In such event, Base Rent shall be
increased in an amount equal to [*] of the Base Rent during the last month
of the Term (including any extensions), and any other sums due under this
Lease shall be payable in the amount, and at the times, specified in this
Lease. The month-to-month tenancy shall be subject to every other term,
condition, covenant and agreement contained in this Lease and Tenant shall
vacate the Premises immediately upon Landlord's request. [SEE ADDENDUM]
20. ACCESS TO PREMISES.
Tenant shall permit Landlord and its agents to enter the Premises at all
reasonable times, to inspect the Premises; to post Notices of
Nonresponsibility and similar notices and to show the Premises to
interested parties such as prospective mortgagors, purchasers and tenants;
to make necessary alterations, additions, improvements or repairs either
to the Premises, the Building, or other premises within the Building; and
to discharge Tenant's obligations hereunder when Tenant has failed to do
so within a reasonable time after written notice from Landlord. The above
rights are subject to reasonable security regulations of Tenant, and to
the requirement that Landlord shall at all times act in a manner to cause
the least possible interference with Tenant's operations. [SEE ADDENDUM]
21. SIGNS.
The size, design, color, location and other physical aspects of any sign
in or on the Building shall be subject to the CC&R's (if applicable),
Rules, Landlord's approval prior to installation, and to any appropriate
municipal or other governmental approvals. The costs of any permitted
sign, and the costs of its installation, maintenance and removal, shall be
at Tenant's sole expense and shall be paid within ten (10) days of
Tenant's receipt of a bill from Landlord for the costs. [SEE ADDENDUM]
22. WAIVER OF SUBROGATION.
Anything in this Lease to the contrary notwithstanding, Landlord and
Tenant each hereby waives and releases the other of and from any and all
rights of recovery, claim, action or cause of action against the other,
its subsidiaries, directors, agents, officers and employees, for any loss
or damage that may occur in the Premises, the Building or the Property; to
improvements to the Building or personal property (building contents)
within the Building; or to any furniture, equipment, machinery, goods and
supplies not covered by this Lease which Tenant may bring or obtain upon
the Premises or any additional improvements which Tenant may construct on
the Premises by reason of fire, the elements or any other cause which is
required to be insured against under this Lease, regardless of cause or
origin, including negligence of Landlord or Tenant and their agents,
subsidiaries, directors, officers and employees, to the extent insured
against under the terms of any insurance policies carried by Landlord or
Tenant and in force at the time of any such damage, [Intentionally
deleted]. Because this Section 22 will preclude the assignment of any
claim mentioned in it by way of subrogation or otherwise to an insurance
company or any other person, each party to this Lease agrees immediately
to give to each of its insurance companies written notice of the terms of
the mutual waivers contained in this Section 22 and to have the insurance
policies properly endorsed, if necessary, to prevent the invalidation of
the insurance coverages by reason of the mutual waivers contained in this
Section 22.
23. SUBORDINATION.
a. SUBORDINATE NATURE. Except as provided in Subsection b., this Lease
is subject and subordinate to all ground and underlying leases,
mortgages and deeds of trust which now or may hereafter affect the
Property, the Building or the Premises, to the CC&R's, and to all
renewals, modifications, consolidations, replacements and extensions
thereof. Within [Intentionally deleted] days after Landlord's
written request, Tenant shall execute any and all documents required
by Landlord, the lessor under any ground or underlying lease
("Lessor"), or the holder or holders of any mortgage or deed of
trust ("Holder") to make this Lease subordinate to the lien of any
lease, mortgage or deed of trust, as the case may be. [SEE ADDENDUM]
- -----------------------
[*] Information redacted pursuant to a confidential treatment request
throughout this exhibit.
9
<PAGE> 13
b. POSSIBLE PRIORITY OF LEASE. If a Lessor or a Holder advises Landlord
that it desires or requires this Lease to be prior and superior to a
lease, mortgage or deed of trust, Landlord may notify Tenant. Within
[Intentionally deleted] days of Landlord's notice, Tenant shall
execute, have acknowledged and deliver to Landlord any and all
documents or instruments, in the form presented to Tenant, which
Landlord, Lessor or Holder deems necessary or desirable to make this
Lease prior and superior to the lease, mortgage or deed of trust.
[SEE ADDENDUM]
c. RECOGNITION OR ATTORNMENT AGREEMENT. If Landlord or Holder requests
Tenant to execute a document subordinating this Lease, the document
shall provide that, so long as Tenant is not in default, Lessor or
Holder shall agree to enter into either a recognition or attornment
agreement with Tenant, or a new lease with Tenant upon the same
terms and conditions as to possession of the Premises, which shall
provide that Tenant may continue to occupy the Premises so long as
Tenant shall pay the Rent and observe and perform all the provisions
of this Lease to be observed and performed by Tenant. [SEE ADDENDUM]
24. TRANSFER OF THE PROPERTY.
Upon transfer of the Property and assignment of this Lease, Landlord shall
be entirely freed and relieved of all liability under any and all of its
covenants and obligations contained in or derived from this Lease
occurring after the consummation of the transfer and assignment, and from
all liability for the Security Deposit. Tenant shall attorn to any entity
purchasing or otherwise acquiring the Premises at any sale or other
proceeding.
25. ESTOPPEL CERTIFICATES.
Within ten (10) days following written request by Landlord, Tenant shall
execute and deliver to Landlord an estoppel certificate, in the form
prepared by Landlord. The certificate shall: (i) certify that this Lease
is unmodified and in full force and effect or, if modified, state the
nature of the modification and certify that this Lease, as so modified, is
in full force and effect, and the date to which the Rent and other charges
are paid in advance, if any; (ii) acknowledge that there are not, to
Tenant's knowledge, any uncured defaults on the part of Landlord
hereunder, or if there are uncured defaults on the part of the Landlord,
state the nature of the uncured defaults; (iii) evidence the status of
this Lease as may be required either by a lender making a loan to Landlord
to be secured by deed of trust or mortgage covering the Premises or a
purchaser of the Property from Landlord and (iv) such other information
that is reasonably requested.
26. MORTGAGEE PROTECTION.
In the event of any default on the part of Landlord, Tenant will give
notice by registered or certified mail to the address provided by Landlord
to any beneficiary of a deed of trust or mortgagee of a mortgage covering
the Property and shall offer the beneficiary or mortgagee a reasonable
opportunity to cure the default, [Intentionally deleted].
27. ATTORNEYS' FEES.
If either party shall bring any action or legal proceeding for damages for
an alleged breach of any provision of this Lease, to recover rent or other
sums due, to terminate the tenancy of the Premises or to enforce, protect
or establish any term, condition or covenant of this Lease or right of
either party, the prevailing party shall be entitled to recover, as a part
of the action or proceedings, or in a separate action brought for that
purpose, reasonable attorneys' fees and court costs as may be fixed by the
court or jury. [Intentionally deleted] [SEE ADDENDUM]
28. BROKERS.
Tenant warrants and represents that it has had no dealings with any real
estate broker or agent in connection with the negotiation of this Lease,
except for any brokers(s) specified in the Basic Lease Information, and
that it knows of no other real estate broker or agent who is or might be
entitled to a commission in connection with this Lease. Tenant shall
indemnify and hold harmless Landlord from and against any and all
liabilities or expenses arising out of claims made by any other broker or
individual for commissions or fees resulting from this Lease.
[SEE ADDENDUM]
29. PARKING.
Tenant shall have the right to park in the Building's parking facilities,
in common with other tenants of the Building, upon such terms and
conditions as may from time to time be established by Landlord. There
shall be no charge for any portion of the parking facilities which is not
reserved. Tenant agrees not to use in excess of its proportionate share of
parking facilities and agrees to cooperate with Landlord and other tenants
in the use of the parking facilities. Landlord reserves the right, in its
absolute discretion, to determine whether the parking
10
<PAGE> 14
facilities are becoming crowded and to allocate and assign parking spaces
among Tenant and the other tenants. Landlord shall not be liable to
Tenant, nor shall this Lease be affected, if any parking is impaired by
moratorium, initiative, referendum, law, ordinance, regulation or order
passed, issued or made by any governmental or quasi-governmental body.
Tenant shall not park its vehicles in any parking areas designated by
Landlord as areas for parking by visitors to the Building or other
reserved parking spaces. Tenant shall not park vehicles in the Building
parking areas other than automobiles, motorcycles, motor driven or
non-motor driven bicycles, or four-wheeled trucks. Tenant shall not leave
vehicles in the Building parking areas overnight without Landlord's prior
approval. Tenant and its agents, employees and invitees shall not park any
one vehicle in more than one parking space.
30. UTILITIES AND SERVICES.
[intentionally deleted] Landlord agrees to furnish, or cause to be
furnished, to the Premises the utilities and services described in the
standards for Utilities and Services, set forth in Exhibit E, subject to
the conditions and in accordance with the standards set forth therein.
Landlord shall not be liable for, and Tenant shall not be entitled to any
abatement or reduction of Rent by reason of, no eviction of Tenant shall
result from and, further, Tenant shall not be relieved from the
performance of any covenant or agreement in this Lease because of,
Landlord's failure to furnish any of the foregoing when the failure is
caused by accident, breakage, or repairs, strikes, lockouts or other labor
disturbance or labor dispute of any character, governmental regulation,
moratorium or other governmental action, inability despite the exercise of
reasonable diligence to obtain electricity, water or fuel, or by any other
cause beyond Landlord's reasonable control. In the event of any failure,
stoppage or interruption thereof, Landlord shall diligently attempt to
resume service. [SEE ADDENDUM]
31. TENANT PLACEMENT.
[intentionally deleted]
32. ACCEPTANCE.
Delivery of this Lease, duly executed by Tenant, constitutes an offer to
lease the Premises as set forth herein, and under no circumstances shall
such delivery be deemed to create an option or reservation to lease the
Premises for the benefit of Tenant. This Lease shall become effective and
binding only upon execution hereof by Landlord and delivery of a signed
copy to Tenant. [intentionally deleted] [SEE ADDENDUM]
33. USE OF BUILDING NAME.
Tenant shall not employ the name of the Building in the name or title of
its business or occupation without Landlord's prior written consent, which
consent Landlord may withhold in its sole discretion. Landlord reserves
the right to change the name of the Building without Tenant's consent and
without any liability to Landlord.
34. RECORDING.
Neither Landlord nor Tenant shall record this Lease, nor a short form
memorandum of this Lease, without the prior written consent of the other.
35. QUITCLAIM.
Upon any termination or expiration of this Lease pursuant to its terms,
Tenant, at Landlord's request, shall execute, have acknowledged and
deliver to Landlord a quitclaim deed of all Tenant's interest in the
Premises, Building and Property created by this Lease.
36. NOTICES.
Any notice or demand required or desired to be given under this Lease
shall be in writing and shall be given by hand delivery, facsimile or the
United States mail. Notices which are sent by facsimile shall be deemed to
have been given upon receipt. Notices which are mailed
11
<PAGE> 15
shall be deemed to have been given when seventy-two (72) hours have
elapsed after the notice was deposited in the United States mail,
registered or certified, the postage prepaid, addressed to the party to be
served. As of the date of execution of this Lease, the addresses of
Landlord and Tenant are as specified in the Basic Lease Information.
Either party may change its address by giving notice of the change in
accordance with this Section.
37. LANDLORD'S EXCULPATION.
In the event of default, breach or violation by Landlord (which term
includes Landlord's partners, co-venturers and co-tenants, and officers,
directors, members, employees, agents and representatives of Landlord and
Landlord's partners, co-venturers and co-tenants) of any of Landlord's
obligations under this Lease, Landlord's liability to Tenant shall be
limited to its ownership interest in the Building and Property or the
proceeds of a public sale of the ownership interest pursuant to the
foreclosure of a judgment against Landlord. Landlord shall not be
personally liable, or liable in any event, for any deficiency beyond its
ownership interest in the Building and Property.
38. ADDITIONAL STRUCTURES.
Any diminution or interference with light, air or view by any structure
which may be erected on land adjacent to the Building shall in no way
alter this Lease or impose any liability on Landlord.
39. GENERAL.
a. CAPTIONS. The captions and headings used in this Lease are for the
purpose of convenience only and shall not be construed to limit or
extend the meaning of any part of this Lease.
b. TIME. Time is of the essence for the performance of each term,
condition and covenant of this Lease.
c. SEVERABILITY. If any provision of this Lease is held to be invalid,
illegal or unenforceable, the invalidity, illegality, or
unenforceability shall not affect any other provision of this Lease,
but this Lease shall be construed as if the invalid, illegal or
unenforceable provision had not been contained herein.
d. CHOICE OF LAW; CONSTRUCTION. This Lease shall be construed and
enforced in accordance with the laws of the State of California. The
language in all parts of this Lease shall in all cases be construed
as a whole according to its fair meaning and not strictly for or
against either Landlord or Tenant.
e. GENDER; SINGULAR, PLURAL. When the context of this Lease requires,
the neuter gender includes the masculine, the feminine, a
partnership or corporation or joint venture, and the singular
includes the plural.
f. BINDING EFFECT. The covenants and agreements contained in this Lease
shall be binding on the parties hereto and on their respective
successors and assigns (to the extent this Lease is assignable).
g. WAIVER. The waiver of Landlord of any breach of any term, condition
or covenant of this Lease shall not be deemed to be a waiver of the
provision or any subsequent breach of the same or any other term,
condition or covenant of this Lease. The subsequent acceptance of
Rent hereunder by Landlord shall not be deemed to be a waiver of any
preceding breach at the time of acceptance of the payment. No
covenant, term or condition of this Lease shall be deemed to have
been waived by Landlord unless the waiver is in writing signed by
Landlord.
h. ENTIRE AGREEMENT. This Lease is the entire agreement between the
parties, and there are no agreements or representations between the
parties except as expressed herein. Except as otherwise provided
herein, no subsequent change or addition to this Lease shall be
binding unless in writing and signed by the parties hereto.
i. COUNTERPARTS. This Lease may be executed in counterparts, each of
which shall be an original, but all counterparts shall constitute
one (1) instrument.
j. EXHIBITS. The Basic Lease Information and all exhibits attached
hereto are hereby incorporated herein and made an integral part
hereof.
k. MULTIPLE ENTITIES COMPRISING TENANT. All persons and entities
comprising Tenant, including all general partners (if any) of
Tenant, are jointly and individually bound to perform each and every
obligation of Tenant under this Lease and are jointly and
individually liable to Landlord for Tenant's performance.
12
<PAGE> 16
l. ADDENDUM. The Addendum, if any, attached hereto is hereby
incorporated herein and made an integral part hereof.
m. WAIVER OF JURY TRIAL. Landlord and Tenant waive the right to trial
by jury in any action, proceeding or counterclaim brought by either
of the parties to this Lease against the other on any matters
whatsoever arising out of or in any way connecting with this Lease,
the relationship of Landlord and Tenant, or Tenant's use or
occupancy of the Premises. [SEE ADDENDUM]
IN WITNESS WHEREOF, THE PARTIES HAVE EXECUTED THIS LEASE ON THE DATES SET FORTH
BELOW, EFFECTIVE AS OF THE DATE FIRST ABOVE WRITTEN.
LANDLORD:
STONY POINT EAST,
A CALIFORNIA GENERAL PARTNERSHIP
DATE
EXECUTED: 4/26/99 BY: /s/ JAMES BRECHT
--------------- ------------------------------------
NAME:
-------------------------------
ITS:
--------------------------------
TENANT:
ADVANCED TELCOM GROUP,
A DELAWARE CORPORATION
DATE
EXECUTED: 4/26/99 BY: /s/ C. G. RUDOLPH
--------------- ------------------------------------
NAME: C. G. Rudolph
-------------------------------
ITS: Chairman & CEO
--------------------------------
DATE
EXECUTED: BY:
--------------- ------------------------------------
NAME:
-------------------------------
ITS:
--------------------------------
13
<PAGE> 17
EXHIBIT A
SITE PLAN
[MAP]
<PAGE> 18
EXHIBIT B
WORK LETTER
This Work Letter states Landlord's and Tenant's responsibilities,
respectively, for the construction of the Building; and the Premises.
1. DEFINED TERMS. Unless provided to the contrary herein, the following
defined terms shall have the meanings set forth below and the remaining defined
terms shall have the meanings set forth in the Lease:
Landlord's Representative: James W. Brecht
Tenant's Representative:
--------------------------------
Additional Allowance for
Tenant Improvements: [*]
2. LANDLORD'S WORK.
2.1. Building Shell/Site Work Interior Improvements and Tenant
Improvements. Landlord, at its sole cost and expense, shall arrange for the
construction by Landlord's contractor ("Landlord's Contractor") of (i) a
two-story building (the "Building Shell") consisting of approximately sixty-six
thousand eight hundred seventy-three (66,873) rentable square feet of space, in
accordance with the final working drawings and specifications (the "Building
Shell/Site Work Working Drawings), more particularly described in Exhibit B-1,
attached hereto and incorporated herein by reference; (ii) certain interior
improvements in the Building (the "Interior Improvements"), in accordance with
the final working drawings and specifications (the "Interior Improvements
Working Drawings"), listed on Exhibit B-2, attached hereto and incorporation
herein by reference, and (iii) certain tenant improvements in the Building (the
"Tenant Improvements") in accordance with the preliminary design (the "Tenant
Preliminary Design") and outline specifications (the "Tenant Improvement
Specifications"), each listed on Exhibit B-3, attached hereto and incorporated
herein by reference. The construction of the Building Shell/Site Work, the
Interior Improvements and the Tenant Improvements is hereinafter referred to as
"Landlord's Work."
2.2. Costs of Landlord's Work. Except as provided in Section 2.3 below,
Landlord shall pay for all fees incurred in connection with the construction of
Landlord's Work.
2.3. Tenant's Responsibility For Costs of Landlord's Work. Tenant shall
pay to Landlord, within ten (10) days after Landlord's written request therefor,
the positive difference between (i) Landlord's estimate of any additional costs
that Landlord anticipates it will incur in connection with the construction of
Landlord's Work as a result of any changes to Landlord's Work requested by
Tenant and approved by Landlord (which approval shall not be unreasonably
- -----------------------
[*] Information redacted pursuant to a confidential treatment request
throughout this exhibit.
<PAGE> 19
withheld) and (ii) the amount of the Additional Allowance for Tenant
Improvements available to pay for such costs.
2.4. Substantial Completion. The Building Shell/Site Work, the
Interior Improvements and the Tenant Improvements shall be deemed "Substantially
Complete" when (i) Landlord's Contractor has substantially completed the
Building Shell/Site Work, the Interior Improvements and the Tenant
Improvements, event though minor items may remain to be installed, finished or
corrected, provided such minor items do not have any material effect on the
ability of Tenant to utilize the Building Shell/Site Work, the Interior
Improvements and the Tenant Improvements for their intended purpose; and (ii)
Landlord delivers to Tenant a certificate from Landlord's architect ("Landlord's
Architect"), certifying (a) that the Building Shell/Site Work, the Interior
Improvements and the Tenant Improvements are "Substantially Complete" in
accordance with the terms of this Work Letter and (b) the date on which the
Building Shell/Site Work, the Interior Improvements and the Tenant Improvements
were Substantially Completed. Landlord shall use diligent efforts to obtain and
furnish Tenant with a "finaled" building permit with respect to the Building
Shell/Site Work, the Interior Improvements and the Tenant Improvements after
completing the Building Shell/Site Work, the Interior Improvements and the
Tenant Improvements. Substantial Completion shall have occurred notwithstanding
Tenant's submission of a punchlist to Landlord, which Tenant and Landlord shall
develop jointly within thirty (30) days after the Commencement Date. The
punchlist shall be based upon an inspection of the Premises by Landlord's
Representative and Tenant's Representative. Landlord shall commence and use
commercially reasonable efforts to complete any items of Landlord's Work not
completed as of the Commencement Date within thirty (30) days after the
Commencement Date.
2.5. Warranty. Notwithstanding anything to the contrary in the
Lease, effective as of the date upon which Landlord delivers possession of the
Premises to Tenant, Landlord does hereby warrant that (a) the construction of
Landlord's Work was performed in accordance with all rules, regulations, codes,
statutes, ordinances, and laws of all governmental and quasi-governmental
authorities, in accordance with the Building Shell/Site Work Working Drawings
and the Tenant Improvement Specifications (collectively, the "Plans"), and in a
good and workman-like manner, (b) all material and equipment installed therein
conformed to the Plans and was new and otherwise of good quality, (c) the
electrical, plumbing, and mechanical systems servicing the Premises are in
working order and in good condition, and (d) the roof is in good condition and
water tight.
3. ADDITIONAL TENANT IMPROVEMENTS.
3.1. Responsibility for Tenant Improvements. Tenant shall be
responsible for all costs of any additional improvements to the Premises (the
"Additional Tenant Improvements"), including architectural, engineering,
consultant, utility, development, transaction and building permit and impact
fees (subject only to Landlord's obligation to provide the Additional Allowance
for Tenant Improvements and set forth below), and all trade fixtures, equipment,
furniture or other improvements installed by Tenant in the Premises. The
Additional Tenant Improvements shall be treated as alterations and shall be
subject to the terms of Section 9 of the Lease, as modified by this Work Letter.
The design, permitting and construction of the
2
<PAGE> 20
Additional Tenant Improvements are hereinafter collectively referred to as the
"Additional Tenant Improvement Work."
3.2. Tenant's Architect and Contractor. If Tenant's architect is an
architect other than Simons & Brecht Inc., or Tenant's Contractor (as
hereinafter defined) is a contractor other than Landlord's Contractor, then,
prior to commencing the Additional Tenant Improvement Work, Tenant shall obtain
Landlord's prior written consent to Tenant's architect and contractor. Landlord
shall not unreasonably withhold its approval of any architect or contractor
selected by Tenant. Tenant's architect and contractor must each be licensed to
do business in California The architect and the contractor selected by Tenant
and approved by Landlord (as provided above) are hereinafter referred to as
"Tenant's Architect" and "Tenant's Contractor," respectively.
3.3. Changes. Tenant shall not make any material changes to the Building
Shell/Site Work Working Drawings, the Interior Improvements Working Drawings or
the Tenant Improvement Specifications described in Exhibit B-1, Exhibit B-2
and Exhibit B-3 respectively, without Landlord's prior written approval, which
approval shall not be unreasonably withheld or delayed. All material changes to
the Building Shell/Site Work Working Drawings, the Interior Improvements
Working Drawings or the Tenant Improvements Specifications must be in writing
and signed by both Landlord and Tenant prior to the change being made. Tenant
shall be responsible for all additional costs attributable to changes requested
by Tenant, including, without limitation, additional architectural fees and
increases in construction costs of Landlord's Work and the Additional Tenant
Improvements Work.
3.4. Notice. If Tenant's Contractor is not the same as Landlord's
Contractor, Tenant shall provide Landlord with not less than ten (10) days'
written notice prior to the commencement of any Additional Tenant Improvement
Work and permit Landlord to post on the Premises such notices of
nonresponsibility as may be required or otherwise available to Landlord.
Landlord, at its option, may require Tenant to provide to Landlord, at Tenant's
sole cost and expense, a lien and completion bond in an amount equal to the
estimated cost of the Additional Tenant Improvement Work (as reasonably
determined by Landlord) to insure Landlord against liability for mechanic's and
materialmen's liens and to insure completion of the Additional Tenant
Improvement Work.
3.5. Costs. Tenant shall promptly pay any and all costs and expenses in
connection with or arising out of the Additional Tenant Improvement Work and
shall furnish to Landlord evidence of such payment upon request. If the
Additional Improvement Work is to be performed by Tenant's Contractor, upon
completion of the Additional Tenant Improvement Work, Tenant shall deliver to
Landlord a release and waiver of lien executed by each contractor,
subcontractor and materialman concerned with the Additional Tenant Improvement
Work. In the event any lien is filed against the Premises or any portion
thereof or against Tenant's leasehold interest therein, Tenant shall record in
the Official Records of Sonoma County a release bond executed by an admitted
surety insurer authorized to issue surety bonds in the State of California with
respect to the lien or shall obtain the release and/or discharge of the lien
within seven (7) days after the filing thereof. In the event Tenant fails to do
so, Landlord may, after notice to Tenant, obtain release and/or discharge of the
lien and Tenant shall indemnify Landlord for the costs thereof, including
reasonable attorneys' fees, together with interest at the Interest Rate from
the date of demand.
3
<PAGE> 21
3.6. Indemnity. Tenant shall indemnify, protect, defend (with counsel
satisfactory to Landlord) and hold harmless Landlord and its officers,
directors, employees, shareholders, partners and members from and against any
and all suits, claims, actions, loss, costs or expense (including claims for
workers' compensation, attorneys' fees and costs) based on personal injury or
property damage caused in, or contract claims (including, claims for breach of
warranty) arising from, the performance of the Additional Tenant Improvement
Work. Tenant shall repair or replace any portion of the Building or item of
Landlord's equipment or Landlord's Contractor's equipment or any of Landlord's
real or personal property damaged, lost or destroyed in the performance of the
Additional Tenant Improvement Work.
3.7. Insurance. Within fifteen (15) days after the approval of
Tenant's Contractor, Tenant and Tenant's Contractor shall obtain and provide
Landlord with certificates evidencing workers' compensation, public liability
and property damage insurance in amounts and forms and with companies reasonably
satisfactory to Landlord.
4. COOPERATION. Tenant shall cooperate and diligently assist Landlord's
Architect and Landlord's Contractor in completing the preliminary plans and
working drawings and specifications for Landlord's Work. Tenant and Tenant's
Contractor shall not interfere with Landlord's construction of Landlord's Work.
5. ADDITIONAL ALLOWANCE FOR TENANT IMPROVEMENTS.
5.1. Allowance. Landlord shall make available to Tenant upon the
terms and conditions set forth below an additional allowance for tenant
improvements (the "Additional Allowance for Tenant Improvements") in the amount
of [*]. Tenant may use the Additional Allowance for Tenant Improvements to pay
for Additional Tenant Improvement Allowance Items and any charges pursuant to
Section 2.3 of this Work Letter.
5.2. Additional Tenant Improvement Allowance Items. The term
"Additional Tenant Improvement Allowance Items" shall include work performed and
materials furnished in connection with the construction of the Additional Tenant
Improvements pursuant to this Work Letter and charges pursuant to Section 2.3 of
this Work Letter. If there is any Additional Allowance for Tenant Improvements
remaining after completion of, and payment of all amounts due in connection
with, all of the Additional Tenant Improvements and payment of all charges
pursuant to Section 2.3 of this Work Letter, Tenant shall have the right to use
the remaining amount of the Additional Allowance for Tenant Improvements for
trade fixtures, furniture, furnishings, equipment (except electrical, mechanical
and plumbing systems, including HVAC systems), or design, engineering,
architectural, utility and permit fees and/or the payment of rent under this
Lease.
6. TENANT DELAYS.
6.1. Commencement Date. If Landlord fails to Substantially Complete
the Building Shell/Site Work, the Interior Improvements or the Tenant
Improvements on or before the Estimated Commencement Date, or thereafter, and if
the cause of the delay in Landlord delivering the Premises to Tenant by the
Estimated Commencement Date, or thereafter, is
- -----------------------
[*] Information redacted pursuant to a confidential treatment request
throughout this exhibit.
4
<PAGE> 22
attributable to Tenant, then the Commencement Date for all purposes under the
Lease will be the day on which the Building Shell/Site Work, the Interior
Improvements and the Tenant Improvements would have been Substantially Complete
absent such Tenant Delays (defined below).
6.2. Tenant Delays. Delays attributable to Tenant ("Tenant Delays")
shall include any interference with or delay in the completion of Landlord's
Work or the Additional Tenant Improvement Work (to the extent performed by
Landlord or Landlord's Contractor) caused by:
6.2.1. Tenant, Tenant's Architect, Tenant's Contractor or any
representative, employee, agent or subcontractor of any of the aforementioned
parties;
6.2.2. Tenant's early entry in the Premises or failure to
perform its obligations under this Lease;
6.2.3. Tenant's change requests that result in delays; or
6.2.4. Tenant's failure to provide approvals or disapprovals
in a timely manner, to the extent the approvals are necessary.
7. REPRESENTATIVES.
7.1. Tenant's Representative. Tenant has designated Tenant's
Representative as its sole representative with respect to the matters set forth
in this Work Letter, who shall have full authority and responsibility to act on
behalf of Tenant as required in this Work Letter. Tenant shall not change
Tenant's Representative without notice to Landlord.
7.2. Landlord's Representative. Landlord has designated Landlord's
Representative as its sole representative with respect to the matters set forth
in this Work Letter, who shall have full authority and responsibility to act on
behalf of Landlord as required in this Work Letter. Landlord shall not change
Landlord's Representative without notice to Tenant.
8. FORCE MAJEURE. Whenever a period of time or a specific date is
prescribed in this Work Letter or the Lease for action to be taken by Landlord,
Landlord shall not be liable or responsible for, and there shall be excluded
from the computation for any such period of time (or the specified date shall be
deferred by the number of days of) any delays in the obtaining of any permits
for and in the construction of the work to be performed by such party caused by
any action, claim, inaction, order, ruling, moratorium, regulation, statute,
condition or other decision of any governmental agency having jurisdiction over
any portion of the Property, over the construction anticipated to occur thereon
or over any uses thereof or by fire, flood, inclement weather (including rain),
strikes, lockouts or other labor or industrial disturbance, civil disturbance,
order of any government, court or regulatory body claiming jurisdiction or
otherwise, act of public enemy, war, riot, sabotage, blockage, embargo, failure
of inability to secure materials, supplies or labor through ordinary sources by
reason of shortages or priority or similar regulation, order of any government
or regulatory body, lightning, earthquake, storm, hurricane, tornado, washout,
explosion or any cause whatsoever beyond the reasonable control of the party
where performance is required, or any of its contractors or other
representatives,
5
<PAGE> 23
whether or not similar to any of the causes hereinabove stated (each an "Event
of Force Majeure").
6
<PAGE> 24
EXHIBIT B-1
BUILDING SHELL/SITE WORK WORKING DRAWINGS & SPECIFICATIONS
Attached hereto and made a part of this Lease.
<PAGE> 25
EXHIBIT B-2
LOBBY/CORRIDOR INTERIOR IMPROVEMENT WORKING DRAWINGS
&
SPECIFICATIONS
Attached hereto and made a part of this Lease.
<PAGE> 26
EXHIBIT B-3
TENANT PRELIMINARY DESIGN
&
OUTLINE TENANT IMPROVEMENT SPECIFICATIONS
Attached hereto and made a part of this Lease.
<PAGE> 27
TO BE COMPLETED UPON OCCUPANCY
EXHIBIT C
COMMENCEMENT DATE MEMORANDUM
LANDLORD:
a
TENANT:
a
LEASE DATE:
PREMISES:
Santa Rosa, California 95401
Pursuant to Section 2.d. of the above-referenced Lease, the Commencement Date
hereby is established as ________________, and the Expiration Date hereby is
established as ________________.
LANDLORD
a
By
------------------------------------------
Name:
-------------------------------------
Its:
--------------------------------------
TENANT
a
By
------------------------------------------
Name:
-------------------------------------
Its:
--------------------------------------
<PAGE> 28
EXHIBIT D
RULES AND REGULATIONS
1. No sign, placard, picture, advertisement, name or notice shall be installed
or displayed on any part of the outside or inside of the Building without
the prior written consent of Landlord. Landlord shall have the right to
remove, at Tenant's expense, any sign installed or displayed in violation of
this rule. All approved signs or lettering on doors and walls shall be
painted, affixed or inscribed at the expense of Tenant by a person chosen by
Landlord.
2. The directory of the Building will be provided exclusively for the display
of the name and location of tenants, and Landlord reserves the right to
exclude any other names therefrom. Tenant shall pay Landlord's standard
charge for any changes by Tenant.
3. Except as consented to in writing by Landlord or in accordance with Building
standard improvements, no draperies, curtains, shades, screens or other
devices shall be hung at or used in connection with any window or exterior
door or doors on the Premises. No awning shall be permitted on any part of
the Premises. Tenant shall not place anything against or near glass
partitions or doors or windows which may appear unsightly from outside the
Premises.
4. Tenant shall not obstruct any sidewalks, halls, lobbies, passages, exits,
entrances, elevators or stairways of the Building. No tenant and no employee
or invitee of any tenant shall go upon the roof of the Building or make any
roof or terrace penetrations. Tenant shall not allow anything to be placed
on the outside terraces or balconies without the prior written consent of
Landlord.
5. No Tenant shall invite to the Premises, or permit the visit of, persons in
such numbers or under such conditions as to interfere with the use and
enjoyment of the Common Areas of the Building by other tenants.
6. All cleaning and janitorial services for the Building shall be provided
exclusively through Landlord, and, except with the written consent of
Landlord, no person or persons other than those approved by the Landlord
shall be employed by Tenant or permitted to enter the Building for the
purpose of cleaning. Tenant shall not cause any unnecessary labor by
carelessness or indifference to the good order and cleanliness of the
Premises. Landlord shall not in any way be responsible for any loss of
property on the Premises, however occurring , or for any damage to any
Tenant's property by the janitor or any other employee or person.
7. Landlord will furnish Tenant, free of charge, one (1) key to Tenant's suite
entrance for each two hundred fifty (250) rentable square feet of the
Premises. Landlord may make a reasonable charge for any additional keys and
for having any locks changed. Tenant shall not make or have made additional
keys without Landlord's prior written consent, and Tenant shall not alter
any lock or install a new additional lock or bolt on any door of its
Premises without Landlord's prior written consent. Tenant shall deliver to
Landlord, upon the termination of its tenancy, the keys to all locks for
doors on the Premises. If Tenant loses any keys furnished by Landlord,
Tenant shall pay Landlord the cost of rekeying the Premises.
8. If Tenant requires telegraphic, telephonic, burglar alarm or similar
services, it shall first obtain, and comply with, Landlord's instructions
for their installation.
9. The elevators shall be available for use by all tenants in the Building,
subject to reasonable scheduling as Landlord in its discretion shall deem
appropriate. No equipment, materials, furniture, packages, supplies,
merchandise or other property will be received in the Building or carried in
the elevators except between the hours, in the manner and in the elevators
as may be designated by the Landlord.
10. Tenant shall not place a load upon any floor of the Premises which exceeds
the maximum load per square foot which the floor was designed to carry and
which is allowed by law. Tenant's business machines and mechanical equipment
which cause noise or vibration which may be transmitted to the structure of
the Building or to any space therein, and which is objectionable to Landlord
or to any tenants in the Building shall be placed and maintained by the
Tenant, at Tenant's expense, on vibration eliminators or other devices
sufficient to eliminate noise or vibration.
11. Tenant shall not use or keep in the Premises any toxic or hazardous
materials or any kerosene, gasoline or inflammable or combustible fluid or
material other than those limited quantities necessary for the operation or
maintenance of office equipment. Tenant shall not use or permit to be used
in the Premises any foul or noxious gas or substance, or permit or allow the
Premises to be occupied or used in a manner offensive or objectionable to
Landlord or other occupants of the Building by reason of noise, odors or
vibrations. No animal, except seeing eye dogs when in the company of their
masters, may be brought into or kept in the Building.
12. Tenant shall not use any method of heating or air-conditioning other than
that supplied by Landlord, unless Tenant receives the prior written consent
of Landlord.
1
<PAGE> 29
13. Tenant shall cooperate fully with Landlord to assure the most effective
operation of the Building's heating and air-conditioning and to comply with
any governmental energy-saving rules, laws or regulations of which Tenant
has actual notice. Tenant shall refrain from attempting to adjust controls
other than room thermostats installed for Tenant's use.
14. All entrance doors to the Premises shall be left locked when the Premises
are not in use, and all doors opening to public corridors shall be kept
closed except for normal ingress and egress to and from the Premises.
15. Landlord reserves the right, exercisable without notice and without
liability to Tenant, to change the name and street address of the Building.
16. Landlord reserves the right to exclude any person from the Building after
normal business hours, unless that person is known to the person or employee
in charge of the Building or is properly identified. Tenant shall be
responsible for all employees, clients or visitors and shall be liable to
Landlord for all acts of those persons. Landlord shall not be liable for
damages for any error in admitting or excluding any person from the
Building. Landlord reserves the right to prevent access to the Building by
closing the doors or by other appropriate action in case of invasion, mob,
riot, public excitement or other commotion.
17. Tenant shall close and lock the door of its Premises, shut off all water
faucets or other water apparatus and turn off all lights and other equipment
which is not required to be continuously run. Tenant shall be responsible
for any damage or injuries sustained by other tenants or occupants of the
Building or Landlord for noncompliance with this Rule.
18. The toilet rooms, toilets, urinals, wash bowls and other apparatus shall not
be used for any purpose other than that for which they were constructed, and
no foreign substance of any kind whatsoever shall be placed therein. The
expense of any breakage, stoppage or damage resulting from any violation of
this rule shall be borne by the tenant who, or whose employees or invitees,
shall have caused it.
19. Tenant shall not install any radio or television antenna, loudspeaker or
other device on the roof or exterior walls of the Building. Tenant shall not
interfere with radio or television broadcasting or reception from or in the
Building or elsewhere.
20. Tenant shall not cut or bore holes for wires in the partitions, woodwork or
plaster of the Premises. Tenant shall not affix any floor covering to the
floor of the Premises in any manner except as approved by Landlord. Landlord
shall approve in writing the method of attachment of any objects affixed to
walls, ceilings or doors in the Premises. Tenant shall repair, or be
responsible for the cost of repair of, any damage resulting from
noncompliance with this rule.
21. Tenant shall not install, maintain or operate upon the Premises any vending
machine without the prior written consent of Landlord.
22. Canvassing, soliciting and distributing handbills or any other written
material and peddling in the Building are prohibited, and each tenant shall
cooperate to prevent these activities.
23. Landlord reserves the right to exclude or expel from the Building any person
who, in the Landlord's judgment, is intoxicated or under the influence of
liquor or drugs, or who is in violation of any of the Rules and Regulations
of the Building.
24. Tenant shall store all its trash and garbage within its Premises. Tenant
shall not place in any trash box or receptacle any material which cannot be
disposed of in the ordinary and customary manner of trash and garbage
disposal within the Building. All garbage and refuse disposal shall be made
in accordance with directions issued from time to time by Landlord.
25. Use by Tenant of Underwriters' Laboratory approved equipment for brewing
coffee, tea, hot chocolate and similar beverages and microwaving food shall
be permitted, provided that the equipment and use is in accordance with all
applicable federal, state, county and city laws, codes, ordinances, rules
and regulations.
26. Tenant shall not use the name of the Building in connection with or in
promoting or advertising the business of Tenant, except as Tenant's address,
without the written consent of Landlord.
27. Tenant shall comply with all safety, fire protection and evacuation
procedures and regulations established by Landlord or any governmental
agency. Tenant shall be responsible for any increased insurance premiums
attributable to Tenant's use of the Premises, Building or Property.
28. Tenant assumes any and all responsibility for protecting its Premises from
theft and robbery, which responsibility includes keeping doors locked and
other means of entry to the Premises closed.
29. Tenant shall not use the Premises, or suffer or permit anything to be done
on, in or about the Premises, which may result in an increase to Landlord in
the cost of insurance maintained by Landlord on the building and Common
Areas.
2
<PAGE> 30
30. Tenant's requests for assistance will be attended to only upon appropriate
application to the office of the Building by an authorized individual.
Employees of Landlord shall not perform any work or do anything outside of
their regular duties unless under special instructions from Landlord, and no
employee of Landlord will admit any person (Tenant or otherwise) to any
office without specific instructions from Landlord.
31. Tenant shall not park its vehicles in any parking areas designated by
Landlord as areas for parking by visitors to the Building or other reserved
parking spaces. Tenant shall not leave vehicles in the Building parking
areas other than automobiles, motorcycles, motor driven or non-motor driven
bicycles or four-wheeled trucks. Tenant shall not leave vehicles in the
Building parking areas overnight. Tenant, its agents, employees and invitees
shall not park any one (1) vehicle in more than one (1) parking space.
32. The scheduling and manner of all Tenant move-ins and move-outs shall be
subject to the discretion and approval of Landlord, and move-ins and
move-outs shall take place only after 6:00 p.m. on weekdays, on weekends, or
at other times as Landlord may designate. Landlord shall have the right to
approve or disapprove the movers or moving company employed by Tenant, and
Tenant shall cause the movers to use only the entry doors and elevators
designated by the Landlord. If Tenant's movers damage the elevator or any
other part of the Property, Tenant shall pay to Landlord the amount required
to repair the damage.
33. No cooking shall be permitted on the Premises, except with a microwave oven,
nor shall the Premises be used for the storage of merchandise, for washing
clothes, for lodging or for any improper, objectionable or immoral purpose.
34. Landlord shall have the right to control and operate the public portions of
the Building, and the public facilities, heating and air conditioning, as
well as facilities furnished for the common use of the tenants, in such
manner as it deems best for the benefit of the tenants generally.
35. Landlord may waive any one or more of these Rules and Regulations for the
benefit of Tenant or any other tenant, but no waiver by Landlord shall be
construed as a waiver of the Rules and Regulations in favor of Tenant or any
other tenant, nor prevent Landlord from thereafter enforcing the Rules and
Regulations against any or all of the tenants of the Building.
36. These Rules and Regulations are in addition to, and shall not be construed
to in any way modify or amend, in whole or in part, the terms, covenants,
agreements and conditions of any lease of premises in the building.
37. Landlord reserves the right to make other reasonable Rules and Regulations
as, in its judgment, may from time to time be needed for safety and
security, for care and cleanliness of the Building and for the preservations
of good order therein. Tenant agrees to abide by all Rules and Regulations
hereinabove stated and any additional rules and regulations which are
adopted.
38. Tenant shall be responsible for the observance of all of the foregoing rules
by Tenant's employees, agents, clients, customers, invitees and guests.
3
<PAGE> 31
EXHIBIT E
UTILITIES AND SERVICES
The standards set forth below for Utilities and Services are in effect. Landlord
reserves the right to adopt nondiscriminatory modifications and additions
hereto, which do not materially affect Tenant's rights. Landlord shall give
notice to Tenant, in accordance with provisions of this Lease, of material
modification and additions.
1. PROVISION BY LANDLORD.
As long as Tenant is not in default under any of the terms of this
Lease, Landlord shall provide:
a. ELEVATOR. Where applicable, provide unattended automatic
elevator facilities Monday through Friday, except holidays, from
8:00 a.m. to 6:00 p.m., and have at least one elevator available
at all other times.
b. VENTILATION. Ventilate the Premises and furnish air-conditioning
or heating Monday through Friday, except holidays, from 8:00
a.m. to 6:00 p.m. (and at other times for the additional charges
described in Paragraph 2) to the extent required for the
comfortable occupancy of the Premises, subject to governmental
regulation. The air-conditioning system achieves maximum cooling
when the window coverings and sliding glass doors are closed.
Landlord shall not be responsible for room temperatures if
Tenant does not keep all sliding glass doors in the Premises
closed whenever the system is in operation. Tenant shall
cooperate to the best of its ability at all times with Landlord
and shall abide by all reasonable regulations and requirements
which Landlord may prescribe for the proper functioning and
protection of the air-conditioning system. Tenant shall not
connect any apparatus, device, conduit or pipe to the Building's
chilled and hot water air-conditioning supply lines. Tenant and
Tenant's servants, employees, agents, visitors, licensees or
contractors shall not enter at any time the mechanical
installations or facilities of the Building, or adjust, tamper
with, touch or otherwise in any manner affect the installations
or facilities. If any installation of partitions, equipment or
fixtures by Tenant necessitates the re-balancing of the climate
control equipment in the Premises, the re-balancing shall be
performed by Landlord at Tenant's expense.
c. ELECTRICITY. Subject to the provisions of Paragraph 2, furnish
to the Premises electric current as required by the Building
standard office lighting and fractional horsepower office
business machines in the amount of approximately one and
eight-tenths (1.8) watts per square foot. If Tenant's electrical
installation or electrical consumption is in excess of the
quantity described above, or extends beyond normal business
hours, Tenant shall reimburse Landlord monthly for the measured
consumption. Tenant shall not connect any apparatus or device
with wires, conduits or pipes, or other means by which the
services are supplied, for the purpose of using additional or
unusual amounts of the services without the prior written
consent of Landlord. At all times Tenant's use of electric
current shall not exceed the capacity of the feeders to the
Building or the risers or wiring installation, except as
provided in working drawings approved by Landlord.
d. WATER. Make water available in public areas for drinking and
lavatory purposes only.
e. JANITORIAL SERVICE. Provide building standard janitorial service
to the Premises, provided the Premises are used exclusively as
offices, and are kept reasonably in order by Tenant. Tenant
shall pay to Landlord any cost incurred by Landlord for
janitorial services in excess of those generally provided for
other tenants in the Building.
2. ADDITIONAL CHARGES.
Landlord may impose a reasonable charge for any utilities and services,
including air-conditioning, electric current, water and janitorial
service, required to be provided by Landlord by reason of (i) any use of
the Premises at any time other than between the hours of 8:00 a.m. and
6:00 p.m. Monday through Friday, except holidays; (ii) any use beyond
what Landlord agrees to furnish as described above; or (iii) special
electrical, cooling and ventilating needs created in certain areas by
hybrid telephone equipment, computers and other similar equipment or
uses.
3. RULES AND REGULATIONS.
Tenant agrees to cooperate at all times with Landlord and to abide by
all reasonable regulations and requirements which Landlord may prescribe
for the use of the utilities and services. Any failure to pay any excess
costs as described above with the next installment of Rent due after
receipt of a statement for such services shall constitute a breach of
the obligation to pay Rent under this Lease and shall entitle Landlord
to the rights granted in this Lease for a breach.
1
<PAGE> 32
4. STOPPING OF SERVICE.
Landlord reserves the right to stop services of the elevator, plumbing,
ventilation, air-conditioning and electric systems when necessary by
reason of accident or emergency, or for repairs, alterations or
improvements, in the judgment of Landlord desirable or necessary to be
made, until the repairs, alterations or improvements have been
completed. Landlord shall have no responsibility or liability for
failure to supply elevator facilities, plumbing, ventilating,
air-conditioning or electric service when prevented by strike or
accident or by any cause beyond Landlord's reasonable control, or by
laws, rules, orders, ordinances, directions, regulations or requirements
of any federal, state, county or municipal authority or failure of gas,
oil or other suitable fuel supply or inability by exercise of reasonable
diligence to obtain gas, oil or other suitable fuel. It is expressly
understood and agreed that any covenants on Landlord's part to furnish
any service pursuant to any of the terms, covenants, conditions,
provisions or agreements of this Lease, or to perform any act or thing
for the benefit of Tenant, shall not be deemed breached if Landlord is
unable to furnish or perform the same by virtue of a strike or labor
trouble or any other cause whatsoever beyond Landlord's reasonable
control.
5. NOTICE.
To the extent practical, Landlord shall attempt to give Tenant notice of
proposed shutdowns of services.
6. TELECOMMUNICATIONS RISERS AND CABLING
Landlord shall not be responsible for the installation , operation or
maintenance of any telecommunication risers and cabling from the minimum
point of entry to the Building and, except to the extent of the gross
negligence or willful misconduct of Landlord and its agents or
contractors, Landlord shall have no liability to Tenant if, for whatever
reason, service to the telecommunication risers and/or cabling fails.
7. AFTER HOURS UTILITIES
After hours HVAC service is available at the following rate: $15.00 per
unit per hour for an individual request (two hour minimum if not
immediately following or preceding normal Building business hours); and
$10.00 per hour if service is scheduled year round.
Requests for after hours HVAC must be made during business hours no
later than forty-eight (48) hours prior to start of additional service.
Landlord shall use its best efforts to accommodate all requests for
after hours HVAC whenever received.
8. BUILDING HOLIDAYS
New Years Day
Memorial Day
Independence Day
Labor Day
Thanksgiving Day
Day After Thanksgiving
Christmas Day
On the above holidays, the Building is closed but Tenant keys will
access the Premises. All utilities except HVAC (unless requested by
Tenant) are provided. Janitorial service is not provided.
When a holiday falls on a Sunday, the Building will normally observe the
holiday the following Monday. When a holiday falls on a Saturday, the
Building will normally observe the holiday the preceding Friday.
2
<PAGE> 33
EXHIBIT F
[HARDING LAWSON ASSOCIATES LETTERHEAD]
September 15, 1988
1872,002.02
Stony Point West
709 Second Street
Santa Rosa, California 95404
Attention: Mr. Albert Kovanis
Gentlemen:
HAZARDOUS MATERIALS SITE ASSESSMENT
STONEY POINT ROAD PARCELS
SANTA ROSA, CALIFORNIA
This letter presents the results of a hazardous materials site assessment
conducted by Harding Lawson Associates (HLA) for an approximate 20-acre site
located at the intersection of West 9th Street and Stony Point Road in Santa
Rosa, California (Plate 1). The purpose of the assessment was to evaluate
whether past or present generation, use, storage or disposal of hazardous
materials occurred on the site and/or adjacent properties and whether such
materials could impact site development and/or require mitigation.
SCOPE OF SERVICES
To evaluate the potential impact of hazardous materials on the site, HLA's
investigation consisted of the following:
- - Reviewing documents and aerial photographs related to historical
development of the site and adjacent property.
- - Contacting appropriate regulatory agencies for hazardous materials
information concerning the site and the surrounding area located
approximately within one-quarter mile of site boundaries; inquiries were
made regarding documentation of toxic spills, underground tanks, the use,
storage, disposal and/or generation of hazardous materials, and violations
of applicable environmental control standards.
- - Reviewing selected reports for information pertaining to soil and
ground-water contamination.
<PAGE> 34
September 15, 1988
1872,002.02
Mr. Albert Kovanis
Stony Point West
Page 2
- - Conducting an on-site inspection and off-site reconnaissance to identify
visible evidence of hazardous materials generation, use, storage, spills
or disposal.
- - Evaluating findings and preparing this report.
SITE DESCRIPTION
The site consists of four adjacent parcels of land near the intersection of
West 9th Street and Stony Point Road. The southern most parcel, AP Number
10-320-22, is a triangular piece of property bounded by West 9th Street to the
northwest, Stoney Point Road to the southwest, and existing residential
developments to the east. The southern tip of this property is adjacent to
Santa Rosa Creek. The remaining three parcels, A.P. Numbers 10-320-25, 26, and
27 comprise on continuous, irregularly shaped property, which is bounded by West
9th Street to the southwest, Stony Point Road to the southwest, undeveloped City
of Santa Rosa owned property to the northwest, and residential developments to
the north and east. All parcels are currently undeveloped and covered with
dried, volunteer grasses. The parcels are relatively flat, with the exception of
an approximately 5 foot high beam constructed adjacent to Stony Point Road and
West 9th Street on the irregularly shaped property.
SITE HISTORY
The study area, which includes the site and the surrounding areas, were used
for agricultural endeavor until the 1960s. Agriculture activity included the
growing of annual crops and fruit orchards. Since the end of agricultural
activities in the mid-1960s, the site has remained vacant and unused.
Development of the surrounding areas began in the 1950s with the construction of
Santa Rosa's wastewater treatment facility on West College Avenue. Two storage
ponds, which store an approximate 55 acre feet of treated wastewater, were built
at this time. Further development in the surrounding areas occurred during the
late 1960s and early 1970s. During this time, Stony Point Road, which previously
ended south of Santa Rosa Creek, was continued to the intersection of West
College Avenue and Marlow Road, approximately 1/4-mile northwest of the site.
Construction of residential subdivisions east of the property commenced during
this time period and continued through the 1970s. Stony Point West Business
Park, located west of the site, was constructed in the early 1980s.
AERIAL PHOTOGRAPH REVIEW
Historical and current land uses of the site and adjacent areas were reviewed
by examining aerial photographs at the Sonoma County Assessor's Office and at
Pacific Aerial Surveys in Oakland. Aerial photographs were taken in 1961, 1971,
1980, and 1986.
<PAGE> 35
September 15, 1988
1872,002.02
Mr. Albert Kovanis
Stony Point West
Page 3
In the May 1961 photograph, the site and surrounding areas are either orchards
or plowed. The Santa Rosa Waste Water Plant is the only major development in
the area.
Photographs in May 1971 show Stony Point Road completed along the site's
southwest property line. Agricultural activities at the site and adjacent areas
appear to have ended by this time. Initial grading for the residential
development east of the site is also shown. Photographs taken in July 1980 and
April 1986 show continued development of the surrounding residential areas and
construction of Stony Point Business Park on the southwest side of Stony Point
Road.
ON-SITE INSPECTION
An on-site inspection was performed by an HLA representative on August 17,
1988, to identify visual signs of potential liability related to improper
dumping of hazardous materials, surface impoundments, abandoned drums, or the
presence of aboveground or underground storage tanks. No visual signs of
potential contamination of any consequence were noted.
Small quantities of landscaping debris, consisting mainly of lawn cuttings,
were present on the northern property. Additionally, stockpiles of soil were
also present in the same area. Conversations with Mr. James Brecht indicate
that this soil was placed during construction the Stony Point Business Park,
southwest of Stony Point Road.
OFF-SITE RECONNAISSANCE
Reconnaissance of the area within 1/4-mile of the site was performed on August
17, 1988. No sources of hazardous materials in the form of storage tanks,
spills, or manufacturing processes that use hazardous materials were
identified. No businesses that might generate significant quantities of toxic
or hazardous materials are within 1/4-mile of the site.
AGENCY DISCUSSIONS
The following agency representatives were contacted regarding their knowledge
of potential or known environmental concerns at the site or surrounding
properties.
- - Janet Naito
California Department of Health Services (DOHS), Emeryville
Phone No.: 415/540-2043 Date: August 25, 1988
- - Luis Rivera
Regional Water Quality Control Board (RWQCB), North Coast Division
Phone No.: 707/576-2220 Date: August 25, 1988
<PAGE> 36
September 15, 1988
1872,002.02
Mr. Albert Kovanis
Stony Point West
Page 5
Conversations with personnel from the RWQCB and SRU indicate that the
wastewater ponds west of the site do not contain hazardous materials. These
ponds contain treated sewage and serve as storage ponds for irrigation water.
Treatment of wastewater at this plant occurs only during times of heavy
rainfall. Such events create wastewater in-flows which exceed the capacity of
the main treatment plant on Liano Road and require the use of the west college
facility for wastewater treatment.
CONCLUSIONS
Based on review of agency records, conversations with agency personnel, review
of in-house documents, and the site visit, there is no indication of obvious
hazardous or industrial waste contamination which may impact site development.
We trust that this is the information you require at this time. If you have any
questions, please call.
Yours very truly,
HARDING LAWSON ASSOCIATES
/s/ MICHAEL D. THOMPSON
- -----------------------------
Michael D. Thompson
Project Engineer
/s/ WILLIAM F. FRIZZELL
- -----------------------------
William F. Frizzell, P.E.
Manager, Site Assessment and Mitigation
TFW/WLF/ljc/B5094-CT
<PAGE> 37
[AREA MAP]
[HARDING LAWSON ASSOCIATES LOGO] Area Map PLATE 1
Hazardous Waste Site Assessment
Stony Point Road Parcels
Santa Rosa, California
<PAGE> 38
EXHIBIT G
LANDLORD WAIVER AND ESTOPPEL CERTIFICATE
First Union National Bank,
as Administrative Agent
One First Union Center, TW-10
301 South College Street
Charlotte, NC 38288-0608
Ladies and Gentlemen:
This letter acknowledged that the undersigned (the "Landlord") have been
informed that _________________ (the "Tenant"), has entered into a Credit
Agreement dated as of ____________, 1999 (as amended, modified, restated or
replaced from time to time, the "Credit Agreement") among Advanced Telecom
Group, Inc. and certain of its Subsidiaries (collectively the "Borrowers"),
First Union National Bank, as administrative agent (the "Administrative
Agent"), J.P. Morgan Bank & Trust as syndication agent, General Electric
Capital Corporation, as documentation agent and the lenders party thereto (the
"Lenders"). As a precedent condition to the Lender's obligation to provide
loans and other financial accommodations to the Tenant under the Credit
Agreement (the "Loans"), the Lenders require, among other things, liens on the
Tenant's personal property, including, without limitation equipment, and trade
fixtures (the "Personal Property").
To induce the Lenders to continue to make the Loans and provide financial
accommodations to the Tenant, and for other good and valuable considerations,
the receipt and sufficiency of which are hereby acknowledged, the Landlord
hereby represents and warrants to the Administrative Agent that as of the date
hereof:
1. The Landlord is the current landlord under the lease described in
Exhibit A attached hereto (the "Lease") with the Tenant;
2. The Lease is in full force and effect and there have been no
amendments, modifications or other agreements relating to the Lease except as
stated herein;
3. To Landlord's actual knowledge, Tenant is not in default under the
Lease, nor are there in existence any facts which with notice or passage of
time or both would constitute a default or a breach by Tenant of the terms and
conditions of the Lease; and
4. The Tenant is the tenant under the Lease, and, to the Landlord
actual knowledge, is in full compliance with the covenants, agreements and
obligations under the Lease.
The Landlord agrees that: (a) the Tenant (or its representatives) is the
owner of the Personal Property located at or on the Premises (as defined in the
Lease) whether attached to the Premises or not; (b) the Administrative Agent's
lien upon or security interest in the Personal Property is prior and superior
to any interest, lien or claim of any nature the Landlord may now have or
hereafter
<PAGE> 39
obtain in the Personal Property whether by operation of law, contract or
otherwise; (c) either the Tenant or the Administrative Agent may remove the
Personal Property from the Premises without hindrance on the part of the
Landlord subject to the conditions set forth herein. Upon not less than ten (10)
days' written request, the Landlord will grant the Administrative Agent (or its
representatives) access to the Premises so that the Administrative Agent (or its
representatives) may remove the Personal Property, provided that (1) the
Administrative Agent, on its own behalf and on behalf of the Lenders,
indemnifies and holds Landlord harmless from any claims, losses, liability,
costs or damages (including reasonable attorneys' fees) incurred by Landlord in
connection with the removal of the Personal Property by the Administrative Agent
and the Administrative Agent's entry on the Premises or Landlord's property, (2)
the Administrative Agent shall restore the Premises to its condition existing
immediately prior to the installation of the Personal Property removed by the
Administrative Agent, (3) in no event shall the Administrative Agent commit, or
permit to be committed, any damage to the Premises or any improvement of which
the Premises are a part, and (4) the Administrative Agent shall not conduct any
sales or auctions on the Premises; and (d) the Personal Property shall remain
personal property (to the extent such Personal Property is not already a fixture
as of the date hereof) and shall not become fixtures, notwithstanding the manner
or mode of the attachment of the Personal Property to the land. Landlord may
require that the Administrative Agent be accompanied by a representative of
Landlord when entering the Premises. The Landlord hereby waives any rights it
may now or hereafter have in the Personal Property, including without
limitation, any lien rights available under applicable law.
The Landlord understands that the Administrative Agent and the Lenders
will rely on this Landlord Waiver and Estoppel Certificate in continuing to make
Loans and provide financial accommodations to the Tenant.
Executed and delivered this ___ day of ____________, 1999.
LANDLORD:
Name: ________________________________
By: ________________________________
-2-
<PAGE> 40
ADDENDUM TO LEASE
Suite 200
110 Stony Point
Santa Rosa, California
1. Page 1 - Section 1:
Line 4, after the word "restroom's;", insert "lobbies;".
2. Page 1 - Section 2.b:
Line 2, in place of the deleted language, insert "(i) the date on which
(a) Landlord has substantially completed Landlord's Work in accordance with the
terms of this Lease (except for punchlist items), (b) Landlord has delivered
possession of the Premises to Tenant and (c) Landlord has obtained a final
signed-off building permit or certificate of occupancy with respect to
Landlord's Work, (ii) the date Tenant occupies the Premises or (iii) the date
the Commencement Date would have occurred but for Tenant Delays, as described in
Exhibit B. In the event the Commencement Date shall not have occurred by March
15, 2000 for any reason whatsoever other than an Event of Force Majeure or a
Tenant Delay (each as defined in Exhibit B), then the date Tenant is otherwise
obligated to commence payment of rent shall be delayed by one additional day for
each day that the Commencement Date is delayed beyond March 15, 2000. In
addition, if the Commencement Date shall not have occurred by June 15, 2000 for
any for any reason whatsoever other than an Event of Force Majeure or a Tenant
Delay, then Tenant shall have the right to terminate this Lease by written
notice to Landlord prior to June 31, 2000, whereupon any monies previously paid
by Tenant to Landlord shall be reimbursed to Tenant. If Tenant fails to
terminate this Lease pursuant to the foregoing sentence by written notice to
Landlord prior to June 31, 2000, Tenant's right to terminate this Lease pursuant
to this Section 2.b shall terminate and be of no further force or effect.
3. Page 1 - Section 2.d:
At the end of this Section, insert "Tenant's failure to execute and
deliver to Landlord the Commencement Date Memorandum within five (5) days after
Tenant's receipt of the Commencement Date Memorandum shall be conclusive upon
Tenant as to the matters set forth in the Commencement Date Memorandum."
4. Page 1 - Section 3.a:
Line 10, in place of the deleted percentage, insert [*].
5. Page 2 - Section 3.c:
Add the following Section:
- -----------------------
[*] Information redacted pursuant to a confidential treatment request
throughout this exhibit.
<PAGE> 41
"c. Condition of Building. Landlord warrants and represents to Tenant
that, as of the Commencement Date, (i) the Premises and the Building
will comply with all applicable laws, rules, regulations, codes,
ordinances, underwriters' requirements, covenants, conditions and
restrictions of record (collectively, "Laws"), (ii) the Premises will be
in good and clean operating condition and repair, (iii) the electrical,
mechanical, HVAC, plumbing, sewer, elevator and other systems serving
the Premises and the Building will be in good operating condition and
repair, and (iv) the roof of the Building will be in good condition and
water tight. Landlord shall, promptly after receipt of notice from
Tenant, remedy any non-compliance with such warranty at Landlord's sole
cost and expense."
6. Page 2 - Section 4.a:
Line 3, after the word "designate", insert ", without any prior demand
therefor and without any deduction, abatement or setoff except as specifically
provided in this Lease."
7. Page 2 - Section 4.b:
The following is inserted as Sections 4.b and c:
"b. Increases In Base Rent. The Base Rent during the Term shall be as
follows:
<TABLE>
<CAPTION>
Period Monthly Base Rent /RSF Annual Base Rent / RSF
- ------ ---------------------- ----------------------
<S> <C> <C>
Commencement Date through the
end of the third (3rd) year of
the Term [*] [*]
Fourth (4th) year of the Term [*] [*]
Fifth (5th) year of the Term [*] [*]
Sixth (6th) year of the Term [*] [*]
Seventh (7th) year of the Term [*] [*]
Eighth (8th) year of the Term [*] [*]
Ninth (9th) year of the Term [*] [*]
Tenth (10th) year of the Term [*] [*]
</TABLE>
- -----------------------
[*] Information redacted pursuant to a confidential treatment request
throughout this exhibit.
2
<PAGE> 42
c. Rent Abatement. Provided that no Event of Default has occurred which
is continuing, Landlord agrees to waive a portion of the monthly Base
Rent due under this Lease in the amount and during the period listed
below:
<TABLE>
<CAPTION>
Amount of Monthly Base Rent Waived Period
---------------------------------- ------
<S> <C>
[*] Commencement Date through the last day of
the sixth (6th) month of the Term
[*] The first day of the seventh (7th) month of
the Term through the last day of the ninth
(9th) month of the Term
[*] The first day of the tenth (10th) month of
the Term through the last day of the twelfth
(12th) month of the Term
[*] The first day of the thirteenth (13th) month
of the Term through the last day of the
fifteenth (15th) month of the Term
</TABLE>
8. Page 2 - Section 5.b:
Line 10, after the word "replacements", insert ", uninsured damage or
deductibles on property insurance,".
Line 13, in place of the deleted language, insert "(x) the cost of any
capital improvements made to the Building or the Property, amortized over such
reasonable period as Landlord shall determine, together with interest upon the
unamortized balance at ten percent (10%) or such other higher rate as may have
been paid by Landlord on funds borrowed for the purpose of constructing the
capital improvements".
At the end of this Section, insert "Notwithstanding anything to the
contrary contained in this Lease, Operating Expenses shall not include the
following: (a) any costs or expenses occasioned by Landlord's gross negligence
or willful misconduct or due to Landlord's violation of any Laws in effect as of
the Commencement Date; (b) any costs or expenses incurred to correct any
construction defect in the Premises or the Building or to comply with any
covenants, conditions or restrictions or Laws applicable to the Premises or the
Building on the Commencement Date; (c) costs or expenses incurred in renovating,
improving, painting or redecorating any other space in the Building for lease to
other tenants; (d) costs or expenses incurred in connection with marketing or
advertising the Building for sale or lease; (e) any costs or expenses incurred
as a result of the violation by Landlord or any other occupant in the Building
(other than Tenant or any assignee or sublessee of Tenant) of the terms and
conditions of any lease or other agreement; (f) insurance deductibles to the
extent that Tenant's share exceeds Twenty Thousand Dollars ($20,000) for any
single event; (g) costs or expenses incurred to remove or remediate any
Hazardous Substances (defined in Section 8.d) in the Building or on or under the
Property, except to the extent the Hazardous Substances were brought on or
released on the Property by or are attributable to the acts of Tenant or
Tenant's employees, agents, representatives, contractors, assignees or
subtenants; (h) costs or expenses in the nature of depreciation or other cash
reserves; (i) costs or expenses incurred to repair or restore the Premises or
the Building due to an uninsured casualty to the extent Tenant's share exceeds
- -----------------------
[*] Information redacted pursuant to a confidential treatment request
throughout this exhibit.
3
<PAGE> 43
Twenty Thousand Dollars ($20,000.00); (j) costs for capital improvements except
as provided in (x) above; and (k) management fees in excess of the management
fees charged by landlords of comparable office buildings in the same vicinity as
the Building. In addition, if Landlord does not carry earthquake or floor
insurance during the Base Year and Landlord later obtains earthquake or flood
insurance, then the amount of Operating Expenses paid or incurred by Landlord
for the Base Year shall be adjusted to an amount equal to the amount of
Operating Expenses that Landlord would have paid or incurred during the Base
Year if Landlord had obtained such earthquake or flood insurance during the Base
Year as reasonable determined by Landlord."
9. Page 3 - Section 5.c:
Line 4, after the word "estimate", insert "; provided however, if
Landlord fails to notify Tenant of the estimated amount of Tenant's share of
Operating Expenses for the ensuing accounting year prior to the end of the
current accounting year, Tenant shall be required to continue to pay to Landlord
each month in advance Tenant's estimated share of Operating Expenses on the
basis of the amount due for the immediately prior month until ten (10) days
after Landlord notifies Tenant of the estimated amount of Tenant's share of
Operating Expenses for the ensuing accounting year. If at any time it appears to
Landlord that Tenant's share of Operating Expenses payable for the current
accounting year will vary from Landlord's estimate, Landlord may give notice to
Tenant of Landlord's revised estimate for the accounting year, and subsequent
payments by Tenant for the accounting year shall be based on the revised
estimate."
Line 5, in place of the deleted language, insert "detailing actual
Operating Expenses for the previous year".
Line 7, after the word "Expenses", insert "in any year other than the
Base Year".
Line 13, after the word "Expenses", insert "(including Operating
Expenses during the Base Year".
At the end of this Section, insert "Tenant shall have ninety (90) days
after Tenant receives the year end statement of the Operating Expenses for the
prior calendar year to notify Landlord in writing of Tenant's desire to conduct,
at Tenant's sole cost and expense, an audit of Landlord's books and records
relating to the applicable calendar year. Any such audit must be conducted by
Tenant or its agent during regular business hours at the offices of Landlord or
the offices of Landlord's designated agent and must be completed within sixty
(60) days after Tenant notifies Landlord in writing of its election to audit the
applicable year end statement. The person or entity performing the audit or
review of Landlord's books and records on Tenant's behalf or at Tenant's request
may not be compensated for the audit or review on a contingency basis. If
Landlord objects to the findings of Tenant's audit, Landlord and Tenant shall
attempt to resolve their disagreement concerning the amount of Tenant's
proportionate share of Operating Expenses within the next thirty (30) days. If
Landlord and Tenant are unable to agree upon the amount of Tenant's
proportionate share of Operating Expenses (after Tenant has completed its
audit), the parties shall submit the matter to binding arbitration before a
single neutral arbitrator having experience in real estate valuation, property
management or accounting or, alternatively,
4
<PAGE> 44
the arbitrator may be a retired judge or justice of a California Superior Court
or Court of Appeal. The matter shall be decided by arbitration in accordance
with the applicable arbitration statutes and the then existing Commercial
Arbitration Rules of the American Arbitration Association. Any party may
initiate the arbitration procedure by delivering a written notice of demand for
arbitration to the other party. Within thirty (30) days after the other party's
receipt of the written notice of demand for arbitration, the parties shall
attempt to select a qualified arbitrator who is acceptable to all parties. If
the parties are unable to agree upon an arbitrator who is acceptable to all
parties, either party may request the American Arbitration Association to
appoint the arbitrator in accordance with its Commercial Arbitration Rules. The
provisions of California Code of Civil Procedure Section 1283.05 or its
successor section(s) are incorporated in and made a part of this Lease with
respect to any arbitration requested in accordance with the provisions contained
in this Section. Depositions may be taken and discovery may be obtained in any
arbitration proceeding requested pursuant to this Section in accordance with the
provisions of California Code of Civil Procedure Section 1283.05 or its
successor section(s). Arbitration hearing(s) shall be conducted in Sonoma
County, California. Any relevant evidence, including hearsay, shall be admitted
by the arbitrator if it is the sort of evidence upon which responsible persons
are accustomed to rely in the conduct of serious affairs, regardless of the
admissibility of such evidence in a court of law; however, the arbitrator shall
apply California law relating to privileges and work product. In rendering his
or her award, the arbitrator shall set forth the reasons for his or her
decision. The fees and expenses of the arbitrator shall be paid in the manner
allocated by the arbitrator. This agreement to arbitrate any dispute concerning
the findings of Tenant's audit shall be specifically enforceable under the
prevailing arbitration law. Judgment on the award rendered by the award may be
entered in any court having jurisdiction thereof. If, as a result of Tenant's
audit, the parties determine that Landlord has overstated Tenant's percentage
share of the Operating Expenses by more than five percent (5%) during the
applicable calendar year, Landlord shall reimburse Tenant for the reasonable
cost of the audit."
10. Page 3 - Section 5.d:
At the end of this Section, insert "Notwithstanding anything to the
contrary contained in this Section, to the extent Real Property Taxes for the
Base Year are not based on a full-improved, fully-assessed Building, then, at
the time the Building is fully-improved and fully-assessed, the Real Property
Taxes for the Base Year shall be adjusted to reflect a fully-improved,
fully-assessed Building."
11. Page 3 - Section 5.e:
Line 3, after the word "Premises", insert ", Building or Property and
paid for by Tenant".
12. Page 3 - Section 7:
In place of the deleted language, insert "Landlord agrees to perform
certain work and construct certain tenant improvements in the Premises
(collectively, "Landlord's Work") pursuant to the terms of Exhibit B".
5
<PAGE> 45
13. Page 3 - Section 8.b:
Line 2, after "Exhibit D", insert "and all reasonable amendments or
modifications thereto".
Line 2, in place of the deleted word, insert "all present and future".
14. Page 4 - Section 8.c:
At the end of this Section, insert "Notwithstanding anything to the
contrary contained in this Lease, Tenant shall not be required to make any
capital improvements to the Premises in order to comply with or cause the
Premises to comply with any Laws unless such compliance is necessitated as a
result of Tenant's particular use of the Premises."
15. Page 4 - Section 8.d:
Add the following subsections:
"(iv) Except as disclose in the documents listed on Exhibit F,
attached hereto, to Landlord's actual knowledge, (a) there are no
Hazardous Substances in the Building or on or under the Property in
violation of any environmental Law; (b) there are no underground storage
tanks under the Property; and (c) no action, proceeding or claim is
pending or threatened regarding the Building or the Property concerning
any Hazardous Substances or pursuant to any environmental Law.
(v) Notwithstanding anything to the contrary contained in this
Lease, Tenant shall have no obligation to pay for or to remediate any
Hazardous Substances on, in or under the Premises or the Building,
except to the extent the Hazardous Substances were brought or released
on the Property or the Premises by Tenant or Tenant's agents,
representatives, contractors, invitees, subtenants, successors or
assigns.
16. Page 4 - Section 9.a:
At the end of this Section, insert "Tenant shall deliver to Landlord
full and complete plans and specifications of all alterations, and no work shall
be commenced by Tenant until Landlord has given its written approval of the
plans and specifications. Landlord does not expressly or implicitly covenant or
warrant that any plans or specifications submitted by Tenant are safe or comply
with all applicable laws and ordinances. Further, Tenant shall indemnify and
hold harmless Landlord from any loss, cost or expense, including attorneys' fees
and costs, incurred by Landlord as a result of any defects in design, materials
or workmanship resulting from Tenant's alterations to the Premises. All
alterations performed by Tenant shall be done in a good and workmanlike manner,
incorporating materials of quality equal to or better than those
6
<PAGE> 46
replaced, with finishes comparable to and compatible with adjacent finishes
within the Premises and the Building. In addition, all of Tenant's alterations
shall be constructed in such a manner so as to (i) not unreasonably disturb or
otherwise interfere with the use and occupancy of any other tenant of the
Building, (ii) protect by appropriate means and measures all components of the
Premises and the Building from soiling or damage associated with Tenant's work,
and (iii) not impose any additional expense or delay upon Landlord in the
construction of improvements to, or maintenance or operation of, the Building or
the Property. Tenant shall reimburse Landlord for Landlord's reasonable charges
for reviewing and approving or disapproving plans and specifications for any
alterations proposed by Tenant (which reasonable charges may include the cost of
architectural services provided by Landlord)."
17. Page 4 - Section 9.b:
Line 4, in place of the deleted number, insert "ten (10)".
Line 4, after the word "date", insert "on which Tenant is notified or
becomes aware".
At the end of this Section, insert "If Tenant fails to have the lien
discharged within the ten (10) day period referenced above, then Landlord may,
but shall not be required to, take such action or pay such amount as may be
necessary to remove such lien; and, Tenant shall pay to Landlord any amounts
expended by Landlord within five (5) days after Tenant receives Landlord's
written request for payment."
18. Page 4 - Section 9.c:
At the end of this Section, insert "Notwithstanding the foregoing, all
trade fixtures, furniture, equipment and other personal property installed or
placed in the Premises by Tenant ("Tenant's Property") shall at all times be and
remain Tenant's property. Tenant may at any time during the term of this Lease
remove Tenant's Property from the Premises, provided that Tenant repairs all
damage caused by such removal and restores the Premises to its condition
existing immediately prior to the installation of Tenant's Property in the
Premises."
19. Page 5 - Section 10:
At the end of this Section, insert "Landlord shall repair and maintain
the structural portions of the Premises and the Building (including the roof and
foundation), the Common Areas, and the Building's heating, ventilating, air
conditioning, electrical, water, sewer and plumbing systems; provided, however,
Landlord shall not be required to repair and maintain the electrical, sewer and
plumbing systems in the Premises."
20. Page 5 - Section 11.b:
Line 6, in place of the deleted language, insert "Landlord notifies
Tenant in writing of the estimated time period required to complete the repair
of the Premises or the Building".
7
<PAGE> 47
At the end of this Section, insert "In addition, Landlord shall have the
option to terminate this Lease if the Premises or the Building is destroyed or
damaged by fire or other casualty, regardless of whether the casualty is insured
against under this Lease, and Landlord reasonably determines that the total cost
of repairing or restoring the premises or the Building, as applicable, is at
least One Hundred Thousand Dollars ($100,000) more than the sum of the amount
insurance proceeds actually received by Landlord and the amount of any
applicable deductible."
21. Page 5 - Section 11.e:
Line 5, after the word "Term," insert "; provided, however, if Tenant
has an option to extend the term of this Lease, Landlord may not terminate this
Lease following a casualty pursuant to this Section 11.e if Tenant exercises
such option within ten (10) days after Landlord notifies Tenant in writing of
Landlord's election to terminate this Lease."
Line 7, after the first occurrence of the word "repair", insert ", but
in no event more than ninety (90) days after the date of the casualty".
22. Page 5 - Section 11.g:
Add the following subsection:
"g. Tenant's Right to Terminate. If the Premises are condemned or
damaged by any peril and Landlord does not elect to terminate this Lease
or is not entitled to terminate this Lease pursuant to the terms hereof,
then Tenant shall have the option to terminate this Lease if the
Premises are damaged or destroyed and Landlord reasonably determines
that it would require more than two hundred seventy (270) days to repair
or restore the Premises from after the date on which Tenant notifies
Landlord in writing of the casualty. Landlord shall notify Tenant in
writing within ninety (90) days after Tenant notifies Landlord of the
casualty of Landlord's estimate as to the length of time required in
order to repair or restore the Premises."
23. Page 6 - Section 13.a:
Line 1, before the word "Tenant", insert "Except to the extent caused by
Landlord's or Landlord's agents' or contractors' gross negligence or willful
misconduct,".
24. Page 6 - Section 13.i:
At the end of Section 13, add the following Section:
"i. Tenant's Indemnity. Landlord shall indemnify, defend, protect and
hold harmless Tenant from all losses, damages, liabilities, judgments,
actions, claims, payments, costs and expenses, including reasonable
attorneys' and consultants'
8
<PAGE> 48
fees, arising from the negligence or willful misconduct of Landlord or its
agents, contractors, licensees or invitees, or Landlord's breach of any its
obligations under this Lease."
25. Page 7 - Section 14:
Line 1, before the word "If", insert:
"a. CONSENT REQUIRED. Tenant shall not assign, mortgage, pledge or
otherwise transfer this Lease, in whole or in part (each hereinafter
referred to as an "assignment"), nor sublet or permit occupancy by any
party other than Tenant of all or any part of the Premises (each
hereinafter referred to as a "sublet" or "subletting"), without the
prior written consent of Landlord in each instance, which consent shall
not be unreasonably withheld. Landlord may consent to any subsequent
assignment or subletting, or any amendment to or modification of this
Lease with the assignees of Tenant, without notifying Tenant or any
successor of Tenant, and without obtaining its or their consent thereto,
and such action shall not relieve Tenant or any successor of Tenant of
any liability under this Lease. Tenant shall reimburse Landlord for all
reasonable legal fees and other expenses incurred by Landlord in
connection with any request by Tenant for consent to an assignment or
subletting.
b. NOTICE OF INTENT TO ASSIGN OR SUBLET."
Line 2, in place of the deleted number, insert "thirty (30)".
Lines 10 and 11, in place of the deleted percentage, insert [*].
Line 11, after the word "sublet", insert "(after subtracting Tenant's
reasonable costs for attorneys' fees, brokerage commissions and improvements
constructed or paid for by Tenant in connection with the assignment or
subletting)".
At the end of this Section, insert:
"c. WITHHOLDING CONSENT. Without limiting other situations in which it
may be reasonable for Landlord to withhold its consent to any proposed
assignment or sublease, Landlord and Tenant agree that it shall be
reasonable for Landlord to withhold its consent in any one (1) or more
of the following situations: (1) in Landlord's reasonable judgment, the
proposed subtenant or assignee or the proposed use of the Premises would
detract from the status of the Building, generate vehicle or foot
traffic, parking or occupancy density materially in excess of the amount
customary for the Building or result in a materially greater use of the
elevator, janitorial, security or other Building services (e.g., HVAC,
trash disposal and sanitary sewer flows) than is customary for the
Building; (2) in Landlord's reasonable judgment, the creditworthiness of
the proposed subtenant or assignee does not meet the credit standards
applied by Landlord in considering other tenants for the lease of space
in the Building on comparable terms, or
- -----------------------
[*] Information redacted pursuant to a confidential treatment request
throughout this exhibit.
9
<PAGE> 49
Tenant has failed to provide Landlord with reasonable proof of the
creditworthiness of the proposed subtenant or assignee; (3) in
Landlord's reasonable judgment, the business history, experience or
reputation in the community of the proposed subtenant or assignee does
not meet the standards applied by Landlord in considering other tenants
for occupancy in the Building; (4) the proposed assignee or subtenant is
a governmental entity, agency or department or the United States Post
Office; or (5) the proposed subtenant or assignee is a then existing or
prospective tenant of the Building.
d. EXECUTED AGREEMENT. No sublease or assignment shall be valid, nor
shall any subtenant or assignee take possession of the Premises, until a
fully executed counterpart of the sublease or assignment has been
delivered to Landlord and Landlord, Tenant and the applicable assignee
or subtenant have entered into a consent to assignment or sublease in a
form reasonably acceptable to Landlord.
e. WAIVER. Notwithstanding any assignment or sublease, or any
indulgences, waivers or extensions of time granted by Landlord to any
assignee or sublessee, or failure by Landlord to take action against any
assignee or sublessee, Tenant waives notice of any default of any
assignee or sublessee and agrees that Landlord may, at its option,
proceed against Tenant without having taken action against or joined
such assignee or subleases, except that Tenant shall have the benefit of
any indulgences, waivers and extensions of time granted to any such
assignee or sublessee.
f. NO CONSENT REQUIRED. Notwithstanding anything to the contrary
contained in this Lease, Tenant may, without Landlord's prior written
consent, and without being subject to any bonus rent provisions, sublet
the Premises or assign the Lease to (i) a subsidiary or parent
corporation controlling, controlled by or under common control with
Tenant, (ii) a successor corporation by merger, consolidation,
nonbankruptcy reorganization or government action, or (iii) a purchaser
of all or substantially all of Tenant's assets. In addition, the sale of
Tenant's capital stock through a private or public offering shall not be
deemed to be an assignment for purposes of this Lease."
26. Page 7 - Section 15.a:
Line 4, in place of the deleted language, insert "within five (5) days
after Tenant receives written notice of nonpayment".
Lines 6, 7 and 8, in place of the deleted language, insert "thirty
(30)".
Line 10, in place of the deleted word, insert "made a general assignment
of".
10
<PAGE> 50
27. Page 7 - Section 15.b(i):
Line 3, in place of the deleted language, insert "In such event,
Landlord shall have the remedy described in California Civil Code Section 1951.4
(Landlord may continue this Lease in effect after Tenant's breach and
abandonment and recover Rent as it becomes due, if Tenant has the right to
sublet or assign, subject only to reasonable limitations), or any successor
statute."
28. Page 7 - Section 15.b(ii):
Paragraph 2, line 2, in place of the deleted percentage, insert "ten
percent (10%)".
29. Page 8 - Section 16:
Line 1, after the word "Lease", insert "beyond applicable notice and
cure periods".
Line 3, after the word "Lease", insert "beyond applicable notice and
cure periods".
30. Page 8 - Section 17:
At the end of this Section, insert "Within seven (7) days after Landlord
receives Security Deposit from Tenant, as defined in Basic Lease Information,
Landlord shall deposit initial Security Deposit into an interest bearing money
market account. All interest shall be added to and become a part of Tenant's
Security Deposit. Any amount not applied in accordance with this Section 17
shall be refunded to Tenant, with all accrued but unpaid interest thereon,
within fifteen (15) days after the expiration or termination of this Lease."
31. Page 9 - Section 18:
Line 3, after the word "tear", insert "and casualty not caused by Tenant
or Tenant's employees, agents, representatives, contractors, assignees or
subtenants".
32. Page 9 - Section 19:
At the end of this Section, insert "In addition, Tenant shall indemnify,
protect, defend and hold harmless Landlord for all losses, expenses and damages,
including any consequential damages incurred by Landlord, as a result of Tenant
failing to surrender the Premises to Landlord and vacate the Premises by the end
of the Term."
33. Page 9 - Section 20:
Line 1, after the word "times", insert "upon twenty-four (24) hours'
prior notice (except in an emergency whereupon no prior notice shall be
required)".
11
<PAGE> 51
34. Page 9 - Section 21:
At the end of this Section, insert "Tenant shall not install any sign in
or on the Premises, Building, or Property without the prior written consent of
Landlord. Landlord shall not unreasonably withhold its consent with respect to
interior signs that are not visible from the outside of the Building. With
respect to all other signs, Landlord may withhold or grant its consent in its
sole discretion. Landlord, at Tenant's cost and expense, shall provide Tenant
with signage on Tenant's suite and identify Tenant in the Building's directory,
all in accordance with Landlord's signage program for the Building. Subject to
(i) the approval of Landlord (which approval shall not be unreasonably withheld,
and the City, and (ii) Tenant obtaining all other necessary approvals, Tenant
shall have the exclusive right to the exterior signage on the Building;
provided, however, that Tenant's right to exterior signage shall terminate if at
any time during the Term Tenant to leases less than 37,500 rentable square feet
of space in the Building and occupies less than 24,000 rentable square feet of
space in the Building. If Tenant installs any signs in or on the Building or the
Property, Tenant shall remove all of Tenant's signs prior to the expiration of
the Term or earlier termination of this Lease and shall return the Premises,
Building, and Property to their condition existing immediately prior to the
placement or erection of Tenant's sign or signs."
35. Page 9 - Section 23.a:
Line 4, in place of the deleted language, insert "twenty (20)"
Line 4, after the word "all", insert "commercially reasonable".
36. Page 10 - Section 23.b:
Line 2, in place of the deleted language, insert "twenty (20)".
37. Page 10 - Section 23.c:
At the end of this Section, insert "Notwithstanding anything to the
contrary in this Section 23, the subordination of Tenant's rights and interest
under the Lease to any mortgage or deed of trust hereafter affecting the
Property, the Building or the Premises, shall be contingent upon Tenant's having
received from any such mortgagee or beneficiary the mortgagee's or beneficiary's
standard form of recognition agreement which provides, among other things, that,
so long as Tenant is not in default under the terms of this Lease beyond any
applicable notice and cure periods, Tenant's rights under and interest in this
Lease shall not be disturbed in the event of any foreclosure of any such
mortgage or deed of trust and Tenant shall receive all of the rights and
services provided for under this Lease. Landlord shall, prior to the
Commencement Date, use commercially reasonable efforts to obtain from all ground
lessors or mortgagees holding a security interest in the Property, the Building
or the Property, a commercially reasonable form of recognition agreement which
provides, among other things, that, so long as Tenant is not in default under
the terms of this Lease beyond any applicable notice and cure periods, Tenant's
rights under and interest in this Lease shall not be disturbed in the event of
any foreclosure of
12
<PAGE> 52
any such mortgage or other security instrument and Tenant shall receive all of
the rights and services provided for under this Lease."
38. Page 10 - Section 27:
Line 4, in place of the deleted language, insert "A party shall be
deemed to have prevailed in any action (without limiting the definition of
prevailing party) if such action is dismissed upon the payment by the other
party of the amounts allegedly due or the performance of obligations which were
allegedly not performed, or if such party obtains substantially the relief
sought by such party in the action, regardless or whether such action is
prosecuted to judgment."
39. Page 10 - Section 28:
Line 5, after the word "Lease", insert "as a result of Tenant's dealing
with such other broker or individual".
40. Page 11 - Section 30:
At the end of this Section, insert "If Tenant is unable to use the
Premises for the permitted use hereunder as a result of any interruption,
failure or stoppage of utilities to the Premises (except to the extent caused by
Tenant or its agents, representatives or invitees), and such interruption
continues for fifteen (15) consecutive calendar days, then Tenant shall be
entitled to an equitable abatement of rent to the extent of the interference
with Tenant' s use of the Premises occasioned thereby. If the interference
persists for more than ninety (90) consecutive calendar days, then Tenant shall
have the right to terminate the Lease by written notice to Landlord within ten
(10) days after the expiration of the ninety (90) day period referenced above."
41. Page 11 - Section 32:
Line 3, after the word "Landlord", insert "and Tenant".
42. Sections 40 - 44:
The following Sections are incorporated into this Lease:
"40. Option to Lease Additional Space.
a. Grant of Option. Provided that Tenant is not in default under the
terms of this Lease beyond any applicable notice and cure period, during
the period commencing on the date of this Lease and ending on the
Commencement Date (the "Option Term"), Landlord grants to Tenant the
option (the "Option") to lease
13
<PAGE> 53
additional space on the ground floor of the Building subject to the
terms and conditions provided below.
b. Commencement of Option. If at any time during the Option Term
Landlord proposes to lease to a bona-fide third party (i) more than
fifty percent (50%) of the total rentable square footage of space on the
ground floor of the Building or (ii) a portion of the rentable square
footage of space on the ground floor of the Building which, when added
to the rentable square footage of space on the ground floor of the
Building previously leased by Landlord to a third party other than
Tenant, would equal fifty percent (50%) or more of the total rentable
square footage of space on the ground floor of the Building, Landlord
shall notify Tenant in writing ("Landlord's Option Notice") of such
event. Landlord's Option Notice shall state both (i) the amount of space
which Landlord proposes to lease to the third party (the "Offered
Space") and (ii) the total amount of space which is then available for
lease on the ground floor of the Building (the "Aggregate Available
Space").
c. Exercise of Right. Tenant shall have ten (10) days after Landlord
delivers to Tenant Landlord's Option Notice in which to notify Landlord
in writing of Tenant's election to lease either the Offered Space or the
Aggregate Available Space on all of the terms and conditions set forth
in this Lease, except (i) the term of Tenant's lease of the Offered
Space or the Aggregate Available Space, as applicable, shall commence on
the date Landlord delivers possession of the Offered Space or Aggregate
Available Space to Tenant and shall expire on the date upon which the
term of this Lease expires, (ii) Landlord shall not be obligated to
perform any work in the Offered Space or the Aggregate Available Space,
and (iii) Landlord shall not be obligated to construct any tenant
improvements in the Offered Space or the Aggregate Available Space, and
(iv) Landlord shall provide Tenant with a tenant improvement allowance
in an amount equal to [*] per rentable square foot for general purpose
office improvements constructed in the Offered Space or the Aggregate
Available Space. If Tenant fails to notify Landlord in writing of its
election to lease either the Offered Space or the Aggregate Available
Space within the ten (10) day period referenced above, then (a) Tenant's
Option shall terminate and be of no further force or effect and (b)
Landlord shall have the right to lease the Offered Space or the
Aggregate Available Space to any person or entity other than Tenant.
d. Amendment. Within fourteen (14) days after Tenant exercises its
Option, Landlord and Tenant shall amend this Lease to include the
Offered Space or the Aggregate Available Space, as applicable, as part
of the Premises.
41. Right of First Offer.
a. Right of Tenant. Provided that Tenant is not in default under the
terms of this Lease beyond any applicable notice and cure period, during
the period commencing on September 1, 1999 and continuing until the
expiration (and not
- -----------------------
[*] Information redacted pursuant to a confidential treatment request
throughout this exhibit.
14
<PAGE> 54
including any extensions) or earlier termination of this Lease (the
"Right of First Offer Term"), Tenant shall have a right of first offer
to lease any Additional Space Increment. The Additional Space Increments
subject to this right of first offer shall not include any space which
is subject to expansion or extension rights of then existing tenants.
b. Commencement of Right. If at any time during the Right of First Offer
Term Landlord desires to offer to lease an Additional Space Increment to
a third party tenant, Landlord shall notify Tenant in writing
("Landlord's Offer Notice") of Landlord's intent to lease the Additional
Space Increment which notice shall specify all of the terms upon which
Landlord proposes to lease the Additional Space Increment to Tenant
(with the remainder of the terms to be those set forth in this Lease,
but excluding any obligation for Landlord to perform any work in the
Additional Space Increment, construct any tenant improvements or provide
Tenant with any tenant improvement allowance).
c. Exercise of Right. Tenant shall have ten (10) days after Tenant's
receipt of Landlord's Offer Notice in which to notify Landlord in
writing ("Tenant's Offer Notice") of its election to lease the
Additional Space Increment on the terms set forth in Landlord's Offer
Notice. If Tenant accepts Landlord's offer, the parties shall amend this
Lease to add the Additional Space Increment as part of the Premises
within fourteen (14) days after Tenant accepts Landlord's offer. If
Tenant fails to deliver Tenant's Offer Notice to Landlord within the ten
(10) day period referenced above, or Landlord and Tenant fail to enter
into a lease for the Additional Space Increment within fourteen (14)
days after Tenant delivers Tenant's Offer Notice to Landlord, then
Tenant's rights under this Section 41 with respect to the Additional
Space Increment shall terminate and be of no further force or effect.
42. Right to Extend Term.
a. Grant. Landlord hereby grants to Tenant one (1) option (the "Option")
to extend the term of this Lease, for an additional period of five (5)
years (the "Option Term"), commencing when the original Term expires,
upon the terms and conditions set forth in this Section 43. Tenant shall
exercise the Option (if at all) by giving Landlord written notice of its
election no earlier than three hundred sixty-five (365) days prior to
the expiration of the original Term and no later than one hundred eighty
(180) days' prior to the expiration of the original Term. Tenant shall
not have the right to exercise the Option if Tenant is in default under
the terms of this Lease. In addition, at Landlord's election, Tenant's
exercise of the Option shall be null and void if Tenant is in default
under the terms of this Lease as of the commencement of the Option Term.
b. Base Rent. If this Option is exercised, the Base Rent for the
Premises shall be [*] of the then current fair market monthly rent
("Fair Market Rent") for the Premises as of the commencement date of the
Option Term, as determined by the agreement of the parties or, if the
parties cannot agree
- -----------------------
[*] Information redacted pursuant to a confidential treatment request
throughout this exhibit.
15
<PAGE> 55
within one hundred twenty (120) days prior to the commencement of the
Option Term, then by an appraisal. All other terms and conditions
contained in the Lease and this Addendum, as the same may be amended
from time to time by the parties in accordance with the provisions of
the Lease, shall remain in full force and effect and shall apply during
the Option Term (except that Tenant shall have no further options to
extend the Term).
c. Appraisal. If it becomes necessary to determine the Base Rent for the
Premises during the Option Term by appraisal, then, on or before the one
hundred tenth (110th) day prior to the expiration of the original Term,
Landlord and Tenant shall each deliver to the other party a written
notice setting forth its good faith estimate of the Base Rent for the
Premises during the Option Term (collectively referred to as the
"Estimates"). If the higher of such Estimates is not more than one
hundred five percent (105%) of the lower of such Estimates, then the
Base Rent for the Premises during the Option Term shall be the average
of the two (2) Estimates. If the Base Rent for the Premises during the
Option Term is not resolved by the exchange of Estimates, Landlord and
Tenant, within ten (10) days after the exchange of Estimates, shall each
select an appraiser to determine which of the two (2) Estimates most
closely reflects a Base Rent that is [*] of the Fair Market Rent. Each
appraiser so selected shall be certified as an MAI appraiser or as an
ASA appraiser and shall have had at least five (5) years experience
within the previous ten (10) years as a real estate appraiser working in
the Santa Rosa area, with working knowledge of current rental rates and
practices. For purposes of this Lease, an "MAI" appraiser means an
individual who holds an MAI designation conferred by, and is an
independent member of, the American Institute of Real Estate Appraisers
(or its successor organization, or in the event the is no successor
organization, the organization and designation most similar), and an
"ASA" appraiser means an individual who holds the Senior Member
designation conferred by, and is an independent member of, the American
Society of Appraisers (or its successor organization, or in the event
there is no successor organization, the organization and designation
most similar). Upon selection, Landlord's and Tenant's appraisers shall
work together in good faith to agree upon which of the two (2) Estimates
most closely reflects a Base Rent that is [*] of the Fair Market Rent.
The Estimate chosen by such appraisers shall be binding on both Landlord
and Tenant. If either Landlord or Tenant fails to appoint an appraiser
within the ten (10) day period referred to above, the appraiser
appointed by the other party shall be the sole appraiser for the
purposes hereof. If the two (2) appraisers cannot agree upon which of
the two (2) Estimates most closely reflects a Base Rent that is [*] of
the Fair Market Rent within the twenty (20) days after their
appointment, then, within ten (10) days after the expiration of such
twenty (20) day period, the two (2) appraisers shall select a third
appraiser meeting the aforementioned criteria. Once the third appraiser
has been selected as provided for above, then, as soon thereafter as
practicable but in any case within fourteen (14) days thereafter, the
appraiser shall make a determination of which of the two (2) Estimates
most closely reflects a Base Rent that is [*] of the Fair Market Rent
and such Estimate shall be binding on both Landlord and
- -----------------------
[*] Information redacted pursuant to a confidential treatment request
throughout this exhibit.
16
<PAGE> 56
Tenant. The parties shall share equally in the costs of the third
arbitrator and of any experts retained by the third arbitrator. Any fees
of any appraiser, counsel or experts engaged directly by Landlord or
Tenant, however, shall be borne by the party retaining such appraiser,
counsel or expert. In the event that the Base Rent for the Option Term
has not been determined by the commencement of the Option Term, Tenant
shall pay Base Rent upon the same terms and conditions in effect
immediately prior to the Option Term until such time as the Base Rent
for the Option Term has been determined. Upon such determination, the
Base Rent for the Premises during the Option Term shall be retroactively
adjusted to commencement of the Option Term. Upon the determination of
the Base Rent for the Premises for the Option Term, Landlord and Tenant
shall enter into a letter agreement to memorialize the agreement. If
such adjustment results in an underpayment of Base Rent by Tenant,
Tenant shall pay Landlord the amount of such underpayment within thirty
(30) days after the determination thereof.
d. Fair Market Rent. For purposes hereof, "Fair Market Rent" shall mean
the arms length fair market annual rental rate per rentable square foot
under new leases (excluding renewals) entered into on or about the date
on which the Fair Market Rent is being determined hereunder for space
comparable to the Premises in the Building and office buildings
comparable to the Building. The determination of Fair Market Rent shall
take into account any material economic differences between the terms of
this Lease and any comparison lease, such as rent abatements,
construction costs, tenant improvement allowances, brokerage commissions
(or the absence thereof), and different base years, and other
concessions, and the manner, if any, in which the Landlord, under any
such lease is reimbursed for operating expenses and taxes. The
determination of Fair Market Rent shall take into consideration any
reasonably anticipated changes in the Fair Market Rent from the time
such Fair Market Rent is being determined and the time such Fair Market
Rent will become effective under this Lease.
43. Dish/Antenna.
a. Right to Install. During the term of this Lease, Tenant shall have
the right to install, maintain and operate a satellite dish or roof-top
antenna (the "Dish/Antenna") on the roof of the Building subject to
Landlord's and Landlord's architect's and/or engineer's approval of
Tenant's plans and specifications for the Dish/Antenna, the manner in
which the Dish/Antenna is to be attached to the roof of the Building,
and the manner in which any cables are run to and from the Dish/Antenna,
such approval not to be unreasonably withheld. Landlord shall designate
the exact location on the roof where the Dish/Antenna is to be located.
Landlord, at its sole cost and expense, reserves the right to relocate
the Dish/Antenna to another location on the roof of the Building at any
time during the term of this Lease. Tenant shall be solely responsible
for obtaining all of the necessary governmental and regulatory approvals
with respect to the installation and operation of the Dish/Antenna and
for the cost of installing, operating, maintaining and removing the
Dish/Antenna.
17
<PAGE> 57
b. Interference. Tenant agrees to only install equipment of types and
frequencies which will not cause unreasonable interference to Landlord
or any other tenants of the Building. If Tenant's equipment causes such
interference, Tenant will change the frequency on which it transmits
and/or receives and take any other steps necessary to eliminate the
interference. If the interference cannot be eliminated within a
reasonable period of time in Landlord's reasonable judgment, Tenant
shall remove the Dish/Antenna from the Building.
c. Maintenance. Tenant shall, at its sole cost and expense and at its
sole risk, install, operate and maintain the Dish/Antenna in a good and
workmanlike manner, and in compliance with all Building electric,
communication and safety codes, laws, ordinances, standards, regulations
and requirements, now in effect or hereafter promulgated.
d. Removal. Tenant shall remove the Dish/Antenna at its own expense at
the expiration or earlier termination of this Lease. Tenant shall repair
any damage caused by Tenant's removal of the Dish/Antenna, including the
patching of any holes to match, as closely as possible, the color
surrounding the area where the equipment and appurtenances were
attached.
e. Exclusive Right. Provided that Tenant is not in default under the
terms of this Lease beyond any applicable notice and cure period,
Landlord shall not lease space on the roof of the Building to a provider
of telecommunication, video, data or related services ("Communication
Services") who is not a tenant in the Building for the purposes of
providing Communication Services to unaffiliated tenants, occupants or
licensees of another building.
44. Landlord Estoppel. Within ten (10) days after Tenant's written
request, Landlord shall execute the Landlord Waiver and Estoppel
Certificate attached hereto as Exhibit G or such other documents
reasonably acceptable to Landlord to evidence Landlord's waiver of any
right, title, lien or interest in Tenant's personal property, equipment
and trade fixtures (collectively, "Tenant's Personal Property") and give
Tenant's lenders holding a security interest or lien on Tenant's
Personal Property reasonable rights or access to the Premises to remove
such personal property; provided, however, Landlord's waiver of its lien
and grant of access to Tenant's lenders shall be subject to and
conditioned upon the lender agreeing in writing (i) to indemnify, defend
and hold harmless Landlord from any and all claims, losses, liability,
costs or damages (including reasonable attorneys' fees) incurred by
Landlord in connection with the lender's removal of Tenant's Personal
Property and entry on the Premises or Landlord's property, (ii) to
restore any portion of the Premises damaged by such lender's removal of
Tenant's Personal Property to its condition existing immediately prior
to the installation of the Tenant's Personal Property, (3) not to damage
any portion of the Premises or any improvement of which the Premises are
a part, and (4) not to conduct any sales or auctions on the Premises.
18
<PAGE> 58
IN WITNESS WHEREOF, the parties have executed this Addendum to Lease on the
date(s) set forth below, as of the day and year first above written.
LANDLORD:
Stony Point East,
a California general partnership
By: /s/ JAMES BRECHT
------------------------------------
James Brecht
Its Authorized Representative
Date 4/26/99
---------
TENANT:
Advanced TelCom Group,
a Delaware corporation
By: /s/ C. G. RUDOLPH
------------------------------------
Its: Chairman & CEO
-----------------------------------
Date 4/26/99
---------
19
<PAGE> 1
EXHIBIT 10.17
AMENDMENT
TO
QWEST COMMUNICATIONS CORPORATION
TELECOMMUNICATIONS SERVICES AGREEMENT
This AMENDMENT, dated as of July 29, 1999 (the "AMENDMENT"), to QWEST
COMMUNICATIONS CORPORATION TELECOMMUNICATIONS SERVICES AGREEMENT, dated as of
March 11, 1999, (the "AGREEMENT"), is entered into by and between Qwest
Communications Corporation ("QWEST") and Advanced TelCom Group, Inc. ("ATG").
RECITAL
A. Subject to the terms and conditions of this Amendment, Qwest and ATG
have agreed to amend the Agreement as set forth herein.
AGREEMENT
NOW, THEREFORE, in consideration of the above recitals and for other good
and valuable consideration, the receipt and adequacy of which are hereby
acknowledged, Borrowers and Lender hereby agree as follows:
1. Definitions; Interpretation. Unless otherwise defined herein, all
capitalized terms used herein and defined in the Agreement shall have the
respective meanings given to those terms in the Agreement. Other rules of
construction set forth in the Agreement, to the extent not inconsistent with
this Amendment, apply to this Amendment and are hereby incorporated by
reference.
2. Amendment to the Agreement. Qwest and ATG hereby agree as follows:
(a) Section 12 of the Agreement is hereby amended by adding a new
Section 12.3, to read as follows:
"Customer shall have the right, without Qwest's consent, to grant
a security interest in this Service Agreement, in whole or in part (i) as
collateral to any institutional lender to Customer (or institutional lender to
any permitted transferee or assignee of Customer); provided, however, that such
permitted grant of a security interest does not constitute a waiver of any of
the assignment rights and obligations described above, and any attempted
assignment to such institutional lender or attempted transfer or assignment to
any other third party by such institutional lender in connection with any right
of enforcement or foreclosure with respect to such security interest remains
subject to the requirements of Section 12.1 and Section 12.2 above; provided
further that promptly following any such grant of security interest, Customer
shall give Qwest written notice identifying such institutional lender.
<PAGE> 2
3. Effect of Amendment. On and after the date hereof, each reference to the
Agreement in the Agreement or in any other document shall mean the Agreement as
amended by this Amendment.
4. Full Force and Effect. Except as amended above, the Agreement remains in
full force and effect.
5. Headings. Headings in this Amendment are for convenience of reference
only and are not part of the substance hereof.
6. Counterparts. This Amendment may be executed in any number of identical
counterparts, any set of which signed by all of the parties hereto shall be
deemed to constitute a complete, executed original for all purposes.
[Remainder of this page intentionally left blank.]
<PAGE> 3
IN WITNESS WHEREOF, Each party has caused this Amendment to be executed as
of the day and year first above written.
QWEST COMMUNICATIONS CORPORATION
By: /s/ Stephen M. Wagner
-------------------------------------------
Name: Stephen M. Wagner
Title: Vice President, Wholesale Markets
ADVANCED TELCOM GROUP, INC.
By: /s/ Clifford G. Rudolph
-------------------------------------------
Name: Clifford G. Rudolph
Title: Chief Executive Officer and President
<PAGE> 4
QWEST COMMUNICATIONS CORPORATION
TELECOMMUNICATIONS SERVICES AGREEMENT
This Telecommunications Services Agreement is entered into as of March
11, 1999 (the "Effective Date"), by and between Qwest Communications
Corporation, a Delaware corporation ("Qwest") and Advanced TelCom Group,
Inc., a Delaware corporation ("Customer").
1. INCORPORATION OF DOCUMENTS AND CONTROLLING PROVISIONS:
1.1 This Service Agreement, together with (a) Service Orders (as defined in
Section 2.1 of this Service Agreement) accepted by Qwest pursuant to the
terms hereof, and (b) schedules and exhibits incorporated herein by
reference ("Exhibits"), shall be referred to collectively herein as this
"TSA" or this "Agreement". In the event of any conflict between the
provisions of this TSA and the terms of any Service Order(s) and/or
Exhibit(s), the conflict shall be resolved by reference to said
documents in the following order of priority of interpretation (except
as is otherwise specifically provided in this TSA or in any Exhibits):
(a) this TSA; (b) any Exhibit(s), with reference to the same in order of
attachment to this TSA; and (c) any Service Order(s). Notwithstanding
the foregoing, no provision or term of any Service Order or Exhibit
shall be a part of this TSA or binding on Qwest unless and until such
Service Order or document has been executed by an authorized
representative of Qwest.
1.2 If any provision of this TSA conflicts with any statute, rule or order
of any governmental unit or regulatory body, or tariff filed by Qwest,
then, if required by law, this TSA shall remain in effect but shall be
automatically modified by such conflicting law, statute, rule, order or
tariff, subject to the termination rights granted herein.
2. SERVICES TO BE PROVIDED BY QWEST:
2.1 Services and Facilities available from Qwest are identified in the
service and pricing Exhibit(s) attached hereto, which are incorporated
by this reference. Services or Facilities requested by Customer shall be
requested on Qwest's service order forms in effect from time to time
(hereafter, any such order is a "Service Order(s)"). Each Service Order
shall become a part of this TSA when executed by a duly authorized
representative of Qwest. Qwest reserves the right to reject any Service
Order.
2.2 Upon acceptance by Qwest of a Service Order, and during the Term (as
defined in Section 4 of this TSA), Qwest shall provide to Customer those
Services or Facilities (as defined in the attached Exhibits) identified
in the Service Order.
- --------------------
[*] Information redacted pursuant to a confidential treatment request
throughout this exhibit.
Qwest Communications
Confidential and Proprietary
1
<PAGE> 5
3. OBLIGATIONS OF CUSTOMER:
3.1 During the Term of this TSA, Customer shall perform those duties
outlined in the attached Exhibits, in addition to those described herein
and in any Service Order(s).
3.2 Customer shall have sole responsibility for installation, testing and
operation of facilities, services and equipment other than those
Services or Facilities specifically provided by Qwest under this TSA
(the "Customer Facilities").
3.3 Customer shall fully comply with all laws, regulations and authorities
including, but not limited to, those outlined in Section 9 of this TSA.
4. TERM:
4.1 This TSA shall be effective between the parties as of the date first
written hereon. The initial term (the "INITIAL TERM") of this TSA shall
expire seven (7) years from the date of execution hereof unless either
party earlier terminates this TSA in the manner provided herein.
4.2 Upon the expiration of the Initial Term, if Customer is not then in
default hereunder, the term of this TSA shall be renewed automatically
on a month-to-month basis ("Renewal Term") unless an Amendment is
executed by the parties extending the Renewal Term, or either party
terminates this TSA in the manner provided herein.
4.3 The Initial Term and Renewal Term are sometimes referred to together
herein as the "Term".
4.4 Notwithstanding anything to the contrary in this Section 4, if the
Facility Minimum Service Term (as defined in Section 4.2 of Exhibit A)
for any Facility extends beyond the expiration of the Term of this TSA,
this TSA shall remain in effect until the expiration or termination of
the applicable Facility Minimum Service Term, but only as to such
Facility so affected, and subject to the termination rights of Qwest and
Customer under Section 8 of this TSA.
5. CHARGES AND PAYMENT:
5.1 Charges for Services and Facilities shall be determined in accordance
with the Service and Pricing Exhibit(s).
5.2 Switched services charges shall be invoiced by Qwest on a monthly basis
in arrears.
5.3 Recurring charges for private line Facilities shall be invoiced by Qwest
on a monthly basis
Qwest Communications
Confidential and Proprietary
2
<PAGE> 6
in advance and non-recurring charges shall be invoiced in arrears. If
the Start of Service Date (as defined in Section 2.1 of Exhibit A) for
any Facility falls on a day other than the first day of any month, the
first invoice to Customer shall consist of: (1) the pro-rata portion of
the applicable monthly charge covering the period from the Start of
Service Date to the first day of the subsequent month, and (2) the
monthly charge for the following month.
5.4 Customer shall make all payments due hereunder within thirty (30) days
of the date of invoice. If any amount due under this TSA is not received
by the due date, in addition to other remedies available hereunder,
Qwest may in its sole discretion: (a) impose a late payment charge of
the lower of [*] per month or the highest rate legally permissible (such
late charge shall be payable upon demand by Qwest); and/or (b) require
the prepayment of up to [*] of recurring charges as a condition of the
continued availability of the Services or Facilities, which prepayment
shall be held and applied against [*] of charges hereunder prior to
termination of this TSA. Notwithstanding anything in this TSA to the
contrary, no payment due hereunder is subject to reduction, set-off or
adjustment of any nature by Customer, except as is specifically provided
in Section 5 of the Service and Pricing Exhibit regarding Outage
Credits. In no event shall the malfunction or non-operation of
Customer's Interconnection Facilities (including local access when
Customer is responsible therefor) relieve Customer of its obligation to
pay for the Facilities.
5.5 All disputes or requests for billing adjustments must be submitted in
writing and submitted with payment of undisputed amounts due. Any
amounts which are determined by Qwest to be in error or not in
compliance with this TSA shall be adjusted on the next month's invoice.
Any disputed amounts which are deemed by the parties to be correct as
billed and in compliance with this TSA, shall be due and payable by
Customer, upon notification and demand by Qwest, along with any late
payment charges which Qwest may impose pursuant to Section 5.3 above.
Disputed amounts unresolved by the parties within [*] of written
submission by Customer may be submitted to binding arbitration in
accordance with the terms of Article 16 below. Disputes shall not be
cause for Customer to delay payment of the undisputed balance to Qwest
according to the terms outlined in Section 5.3 above.
5.6 Invoices submitted to Customer by Qwest shall conform to Qwest's
standard billing format and content, as modified by Qwest from time to
time.
5.7 Any applicable federal, state, or local taxes, and all use, sales,
commercial, gross receipts, privilege or other similar taxes or license
fees, whether charged to or against Qwest or Customer, with respect to
the Services or Facilities provided by Qwest, as well as any other
imposition by any governmental authority which has the effect of
increasing Qwest's
- -----------------------
[*] Information redacted pursuant to a confidential treatment request
throughout this exhibit.
Qwest Communications
Confidential and Proprietary
3
<PAGE> 7
cost of providing the Services or Facilities, shall be payable by
Customer in addition to the other charges set forth in this TSA.
6. EVENTS OF DEFAULT:
6.1 A "Default" shall occur if: (a) Customer fails to make any payment of
undisputed charges required to be made by it under this TSA and any such
failure remains uncorrected for thirty (30) days after the date such
payment was due or as allowed for in Section 5.5 herein; (b) either
party fails to perform or observe any material term or obligation (other
than making payment) contained in this TSA, and any such failure remains
uncorrected for thirty (30) calendar days after written notice from the
non-defaulting party informing the defaulting party of such failure
(except for a Default by Customer under Section 9.2 of this TSA, which
shall require no advance written notice); (c) Customer breaches its
obligations to Qwest in any other agreement, including but not limited
to, agreements for switched services or any collocation agreements; or
(d) there is an Adverse Material Change (as defined in Section 6.2 of
this TSA) in Customer's creditworthiness.
6.2 For purposes of Section 6.1 of this TSA, an Adverse Material Change in
Customer's creditworthiness shall include, but not be limited to: (a)
failure of Customer to make full payment of charges due hereunder on or
before the date due on three (3) or more occasions during any period of
twelve (12) months, or Customer's failure to make such payment on or
before the date due in any two (2) consecutive months; (b) acquisition
of Customer (whether in whole or by majority or controlling interest) by
an entity which is insolvent, which is subject to bankruptcy or
insolvency proceedings, which owes past due amounts to Qwest or any
entity affiliated with Qwest, or which presents a materially greater
credit risk than Customer; or (c) Customer's being subject to or having
filed for bankruptcy or insolvency proceedings, or the legal insolvency
of Customer.
6.3 Notwithstanding Section 6.1 of this TSA, the failure of any particular
Facility or reasonable number of Facilities to comply with the
Specifications (as that term is defined in Section 2.1 of Exhibit A)
shall not be deemed a Default by Qwest, but may obligate Qwest to
provide Customer with Outage Credits, as provided in Section 5 of
Exhibit A.
Qwest Communications
Confidential and Proprietary
4
<PAGE> 8
7. REMEDIES FOLLOWING DEFAULT:
7.1 If Customer is in Default, Qwest may, in addition to any other remedies
it has under this TSA or under the law: (a) suspend its performance
under this TSA without the requirement of any further notice to
Customer, until Customer has remedied all breaches of this TSA and paid
in full all charges then due, including any late fees specified herein
plus, at Qwest's option, the prepayment of [*] recurring charges (as
applied to Services Ordered), as is specified in Section 5.3 of this
TSA; (b) condition provision of Services or Facilities or acceptance of
a Service Order on Customer's assurance of payment and compliance with
this TSA, which may be in the form of a deposit or such other means as
is required by Qwest to establish assurance of payment and compliance;
or (c) terminate this TSA by providing written notice to Customer in the
manner provided in Section 8.2 of this TSA.
7.2 If Qwest is in Default, Customer may, in addition to any other remedies
it has under this TSA or under the law, terminate this TSA in the manner
provided for in Section 8.1 of this TSA.
8. TERMINATION:
8.1 Customer may terminate this entire TSA: (a) upon written notice to
Qwest, if Qwest is in Default (as provided in Section 7.2 of this TSA);
(b) upon thirty (30) days prior written notice, if any material rate or
term contained herein and relevant to the affected Services or
Facilities is materially changed by order of the highest court of
competent jurisdiction to which the matter is appealed, the Federal
Communications Commission, or other local, state or federal government
authority; (c) upon thirty (30) days prior written notice, with or
without cause, following the expiration of the Initial Term; (d) in
accordance with Section 3.2 of Exhibit A attached hereto and Section 9.1
of Exhibit B attached hereto (e) in accordance with Section 1.3 and
Section 3 of Exhibit D attached hereto.
8.2 Qwest may terminate this TSA: (a) effective upon written notice to
Customer, if Customer is in Default (as provided in Section 7.1 of this
TSA); (b) effective upon thirty (30) days prior written notice, with or
without cause, following the expiration of the Initial Term; or (c)
effective immediately and without any advance written notice: (i) if
Qwest does not maintain or loses any required regulatory or other
governmental authorizations to provide the Services or Facilities (as
described in Section 9.1 of this TSA); (ii) following a Default by
Customer under Section 9.2 of this TSA; or (iii) if Customer makes a
transfer or assignment under Section 12of this TSA.
8.3 Customer may terminate the affected portion or portions of a private
line Service Order or Service Orders without penalty upon ten (10)
calendar days prior written notice following
Qwest Communications
Confidential and Proprietary
5
- -----------------------
[*] Information redacted pursuant to a confidential treatment request
throughout this exhibit.
<PAGE> 9
failure of performance, in the manner and subject to Section 10.2 of
this TSA or Section 1.3 of Exhibit A.
8.4 Subject to Section 3 of Exhibit D, in the event of a termination of this
TSA by either Customer or Qwest for reasons other than due to a Customer
Default, all existing services being provided shall continue without
interruption for the time period specified in the applicable Service
Order, but no additional Service Orders shall be submitted or accepted.
For services which continue after a termination of the TSA, pricing
shall be at the rates specified in this TSA and the applicable Service
Order unless the termination is pursuant to subparagraphs 8.2(a) or
8.2(c)(ii), in which case the pricing shall revert to retail or standard
discount pricing.
9. GOVERNMENTAL AUTHORITY:
9.1 Customer acknowledges that the obligation of Qwest to provide the
Facilities to Customer is subject to the receipt by Qwest of any
required regulatory or other governmental authorizations. This TSA may
be superseded by a tariff filed with the appropriate regulatory agency,
which tariff may contain such modifications of the provisions of this
TSA as Qwest deems appropriate, all of which shall become automatically
binding on Customer. Qwest reserves the right to terminate this TSA
pursuant to Section 8.2 of this TSA if at any time Qwest does not have
or loses the required regulatory or other governmental authorizations to
provide the Services or Facilities.
9.2 Customer represents and warrants that: (A) Customer has received all
necessary permits, licenses, approvals, grants, and charters of
whatsoever kind necessary to carry out the business in which Customer is
engaged; and (B) Customer has complied and does comply with all laws,
regulations, orders, and statutes which may be applicable to Customer,
whether local, State or Federal. From the date of this TSA until the
termination hereof, Customer agrees to operate in accordance with and to
maintain current all such certifications, permits, licenses, approvals,
grants, charters, and to comply with all applicable laws, regulations,
orders and statutes, whether local, State or Federal. A breach by
Customer of any of the representations, warranties or covenants of this
Section 9.2 shall be deemed a Default hereunder, and shall allow Qwest
to terminate this TSA in the manner described in Section 8.2 of this
TSA.
10. FORCE MAJEURE:
10.1 Except as is provided in Section 10.2 below, neither party to this TSA
shall be liable for any failure of performance hereunder due to causes
beyond its reasonable control, including, but not limited to: acts of
God, fire, explosion, vandalism, fiber optic cable cut, storm, extreme
temperatures or other similar catastrophes; any law, order, regulation,
direction, action or request of the United States government, or of any
other government,
Qwest Communications
Confidential and Proprietary
6
<PAGE> 10
including state and local governments having jurisdiction over either of
the parties, or of any department, agency, commission, court, bureau,
corporation or other instrumentality of any one or more said
governments, or of any civil or military authority; national
emergencies, insurrections, riots, wars, or strikes, lock-outs, work
stoppages or other labor difficulties; actions or inactions of a third
party provider or operator of facilities employed in provision of the
Services or Facilities; or any other conditions or circumstances beyond
the reasonable control of the party which impede or affect the Services
or Facilities or the transmission of telecommunications services.
10.2 If any failure of performance on the part of Qwest described in Section
10.1 of this TSA related to a Service Order for a private line Facility
shall be: (a) for thirty (30) calendar days or less, then this TSA shall
remain in effect, but Customer shall be relieved of its obligation to
pay for that portion of the Facilities affected for the period of such
failure of performance; or (b) for more than thirty (30) days, then
Customer may terminate only that portion of any Service Order or Service
Orders related to the Facilities so affected, by written notice to
Qwest, in accordance with Section 8.3 of this TSA.
10.3 If private line Facilities are unavailable to Customer as a result of
any events described in Section 10.1, Customer may be entitled to an
Outage Credit under Section 5 of Exhibit A.
11. INDEMNIFICATION:
11.1 Customer shall indemnify and hold harmless Qwest (and Qwest's
affiliates, officers, directors and employees; hereafter, "Qwest's
Affiliates"), and any third party provider or operator of services
employed by Qwest and/or Qwest's Affiliates in the provision of the
Services or Facilities, from and against, and shall reimburse Qwest
and/or Qwest's Affiliates for, any and all losses, liabilities,
deficiencies, claims and expenses (including, but not limited to, costs
of defense and reasonable attorneys' fees) incurred by Qwest and/or
Qwest's Affiliates and arising from or in connection with: (a) any
breach of any covenant or agreement of Customer contained in this TSA;
(b) any misrepresentation or breach of any of the representations and
warranties of Customer contained in this TSA; or (c) any claims which
may be asserted by parties other than Customer who have use of or access
to the Services or Facilities through Customer.
11.2 Customer shall indemnify and hold harmless Qwest and Qwest's Affiliates
and any third party provider or operator of facilities employed by Qwest
and/or Qwest's Affiliates in the provision of the Services) from and
against, and shall reimburse Qwest and/or Qwest's Affiliates for, any
and all losses, liabilities, deficiencies, claims and expenses
(including, but not limited to, costs of defense and reasonable
attorneys' fees) incurred by Qwest, arising from unauthorized calls of
any nature which may comprise a portion of the Services, to the extent
that the call(s) in question are or were unauthorized (or had been at
the time of the call) by an end user of the Services through Customer's
distribution channels.
Qwest Communications
Confidential and Proprietary
7
<PAGE> 11
Customer shall not be excused from paying Qwest for Services provided to
Customer or any portion thereof on the basis that unauthorized calls
comprised a corresponding portion of the Services. If Qwest discovers
unauthorized calls being made (or reasonably believes that unauthorized
calls are being made), nothing contained herein shall prohibit Qwest
from taking immediate action (without notice to Customer) that is
reasonably necessary to prevent such unauthorized calls from being made,
including without limitation, denying Services to particular ANIs or
terminating Services to or from specific locations.
11.3 Qwest shall indemnify and hold harmless Customer (and Customer's
affiliates, officers, directors and employees; hereafter, "Customer's
Affiliates"), and any third party provider or operator of services used
by Qwest in the provision of the Services or Facilities, from and
against any and all losses, liabilities, deficiencies, claims and
expenses (including, but not limited to, costs of defense and reasonable
attorney's fees) incurred by Customer and/or Customer's Affiliates and
arising from or in connection with: (a) any breach of any covenant or
agreement of Qwest contained in this TSA; (b) any misrepresentation or
breach of any of the representations and warranties of Qwest contained
in this TSA; or (c) the gross negligence or willful misconduct of Qwest.
12. ASSIGNMENT:
12.1 Neither party may transfer, assign, or otherwise in any manner encumber
this Agreement and its rights and obligations hereunder without the
prior written consent of the other party, which consent shall not be
unreasonable withheld.
12.2 Notwithstanding the provisions of Section 12.1 to the contrary, either
party may assign this Agreement to any parent, subsidiary or affiliate
of the other party, including any transfers incident to an acquisition
or change of control of either party, provided, however, that in the
case of Customer: (i) such transfer or assignment does not cause an
Adverse Material Change in Customer's creditworthiness as described in
Section 6.2 herein; or (ii) Customer fails to comply with the provisions
of Section 9 herein as a result of such transfer or assignment
("Permitted Assignment"). In the event that Customer makes a Permitted
Assignment during the Term of this Agreement, Qwest may, in its sole
discretion, terminate this Agreement and Customer shall not be
responsible for any Termination Charge (as defined in Section 3 of
Exhibit D). For purposes of this Section 12.2, "subsidiary or affiliate"
shall mean any entity that is controlled directly or indirectly by
either party through the ownership or control of more than 50% of the
equity interests in such entity.
13. TITLE:
Qwest Communications
Confidential and Proprietary
8
<PAGE> 12
13.1 Customer expressly disclaims any right, title, perpetual right of use or
any other interest in or to any equipment or property used or supplied
by Qwest under this TSA.
14. WARRANTIES AND LIMITATION OF LIABILITY:
14.1 Qwest warrants that the Services or Facilities shall be provided to
Customer and shall operate in accordance with prevailing
telecommunications industry standards (hereinafter "Technical
Standards"). If Qwest determines that the Services or Facilities are not
being provided in accordance with the Technical Standards (hereinafter,
a "Defect" or "Defects"), Qwest shall use reasonable efforts under the
circumstances to conform the Services or Facilities to the Technical
Standards.
14.2 THE WARRANTIES CONTAINED IN SECTION 14.1 OF THIS AGREEMENT ARE EXCLUSIVE
AND IN LIEU OF ALL OTHER WARRANTIES, WHETHER EXPRESS, IMPLIED OR
STATUTORY, INCLUDING WITHOUT LIMITATION IMPLIED WARRANTIES OF
MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. QWEST HEREBY
SPECIFICALLY DISCLAIMS ANY LIABILITY TO CUSTOMER FOR INTERRUPTIONS
AFFECTING THE FACILITIES FURNISHED HEREUNDER WHICH ARE ATTRIBUTABLE TO
CUSTOMER'S INTERCONNECTION FACILITIES (AS DEFINED IN SECTION 1.5 OF THE
SERVICE AND PRICING EXHIBIT(S)) OR TO CUSTOMER'S EQUIPMENT FAILURES, OR
TO CUSTOMER'S BREACH OF THIS AGREEMENT.
14.3 EXCEPT FOR QWEST'S GROSS NEGLIGENCE OR WILFUL MISCONDUCT, IN NO EVENT
SHALL QWEST OR ANY OF ITS AFFILIATES BE LIABLE TO CUSTOMER OR ANY OF ITS
AFFILIATES OR EMPLOYEES OR TO ANY THIRD PARTY FOR: (a) ANY LOSS OF
PROFIT OR REVENUE, OR FOR ANY INDIRECT, CONSEQUENTIAL, INCIDENTAL,
PUNITIVE OR SIMILAR OR ADDITIONAL DAMAGES, WHETHER INCURRED OR SUFFERED
AS A RESULT OF UNAVAILABILITY OF FACILITIES, PERFORMANCE,
NON-PERFORMANCE, TERMINATION, BREACH, OR OTHER ACTION OR INACTION UNDER
THIS AGREEMENT, OR FOR ANY OTHER REASON, EVEN IF CUSTOMER ADVISES QWEST
OF THE POSSIBILITY OF SUCH LOSS OR DAMAGE; OR (b) FOR ANY OUTAGE OR
INCORRECT OR DEFECTIVE TRANSMISSIONS, OR ANY DIRECT OR INDIRECT
CONSEQUENCES THEREOF.
14.4 EXCEPT FOR QWEST'S GROSS NEGLIGENCE OR WILFUL MISCONDUCT,
NOTWITHSTANDING ANYTHING IN THIS AGREEMENT TO THE CONTRARY, IN NO EVENT
SHALL THE CUMULATIVE LIABILITY OF QWEST UNDER THIS AGREEMENT EXCEED [*].
- --------------------
[*] Information redacted pursuant to a confidential treatment request
throughout this exhibit.
Qwest Communications
Confidential and Proprietary
9
<PAGE> 13
15. NON-DISCLOSURE AND PUBLICITY:
15.1 Customer shall not disclose to any third party the terms and conditions
of this TSA without the prior written consent of Qwest. Customer shall
not use Qwest's name in publicity or press releases without obtaining
Qwest's prior written approval, which shall not be unreasonably
withheld.
16. ARBITRATION:
16.1 All disputes which involve amounts reasonably anticipated to be in
excess of Twenty-Five Thousand Dollars ($25,000.00) arising out of or
related to this TSA, shall be determined and resolved by arbitration in
Denver, Colorado, in accordance with the rules of the American
Arbitration Association ("AAA"). The arbitrators shall be appointed in
accordance with the rules then prevailing of the AAA.
16.2 The award rendered by the arbitrator(s) shall be final and binding upon
the parties hereto. Neither party shall have the right to further appeal
or redress the matters arbitrated except for the purposes of obtaining
the judgment rendered by the arbitrator(s). Judgment upon any
arbitration award may be entered and enforced in any court of competent
jurisdiction.
16.3 The parties hereto agree that a prevailing party shall be entitled to
recover all reasonable costs and expenses (including all reasonable
attorney's fees and disbursements) of such arbitration proceeding, as
well as all cost for said proceeding. Such prevailing party shall also
be entitled to reasonable attorney's fees and costs incurred in
enforcing a judgment of the arbitrators separately from and in addition
to any other amount included in such judgment. This Section 16.3 shall
be severable from the other provisions of this TSA and shall survive and
not be merged into any such judgment.
17. USE OF SERVICES OR FACILITIES:
17.1 Qwest's obligation to provide the Services or Facilities specified
herein is conditioned upon Customer not allowing the Services or
Facilities to be used for any unlawful purpose; or in violation of any
governmental regulations or authorizations as outlined in Section 8 of
this TSA.
18. MISCELLANEOUS:
18.1 Customer shall execute such other documents, provide such information
and cooperate with Qwest, all as may be reasonably required by Qwest in
connection with providing the Services or Facilities.
Qwest Communications
Confidential and Proprietary
10
<PAGE> 14
18.2 Neither this TSA, nor the provision of Facilities hereunder, shall
create a partnership or joint venture between the parties or result in a
joint communications service offering to any third parties.
18.3 The failure of either party to give notice of default or to enforce or
insist upon compliance with any of the terms or conditions of this TSA
shall not constitute a waiver of any term or condition of this TSA.
18.4 Subject to Section 16 of this TSA, in the event suit is brought or an
attorney is retained by either party to enforce the terms of this TSA or
to collect any moneys due hereunder or to collect money damages for
breach hereof, the prevailing party shall be entitled to recover, in
addition to any other remedy, reimbursement for reasonable attorneys'
fees, court costs, costs of investigation and other related expenses
incurred in connection therewith.
18.5 This TSA shall be construed under the laws of the State of New York
without regard to choice of law principles.
18.6 No subsequent agreement concerning the Services or Facilities or
modification to this TSA shall be binding upon the parties unless it is
made in writing and executed by an authorized representative of each
party.
18.7 If any part of any provision of this TSA shall be invalid or
unenforceable under applicable law, said part shall be ineffective to
the extent of such invalidity only, without in any way affecting the
remaining parts of said provision or the remaining provisions of this
TSA, and Customer and Qwest agrees to negotiate with respect to any such
invalid or unenforceable part to the extent necessary to render such
part valid and enforceable.
18.8 The terms and provisions contained in this TSA that by their sense and
context are intended to survive the performance thereof by the parties
hereto shall survive the completion of performance and termination of
this TSA, including, without limitation, the making of any and all
payments due hereunder.
18.9 Words having well-known technical or trade meanings shall be so
construed.
18.10 All notices, requests, demands and other communications required or
permitted hereunder shall be in writing and shall be given by: (a) hand
delivery; (b) first-class registered or certified mail with postage
prepaid; (c) overnight receipted courier service; , which notice is
addressed to the party at the address set forth below, or such other
address as may hereafter be designated in writing by the party. Notices
given in accordance with this Section shall be effective upon receipt or
when receipt is refused.
Qwest Communications
Confidential and Proprietary
11
<PAGE> 15
All notices to Qwest shall be addressed to:
Qwest Communications Corporation
555 17th Street
Denver, Colorado 80202
Facsimile: (303) 291-1776 Phone: (303) 291-1400
Attn.: Executive Vice President and General Counsel
All notices to Customer shall be addressed to:
Advance TelCom Group, Inc.
100 Stony Point Road, Suite 130
Santa Rosa, CA 95401
Facsimile: (707) 535-8909 Phone: (707) 535-8900
Attn.: Chairman & CEO
The addresses set forth may be changed by appropriate notice to
the other party.
18.11 This TSA comprises the complete and exclusive statement of the agreement
of the parties concerning the subject matter hereof, and supersedes all
previous statements, representations, and agreements concerning the
subject matter hereof.
DATED as of the first date above written.
Customer:
By: /s/ C. G. RUDOLPH
------------------------------------------
Name: C. G. RUDOLPH
-------------------------------
Title: Chairman & CEO
------------------------------
Date: 3.18.99
-------------------------------
Qwest Communications Corporation:
By: /s/ GREGORY M. CASEY
-----------------------------------------
Name: Gregory M. Casey
Title: Sr. Vice President,
Broadband Capacity
Date: 3-22-99
------------------------
Qwest Communications
Confidential and Proprietary
12
<PAGE> 16
<TABLE>
<CAPTION>
EXHIBITS
<S> <C>
Exhibit A: Private Line Service and Pricing Exhibit to Qwest Telecommunications Services
Agreement as well as the following Schedules attached thereto:
Schedules to Exhibit A
"A-1" Technical Specifications
Exhibit B: Switched Services Service and Pricing Exhibit to Qwest Telecommunications
Services Agreement as well as the following Schedules attached thereto:
Schedules to Exhibit B
"B-1" Domestic Termination Rates
"B-2" International Termination Rates
"B-3" 800 Origination
"B-4" 800 Origination
"B-5" Switchless Reseller
"B-6" Switchless Reseller
Exhibit C: Q.i/Commerce(TM) Agreement as well as the following Schedules attached thereto:
Schedules to Exhibit C
"C-1"
Exhibit D: Revenue Commitment
</TABLE>
Qwest Communications
Confidential and Proprietary
13
<PAGE> 17
EXHIBIT A
TO
QWEST COMMUNICATIONS
TELECOMMUNICATIONS SERVICES AGREEMENT
PRIVATE LINE SERVICE AND PRICING EXHIBIT
1. QWEST SERVICES:
1.1 Telecommunications capacity and related ancillary services (the
"Facility" or "Facilities") available from Qwest are identified in this
Exhibit A. During the Term of the TSA, Qwest will provide to Customer
the Facility or Facilities requested by Customer in a Service Order
accepted by Qwest.
1.2 Upon acceptance of a Service Order, Qwest shall notify Customer of its
target date for the delivery of each Facility (the "Estimated
Availability Date"). Any Estimated Availability Date given by Qwest to
Customer shall be subject to Qwest's standard and expedited interval
guidelines, as amended by Qwest from time to time. Qwest shall use
reasonable efforts to install each such Facility on or before the
Estimated Availability Date, but the inability of Qwest to deliver a
Facility by such date shall not be a Default under the TSA. If Qwest
fails to make any Facility available within ninety (90) days after
acceptance (120 days for OC-3 or above) by Qwest of the Service Order
with respect to such Facility (or such greater time as is set forth in
the interval guidelines), Customer's sole remedy shall be to cancel the
Service Order which pertains to such Facility by ten (10) calendar days
prior written notice to Qwest, as is set forth in Section 8.3 of the TSA
and the amounts applicable to such cancelled Service Order shall count
toward the Minimum Revenue Commitment in the applicable Commitment
Period as provided in Exhibit D.
1.3 Customer acknowledges that Qwest has no ability to independently test or
maintain Facilities between two off net cities. Consequently, if Qwest
provides such Facilities, then notwithstanding anything in this TSA to
the contrary, Qwest's entire duty with respect to such Facilities shall
be to use its best efforts to test and maintain such Facilities in
accordance with Qwest's Specifications.
1.4 At each end of the city pairs (the "City Pairs") on which Customer
orders Facilities, Qwest shall provide appropriate equipment in its
terminal locations necessary to connect the Facilities to Customer's
Interconnection Facilities (as defined in Section 1.5 of this Exhibit
A). If Customer desires to install its own equipment in one or more of
Qwest's terminals,
Qwest Communications
Confidential and Proprietary
1
<PAGE> 18
and Qwest, in its sole discretion, agrees to such installation, the
parties shall execute a Qwest Collocation License Agreement.
1.5 Customer agrees that Customer's Interconnection Facilities shall connect
to the Facilities provided by Qwest hereunder at the network interface
points located in the Qwest terminals and defined in the Specifications
(as defined in Section 2.1 of this Exhibit A). As used herein, the term
"Interconnection Facilities" shall mean transmission capacity provided
by Customer or its third party supplier to extend the Facilities
provided by Qwest from a Qwest terminal to any other location (e.g., a
local access telephone service provided by a local telephone company).
1.6 For DS-3 Facilities and below, Qwest shall use reasonable efforts to
order Interconnection Facilities on behalf of Customer from Customer's
designated supplier, provided that Customer furnishes Qwest with an
acceptable letter of agency. Customer shall be billed directly by the
supplier of such Interconnection Facilities, and shall hold harmless and
indemnify Qwest from any loss or liability incurred by Qwest as a result
of Qwest's ordering Interconnection Facilities from any third party.
Customer may, at its election, but subject to Qwest's prior written
approval, order its own Interconnection Facilities. If any party other
than Qwest provides Interconnection Facilities, then unavailability,
incompatibility, delay in installation, or other impairment of
Interconnection Facilities shall not excuse Customer's obligation to pay
Qwest all Rates or charges applicable to the Facilities, whether or not
such Facilities are useable by Customer. Qwest will not order
Interconnection Facilities on behalf of Customer for OC-n Facilities.
2. START OF SERVICES:
2.1 Start of service for each Facility (the "Start of Service Date") shall
begin on the date on which Customer accepts delivery of such Facility.
If Customer fails to give written notice that the Facility is in
material non-compliance with the applicable standard Qwest network
specifications, as modified from time to time by Qwest (the
"Specifications") within five (5) business days after notification to
Customer by Qwest that the Facility is available, Customer shall be
deemed to have accepted such Facility, and the Start of Service Date
shall commence as of the fifth day following such notification by Qwest.
Following notice by Customer of material non-compliance as set forth
above, Qwest shall promptly take such reasonable action as is necessary
to correct any such non-compliance in the Facility and shall, upon
correction, notify Customer of a new Start of Service Date.
2.2 Notwithstanding anything in Section 2.1 of this Exhibit A to the
contrary, Customer may delay the Start of Service Date for any Facility
for up to thirty (30) days from Qwest's
Qwest Communications
Confidential and Proprietary
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<PAGE> 19
Estimated Availability Date by written notice to Qwest at least three
(3) business days prior to any applicable Estimated Availability Date.
3. RATES:
3.1 Qwest shall provide the Facilities at the rates (the "Rates") set forth
in this Section 3 (exclusive of all sales, use, commercial or other
taxes or license fees) and as shown on the Circuit Listing attached as
Schedule A-1 to this Exhibit A. The Rates for each Facility also include
certain Monthly Recurring and Non-Recurring charges, all as defined in
this Section 3. The Non-Recurring charges will be waived for any
Facility ordered hereunder with a Facility Minimum Service Term that is
thirty-six (36) months or greater. Finally, the Rates vary depending on
whether the Facilities are DS-1 or DS-3 or OC-n. The Rates are as
follows:
(a) DS-1 FACILITIES RATES FOR IXC:
(i) BASE IXC RATES:
[*] per DS-0 V&H Mile.
(ii) DS-1 MONTHLY RECURRING CHARGES:
Minimum charge per DS-1 per month: [*]
(iii) DS-1 NON-RECURRING CHARGES:
[*] installation charge per DS-1 for all services
and equipment.
(b) DS-3 FACILITIES RATES FOR IXC:
(i) BASE IXC RATES:
[*] per DS-0 V&H Mile.
(ii) DS-3 MONTHLY RECURRING CHARGES:
Minimum charges per DS-3 per month: [*]
(iii) DS-3 NON-RECURRING CHARGES:
[*] installation charge per DS-3 for all services
and equipment.
(c) OC-n FACILITIES RATES FOR IXC:
(i) BASE IXC RATES:
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[*] Information redacted pursuant to a confidential treatment request
throughout this exhibit.
Qwest Communications
Confidential and Proprietary
3
<PAGE> 20
<TABLE>
<CAPTION>
FACILITY RATE
-------- ----
<S> <C>
OC-3 [*] per DS-0 V&H
Mile
OC-12 [*] per DS-0 V&H
Mile
OC-48 To be determined by
Qwest on an ICB.
</TABLE>
(ii) OC-n MONTHLY RECURRING CHARGES:
Minimum charges per OC-n per month:
<TABLE>
<CAPTION>
FACILITY MINIMUM MRC
-------- -----------
<S> <C>
OC-3 [*]
OC-12 [*]
OC-48 To be determined by
Qwest on an ICB.
</TABLE>
(iii) OC-n NON-RECURRING CHARGES:
Installation charge per OC-n for all services and
equipment:
<TABLE>
<CAPTION>
FACILITY MINIMUM NRC
-------- -----------
<S> <C>
OC-3 [*]
OC-12 [*]
OC-48 To be determined by
Qwest on an ICB.
</TABLE>
(d) OTHER CHARGES:
In addition to the foregoing Facilities Rates for DS-1, DS-3 and
OC-n Facilities for IXC, Customer shall pay to Qwest the
following additional charges, as applicable, including any and
all recurring charges imposed on Qwest for the handling of calls
under this agreement:
(i) OTHER MONTHLY RECURRING CHARGES:
<TABLE>
<S> <C>
~ Channel Bank: each [*] per month
~ DS-1 cross-connect charges: each [*] month plus any
pass-through charges.
</TABLE>
- --------------------
[*] Information redacted pursuant to a confidential treatment request
throughout this exhibit.
Qwest Communications
Confidential and Proprietary
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<PAGE> 21
<TABLE>
<S> <C>
~ DS-3 cross-connect charges: each [*]
~ Cross-connect charges: to another CAPS provider
[*] each.
~ LTR charges: charges incurred by LECs
will be passed through to
Customer to be paid by
Customer.
(ii) OTHER NON-RECURRING CHARGES:
~ Expedited Order Charges: [*] each.
~ DACs rearrangements: each [*] per
DS-1
~ Channel Bank: each [*] installation
~ DS-1 cross-connect charges: each [*] installation
plus any pass-through
charges.
~ Change of order cross-connect charges: [*] each DS-3, [*]
each DS-1
~ Pre-engineering cancellation cross-connect: [*] each DS-3, [*]
each DS-1
~ Post-engineering cancellation of cross-connect: [*] each DS-3, [*]
each DS-1
</TABLE>
3.2 Qwest reserves the right, upon thirty (30) days prior written notice to
Customer, to modify any of the Rates or charges described in this
Exhibit A applicable to any Facility or Facilities. Upon receipt of
written notice of such election, Customer may terminate the TSA, as per
Section 8.1 thereof, or terminate the portion of the Service Order or
Service Orders which pertain to such Facility or Facilities by
delivering written notice of termination to Qwest within thirty (30)
days of the date of the written notice of increase. If written notice of
termination from Customer is not received within such thirty (30) day
period, Customer will be deemed to have consented to the increase.
4. FACILITY MINIMUM SERVICE TERM:
4.1 Customer acknowledges that the Rates and charges described in Section 3
of this Exhibit A are based on the commitment of Customer to utilize the
Facilities for a specified minimum period of time. Therefore,
notwithstanding anything in the TSA to the contrary, Customer shall be
liable for and shall pay to Qwest all Rates, fees and charges which
accrue under the TSA for each Facility for the entire Facility Minimum
Service Term (as defined in Section 4.2 of this Exhibit A) applicable to
each such Facility, regardless of
- --------------------
[*] Information redacted pursuant to a confidential treatment request
throughout this exhibit.
Qwest Communications
Confidential and Proprietary
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<PAGE> 22
whether or not Customer utilizes all or any part of such Facility during
all or any part of the Facility Minimum Service Term applicable to such
Facility, except as is set forth in Section 4.3 of this Exhibit A.
4.2 The "Facility Minimum Service Term" for each Facility is defined as
follows:
(a) Six (6) months from Start of Service Date for DS-1 Facilities.
(b) Twelve (12) months from Start of Service Date for DS-3
Facilities.
(c) Twelve (12) months from Start of Service Date for OC-3
Facilities.
(d) Thirty-six (36) months from the Start of Service Date for OC-12
or above Facilities.
4.3 Notwithstanding anything in this TSA to the contrary, Customer's
obligation to pay all rates, fees and charges which accrue under this
TSA for each Facility for the entire Facility Minimum Service Term
applicable to each such Facility shall terminate, as to each such
Facility, if this TSA is terminated during the Minimum Service Term
which pertains to each such Facility: (a) by Customer, pursuant to
Sections 8.1(a) or (b) of the TSA, following a Default by Qwest or an
increase in prices; or (b) by Qwest, pursuant to Section 8.2(b) of the
TSA, if termination by Qwest during the Minimum Service Term as to the
Facility occurs other than because of a Default by Customer, or 8.2(c)
of the TSA, if Qwest terminates this TSA because Qwest loses any
required permits. Qwest recognizes that Customer's business needs may
change during the Facility Minimum Service Term. Therefore, for any
Facility ordered under this Agreement, Customer may, after the first six
(6) months of such Facility Minimum Service Term, cancel said Facility,
and order as a substitute an alternative Facility from Qwest on the
Qwest owned fiber optic network. Any such Order must be: (a) for a like
Facility Minimum Service Term (e.g., if original order was for one (1)
year, new order must be for one (1) year; (b) will be filled at Qwest's
discretion subject to network availability; and (c) for a Facility that
has greater bandwidth than the originally ordered Facility (e.g., if
original order specified a DS-3 Facility, any new order under this
Section 4.4 must request an OC-3 Facility or above).
5. OUTAGE CREDITS:
5.1 Customer acknowledges the possibility of an unscheduled, continuous
and/or interrupted period of time when a Facility or Facilities are
"unavailable" (as defined in the Specifications) (hereafter an
"Outage"). In the event of an Outage, Customer shall be entitled to a
credit (the "Outage Credit") determined according to the following
formula:
Qwest Communications
Confidential and Proprietary
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<PAGE> 23
<TABLE>
<S> <C>
OUTAGE CREDIT = HOURS OF OUTAGE - 2 HOURS X TOTAL MONTHLY CHARGE OF AFFECTED FACILITY
-------------------------
720 HOURS
</TABLE>
5.2 The Outage Credit shall apply to the charges for the total mileage
between end terminals of any Facility affected by an Outage; provided,
however, that if any portion of the affected Facility remains
beneficially used or useable by Customer between any intermediate
terminals (where Customer has installed drop and insert capability) or
end terminals, the Outage Credit shall not apply to that pro-rata
portion of the mileage. The length of each Outage shall be calculated in
hours and shall include fractional portions thereof. An Outage shall be
deemed to have commenced upon verifiable notification thereof by
Customer to Qwest, or, when indicated by network control information
actually known to Qwest network personnel, whichever is earlier. Each
Outage shall be deemed to terminate upon restoration of the affected
Facility as evidenced by appropriate network tests by Qwest. Qwest shall
give notice to Customer of any scheduled outage as early as is
practicable, and a scheduled outage shall under no circumstance be
viewed as an Outage hereunder.
5.3 Outage Credits shall not be granted if the malfunction of any end-to-end
circuit is due to an Outage or other Defect occurring in Customer's
Interconnection Facilities.
5.4 All Outage Credits shall be credited on the next monthly invoice for the
affected Facility after receipt of Customer's request for credit. The
total of all Outage Credits applicable to or accruing in any given month
shall not exceed the amount payable by Customer to Qwest for that same
month for such Facility.
5.5 The Outage Credit described in this Section 5 of Exhibit A shall be the
sole and exclusive remedy of Customer in the event of any Outage, and
under no circumstance shall an outage be deemed a Default under this
TSA.
Qwest Communications
Confidential and Proprietary
7
<PAGE> 24
DATED AS OF the first date above-written.
Customer: ATGI
-------------------------------------------------
By: /s/ C. G. RUDOLPH
-----------------------------------------
Name: C. G. RUDOLPH
-------------------------------
Title: Chairman & CEO
------------------------------
Date: 3-18-99
-------------------------------
Qwest Communications Corporation:
By: /s/ GREGORY M. CASEY
-----------------------------------------
Name: Gregory M. Casey
Title: Sr. Vice President,
Broadband Capacity
Date: 3-22-99
-----------------------
Qwest Communications
Confidential and Proprietary
8
<PAGE> 25
SCHEDULE A-1 TO EXHIBIT A
TO
QWEST COMMUNICATIONS TELECOMMUNICATIONS SERVICES AGREEMENT
TECHNICAL SPECIFICATIONS
1. INTERCONNECT SPECIFICATIONS:
1.1 The customer interconnection point of DS-1 & DS-3 signals at the Qwest
(SPT) location will be at an industry standard (DSX-1) & (DSX-3) digital
cross-connect panels and will be referred to as Qwest Network Interface
in this document.
1.2 The DS-1 & DS-3 signals terminating at the Qwest digital cross-connect
panels will meet the electrical specifications as defined in AT&T
Compatibility Bulletin (CB) No. 119, Issue 3, October, 1979.
1.3 The Qwest Digital Network will be compatible with the Bell System
hierarchical clock synchronization methods and stratum levels as
described in Bellcore Technical Advisory (GR436-Core).
1.4 Customer equipment must also meet the interconnect specifications listed
above and shall comply with jitter requirements of AT&T Technical
Reference PUB 63411.
2. PERFORMANCE OBJECTIVES:
2.1 DS1, DS3, OC-3, OC-12, OC-48, OC-3c, OC-12c, and OC-48c circuit
performance will be measured using two parameters: Availability and
Error-Free Seconds.
The following assumptions apply to the derived data:
~ The circuits originate and terminate on the SONET OC-48
backbone
~ High speed protection switching: 1 for N, where N=2
~ MTTR for SONET equipment: 2 hours
~ MTTR for fiber optic cable: 12 hours (Bellcore Standard)
~ Cable cut rate: 4.39 /year/1,000 sheath miles (Bellcore
Standard)
The system includes three (3) DCS in Los
Angeles, Sacramento, and San Jose (although not
all circuits are routed through the DCS, they
are included in all the calculations)
2.2 Availability is a measure of the relative amount of time during which
the circuit is available for use. According to CCITT and ANSI
definitions, unavailability begins when
Qwest Communications
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<PAGE> 26
the Bit Error Ratio (BER) in each second is worse than 1.0 E-3 for a
period of 10 consecutive seconds.
INTER OFFICE CHANNEL (IOC): An Inter Office Channel refers to the Qwest
Communications network between the points of presence (POP).
OPTICAL CARRIER LEVEL 1 (OC-1): The optical signal that results from an
optical conversion of an electrical STS-1 signal (51.840 Mb/s). This
signal forms the basis of the interface.
OC-3: Optical Carrier level 3 signal operating at 155.520
Mb/s.
OC-12: Optical Carrier level 12 signal transmitting at 622.080
Mb/s.
OC-48: Optical Carrier level 48 signal transmitting at 2488.32
Mb/s.
POINT OF PRESENCE (POP): A physical location where a long distance
carrier terminates lines before connecting to the local exchange
carrier, another carrier, or directly to a customer.
2.3 The availability objective for all circuits between Qwest Network
Interface points specified above is to provide performance levels over a
12 month period as follows:
<TABLE>
<CAPTION>
V&H MILES DS1, DS3, OC-3, OC-12,
OC-48, OC-3c, OC-12c, and
OC-48c
-------------------- -------------------------
<S> <C>
0-2500 99.999%
2501-4000 99.998%
</TABLE>
This excludes any customer provided access links to the Qwest digital
network.
2.4 Outages attributable to incidental damage to or severage of outside
fiber optic cable plant, or scheduled maintenance is excluded from the
performance objective stated above.
2.5 Error-Free Seconds (EFS) and Error Seconds (ES) are the primary measure
of error performance. An Error-Free Second is defined as any second in
which no bit errors are received. Conversely, an Error Second is any
second in which one or more bit errors are received.
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<PAGE> 27
3. SONET: Synchronous Optical Network is a family of optical transmission
rates and interface standards allowing internetworking of products from
different vendors. Base optical rate is 51.840 Mb/s. Higher rates are
direct multiples.
SONET TRANSPORT: Facilities associated with carrying OC-1 or higher
level signals.
SYNCHRONOUS TRANSPORT SIGNAL LEVEL 1 (STS-1): The basic logical building
block electrical signal with a rate of 51.840 Mb/s.
SYNCHRONOUS TRANSPORT SIGNAL LEVEL N (STS-N): This electrical signal is
obtained by byte interleaving N STS-1 signals together. The rate of the
STS-N is N times 51.840 Mb/s.
TERMINATING MULTIPLEX (TM): Provides the multiplex functions for
multiplexing and demultiplexing between the DS1 or higher signal level
and the SONET OC-N level.
4. ACCEPTANCE CRITERIA. The acceptance criteria for DS1, DS3, OC-3, OC-12,
OC-48, OC-3c, OC-12c, and OC-48c circuits between Qwest Network
Interface points is to provide the performance levels shown below during
a 60 minute test period. If no errors are observed during the first 15
minutes of the test, the facility may be considered acceptable. Access
connections to customer location will be tested in accordance with Bell
Publication 62508.
~ The tables below are based on QCC owned fiber optic network only
and on the Bellcore Specifications of the SONET delivery of DS1,
DS3, OC-3, OC-12, OC-48, OC-3c, OC-12c, and OC-48c directly off
the SONET Backbone.
~ If the DS1, DS3, OC-3, OC-12, OC-48, OC-3c, OC-12c, and OC-48c
service is delivered at the STS1 level then the general
performance objectives fall into the industry standard.
DS1, DS3
The table below defines the general performance objectives for DS1
service operating at 1.544 Mb/s, and the general performance objectives
for DS3 service operating at 45 Mb/s.
<TABLE>
<CAPTION>
V&H MILES EFS BER
--------- --- ---
<S> <C> <C>
0 - 250 99.988 % 10-15
251 - 500 99.983 % 10-15
</TABLE>
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Confidential and Proprietary
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<PAGE> 28
<TABLE>
<CAPTION>
V&H MILES EFS BER
--------- --- ---
<S> <C> <C>
501 - 1000 99.971% 10-15
1001 - 1500 99.959% 10-15
1501 - 2000 99.948% 10-15
2001 - 2500 99.936% 10-15
2501 - 3000 99.925% 10-15
3001 - 3500 99.913% 10-15
3501 - 4000 99.902% 10-15
</TABLE>
OC-3, 12, 48; OC-3c, 12c, 48c
The table below defines the general performance objectives for OC-3,
OC-12, OC-48, OC-3c, OC-12c, and OC-48c.
<TABLE>
<CAPTION>
V&H MILES EFS BER
--------- --- ---
<S> <C> <C>
0 - 250 99.989% 10-15
251 - 500 99.984% 10-15
501 - 1000 99.974% 10-15
1001 - 1500 99.964% 10-15
1501 - 2000 99.954% 10-15
2001 - 2500 99.944% 10-15
2501 - 3000 99.933% 10-15
3000 - 3500 99.923% 10-15
3501 - 4000 99.913% 10-15
</TABLE>
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<PAGE> 29
EXHIBIT B
TO
QWEST COMMUNICATIONS
TELECOMMUNICATIONS SERVICES AGREEMENT
SWITCHED SERVICES SERVICE AND PRICING EXHIBIT
1. QWEST SERVICES:
1.1 Qwest shall provide to Customer Switched Services ("Services" or
"Switched Services"), subject to the terms and conditions of the TSA.
During the Term of the TSA, Qwest will provide to Customer the Services
requested by Customer in a Service Order accepted by Qwest.
2. START OF SERVICES:
2.1 Services shall commence ("Start of Services") pursuant to each Service
Order, with the activation of each circuit comprising Service
Interconnections (as defined in Section 4.1 of this Exhibit B).
3. FORECASTS:
3.1 Before Customer's initial order for Service, Customer shall provide
Qwest with a forecast regarding the number of minutes expected to be
terminated or originated in various LATAs and/or Tandems, so as to
enable Qwest to configure optimum network arrangements. In the event
Customer's service traffic volumes result in a lower than industry
standard completion rate or otherwise adversely affect the Qwest
Network, Qwest reserves the right to block the source of such adverse
traffic upon written notice to Customer. Customer will provide Qwest
with additional forecasts from time to time upon Qwest's request which
shall not be more frequent than once every three (3) months.
4. SERVICE INTERCONNECTIONS:
4.1 Customer shall establish dedicated T-1 access and interexchange
facilities connections ("Service Interconnection(s)") between Customer's
network and switching system under Customer's direct control or
ownership and the Qwest network at one or more of Qwest's Points of
Presence ("Qwest POP"). Qwest POP's are currently located in the cities
identified on Schedule "B-5" attached hereto as the "Meet Point Cities".
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<PAGE> 30
4.2 Customer shall deliver, or receive, its traffic at a Qwest POP via the
Service Interconnections, as described in Section 4.1 of this Exhibit B
or as specified in Section 4 of Exhibit D to the TSA. If, for any
reason, Customer is unable or fails to deliver its traffic to a Qwest
POP in a Meet Point City in accordance with Section 4.1 of this Exhibit
B, Qwest may, at its option, establish a Service Interconnection for
such traffic ("Backhaul Services") for and on behalf of Customer to the
nearest Qwest POP having available capacity as determined by Qwest. In
such event, Customer shall pay to Qwest charges for Backhaul Services at
Qwest's then current rates, which shall be based on a per DS-0 V&H
mileage charge.
4.3 Prior to Qwest's acceptance of a Service Order which requests Services
through any Meet Point Cities, Qwest reserves the right to add or remove
Meet Point Cities to or from the list attached at Schedule B-7, and
shall endeavor to provide Customer with reasonable advance notice of any
additions or removals.
4.4 In addition to the foregoing amounts, within thirty (30) days of the
Service Date, Customer shall pay to Qwest a non-recurring charge of [*]
for each Service Interconnection installed at each service location,
except that if more than one Service Interconnection is installed at a
single service location simultaneously, Customer shall pay to Qwest [*]
for each additional Service Interconnection beyond the first Service
Interconnection installed at each such location. The Non-Recurring
charges will be waived for all individual circuit orders of thirty-six
(36) months or greater term.
5. CALL DETAIL RECORDS:
5.1 Upon request from Customer, Qwest shall provide Call Detail Records
("CDR's") for the Services on compact disc(s) ("CDR Compact Disc(s)").
Qwest shall provide to Customer one (1) CDR per month. Monthly CDR
Compact Discs under this Subsection are provided at a recurring charge
of [*] per month for the first disc, and [*] for each additional disc.
6. MINIMUM USAGE AND TERMINATION FEE:
6.1 Customer hereby agrees that, commencing with the first day of the fourth
full calendar month after the Start of Services, and ending upon
termination of the TSA, Customer shall maintain an average loading of
traffic of not less than [*] minutes of use per Service Interconnection
per calendar month/billing cycle, averaged over all Service
Interconnections in each Customer trunk group ("Minimum Usage
Requirement"). If Customer fails to meet the Minimum Usage Requirement
in any calendar month/billing
- --------------------
[*] Information redacted pursuant to a confidential treatment request
throughout this exhibit.
Qwest Communications
Confidential and Proprietary
2
<PAGE> 31
cycle, Customer expressly authorizes Qwest to add a surcharge to the
next subsequent invoice of [*] of use per Service Interconnection for
each minute of under-utilization for such calendar month/billing cycle.
7. ROUNDING
7.1 Currently, Qwest Switched Services, Termination, 8XX Origination, and
Switchless Resale, utilize "bulk rounding". For the purposes of this
agreement, bulk rounding is defined as carrying over the 3rd and 4th
place amounts of a call charge to the next call, and continuing to do so
until one full cent ($.01) is accrued. When this has occurred, the cent
is applied to the next call. In addition, Qwest Switched Services employ
[*], which means that all calls are [*], as opposed to [*] (e.g. initial
and incremental).
8. PRICING/RATES
8.1 Qwest's charges for terminating switched calls under the TSA shall be as
specified in the attached Schedules B-1 and B-2. Qwest's charges for
originating calls under the TSA shall be as specified in the attached
Schedule B-3. Qwest's charges for switchless reseller services shall be
as specified in the attached Schedule B-4.
9. SERVICE/PRICE MODIFICATIONS
9.1 Qwest reserves the right, at any time during the Term of this TSA, upon
thirty (30) days prior written notice to Customer, to modify domestic
rates. Upon receipt of written notice of such election, Customer may
terminate the TSA, as per Section 8.1 thereof, or terminate the portion
of the Service Order or Service Orders which pertain to such Facility or
Facilities by delivering written notice of termination to Qwest within
thirty (30) days of the date of the written notice of increase. If
Customer's written notification is not received within ten (10) days of
the effective date of the price increase, Customer shall be deemed to
have consented to such price increase. Qwest also reserves the right, at
any time during the Term of this TSA, upon fifteen (15) days prior
written notice to Customer, to modify international rates and any other
prices described in this Exhibit B. Upon receipt of written notice of
such an election and in the event of a material rate increase (10%
increase) by Qwest which materially affects Customer's actual usage
hereunder, Customer shall receive a pro rata reduction in its Total
Minimum Commitment (as defined in Exhibit D); provided, however,
Customer must notify Qwest in writing setting forth in reasonable detail
its basis for determining the materiality of the increase and the
affects on actual usage. If Customer's written notification is not
received within ten (10) days of the effective date of the price
increase, Customer shall be deemed
- --------------------
[*] Information redacted pursuant to a confidential treatment request
throughout this exhibit.
Qwest Communications
Confidential and Proprietary
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<PAGE> 32
to have consented to such price increase. For purposes of determining
any pro rata reduction in the Total Minimum Commitment, Qwest shall use
as a basis Customer's usage for the applicable rate element and average
the immediately preceding three months. By way of example, if Customer's
average for the immediate preceding 3 months is $1000 and Customer has
twelve (12) months left on the Initial Term, in the event of an
applicable rate increase Qwest would reduce the Total Minimum Revenue
Commitment 12 months times $1000 (equaling $12,000 for an overall
reduction).
10. GOVERNMENTAL AUTHORITY:
10.1 In the absence of Automatic Number Identification ("ANI") of the calling
party, Qwest shall use the area code and prefix of the originating trunk
group to determine whether a call is interstate or intrastate, and to
calculate the corresponding charges for that call. Qwest may, from time
to time, request that Customer provide Qwest with a written
certification (the "Certification") of the percentage of interstate
calls, including international and intrastate minutes of use, compared
to the minutes of traffic to be terminated in the same state, in form
and substance reasonably satisfactory to Qwest.
DATED AS OF the first date above-written.
Customer:
By: /s/ C. G. RUDOLPH
------------------------------------------------
Name: C. G. RUDOLPH
----------------------------------------------
Title: Chairman & CEO
---------------------------------------------
Date: 3-18-99
----------------------------------------------
QWEST COMMUNICATIONS CORPORATION:
By: /s/ GREGORY M. CASEY
------------------------------------------------
Name: Gregory M. Casey
Title: Sr. Vice President, Broadband Capacity
Date: 3-22-99
----------------------------------------------
Qwest Communications
Confidential and Proprietary
4
<PAGE> 33
Qwest Communications
Confidential and Proprietary
5
<PAGE> 34
SCHEDULE B-1
SERVICE DESCRIPTION
QWEST EXPRESS RBOC/ITC TERMINATING SWITCHED SERVICE
1. GENERAL
1.1 Interstate rates are per Local Access and Transport Area ("LATA") and
are for LATA-wide termination. Regional Bell Operating Company ("RBOC")
rates apply to all traffic terminating in RBOC territories, and
independent telephone company ("ITC") rates, or Non-Bell rates, apply to
all traffic terminating in ITC ("Non-RBOC") territories. For the
purposes of billing the appropriate territory, the OCN number of the
terminating carrier will be used. OCN numbers of 9000 and above shall be
classified as RBOC; and OCN numbers less than 9000 shall be classified
as "ITC", or Non-RBOC.
1.2 Intrastate rates are per State and are for State-wide termination. For
the purposes of determining each call's jurisdiction, the originating
and terminating information present in the call stream will be
evaluated. In the event that either the originating or terminating
information is not available to Qwest's billing system, the
classification of the call, for rating purposes, will default to the
Interstate classification. To the extent that calls are defaulted to the
Interstate classification, and to the extent Customer's traffic of this
nature includes intrastate traffic, Customer shall provide to Qwest in
writing, on a monthly basis, the "Percentage of Inter/Intra-state Usage"
on a state-by-state basis, by LEC, for the traffic terminated by Qwest
hereunder.
1.3 Rates shown in the Qwest Express RBOC/ITC Interstate and Intrastate Rate
Exhibits are shown in terms of full minutes and are billed in [*]
increments. Qwest reserves the right to charge excessive quantities of
short duration calls (i.e. calls under [*] in length) a minimum of [*]
per answered call. Rates shown in the Qwest Express RBOC/ITC Interstate
and Intrastate Rate Exhibits are Base Rates. Discounts, if any, will be
applied as specified in Schedule B-8 to this Exhibit B.
- --------------------
[*] Information redacted pursuant to a confidential treatment request
throughout this exhibit.
Qwest Communications
Confidential and Proprietary
1
<PAGE> 35
[QWEST LOGO]
<TABLE>
<CAPTION>
QWEST EXPRESS
INTERSTATE TERMINATION RATES
LATA PRIMARY BASE RATES - SWITCH MEETPOINT BASE RATES - POP MEETPOINT
STATE NE MW NW S SE SW POP NE POP MW POP S POP SW
----------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C>
120 ME [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
122 NH [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
124 VT [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
126 MA [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
128 MA [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
130 RI [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
132 NY [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
133 NY [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
134 NY [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
136 NY [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
138 NY [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
140 NY [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
220 NJ [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
222 NJ [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
224 NJ [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
226 PA [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
228 PA [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
230 PA [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
232 PA [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
234 PA [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
236 DC [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
238 MD [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
240 MD [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
242 MD [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
244 VA [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
246 VA [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
248 VA [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
250 VA [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
252 VA [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
254 WV [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
EXHIBIT B-1
</TABLE>
- --------------------
[*] Information redacted pursuant to a confidential treatment request
throughout this exhibit.
<PAGE> 36
<TABLE>
<CAPTION>
QWEST EXPRESS
INTERSTATE TERMINATION RATES
LATA PRIMARY BASE RATES - SWITCH MEETPOINT BASE RATES - POP MEETPOINT
STATE NE MW NW S SE SW POP NE POP MW POP S POP SW
----------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C>
256 WV [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
320 OH [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
322 OH [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
324 OH [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
325 OH [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
326 OH [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
328 OH [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
330 IN [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
332 IN [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
334 IN [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
336 IN [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
338 IN [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
340 MI [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
342 MI [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
344 MI [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
346 MI [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
348 MI [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
350 WI [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
352 WI [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
354 WI [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
356 WI [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
358 IL [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
360 IL [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
362 IL [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
364 IL [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
366 IL [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
368 IL [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
370 IL [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
374 IL [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
376 IL [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
</TABLE>
- --------------------
[*] Information redacted pursuant to a confidential treatment request
throughout this exhibit.
<PAGE> 37
<TABLE>
<CAPTION>
QWEST EXPRESS
INTERSTATE TERMINATION RATES
LATA PRIMARY BASE RATES - SWITCH MEETPOINT BASE RATES - POP MEETPOINT
STATE NE MW NW S SE SW POP NE POP MW POP S POP SW
----------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C>
420 NC [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
422 NC [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
424 NC [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
426 NC [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
428 NC [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
430 SC [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
432 SC [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
434 SC [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
436 SC [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
438 GA [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
440 GA [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
442 GA [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
444 GA [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
446 GA [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
448 FL [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
450 FL [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
452 FL [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
454 FL [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
456 FL [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
458 FL [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
460 FL [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
462 KY [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
464 KY [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
466 KY [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
468 TN [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
470 TN [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
472 TN [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
474 TN [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
476 AL [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
477 AL [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
</TABLE>
- --------------------
[*] Information redacted pursuant to a confidential treatment request
throughout this exhibit.
<PAGE> 38
[QWEST LOGO]
<TABLE>
<CAPTION>
QWEST EXPRESS
INTERSTATE TERMINATION RATES
LATA PRIMARY BASE RATES - SWITCH MEETPOINT BASE RATES - POP MEETPOINT
STATE NE MW NW S SE SW POP NE POP MW POP S POP SW
----------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C>
478 AL [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
480 AL [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
482 MS [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
484 MS [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
486 LA [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
488 LA [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
490 LA [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
492 LA [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
520 MO [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
521 MO [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
522 MO [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
524 MO [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
526 AR [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
528 AR [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
530 AR [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
532 KS [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
534 KS [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
536 OK [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
538 OK [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
540 TX [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
542 TX [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
544 TX [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
546 TX [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
548 TX [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
550 TX [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
552 TX [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
554 TX [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
556 TX [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
558 TX [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
560 TX [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
</TABLE>
- --------------------
[*] Information redacted pursuant to a confidential treatment request
throughout this exhibit.
<PAGE> 39
<TABLE>
<CAPTION>
QWEST EXPRESS
INTERSTATE TERMINATION RATES
LATA PRIMARY BASE RATES - SWITCH MEETPOINT BASE RATES - POP MEETPOINT
STATE NE MW NW S SE SW POP NE POP MW POP S POP SW
----------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C>
674 WA [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
676 WA [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
720 NV [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
721 NV [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
722 CA [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
724 CA [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
726 CA [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
728 CA [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
730 CA [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
732 CA [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
734 CA [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
736 CA [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
738 CA [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
740 CA [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
820 PR [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
822 USVI [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
832 AK [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
834 HI [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
836 MID/WAKE [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
920 CT [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
921 NY [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
922 OH [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
923 OH [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
924 PA [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
927 VA [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
928 VA [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
929 VA [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
930 VA [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
932 WV [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
937 IN [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
</TABLE>
- --------------------
[*] Information redacted pursuant to a confidential treatment request
throughout this exhibit.
<PAGE> 40
<TABLE>
<CAPTION>
QWEST EXPRESS
INTERSTATE TERMINATION RATES
LATA PRIMARY BASE RATES - SWITCH MEETPOINT BASE RATES - POP MEETPOINT
STATE NE MW NW S SE SW POP NE POP MW POP S POP SW
----------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C>
562 TX [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
564 TX [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
566 TX [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
568 TX [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
570 TX [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
620 MN [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
624 MN [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
626 MN [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
628 MN [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
630 IA [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
632 IA [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
634 IA [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
635 IA [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
636 ND [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
638 ND [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
640 SD [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
644 NE [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
646 NE [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
648 MT [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
650 MT [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
652 ID [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
654 WY [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
656 CO [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
658 CO [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
660 UT [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
664 NM [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
666 AZ [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
668 AZ [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
670 OR [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
672 OR [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
</TABLE>
- --------------------
[*] Information redacted pursuant to a confidential treatment request
throughout this exhibit.
<PAGE> 41
<TABLE>
<CAPTION>
QWEST EXPRESS
INTERSTATE TERMINATION RATES
LATA PRIMARY BASE RATES - SWITCH MEETPOINT BASE RATES - POP MEETPOINT
STATE NE MW NW S SE SW POP NE POP MW POP S POP SW
----------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C>
938 IN [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
939 FL [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
949 NC [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
951 NC [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
952 FL [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
953 FL [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
955 AL [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
956 TN [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
958 NE [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
960 ID [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
961 TX [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
963 MT [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
973 CA [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
974 NY [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
976 IL [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
977 IL [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
978 IL [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
980 AZ [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
981 AZ [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
</TABLE>
- --------------------
[*] Information redacted pursuant to a confidential treatment request
throughout this exhibit.
<PAGE> 42
[QWEST LOGO]
Qwest Express
Intrastate Termination Rates
<TABLE>
<CAPTION>
STATE BASE RATES
- ----- ----------
<S> <C>
AL [*]
AR [*]
AZ [*]
CA [*]
CO [*]
CT [*]
DC [*]
DE [*]
FL [*]
GA [*]
IA [*]
ID [*]
IL [*]
IN [*]
KS [*]
KY [*]
LA [*]
MA [*]
MD [*]
ME [*]
MI [*]
MN [*]
MO [*]
MS [*]
MT [*]
NC [*]
ND [*]
NE [*]
NH [*]
NJ [*]
NM [*]
NV [*]
NY [*]
OH [*]
OK [*]
OR [*]
PA [*]
RI [*]
SC [*]
SD [*]
TN [*]
TX [*]
UT [*]
VA [*]
VT [*]
WA [*]
WI [*]
WV [*]
WY [*]
</TABLE>
- --------------------
[*] Information redacted pursuant to a confidential treatment request
throughout this exhibit.
<PAGE> 43
[QWEST LOGO] Carrier International Rates
<TABLE>
<CAPTION>
Country City
Country Code Code(s) Rate
- ------- ---------- ------------------------- -------
<S> <C> <C> <C>
Afghanistan 93 N/A [*]
Albania 355 N/A [*]
Algeria 213 N/A [*]
American Samoa 684 N/A [*]
Andorra 376 N/A [*]
Angola 244 N/A [*]
Anguilla 809/264 N/A [*]
Antarctica (CASEY & SCOTT) 672 N/A [*]
Antigua NPA 268 N/A [*]
Argentina 54 N/A [*]
Argentina (Mobile) 54 20, 21, 22, 26, 28, 30, 40 [*]
Armenia 374 N/A [*]
Aruba 297 N/A [*]
Ascension Island 247 N/A [*]
Australia 61 N/A [*]
Australia (Mobile) 61 14, 15, 16, 17, 18, 19, 4,
500 [*]
Austria 43 N/A [*]
Azerbaijan 994 N/A [*]
Azores 992 N/A [*]
Bahamas NPA 242 N/A [*]
Bahrain 973 N/A [*]
Bangladesh 880 N/A [*]
Barbados 246 N/A [*]
Belarus 375 N/A [*]
Belgium 32 N/A [*]
Belgium (Mobile) 32 16, 17, 18, 45, 47, 49, 7,
88, 90, 94, 95, 96, 98 [*]
Belize 501 N/A [*]
Benin 229 N/A [*]
Bermuda 809 N/A [*]
Bhutan 975 N/A [*]
</TABLE>
- --------------------
[*] Information redacted pursuant to a confidential treatment request
throughout this exhibit.
Exhibit B-2
<PAGE> 44
[QWEST LOGO] Carrier International Rates
<TABLE>
<CAPTION>
Country City
Country Code Code(s) Rate
- ------- ---------- ------------------------- -------
<S> <C> <C> <C>
Bolivia 591 N/A [*]
Bosnia & Herzegovina 387 N/A [*]
Botswana 267 N/A [*]
Brazil 55 N/A [*]
British Virgin Islands 809 N/A [*]
Brunei 673 N/A [*]
Bulgaria 359 N/A [*]
Burkina Faso 226 N/A [*]
Burundi 257 N/A [*]
Cambodia 855 N/A [*]
Cameroon 237 N/A [*]
Canada (NPA 204) 2 N/A [*]
Canada (NPA 250) 2 N/A [*]
Canada (NPA 306) 2 N/A [*]
Canada (NPA 403) 2 N/A [*]
Canada (NPA 416) 2 N/A [*]
Canada (NPA 418) 2 N/A [*]
Canada (NPA 506) 2 N/A [*]
Canada (NPA 514) 2 N/A [*]
Canada (NPA 519) 2 N/A [*]
Canada (NPA 604) 2 N/A [*]
Canada (NPA 613) 2 N/A [*]
Canada (NPA 705) 2 N/A [*]
Canada (NPA 709) 2 N/A [*]
Canada (NPA 807) 2 N/A [*]
Canada (NPA 819) 2 N/A [*]
Canada (NPA 867) 2 N/A [*]
Canada (NPA 902) 2 N/A [*]
Canada (NPA 905) 2 N/A [*]
Cape Verde Islands 238 N/A [*]
Cayman Islands 809/345 N/A [*]
Central African Republic 236 N/A [*]
</TABLE>
- --------------------
[*] Information redacted pursuant to a confidential treatment request
throughout this exhibit.
<PAGE> 45
[QWEST LOGO] Carrier International Rates
<TABLE>
<CAPTION>
Country City
Country Code Code(s) Rate
- ------- ---------- ------------------------- -------
<S> <C> <C> <C>
Chad 235 N/A [*]
Chile 56 N/A [*]
Chile (Mobile) 56 9 [*]
China (Mobile) 86 13, 8, 9 [*]
China, People's Republic of 86 N/A [*]
Christmas & Cocos Islands 672 N/A [*]
Colombia 57 N/A [*]
Colombia (Mobile) 57 3 [*]
Comoros 269 N/A [*]
Congo, Republic of 242 N/A [*]
Cook Islands 682 N/A [*]
Costa Rica 506 N/A [*]
Costa Rica (Mobile) 506 283, 284, 3 [*]
Croatia 385 N/A [*]
Cuba 53 N/A [*]
Cyprus 357 N/A [*]
Czech Republic 420 N/A [*]
Denmark 45 N/A [*]
Denmark (Mobile) 45 20, 21, 22, 26, 28, 30, 40 [*]
Diego Garcia 246 N/A [*]
Djibouti 253 N/A [*]
Dominica 809 N/A [*]
Dominican Republic 809 N/A [*]
Ecuador 593 N/A [*]
Ecuador 593 9 [*]
Egypt 20 N/A [*]
El Salvador 503 N/A [*]
El Salvador (Mobile) 503 8 [*]
Equatorial Guinea 240 N/A [*]
Eritrea 291 N/A [*]
Estonia 372 N/A [*]
Ethiopia 251 N/A [*]
</TABLE>
- --------------------
[*] Information redacted pursuant to a confidential treatment request
throughout this exhibit.
<PAGE> 46
[QWEST LOGO] Carrier International Rates
<TABLE>
<CAPTION>
Country City
Country Code Code(s) Rate
- ------- ---------- ------------------------- -------
<S> <C> <C> <C>
Faeroe Islands 298 N/A [*]
Falkland Islands 500 N/A [*]
Fiji Islands 679 N/A [*]
Finland 358 N/A [*]
France 33 N/A [*]
France (Mobile) 33 6 [*]
French Antilles (incl. Martinique) 596 N/A [*]
French Guiana 594 N/A [*]
French Polynesia 689 N/A [*]
Gabon Republic 241 N/A [*]
Gambia 220 N/A [*]
Georgia 995 N/A [*]
Germany 49 N/A [*]
Germany (Mobile) 49 16, 17 [*]
Ghana 233 N/A [*]
Gibraltar 350 N/A [*]
Greece 30 N/A [*]
Greenland 299 N/A [*]
Grenada 809 N/A [*]
Guadeloupe 590 N/A [*]
Guam 671 N/A [*]
Guantanamo Bay 53 N/A [*]
Guatemala 502 N/A [*]
Guatemala (Mobile) 502 20 [*]
Guinea 224 N/A [*]
Buinea-Bissau 245 N/A [*]
Guyana 592 N/A [*]
Haiti 509 N/A [*]
Honduras 504 N/A [*]
Hong Kong 852 N/A [*]
Hong Kong (Mobile) 852 1, 2, 812, 819, 821, 9 [*]
Hungary 36 N/A [*]
</TABLE>
- --------------------
[*] Information redacted pursuant to a confidential treatment request
throughout this exhibit.
<PAGE> 47
Carrier International Rates
<TABLE>
<CAPTION>
Country City
Country Code Code(s) Rate
- ------- ---------- ------------------------- -------
<S> <C> <C> <C>
Iceland 354 N/A [*]
India 91 N/A [*]
India (Mobile) 91 98 [*]
Indonesia 62 N/A [*]
INMARSAT Atlantic East 871 N/A [*]
INMARSAT Atlantic West 874 N/A [*]
INMARSAT Indian 873 N/A [*]
INMARSAT Pacific 872 N/A [*]
Iran 98 N/A [*]
Iraq 964 N/A [*]
Ireland 353 N/A [*]
Ireland (Mobile) 353 8 [*]
Israel 972 N/A [*]
Israel (Mobile) 972 5 [*]
Italy/Vatican City 39 N/A [*]
330, 335, 336, 337, 338,
Italy/Vatican City (Mobile) 39 347, 348, 360, 368 [*]
Ivory Coast 225 N/A [*]
Jamaica 809/876 N/A [*]
Japan 81 N/A [*]
10, 20, 30, 31, 40, 50, 60,
Japan (Mobile) 81 61, 70, 80, 90 [*]
Jordan 962 N/A [*]
Jordan (Mobile) 962 79 [*]
Kazakhstan 7 310-318, 320-330, 336 [*]
Kenya 254 N/A [*]
Kiribati 686 N/A [*]
Korea, North 850 N/A [*]
Korea, South 82 N/A [*]
Korea, South (Mobile) 82 1 [*]
Kuwait 965 N/A [*]
Kuwait (Mobile) 965 9 [*]
Kyrgystan 7 or 996 N/A [*]
</TABLE>
- -----------------------
[*] Information redacted pursuant to a confidential treatment request
throughout this exhibit.
<PAGE> 48
Carrier International Rates
<TABLE>
<CAPTION>
Country City
Country Code Code(s) Rate
- ------- ---------- ------------------------- -------
<S> <C> <C> <C>
Kyrgyzstan (Mobile) 7 or 996 31, 32, 34, 35, 36, 37, 39 [*]
Laos 856 N/A [*]
Latvia 371 N/A [*]
Lebanon 961 N/A [*]
Lebanon (Mobile) 961 3 [*]
Lesotho 266 N/A [*]
Liberia 231 N/A [*]
Libya 218 N/A [*]
Liechtenstein 41 75 [*]
Lithuania 370 N/A [*]
Luxembourg 352 N/A [*]
Macau 853 N/A [*]
Macedonia 389 N/A [*]
Madagascar 261 N/A [*]
Malawi 265 N/A [*]
Malaysia 60 N/A [*]
Maldives 960 N/A [*]
Mali Republic 223 N/A [*]
Malta 356 N/A [*]
Marshall Islands 692 N/A [*]
Mauritania 222 N/A [*]
Mauritius 230 N/A [*]
Mayotte Island 269 N/A [*]
Mexico - Rate Step 1 N/A N/A [*]
Mexico - Rate Step 2 N/A N/A [*]
Mexico - Rate Step 3 N/A N/A [*]
Mexico - Rate Step 4 N/A N/A [*]
Mexico - Rate Step 5 N/A N/A [*]
Mexico - Rate Step 6 N/A N/A [*]
Mexico - Rate Step 7 N/A N/A [*]
Mexico - Rate Step 8 N/A N/A [*]
Micronesia 691 N/A [*]
</TABLE>
- --------------------
[*] Information redacted pursuant to a confidential treatment request
throughout this exhibit.
<PAGE> 49
Carrier International Rates
<TABLE>
<CAPTION>
Country City
Country Code Code(s) Rate
- ------- ---------- ------------------------- -------
<S> <C> <C> <C>
Moldova 373 N/A [*]
Monaco 377 N/A [*]
Mongolia 976 N/A [*]
Montserrat 664 N/A [*]
Morocco 212 N/A [*]
Mozambique 258 N/A [*]
Myanmar (Formerly Burma) 95 N/A [*]
Namibia 264 N/A [*]
Nauru 674 N/A [*]
Nepal 977 N/A [*]
Netherlands 31 N/A [*]
Netherlands (Mobile) 31 6, 9 [*]
Netherlands Antilles 599 N/A [*]
Nevis 869 N/A [*]
New Caledonia 687 N/A [*]
New Zealand 64 N/A [*]
New Zealand (Mobile) 64 21, 22, 23, 24, 25, 26, 29,
8, 900 [*]
Nicaragua 505 N/A [*]
Niger Republic 227 N/A [*]
Nigeria 234 N/A [*]
Niue 683 N/A [*]
Norfolk Island 672 N/A [*]
Northern Mariana Islands 670 N/A [*]
Norway 47 N/A [*]
Norway (Mobile) 47 90, 92, 94 [*]
Oman 968 N/A [*]
Pakistan 92 N/A [*]
Palau, Republic of 680 N/A [*]
Panama, Republic of 507 N/A [*]
Papua New Guinea 675 N/A [*]
Paraguay 595 N/A [*]
Peru 51 N/A [*]
</TABLE>
- --------------------
[*] Information redacted pursuant to a confidential treatment request
throughout this exhibit.
<PAGE> 50
Carrier International Rates
<TABLE>
<CAPTION>
Country City
Country Code Code(s) Rate
- ------- ---------- ------------------------- -------
<S> <C> <C> <C>
Peru (Mobile) 51 9 [*]
Philippines 63 N/A [*]
Poland 48 N/A [*]
Portugal 351 N/A [*]
Qatar 974 N/A [*]
Reunion Island 262 N/A [*]
Romania 40 N/A [*]
Russia (Moscow only) 7 095 [*]
Russia (Non-Moscow) 7 N/A [*]
Rwanda 250 N/A [*]
San Marino 378 N/A [*]
Sao Tome 239 N/A [*]
Saudi Arabia 966 N/A [*]
Senegal Republic 221 N/A [*]
Seychelles Islands 248 N/A [*]
Sierra Leone 232 N/A [*]
Singapore 65 N/A [*]
Slovak Republic 421 N/A [*]
Slovenia 386 N/A [*]
Solomon Islands 677 N/A [*]
Somalia 252 N/A [*]
South Africa 27 N/A [*]
Spain 34 N/A [*]
Spain (Mobile) 34 6 [*]
Sri Lanka 94 N/A [*]
St. Helena 290 N/A [*]
St. Kitts 869 N/A [*]
St. Lucia 758 N/A [*]
St. Pierre/Miquelon 508 N/A [*]
St. Vincent/Grenadines 809 N/A [*]
Sudan 249 N/A [*]
Suriname 597 N/A [*]
</TABLE>
- --------------------
[*] Information redacted pursuant to a confidential treatment request
throughout this exhibit.
<PAGE> 51
Carrier International Rates
<TABLE>
<CAPTION>
Country City
Country Code Code(s) Rate
- ------- ---------- ------------------------- -------
<S> <C> <C> <C>
Swaziland 268 N/A [*]
Sweden 46 N/A [*]
Sweden (Mobile) 46 10, 70, 73 [*]
Switzerland 41 N/A [*]
Switzerland (Mobile) 41 20, 40, 70, 74, 77, 79, 89 [*]
Syrian Arab Republic 963 N/A [*]
Taiwan (Mobile) 886 9 [*]
Taiwan, Republic of China 886 N/A [*]
Tajikistan 7 364, 377, 379, 431, 433 [*]
Tanzania 255 N/A [*]
Thailand 66 N/A [*]
Togo 228 N/A [*]
Tokelau 690 N/A [*]
Tonga Islands 676 N/A [*]
Trinidad & Tobago 809 N/A [*]
Tunisia 216 N/A [*]
Turkey 90 N/A [*]
Turkey (Mobile) 90 5 [*]
Turkmenistan 7 or 993 N/A [*]
Turks & Calcos 809/868 N/A [*]
Tuvalu 688 N/A [*]
Uganda 256 N/A [*]
Ukraine 380 N/A [*]
United Arab Emirates 971 N/A [*]
United Kingdom 44 N/A [*]
United Kingdom (Mobile) 44 0, 2, 3, 4, 5, 6, 7, 8, 9 [*]
Uruguay 598 N/A [*]
Uzbekistan 7 or 998 [*]
Vanuatu, Republic of 678 N/A [*]
Venezuela 58 N/A [*]
Venezuela (Mobile) 58 14, 16 [*]
</TABLE>
- --------------------
[*] Information redacted pursuant to a confidential treatment request
throughout this exhibit.
<PAGE> 52
[QWEST LOGO] Carrier International Rates
<TABLE>
<CAPTION>
Country City
Country Code Code(s) Rate
- ------- ---------- ------------------------- -------
<S> <C> <C> <C>
Vietnam 8 N/A [*]
Wallis & Futuna Islands 681 N/A [*]
Western Samoa 685 N/A [*]
Yemen Arab Republic 967 N/A [*]
Yemen Democratic Republic 969 N/A [*]
Yugoslavia (Incl. Serbia) 381 N/A [*]
Zaire, Republic of 243 N/A [*]
Zambia 260 N/A [*]
Zimbabwe 263 N/A [*]
</TABLE>
- --------------------
[*] Information redacted pursuant to a confidential treatment request
throughout this exhibit.
<PAGE> 53
SCHEDULE B-3
SERVICE DESCRIPTION
QWEST EXPRESS 8XX TRANSPORT SERVICE
1. GENERAL
1.1 Interstate rates are per Local Access and Transport Area (LATA) and are
for LATA-wide origination. Rates shown in the attached Rate Exhibit are
shown in terms of full minutes and are billed in six (6) second
increments. All calls will be billed a minimum of $.01.
2. CUSTOMER AS RESPONSIBLE ORGANIZATION ("RESP ORG")
2.1 Customer agrees to be responsible for or act as RESP ORG, to manage and
administer their records in the 8XX Service Management System.
Customer's responsibilities shall be limited to coordinating data entry,
record change, trouble acceptance, referral and/or clearance. As RESP
ORG, Customer will also provide coordination to provision, maintain, and
test 8XX Data Base ("DB") service between various entities, such as:
Local Exchange Carriers ("LECs"), Interexchange Carriers ("IXCs"),
Number Administration and Service Center ("NASC"), and the Service
Management System ("SMS").
3. RBOC-ITC" SURCHARGE
3.1 Customer will maintain at least 80% of the traffic comprising Customer's
800 Origination Service for origination in a Tandem owned and operated
by a Regional Bell Operating Company (RBOC) and subject to such RBOC's
tariffed access charges. Qwest will have the right to apply a [*] per
minute of use surcharge to the number of minutes by which Non-RBOC
Originating minutes exceed 20% of total monthly Origination service
minutes. Qwest will not consider traffic originating in Customer areas
where Customer is providing local access service in the Non-Bell usage
surcharge calculation, provided, Customer is equal to or below LEC
access tariff pricing in such Customer areas. For the purposes of
automating the billing of the surcharge, the OCN number of the
originating carrier will be used. OCN numbers of 9000 and above are
classified as RBOC; and OCN numbers less than 9000 are classified as
"ITC", or Non-RBOC.
4. LIABILITY
- --------------------
[*] Information redacted pursuant to a confidential treatment request
throughout this exhibit.
Qwest Communications
Confidential and Proprietary
2
<PAGE> 54
4.1 Without limiting the TSA, Qwest shall not be liable for any act or
omission of the Number Administration and Service Center (NASC), other
Responsible Organizations (RESP ORGs), or any other carrier providing a
portion of the Service.
4.2 Without limiting the TSA, Qwest shall not be liable for any loss or
damage sustained by Customer, its 800 subscriber or any third party by
reason of defects or malfunctions in the hardware or software provided
by NASC, or by reason of errors made by NASC in connection with the
Service Management System (SMS)/800.
4.3 Without limiting the TSA, Qwest shall not be liable for any loss or
damage sustained by Customer, its 800 subscriber or any third party by
reason of defects or malfunctions in any Qwest Service Management System
(QSMS), Service Control Point (SCP), Service Transfer Point (STP), or
Service Switch Point (SSP), or any other facilities, hardware or
software not directly under Qwest's control.
4.4 Without limiting the TSA, Qwest shall not be liable for any loss of
revenue or profit by Customer or its 800 subscriber or for any loss or
damage arising out of this TSA or out of the use of the SMS/800 or any
of the services provided under this TSA by any person, whether arising
in contract, tort (including, without limitation, negligence or strict
liability) or otherwise and whether or not informed of the possibility
of such damages in advance.
5. INDEMNIFICATION
5.1 Without limiting the TSA, Qwest shall be indemnified, defended and held
harmless by Customer against any third party claim, loss or damage
arising from the use of services offered under this TSA, involving:
claims for libel, slander, invasion of privacy or infringement of
copyright arising from Customer's or its 800 subscriber's own
communications, except to the extent such claim, loss or damage is
caused by Qwest's willful misconduct or gross negligence.
6. CARRIER INTEREXCHANGE CODE (CIC) CONFIDENTIALITY
6.1 Qwest's CIC map and underlying provider is Qwest's propriety information
and shall be kept in the strictest of confidence by Customer and shall
not be used or disclosed by Customer except as necessary to carry out
the intent of this TSA.
7. CUSTOMER OBLIGATIONS FOR RELEASE OF QWEST CIC INFORMATION
Qwest Communications
Confidential and Proprietary
3
<PAGE> 55
7.1 Notwithstanding anything herein to the contrary, and provided Customer
is not in default of any obligation hereunder, Customer may provide
Qwest's CIC map or a portion thereof to a RESP ORG if Customer fully
complies with all of the following conditions:
7.2 Customer shall obtain Qwest's prior written consent.
7.3 No more than one SMS record in which any portion of Qwest's CIC map is
referenced shall be created.
7.4 Customer shall ensure that the SMS record will be applied by the RESP
ORG consistently to all 800 numbers under its control whenever Qwest has
transport responsibility.
7.5 Customer shall cause the RESP ORG to notify Qwest of the assignment of
the applicable record and Customer shall ensure such record is not
implemented without Qwest's approval.
7.6 Customer shall be ready to accept traffic prior to submitting to Qwest
an order to turn up 800 Service.
7.7 Customer shall be responsible for all costs in connection with updating
or changing the applicable SMS record in the event Qwest changes its
mapping.
7.8 Customer shall ensure that the RESP ORG completes such changes within
sixty (60) days of Qwest's notification to Customer of any such change.
8. CUSTOMER OBLIGATIONS FOR USE OF ALTERNATE CIC MAP
8.1 Customer shall ensure that no CICs other than Customer's will be used in
conjunction with Qwest's CIC without ten (10) days prior written
notification to Qwest. Qwest reserves the right to not approve of a
change to a CIC other than Customer's or Qwest's. Customer understands
that it will be responsible for all usage associated with traffic
related to an 8XX number that Qwest refused to approve for a CIC change
if the call is carried on Qwest's network.
8.2 Customer shall not enter into any arrangement with a third party for the
provision or carriage of any component of any 800 traffic transported by
Qwest.
Qwest Communications
Confidential and Proprietary
4
<PAGE> 56
8.3 Customer shall promptly and accurately perform all Qwest requested
changes to its CIC map. Customer shall be responsible for all costs
resulting from its failure to comply with this provision.
8.4 Qwest provides CIC mapping at the LATA level only.
8.5 Where Customer chooses to select itself for 800 origination in a
particular LATA, Customer must provide complete LATA coverage.
8.6 ALL TOLL-FREE CALLS ORIGINATING FROM A PAY-PHONE WILL INCUR A PER-CALL
SURCHARGE OF [*] AS DEFINED IN SECTION 9.2 OF SCHEDULE B-3. SUCH CHARGES
WILL NOT RECEIVE THE VOLUME DISCOUNTS LISTED IN SCHEDULE B-8.
- --------------------
[*] Information redacted pursuant to a confidential treatment request
throughout this exhibit.
Qwest Communications
Confidential and Proprietary
5
<PAGE> 57
[QWEST LOGO]
QWEST EXPRESS 8XX ORIGINATION
<TABLE>
<CAPTION>
- ---------------------------------------------------------------------------------------------------------------------
LATA PRIMARY BASE RATES - SWITCH MEETPOINT BASE RATES - POP MEETPOINT
STATE ATL MW NW S SE SW POP ATL POP MW POP S POP SW
--------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C>
120 ME [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
--------------------------------------------------------------------------------------------------
122 NH [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
--------------------------------------------------------------------------------------------------
124 VT [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
--------------------------------------------------------------------------------------------------
126 MA [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
--------------------------------------------------------------------------------------------------
128 MA [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
--------------------------------------------------------------------------------------------------
130 RI [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
--------------------------------------------------------------------------------------------------
132 NY [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
--------------------------------------------------------------------------------------------------
133 NY [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
--------------------------------------------------------------------------------------------------
134 NY [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
--------------------------------------------------------------------------------------------------
136 NY [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
--------------------------------------------------------------------------------------------------
138 NY [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
--------------------------------------------------------------------------------------------------
140 NY [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
--------------------------------------------------------------------------------------------------
220 NJ [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
--------------------------------------------------------------------------------------------------
222 NJ [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
--------------------------------------------------------------------------------------------------
224 NJ [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
--------------------------------------------------------------------------------------------------
226 PA [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
--------------------------------------------------------------------------------------------------
228 PA [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
--------------------------------------------------------------------------------------------------
230 PA [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
--------------------------------------------------------------------------------------------------
232 PA [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
--------------------------------------------------------------------------------------------------
234 PA [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
--------------------------------------------------------------------------------------------------
236 DC [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
--------------------------------------------------------------------------------------------------
238 MD [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
--------------------------------------------------------------------------------------------------
240 MD [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
--------------------------------------------------------------------------------------------------
242 MD [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
--------------------------------------------------------------------------------------------------
244 VA [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
--------------------------------------------------------------------------------------------------
246 VA [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
--------------------------------------------------------------------------------------------------
248 VA [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
--------------------------------------------------------------------------------------------------
250 VA [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
--------------------------------------------------------------------------------------------------
252 VA [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
--------------------------------------------------------------------------------------------------
254 WV [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
--------------------------------------------------------------------------------------------------
</TABLE>
- --------------------
[*] Information redacted pursuant to a confidential treatment request
throughout this exhibit.
EXHIBIT B-3
<PAGE> 58
[QWEST LOGO]
QWEST EXPRESS 8XX ORIGINATION
<TABLE>
<CAPTION>
- ---------------------------------------------------------------------------------------------------------------------
LATA PRIMARY BASE RATES - SWITCH MEETPOINT BASE RATES - POP MEETPOINT
STATE ATL MW NW S SE SW POP ATL POP MW POP S POP SW
--------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C>
256 WV [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
--------------------------------------------------------------------------------------------------
320 OH [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
--------------------------------------------------------------------------------------------------
322 OH [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
--------------------------------------------------------------------------------------------------
324 OH [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
--------------------------------------------------------------------------------------------------
325 OH [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
--------------------------------------------------------------------------------------------------
326 OH [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
--------------------------------------------------------------------------------------------------
328 OH [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
--------------------------------------------------------------------------------------------------
330 IN [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
--------------------------------------------------------------------------------------------------
332 IN [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
--------------------------------------------------------------------------------------------------
334 IN [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
--------------------------------------------------------------------------------------------------
336 IN [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
--------------------------------------------------------------------------------------------------
338 IN [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
--------------------------------------------------------------------------------------------------
340 MI [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
--------------------------------------------------------------------------------------------------
342 MI [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
--------------------------------------------------------------------------------------------------
344 MI [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
--------------------------------------------------------------------------------------------------
346 MI [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
--------------------------------------------------------------------------------------------------
348 MI [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
--------------------------------------------------------------------------------------------------
350 WI [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
--------------------------------------------------------------------------------------------------
352 WI [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
--------------------------------------------------------------------------------------------------
354 WI [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
--------------------------------------------------------------------------------------------------
356 WI [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
--------------------------------------------------------------------------------------------------
358 IL [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
--------------------------------------------------------------------------------------------------
360 IL [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
--------------------------------------------------------------------------------------------------
362 IL [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
--------------------------------------------------------------------------------------------------
364 IL [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
--------------------------------------------------------------------------------------------------
366 IL [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
--------------------------------------------------------------------------------------------------
368 IL [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
--------------------------------------------------------------------------------------------------
370 IL [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
--------------------------------------------------------------------------------------------------
374 IL [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
--------------------------------------------------------------------------------------------------
376 IL [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
--------------------------------------------------------------------------------------------------
420 NC [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
--------------------------------------------------------------------------------------------------
</TABLE>
- --------------------
[*] Information redacted pursuant to a confidential treatment request
throughout this exhibit.
<PAGE> 59
[QWEST LOGO]
QWEST EXPRESS 8XX ORIGINATION
<TABLE>
<CAPTION>
- ---------------------------------------------------------------------------------------------------------------------
LATA PRIMARY BASE RATES - SWITCH MEETPOINT BASE RATES - POP MEETPOINT
STATE ATL MW NW S SE SW POP ATL POP MW POP S POP SW
--------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C>
422 NC [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
--------------------------------------------------------------------------------------------------
424 NC [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
--------------------------------------------------------------------------------------------------
426 NC [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
--------------------------------------------------------------------------------------------------
428 NC [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
--------------------------------------------------------------------------------------------------
430 SC [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
--------------------------------------------------------------------------------------------------
432 SC [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
--------------------------------------------------------------------------------------------------
434 SC [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
--------------------------------------------------------------------------------------------------
436 SC [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
--------------------------------------------------------------------------------------------------
438 GA [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
--------------------------------------------------------------------------------------------------
440 GA [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
--------------------------------------------------------------------------------------------------
442 GA [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
--------------------------------------------------------------------------------------------------
444 GA [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
--------------------------------------------------------------------------------------------------
446 GA [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
--------------------------------------------------------------------------------------------------
448 FL [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
--------------------------------------------------------------------------------------------------
450 FL [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
--------------------------------------------------------------------------------------------------
452 FL [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
--------------------------------------------------------------------------------------------------
454 FL [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
--------------------------------------------------------------------------------------------------
456 FL [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
--------------------------------------------------------------------------------------------------
458 FL [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
--------------------------------------------------------------------------------------------------
460 FL [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
--------------------------------------------------------------------------------------------------
462 KY [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
--------------------------------------------------------------------------------------------------
464 KY [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
--------------------------------------------------------------------------------------------------
466 KY [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
--------------------------------------------------------------------------------------------------
468 TN [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
--------------------------------------------------------------------------------------------------
470 TN [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
--------------------------------------------------------------------------------------------------
472 TN [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
--------------------------------------------------------------------------------------------------
474 TN [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
--------------------------------------------------------------------------------------------------
476 AL [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
--------------------------------------------------------------------------------------------------
477 AL [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
--------------------------------------------------------------------------------------------------
478 AL [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
--------------------------------------------------------------------------------------------------
480 AL [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
--------------------------------------------------------------------------------------------------
</TABLE>
- --------------------
[*] Information redacted pursuant to a confidential treatment request
throughout this exhibit.
<PAGE> 60
[QWEST LOGO]
QWEST EXPRESS 8XX ORIGINATION
<TABLE>
<CAPTION>
- ---------------------------------------------------------------------------------------------------------------------
LATA PRIMARY BASE RATES - SWITCH MEETPOINT BASE RATES - POP MEETPOINT
STATE ATL MW NW S SE SW POP ATL POP MW POP S POP SW
--------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C>
482 MS [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
--------------------------------------------------------------------------------------------------
484 MS [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
--------------------------------------------------------------------------------------------------
486 LA [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
--------------------------------------------------------------------------------------------------
488 LA [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
--------------------------------------------------------------------------------------------------
490 LA [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
--------------------------------------------------------------------------------------------------
492 LA [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
--------------------------------------------------------------------------------------------------
520 MO [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
--------------------------------------------------------------------------------------------------
521 MO [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
--------------------------------------------------------------------------------------------------
522 MO [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
--------------------------------------------------------------------------------------------------
524 MO [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
--------------------------------------------------------------------------------------------------
526 AR [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
--------------------------------------------------------------------------------------------------
528 AR [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
--------------------------------------------------------------------------------------------------
530 AR [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
--------------------------------------------------------------------------------------------------
532 KS [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
--------------------------------------------------------------------------------------------------
534 KS [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
--------------------------------------------------------------------------------------------------
536 OK [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
--------------------------------------------------------------------------------------------------
538 OK [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
--------------------------------------------------------------------------------------------------
540 TX [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
--------------------------------------------------------------------------------------------------
542 TX [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
--------------------------------------------------------------------------------------------------
544 TX [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
--------------------------------------------------------------------------------------------------
546 TX [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
--------------------------------------------------------------------------------------------------
548 TX [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
--------------------------------------------------------------------------------------------------
550 TX [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
--------------------------------------------------------------------------------------------------
552 TX [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
--------------------------------------------------------------------------------------------------
554 TX [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
--------------------------------------------------------------------------------------------------
556 TX [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
--------------------------------------------------------------------------------------------------
558 TX [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
--------------------------------------------------------------------------------------------------
560 TX [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
--------------------------------------------------------------------------------------------------
562 TX [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
--------------------------------------------------------------------------------------------------
564 TX [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
--------------------------------------------------------------------------------------------------
566 TX [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
- ---------------------------------------------------------------------------------------------------------------------
</TABLE>
- --------------------
[*] Information redacted pursuant to a confidential treatment request
throughout this exhibit.
<PAGE> 61
[QWEST LOGO]
QWEST EXPRESS 8XX ORIGINATION
<TABLE>
<CAPTION>
- ---------------------------------------------------------------------------------------------------------------------
LATA PRIMARY BASE RATES - SWITCH MEETPOINT BASE RATES - POP MEETPOINT
STATE ATL MW NW S SE SW POP ATL POP MW POP S POP SW
--------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C>
568 TX [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
--------------------------------------------------------------------------------------------------
570 TX [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
--------------------------------------------------------------------------------------------------
620 MN [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
--------------------------------------------------------------------------------------------------
624 MN [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
--------------------------------------------------------------------------------------------------
626 MN [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
--------------------------------------------------------------------------------------------------
628 MN [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
--------------------------------------------------------------------------------------------------
630 IA [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
--------------------------------------------------------------------------------------------------
632 IA [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
--------------------------------------------------------------------------------------------------
634 IA [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
--------------------------------------------------------------------------------------------------
635 IA [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
--------------------------------------------------------------------------------------------------
636 ND [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
--------------------------------------------------------------------------------------------------
638 ND [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
--------------------------------------------------------------------------------------------------
640 SD [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
--------------------------------------------------------------------------------------------------
644 NE [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
--------------------------------------------------------------------------------------------------
646 NE [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
--------------------------------------------------------------------------------------------------
648 MT [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
--------------------------------------------------------------------------------------------------
650 MT [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
--------------------------------------------------------------------------------------------------
652 ID [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
--------------------------------------------------------------------------------------------------
654 WY [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
--------------------------------------------------------------------------------------------------
656 CO [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
--------------------------------------------------------------------------------------------------
658 CO [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
--------------------------------------------------------------------------------------------------
660 UT [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
--------------------------------------------------------------------------------------------------
664 NM [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
--------------------------------------------------------------------------------------------------
666 AZ [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
--------------------------------------------------------------------------------------------------
668 AZ [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
--------------------------------------------------------------------------------------------------
670 OR [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
--------------------------------------------------------------------------------------------------
672 OR [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
--------------------------------------------------------------------------------------------------
674 WA [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
--------------------------------------------------------------------------------------------------
676 WA [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
--------------------------------------------------------------------------------------------------
720 NV [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
--------------------------------------------------------------------------------------------------
721 NV [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
--------------------------------------------------------------------------------------------------
</TABLE>
- --------------------
[*] Information redacted pursuant to a confidential treatment request
throughout this exhibit.
<PAGE> 62
[QWEST LOGO]
QWEST EXPRESS 8XX ORIGINATION
<TABLE>
<CAPTION>
- ---------------------------------------------------------------------------------------------------------------------
LATA PRIMARY BASE RATES - SWITCH MEETPOINT BASE RATES - POP MEETPOINT
STATE ATL MW NW S SE SW POP ATL POP MW POP S POP SW
--------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C>
722 CA [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
--------------------------------------------------------------------------------------------------
724 CA [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
--------------------------------------------------------------------------------------------------
726 CA [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
--------------------------------------------------------------------------------------------------
728 CA [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
--------------------------------------------------------------------------------------------------
730 CA [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
--------------------------------------------------------------------------------------------------
732 CA [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
--------------------------------------------------------------------------------------------------
734 CA [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
--------------------------------------------------------------------------------------------------
736 CA [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
--------------------------------------------------------------------------------------------------
738 CA [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
--------------------------------------------------------------------------------------------------
740 CA [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
--------------------------------------------------------------------------------------------------
820 PR [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
--------------------------------------------------------------------------------------------------
822 USVI [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
--------------------------------------------------------------------------------------------------
832 AK [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
--------------------------------------------------------------------------------------------------
834 HI [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
--------------------------------------------------------------------------------------------------
836 MID/WAKE [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
--------------------------------------------------------------------------------------------------
920 CT [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
--------------------------------------------------------------------------------------------------
921 NY [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
--------------------------------------------------------------------------------------------------
922 OH [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
--------------------------------------------------------------------------------------------------
923 OH [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
--------------------------------------------------------------------------------------------------
924 PA [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
--------------------------------------------------------------------------------------------------
927 VA [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
--------------------------------------------------------------------------------------------------
928 VA [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
--------------------------------------------------------------------------------------------------
929 VA [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
--------------------------------------------------------------------------------------------------
930 VA [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
--------------------------------------------------------------------------------------------------
932 WV [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
--------------------------------------------------------------------------------------------------
937 IN [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
--------------------------------------------------------------------------------------------------
938 IN [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
--------------------------------------------------------------------------------------------------
939 FL [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
--------------------------------------------------------------------------------------------------
949 NC [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
--------------------------------------------------------------------------------------------------
951 NC [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
--------------------------------------------------------------------------------------------------
952 FL [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
--------------------------------------------------------------------------------------------------
</TABLE>
- --------------------
[*] Information redacted pursuant to a confidential treatment request
throughout this exhibit.
<PAGE> 63
[QWEST LOGO]
QWEST EXPRESS 8XX ORIGINATION
<TABLE>
<CAPTION>
- ---------------------------------------------------------------------------------------------------------------------
LATA PRIMARY BASE RATES - SWITCH MEETPOINT BASE RATES - POP MEETPOINT
STATE ATL MW NW S SE SW POP ATL POP MW POP S POP SW
-------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C>
953 FL [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
--------------------------------------------------------------------------------------------------
955 AL [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
--------------------------------------------------------------------------------------------------
956 TN [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
--------------------------------------------------------------------------------------------------
958 NE [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
--------------------------------------------------------------------------------------------------
960 ID [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
--------------------------------------------------------------------------------------------------
961 TX [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
--------------------------------------------------------------------------------------------------
963 MT [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
--------------------------------------------------------------------------------------------------
973 CA [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
--------------------------------------------------------------------------------------------------
974 NY [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
--------------------------------------------------------------------------------------------------
976 IL [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
--------------------------------------------------------------------------------------------------
977 IL [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
--------------------------------------------------------------------------------------------------
978 IL [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
--------------------------------------------------------------------------------------------------
980 AZ [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
--------------------------------------------------------------------------------------------------
981 UT [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
--------------------------------------------------------------------------------------------------
CANADA N/A [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
- ---------------------------------------------------------------------------------------------------------------------
</TABLE>
- --------------------
[*] Information redacted pursuant to a confidential treatment request
throughout this exhibit.
<PAGE> 64
SCHEDULE B-4
SERVICE DESCRIPTION
QWEST SWITCHLESS RESALE
1. SCOPE OF AGREEMENT
1.1 Qwest will provide to Customer and Customer will purchase from Qwest
certain Qwest domestic and international long distance services
described in the Exhibits hereto ("Switchless Reseller Service(s)")
provided pursuant to Qwest/LCI Tariff F.C.C. No. 1, Qwest/LCI Tariff
F.C.C. No. 2, and applicable state tariffs (collectively, "Tariff(s)"),
which are on file with the Federal Communications Commission ("FCC") and
applicable state regulatory bodies. The Tariffs may be modified from
time to time by Qwest in accordance with law and thereby affect the
Service(s) furnished Customer. To the extent applicable to the
furnishing of Qwest Services hereunder, the Tariff, as amended from time
to time, is hereby incorporated herein and made a part hereof, except
that the following terms and conditions shall supplement or, to the
extent inconsistent, supersede Tariff terms and conditions and shall
remain in effect throughout the service term, as hereinafter defined.
1.2 Customer shall pay all applicable federal, state and local taxes and
surcharges unless and until Customer submits valid tax exemption
certificates for an applicable tax. Credits or refunds of tax payments
will not be issued to Customer for usage prior to the submission of tax
exemption certificates.
2. CUSTOMER SERVICE AND BILLING
2.1 Customer acknowledges and agrees that it shall provide all billing,
inquiry, and customer service to End-Users. Qwest shall only be
obligated to provide customer service to Customer.
2.2 Customer acknowledges that it may not withhold any sums invoiced by
Qwest for actual calls made by Customer including, without limitation,
calls made by Customer's End Users and/or unauthorized third parties
(e.g., fraudulent calls) and charges to Customer's Qwest account(s).
Qwest Communications
Confidential and Proprietary
1
<PAGE> 65
3. PIC AUTHORIZATIONS
Customer shall obtain a signed or verbal interexchange carrier ("PIC")
authorization with true third party verification and archived recordings
according to state or FCC guidelines for each ANI ordered by Customer.
Upon an oral or written request by Qwest, Customer shall immediately
produce a copy of the written or verbal authorization. Qwest reserves
the right not to process or turn up ANIs until Customer has produced
appropriate written or verbal authorizations requested by Qwest. If
Customer does not comply with the request for PIC authorizations, Qwest
reserves the right not to accept additional ANIs until Customer
complies.
3.1 If Customer elects to provide only direct dial (or so-called "1+")
services, and Qwest will act as the interexchange carrier ("IXC") for
operator-assisted (or so-called "0+") traffic generated by Customer's
end users, Customer agrees where appropriate to inform its end-users
that it:
~ designates Qwest as its primary carrier for 0+ operator assisted
intraLATA long distance services;"
~ designates Qwest as its primary carrier for 0+ operator assisted
interLATA long distance services;" or
~ designates Qwest as its primary carrier for 0+ operator assisted
intraLATA and interLATA long distance services."
3.2 In the event a LEC or any regulatory entity assesses Qwest any charge,
fine, forfeiture, or fee for improper or inadequate PIC authorizations
relating to Customer's service, Customer shall promptly reimburse Qwest
for all such charges plus an Qwest management fee of [*] per ANI ordered
by Customer that is deemed to lack proper service authorization or PIC
verification.
3.3 Upon the request of Qwest, Customer shall promptly provide to Qwest or
the LEC, at Customer's expense, any documentation required by the LEC
regarding PIC selections or authorizations from Customer's End Users. In
addition, Customer shall promptly and in good faith cooperate with Qwest
and all LECs in investigating and attempting to resolve all PIC
selection and authorization disputes.
4. REPORTING REQUIREMENTS
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throughout this exhibit.
Qwest Communications
Confidential and Proprietary
2
<PAGE> 66
4.1 Where reporting obligations or requirements are imposed upon Qwest by
any third party or regulatory agency that can be satisfied by Customer,
Customer agrees to comply with such requirements and obligations and to
hold Qwest harmless for any failure of compliance with any such
requirement or obligation.
5. GOVERNING LAW, CERTIFICATIONS AND WARRANTIES
5.1 Customer understands that Qwest, in conducting its business in the
manner set forth herein, is subject to the Communications Act of 1934,
as amended, and as interpreted and applied by the Federal Communications
Commission. All terms of this TSA not subject to the Communications Act
of 1934 as amended and as interpreted and applied by the Federal
Communications Commission will be interpreted according to New York law,
without regard to its conflicts of law provisions. Any cause of action
Customer may have with respect to a breach of this TSA must be commenced
within one (1) year after the claim or cause of action arises or such
claim or cause of action is barred.
5.2 If service is provided solely within a single state in a manner which
subjects the Service to regulation by such state, then the terms and
conditions of such Service and of terminating switched services provided
under this TSA shall be subject to such regulations and to any amendment
to this TSA relating thereto which is delivered by Qwest to Customer.
Customer shall have the right to terminate this TSA within ten (10) days
of receipt of such amendment without further liability hereunder.
5.3 Customer certifies and warrants that it is in compliance with and will
continue to be in compliance with all international, federal, state and
local laws and regulations relating to its performance under this
Agreement. Customer is solely responsible for obtaining all licenses,
approvals, and regulatory authority for its operation and the provision
of services to its customers ("End Users"). Any breach of the
obligations of Customer under this Section shall be a material breach of
this Agreement. If Customer does not comply with this Section, in
addition to any remedies available to Qwest at law or in equity, Qwest,
in its sole discretion, may elect to decline to accept additional orders
under this Agreement or may immediately terminate this Agreement without
further liability or obligation to Customer.
6. CANCELLATION, BLOCKING AND DISCONNECT OF SERVICE
Qwest Communications
Confidential and Proprietary
3
<PAGE> 67
6.1 Without affecting Customer's minimum usage or other obligations herein,
Customer may cancel, disconnect, or terminate a portion of the Service
when Customer's End User has provided a new PIC authorization to another
carrier. Customer shall be financially responsible for Service provided
under this Agreement until such time that the new PIC change is
implemented. In the event Customer requests that an ANI be blocked from
Qwest Services, Customer must certify that the request for blocking is
due to an End User account being past due and delinquent and the End
User has been properly notified.
7. NON-BELL USAGE SURCHARGE
7.1 Customer will originate at least 80% of Customer's total usage of the
Service in a tandem owned and operated by a Regional Bell Operating
Company (RBOC) and subject to such RBOC's tariffed access charges. Qwest
will apply a surcharge of [*] per minute of use to the number of
minutes by which Non-RBOC originations exceed 20% of Customer's total
usage of the Service. Qwest will not consider traffic originating in
Customer areas where Customer is providing local access service in the
Non-Bell usage surcharge calculation, provided, Customer is equal to or
below LEC access tariff pricing in such Customer areas.
8. RATING INCREMENTS
8.1 Interstate rates are per state and are for state-wide calling. The
applicable continental US Interstate rate is determined based upon the
originating state of an outbound call or based upon the terminating
state of a toll-free inbound call. Intrastate rates are per State and
are for State-wide termination. Domestic rates shown in the ReQwest
Interstate and Intrastate Rate Exhibits are shown in terms of full
minutes and are billed in [*] second increments.
8.2 International rates are per country and are for country-code wide
termination. International rates shown in the ReQwest International Rate
Exhibit, with the exception of Mexican rates, are shown in terms of a
rate per minute and are billed in [*] second increments, with an initial
[*] second increment. Mexican calls are billed in full minute (60
seconds) increments. Directory Assistance calls are billed on a per-call
basis.
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throughout this exhibit.
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Confidential and Proprietary
4
<PAGE> 68
8.3 Calling Card rate billing increments vary by originating and terminating
points of the call and are listed in the Calling Card rate exhibit.
8.4 Rates shown in the ReQwest Rate Exhibits are Base Rates. Discounts, if
any, pursuant to the below Discounts Section and Discount Schedule.
8.5 Qwest reserves the right to charge excessive quantities (i.e. 10% of
Customer's total calls) of short duration calls (i.e. calls under [*] in
length) a minimum of [*] per answered call.
9. TOLL FREE SERVICES PORTABILITY
9.1 Qwest will provide toll free inbound services to End Users desiring to
keep their current toll free number providing the End User signs a
Letter of Agency designating Qwest as the Responsible Organization for
the toll free number
9.2 Qwest will train the Customer on the proper procedures and documentation
required for toll free portability.
9.3 Qwest will provide to Reseller Responsible Organization Service and will
charge the following rates: Monthly Recurring Charge(s)
~ Number Storage Charge: [*] per toll free number
~ Search/Reservation: No Charge
~ SMS Data Base Administration: No Charge
10. PICC, PAYPHONE COMPENSATION, AND OTHER REGULATORY REFORM RELATED
SURCHARGES
10.1 As a result of regulatory reform, certain government subsidies and other
government-imposed charges previously collected through local exchange
access usage rates are assessed directly upon interexchange carriers on
a per-line or per-call basis. The following flat rate charges may apply
to Customer's total charges as a result, and Customer agrees to be
responsible for paying for such fees. These charges will be
- -----------------------
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throughout this exhibit.
Qwest Communications
Confidential and Proprietary
5
<PAGE> 69
itemized on the customer's bill and are in addition to the rates for
services described in the Rates and Discounts portion of Schedule B-3.1.
10.2 Payphone Compensation Surcharge: [*] per payphone originated, completed
call will be assessed.
10.3 PICC (Primary Interexchange Carrier Charge): A fee per line
presubscribed to Qwest/LCI that may vary as follows, depending upon line
type. These charges are subject to change.
~ [*] for each Single Line Business and Primary Residential line
~ [*] for each Subsequent Residential line.
~ [*] for each Multi-Line Business line.
11. PROJECT ACCOUNT CODES (PAC)
11.1 Qwest will provide Project Account Codes for use with Outbound and toll
free inbound services to Customer at the following rates: Outbound PAC
(charges are per account):
~ Non-Verified PAC set up: [*]
~ Verified PAC set up: [*]
~ Non-Verified PAC Monthly Recurring Charges: [*]
~ Verified PAC Monthly Recurring Charges: [*]
11.2 Toll Free PAC (charges are per toll free number):
~ Non-Verified PAC set up: [*]
~ Verified PAC set up: [*]
~ Non-Verified PAC Monthly Recurring Charges: [*]
~ Verified PAC Monthly Recurring Charges: [*]
11.3 Customer agrees to be responsible for such charges and to pay for such
charges within thirty (30) calendar days of Qwest's invoice setting
forth such charges.
12. CALLING CARD SERVICES
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Confidential and Proprietary
6
<PAGE> 70
12.1 Qwest Reseller Calling Card Service offers domestic-to-domestic,
domestic-to-international and international origination calling card
service from certain countries with the use of a fourteen digit
authorization code, consisting of 10 digits plus a 4 digit PIN. Customer
shall request the provision, and Qwest shall provide, the Reseller
Calling Card Service, through and in accordance with the completion and
submission of Qwest's Calling Card Order Form and order procedures in
effect, as may be changed from time to time.
12.2 Qwest's Calling Card Service offers two options with respect to the
branding of the platform, Generic Calling Card Option, and
Private-Labeled Calling Card Option.
12.3 The Generic Calling Card offers no branding on the platform or in the
branding of Operator Services calls. The Private Labeled version of
Qwest's Calling Card Service offers branding in the Customer's name for
the greeting and closing platform scripts; the request of a Toll Free
access number to the platform; branding of the Operator Services
greeting in the Customer's name; and routing of customer service calls
to the Customer's own customer service center.
12.4 For both Calling Card Service options, the customer is responsible for
all calling card production, fulfillment, billing, collections,
tariffing, and fraudulent use.
12.5 CUSTOMIZED GREETING AND CLOSING MESSAGES WITH PRIVATE-LABELED CALLING
CARD SERVICES. On the Private-Labeled Calling Card, the Customer will
provide to Qwest a requested branded message for platform greeting and
closing. These branded messages must be sent to Qwest's Account
Management group on a diskette containing the two pre-recorded
customized .wav files. The wav. files must meet the following
specifications:
~ 22,500 Hz, 16-bit Mono
~ greeting and closing message should be saved as two different
files
~ submitted to Qwest on a 3.5" diskette
~ leading and trailing noise must be removed
~ One (1) second of silence is required in front of the message
and one (1) second of silence after the message is required to
allow for message queuing on the 8XX recording.
Qwest Communications
Confidential and Proprietary
7
<PAGE> 71
Qwest reserves the right to approve or reject Customer greeting and
closing messages that are to be placed on the platform.
12.6 CUSTOMER SERVICE CALL ROUTING WITH PRIVATE-LABELED CALLING CARD SERVICES
On the Private-Labeled Calling Card, Qwest will provide customer service
routing to the Customer's Customer service line for calls originating in
the Continental United States. The customer will be required to provide
Qwest with the customer service routing number on the Calling Card Order
Form. Three consecutive mistakes in number dialing will cause calls to
be forwarded to Customer's Customer Service.
12.7 OPERATOR SERVICES BRANDING WITH PRIVATE-LABELED CALLING CARD SERVICES On
the Private-Labeled Calling Card, Customers may opt to customize its
operator services greeting for domestic-originated calling. Greeting
content should be provided by the customer by filling out the
appropriate section the Private Label Travel Card Order Form. Qwest
reserves the right to approve or reject these greetings prior to
submission. Dialing "0" or 15 seconds of dialing unresponsiveness by the
card user will cause a call to be forwarded to operator services.
13. CALLING CARD SERVICE CHARGES
13.1 CALLING CARD NONRECURRING CHARGES.
13.1.1 The Customer will pay a platform implementation fee of [*] per Access
Number associated with the Private Labeled Calling Card option to Qwest
in accordance with the agreed-upon payment terms and conditions set
forth in the Agreement and the Calling Card Order Form. This charge
shall be credited to subsequent Customer's invoices from Qwest once
Qwest collects payment of Customer's Travel Card Usage per Access Number
billing which exceeds [*].
13.1.2 Customer shall pay to Qwest a nonrefundable service fee of [*] for each
Customer-initiated scripting, greeting or routing change per Access
Number after Qwest`s initial set-up of the Customer Calling Card
platform.
13.2 CALLING CARD OPERATOR SERVICES SURCHARGE.
- --------------------
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Qwest Communications
Confidential and Proprietary
8
<PAGE> 72
13.2.1 A $1.00 per call surcharge will be applied to any call that is forwarded
to Operator Services from the calling card platform for all calls
originating in the Continental United States. This charge will be
assessed in addition to metered charges incurred by the call.
14. INSTALLATION AND MONTHLY CHARGES FOR DEDICATED ACCESS SERVICES
14.1 Installation and Monthly Charges associated with dedicated access
services will be billed to Customer, and Customer agrees to pay within
thirty (30) calendar days of the date of Qwest's invoice. These charges
include those associated with local loops, CSU/DSU, channel card, T-1
centrex cards and any other equipment or services provided by Qwest in
order to install, test and maintain dedicated access lines. Monthly
Recurring Charges will be those normally charged to Customer unless
otherwise negotiated by Qwest and customer. Installation charges will be
on an individual case basis.
Qwest Communications
Confidential and Proprietary
9
<PAGE> 73
REQUEST
SWITCHLESS RESELLER 1+ OUTBOUND
<TABLE>
<CAPTION>
===========================================================================
1+ (OUTBOUND) BASE RATES
SWITCHED DEDICATED
STATE INTERSTATE INTRASTATE INTERSTATE INTRASTATE
-------------------------------------------------------
<S> <C> <C> <C> <C>
AL [*] [*] [*] [*]
AR [*] [*] [*] [*]
AZ [*] [*] [*] [*]
CA [*] [*] [*] [*]
CO [*] [*] [*] [*]
CT [*] [*] [*] [*]
DC [*] [*] [*] [*]
DE [*] [*] [*] [*]
FL [*] [*] [*] [*]
GA [*] [*] [*] [*]
IA [*] [*] [*] [*]
ID [*] [*] [*] [*]
IL [*] [*] [*] [*]
IN [*] [*] [*] [*]
KS [*] [*] [*] [*]
KY [*] [*] [*] [*]
LA [*] [*] [*] [*]
MA [*] [*] [*] [*]
MD [*] [*] [*] [*]
ME [*] [*] [*] [*]
MI [*] [*] [*] [*]
MN [*] [*] [*] [*]
MO [*] [*] [*] [*]
MS [*] [*] [*] [*]
MT [*] [*] [*] [*]
NC [*] [*] [*] [*]
ND [*] [*] [*] [*]
NE [*] [*] [*] [*]
NH [*] [*] [*] [*]
NJ [*] [*] [*] [*]
NM [*] [*] [*] [*]
NV [*] [*] [*] [*]
NY [*] [*] [*] [*]
OH [*] [*] [*] [*]
OK [*] [*] [*] [*]
OR [*] [*] [*] [*]
PA [*] [*] [*] [*]
RI [*] [*] [*] [*]
SC [*] [*] [*] [*]
SD [*] [*] [*] [*]
TN [*] [*] [*] [*]
===========================================================================
</TABLE>
- --------------------
[*] Information redacted pursuant to a confidential treatment request
throughout this exhibit.
QWEST COMMUNICATIONS PRIVILEGED AND CONFIDENTIAL Exhibit B-4
<PAGE> 74
REQUEST
SWITCHLESS RESELLER 1+ OUTBOUND
<TABLE>
<CAPTION>
===========================================================================
1+ (OUTBOUND) BASE RATES
SWITCHED DEDICATED
STATE INTERSTATE INTRASTATE INTERSTATE INTRASTATE
-------------------------------------------------------
<S> <C> <C> <C> <C>
TX [*] [*] [*] [*]
UT [*] [*] [*] [*]
VA [*] [*] [*] [*]
VT [*] [*] [*] [*]
WA [*] [*] [*] [*]
WI [*] [*] [*] [*]
WV [*] [*] [*] [*]
WY [*] [*] [*] [*]
===========================================================================
</TABLE>
Off-Shore Pricing:
<TABLE>
<CAPTION>
===========================================================================
1+ (OUTBOUND) BASE RATES
STATE SWITCHED DEDICATED
-------------------------------------------------------
<S> <C> <C>
AK [*] [*]
HI [*] [*]
PR [*] [*]
USVI [*] [*]
===========================================================================
</TABLE>
Interstate and Intrastate calls terminating within the continental US are
billed based upon originating states.
Interstate and Intrastate calls terminating "Off-Shore" are billed based upon
terminating State/Region.
Interstate and Intrastate billing increments: [*]
- --------------------
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QWEST COMMUNICATIONS PRIVILEGED AND CONFIDENTIAL Exhibit B-4
<PAGE> 75
SCHEDULE B-5
MEET POINT CITIES
Customer is responsible for all access and related costs of DS-0, DS-1
or DS-3 dedicated facilities to connect to Qwest's nearest applicable meet point
as follows:
The "ATL", or Atlantic rates shown in the Qwest Express RBOC/ITC and Qwest
Express 8XX Origination Rate Exhibits will apply for all traffic that meets the
Qwest network at one of the following switch sites:
<- 111 Pavonia Ave., 7th Floor, Suite 725, JERSEY CITY, NJ 07310
<- 111 Market Place., Suite 400, BALTIMORE, MD 21202
<- 60 Hudson St., 11th Floor, NEW YORK CITY, NY 10013 (POP site that
receives "switch site pricing")
The "MW", or Midwest rates shown in the Qwest Express RBOC/ITC and Qwest Express
8XX Origination Rate Exhibits will apply for all traffic that meets the Qwest
network at one of the following switch sites:
<- Doral Plaza, Suite 222A, 155 N. Michigan Ave., CHICAGO, IL 60601
<- NBC Tower, 455 North City Front Plaza, Suite 700, CHICAGO, IL 60611
<- Prudential Town Center, 1000 Town Center, Suite 360, SOUTHFIELD, MI
48075
<- 8793 Fulton County Road H, DELTA, OH 43515
<- 50 Public Square, Suite 640, CLEVELAND, OH 44113
<- 180 E. Broad St., Suite B2, COLUMBUS, OH 43215
The "NW", or Northwest rates shown in the Qwest Express RBOC/ITC and Qwest
Express 8XX Origination Rate Exhibits will apply for all traffic that meets the
Qwest network at one of the following switch sites:
<- 2001 6th Avenue, SEATTLE, WA 98121
The "S", or South rates shown in the Qwest Express RBOC/ITC and Qwest Express
8XX Origination Rate Exhibits will apply for all traffic that meets the Qwest
network at one of the following switch sites:
<- 2323 Bryan Street, Suite 770, DALLAS, TX
The "SE", or Southeast rates shown in the Qwest Express RBOC/ITC and Qwest
Express 8XX Origination Rate Exhibits will apply for all traffic that meets the
Qwest network at one of the following switch sites:
<- Bank South Bldg., Suite 1910, 55 Marietta St., ATLANTA, GA 30303
<- 701 E. Trade Street, Suite D, CHARLOTTE, NC 28202
Qwest Communications
Confidential and Proprietary
1
<PAGE> 76
<- 4895 Outland Center Drive, MEMPHIS, TN 38118
The "SW", or Southwest rates shown in the Qwest Express RBOC/ITC and Qwest
Express 8XX Origination Rate Exhibits will apply for all traffic that meets the
Qwest network at one of the following switch sites:
<- 624 S. Grand Ave., Suite 315, LOS ANGELES, CA 90017
<- 3040 Gold Camp Road, SACRAMENTO, CA
<- 910 15th Street, Suite 220, DENVER, CO 80202
The "POP ATL", or Atlantic POP rates shown in the Qwest Express RBOC/ITC and
Qwest Express 8XX Origination Rate Exhibits will apply for all traffic that
meets the Qwest network at one of the following POP sites:
<- 38th and Wyalusing Streets, PHILADELPHIA, PA
<- 1220 L Street N. W. Suite 1B, WASHINGTON, DC 20005
The "POP MW", or Midwest POP rates shown in the Qwest Express RBOC/ITC and Qwest
Express 8XX Origination Rate Exhibits will apply for all traffic that meets the
Qwest network at one of the following POP sites:
<- 1125 Grand Avenue, KANSAS CITY, MO
<- 900 Walnut Street, Suite 400, ST. LOUIS, MO
The "POP S", or South POP rates shown in the Qwest Express RBOC/ITC and Qwest
Express 8XX Origination Rate Exhibits will apply for all traffic that meets the
Qwest network at one of the following POP sites:
<- 15 West 16th Street, TULSA, OK
<- 2112 East California Street, OKLAHOMA CITY, OK
<- 777 Walker St. C-170, HOUSTON, TX
The "POP SW", or Southwest POP rates shown in the Qwest Express RBOC/ITC and
Qwest Express 8XX Origination Rate Exhibits will apply for all traffic that
meets the Qwest network at one of the following switch sites:
<- 4275 E. Sahara, LAS VEGAS, NV
<- 136 East South Temple, Suite 1560, SALT LAKE CITY, UT
<- 2600 N. Central, PHOENIX, AZ
Qwest Communications
Confidential and Proprietary
2
<PAGE> 77
EXHIBIT C
TO
QWEST COMMUNICATIONS
TELECOMMUNICATIONS SERVICES AGREEMENT
Q.I/COMMERCE(TM) SERVICE AGREEMENT
This agreement ("Q.i/commerce Agreement" or "Exhibit C") is made as of March 11,
1999 March 11, 1999 between Qwest and Customer, with respect to that certain
Telecommunications Services Agreement entered into between the parties, dated
March 11, 1999 March 11, 1999 . This Q.i/commerce Agreement consists of this
signature page, the General Terms and Conditions attached hereto and which apply
to all services provided by Qwest under this Q.i/commerce Agreement, and each of
the other Addenda attached hereto and identified below by checking the
applicable box.
CUSTOMER ORDERS THE FOLLOWING SERVICES: (Check Applicable Boxes)
[X] Dedicated Internet Access Service pursuant to the terms in Addendum D-1
("DIA Pricing Schedule"), Addendum D-2 ("DIA SLA") , and Addendum D-3
("DIA Miscellaneous").
[ ] Collocation Service pursuant to the terms in Addendum B-1 ("Collocation
Pricing Schedule") and Addendum B-2 ("Collocation Terms and
Conditions").
[ ] Shared Web Hosting pursuant to the terms in Addendum C-1 ("Shared Web
Hosting Pricing Schedule") and Addendum C-2 ("Shared Web Hosting Terms
and Conditions").
[ ] Virtual Private Data Network Service ("VPDN") pursuant to the terms in
Addendum D-1 ("VPDN Pricing Schedule") and Addendum D-2 ("VPDN Terms and
Conditions").
Customer and Qwest agree to the terms and conditions of this Q.i/commerce
Agreement:
Customer, Inc.: Qwest Communications Corporation:
By: /s/ C. G. RUDOLPH By: /s/ GREGORY M. CASEY
------------------------------- ---------------------------------
Title: Chairman & CEO Title: Sr. V.P. Wholesale Mkts.
---------------------------- ------------------------------
Date: 3-18-99 Date: 3-22-99
----------------------------- -------------------------------
<PAGE> 78
GENERAL TERMS AND CONDITIONS
These General Terms and Conditions apply to Qwest's Q.i/commerce(TM) Services
and any other services acquired by Customer under this Q.i/commerce Agreement
(collectively the "Services") unless an Addendum to this Q.i/commerce Agreement
explicitly supercedes these General Terms and Conditions, in which event the
terms of the Addendum shall govern only the services subject to that Addendum.
1. Definitions Qwest's Q.i/commerce suite is an IP-based set of products and
services.
2. Rates and Charges; Payment. Customer agrees to pay all applicable rates and
charges set forth on each Addendum applicable to any Services acquired
hereunder. Charges shall be invoiced monthly and payment shall be due upon
Customer's receipt of invoice and payable within 30 days of the date of the
invoice. In the event Customer disputes any portion of an invoice, Customer
shall timely pay the disputed amount and provide Qwest with all information
supporting Customer's position regarding the disputed portion. Qwest shall
determine in its sole judgement whether such invoiced items were erroneous, and
shall issue an appropriate credit to Customer if it so determines. Customer will
pay all sales and use taxes, as well as duties or levies, arising in connection
with the Services.
3. Term and Termination.
3.01 This Q.i/commerce Agreement shall be effective upon Qwest's execution and
shall continue for the duration of the Term of the Agreement. In the event
Customer desires to terminate this Q.i/commerce Agreement in advance of the end
of the Initial Term, Customer shall pay Qwest a termination fee equal to the
lesser of (a) the remaining charges applicable through the end of the Initial
Term as scheduled, or (b) six months of monthly recurring charges as applicable
during the month previous to early termination by Customer.
3.02 In addition to the termination rights provided in Section 8, Qwest may
terminate this Q.i/commerce Agreement and cease provision of any Services upon
default of Customer. Default includes the failure to pay any amount when due
hereunder; the filing of a petition in bankruptcy by or against Customer or
Customer's inability to meet obligations when due; or failure of Customer to
cure any violation (other than failure to pay) of the provisions of this
Q.i/commerce Agreement within thirty (30) days notice thereof by Qwest.
3.03 In the event a law or regulatory action prohibits, substantially impairs or
makes impractical the provision of any Services under this Q.i/commerce
Agreement, as determined by Qwest, Qwest may terminate any Services or this
Q.i/commerce Agreement upon thirty (30) days written notice to Customer.
4. Rights and Obligations of Customer.
4.01 Customer shall at its expense undertake all necessary preparations required
to comply with Qwest's installation and maintenance instructions.
4.02 Customer shall comply with all policies set forth in the Internet
Acceptable Use Policies attached hereto
5. Software and Documentation Provided by Qwest. Software and related
documentation provided by Qwest to Customer in connection with any of the
Services ("Software") is subject to the following:
5.01 In consideration for payment of any applicable charges, Customer is granted
a personal, non-exclusive, non-transferable license to use the Software, in
object code form only, solely in connection with the Services for Customer's
internal business purposes on Customer-owned or Customer-leased equipment (the
"License"). Customer shall not use the Software (i) in connection with the
products or services of any third party, or (ii) to provide services for the
benefit of any third party, including without limitation as a service bureau.
5.02 Customer may make one copy of the Software, other than the documentation,
for archival or back-up purposes only, provided that any copyright and other
proprietary rights notices are reproduced on such copy. Customer shall not make
any copies of documentation provided as part of the Software.
5.03 Customer shall not: (i) attempt to reverse engineer, decompile, disassemble
or otherwise translate or modify the Software in any manner; or (ii) sell,
assign, license, sublicense or otherwise transfer, transmit or convey Software,
or any copies or modifications thereof, or any interest therein, to any third
party.
5.04 All rights in the Software, including without limitation any patents,
copyrights and any other intellectual property rights therein, shall remain the
exclusive property of Qwest or its licensors.
5.05 Except to the extent otherwise expressly agreed by the parties in writing,
Qwest has no obligation to provide maintenance or other support of any kind for
the Software, including without limitation any error corrections, updates,
enhancements or other modifications.
5.06 The License shall immediately terminate upon the earlier of: (i)
termination or expiration of this Q.i/commerce Agreement; (ii) termination of
the Service(s) with which the Software is intended for use; or (iii) failure of
Customer to comply with any provisions of this Section. Upon termination of any
License, at Qwest's option, Customer shall promptly either (i) destroy all
copies of the Software in its possession, or (ii) return all such copies to
Qwest, and in either event provide a written officer's certification confirming
the same.
6. Equipment or Software not Provided by Qwest.
6.01 Except only as may be set forth in Addendum B-1 or B-2, Qwest shall not be
responsible for the installation, operation or maintenance of equipment or
software not
<PAGE> 79
provided by Qwest; nor shall Qwest be responsible for the transmission or
reception of information by equipment or software not provided by Qwest.
6.02 Customer shall be responsible for the use and compatibility of equipment or
software not provided by Qwest. In the event that Customer uses equipment or
software not provided by Qwest which impairs Customer's use of any Services: (a)
Customer shall nonetheless be liable for payment for all Services, including
without limitation any Software, provided by Qwest, and (b) any service
specifications or service levels generally applicable to the Services involved
shall not apply. Upon notice from Qwest that any equipment or software not
provided by Qwest is causing or is likely to cause any hazard, interference or
service obstruction, Customer shall immediately eliminate the likelihood of
hazard, interference or service obstruction and if Customer fails to do so,
Qwest may take such action as it deems required to eliminate such hazard,
interference or service obstruction.
6.03 Qwest shall not be responsible if any changes in any Services (a) cause
equipment or hardware not provided by Qwest to become obsolete or to require
modification or alteration, or (b) otherwise affect performance of equipment or
hardware not provided by Qwest.
6.04 Qwest reserves the right to allow or refuse to allow any make, model or
software revision of customer-provided equipment to be used as a gateway to any
Services. Customer will cooperate with Qwest in setting the initial
configuration for its equipment's interface with the Services.
6.05 Customer shall permit Qwest to access to its routers and other necessary
premise equipment including, without limitation, the router's SNMP variables and
configuration tables. Either Customer or Qwest shall be permitted to administer
the access controls (i.e., login and password) to the router's configuration
editor. Qwest will modify only that part of any Customer router configuration
which controls the interface into the Qwest network used to provide any
Services.
7. Rights and Obligations of Qwest; Disclaimer of Warranties
7.01 Qwest shall operate and maintain the Services. Customer shall be
responsible for providing Qwest accurate information required to install the
Services. Qwest shall not be responsible for operating or maintaining software,
equipment or cabling that connects equipment not provided by Qwest to the
Services.
7.02 Customer agrees that Qwest and its affiliates exercise no control
whatsoever over the merchandise, information and services offered or made
available or accessible on the Internet. Customer further agrees that Qwest has
no obligation to monitor the Services. CUSTOMER ASSUMES TOTAL RESPONSIBILITY AND
RISK FOR CUSTOMER'S USE AND AUTHORIZED USERS' USE OF THE SERVICES, SOFTWARE, AND
THE INTERNET. NEITHER QWEST NOR ITS AFFILIATES MAKE ANY EXPRESS OR IMPLIED
WARRANTIES, REPRESENTATIONS OR ENDORSEMENTS WHATSOEVER INCLUDING, WITHOUT
LIMITATION, WARRANTIES OF TITLE OR NONINFRINGEMENT, OR THE IMPLIED WARRANTIES OF
MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, WITH REGARD TO ANY
MERCHANDISE, INFORMATION OR SERVICE PROVIDED THROUGH THE INTERNET, OR ANY
TRANSACTIONS CONDUCTED ON THE INTERNET, AND NEITHER QWEST OR ITS AFFILIATES
SHALL BE LIABLE FOR ANY COST OR DAMAGE ARISING EITHER DIRECTLY OR INDIRECTLY
FROM ANY SUCH USE OR TRANSACTION.
7.03 CUSTOMER UNDERSTANDS AND AGREES FURTHER THAT THE INTERNET CONTAINS UNEDITED
MATERIALS SOME OF WHICH ARE SEXUALLY EXPLICIT OR MAY BE OFFENSIVE TO SOME
PEOPLE. CUSTOMER AND CUSTOMER'S AUTHORIZED USERS ACCESS SUCH MATERIALS AT
CUSTOMER'S OWN RISK. QWEST HAS NO CONTROL OVER AND ACCEPTS NO LIABILITY OR
RESPONSIBILITY WHATSOEVER FOR SUCH MATERIALS.
7.04 THE SERVICES AND SOFTWARE ARE PROVIDED ON AN "AS IS" AND "AS AVAILABLE"
BASIS WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING BUT
NOT LIMITED TO WARRANTIES OF TITLE, NONINFRINGEMENT OR IMPLIED WARRANTIES OF
MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. NO ADVICE OR INFORMATION
GIVEN BY QWEST, ITS AFFILIATES OR ITS CONTRACTORS OR THEIR RESPECTIVE EMPLOYEES
SHALL CREATE A WARRANTY. NEITHER QWEST NOR ITS AFFILIATES WARRANTS THAT THE
SERVICE WILL BE UNINTERRUPTED OR ERROR FREE OR THAT ANY INFORMATION, SOFTWARE OR
OTHER MATERIAL ACCESSIBLE ON THE SERVICE IS FREE OF VIRUSES, WORMS, TROJAN
HORSES OR OTHER HARMFUL COMPONENTS.
7.05 IN NO EVENT SHALL QWEST, ITS AFFILIATES OR ITS CONTRACTORS BE LIABLE FOR
ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE OR CONSEQUENTIAL DAMAGES
THAT RESULT IN ANY WAY FROM CUSTOMER'S (OR CUSTOMER'S AUTHORIZED USERS') USE OF
OR INABILITY TO USE THE SERVICES, THE SOFTWARE, OR TO ACCESS THE INTERNET OR ANY
PART THEREOF, OR CUSTOMER'S (OR AUTHORIZED USERS') RELIANCE ON OR USE OF
INFORMATION, SERVICES OR MERCHANDISE PROVIDED ON OR THROUGH THE SERVICES OR THE
SOFTWARE, OR THAT RESULT FROM MISTAKES, OMISSIONS, INTERRUPTIONS, DELETION OF
FILES, ERRORS, DEFECTS, DELAYS IN OPERATION, OR TRANSMISSION, OR ANY FAILURE OF
PERFORMANCE. QWEST'S LIABILITY HEREUNDER TO CUSTOMER SHALL IN NO EVENT EXCEED AN
AMOUNT EQUAL TO THE AVERAGE MONTHLY RECURRING CHARGE PAID BY CUSTOMER DURING THE
PERIOD FROM EXECUTION OF THE AGREEMENT TO THE DATE A CLAIM IS MADE.
7.06 If Customer is dissatisfied with the Services or with any terms,
conditions, rules, policies, guidelines, or practices of Qwest applicable to the
Services, Customer's sole and exclusive remedy is to terminate this Q.i/commerce
Agreement in accordance with Section 3 and discontinue using the Services.
8. Failure to Comply With Q.i/commerce Agreement. Qwest may deny Customer access
to and cease to provide all or part of any Services without notice if Customer
(a) violates any provision of Qwest's Internet Acceptable Use Policies, which
are appended to these
<PAGE> 80
General Terms and Conditions (and which may be modified from time to time as
provided in the Policy or by delivery of such modified Internet Policies to
Customer); or (b) engages in any conduct or activity that Qwest, in its sole
discretion, believes violates any of the terms and conditions of this
Q.i/commerce Agreement or causes a risk that Qwest may be subjected to civil or
criminal litigation, charges, or damages. If Qwest ceases to provide or denies
Customer access to any Services pursuant to the preceding sentence, neither
Customer nor any of its authorized users shall have any right (a) to access
through Qwest any materials stored on the Internet, (b) to obtain any credit(s)
otherwise due to Customer, and such credit(s) shall be forfeited, or (c) to
access third party services, merchandise or information on the Internet through
Qwest. Qwest shall have no responsibility to notify any third-party providers of
services, merchandise or information of any discontinuance of any Services
pursuant to this paragraph, nor any responsibility for any consequences
resulting from lack of such notification.
9. Indemnity. Customer agrees to defend, indemnify and hold Qwest and its
affiliates harmless from any and all liabilities, costs and expenses, including
reasonable attorneys' fees, related to or arising from: (a) any breach of this
Q.i/commerce Agreement by Customer or Authorized Users; (b) the use of the
Services or the Internet or the placement or transmission of any message,
information, software or other materials on the Internet by Customer or
Authorized Users; (c) acts or omissions of Customer, Customer's officers,
employees, agents or contractors in connection with the construction,
installation, maintenance, presence, use or removal of systems, channels or
terminal equipment or software not provided by Qwest which are connected or are
to be connected to the Services; and (d) claims for infringement of patents or
any intellectual property right arising from the use of any Services, equipment
and software, apparatus and systems not provided by Qwest in connection with any
Services.
10. Arbitration. Any dispute in connection with this Q.i/commerce Agreement
which is not settled to the mutual satisfaction of the parties within thirty
(30) days from the date that either party informs the other in writing that such
dispute or disagreement exists, shall be settled by arbitration in Denver,
Colorado in accordance with the Commercial Arbitration Rules of the American
Arbitration Association in effect on the date that such notice is given. The
decision of the arbitrator(s) shall be final and binding upon the parties and
shall include written findings of law and fact, and judgment may be obtained
thereon by either party in a court of competent jurisdiction. Each party shall
bear the cost of preparing and presenting its own case. The cost of the
arbitration, including the fees and expenses of the arbitrator(s), shall be
shared equally by the parties hereto unless the award otherwise provides. The
obligation herein to arbitrate shall not be binding upon any party with respect
to requests for preliminary injunctions, temporary restraining orders or other
similar temporary procedures in a court of competent jurisdiction to obtain
interim relief when deemed necessary by such court to preserve the status quo or
prevent irreparable injury pending resolution by arbitration of the actual
dispute.
11. Miscellaneous.
11.01 In the event that any portion of this Q.i/commerce Agreement is held to be
unenforceable, the unenforceable portion shall be construed in accordance with
applicable law as nearly as possible to reflect the original intentions of the
parties and the remainder of the provisions shall remain in full force and
effect.
11.02 Qwest's failure to insist upon or enforce strict performance of any
provision of this Q.i/commerce Agreement shall not be construed as a waiver of
any provision or right. Neither the course of conduct between parties nor trade
practice shall act to modify any provision of this Q.i/commerce Agreement.
11.03 Customer shall not assign this Q.i/commerce Agreement without the prior
written consent of Qwest.
11.04 Qwest will not be responsible for performance of its obligations hereunder
where delayed or hindered by war, riots, embargoes, strikes or acts of its
vendors, suppliers, or workmen (whether of Qwest or others), accidents, acts of
God, or any other event beyond its reasonable control.
11.05 This Q.i/commerce Agreement shall be governed by and construed in
accordance with the laws of the State of Colorado, without regard to any
provisions thereof which would cause the application of the laws of any other
jurisdiction to this Q.i/commerce Agreement. Any cause of action Customer may
have with respect to the Service must be commenced within one (1) year after the
claim or cause of action arises or such claim or cause of action is barred.
11.06 This Q.i/commerce Agreement, including the Addendums hereto, constitutes
the entire agreement between Customer and Qwest with respect to the Q.i/commerce
Services.
<PAGE> 81
QWEST INTERNET ACCEPTABLE USE POLICIES
Qwest's objective is to provide and maintain the highest quality of IP services
available. Qwest must therefore maintain the integrity of not only its own
network, but the networks of the IP community at large. In order to protect not
only Qwest's network viability, but that of other networks as well, Qwest
prohibits certain practices and behaviors it deems detrimental to both its own
network and to the IP community at large by its customers and their users.
All provisions of these Internet Policies apply to Customer, and to any other
person, persons, organization, or other entity using Customer's IP services
including, but not limited to, hosted sites within the Customer's network;
co-located servers and services; Customer dialup clients; sub-letted tenants;
office-park or other dedicated IP circuit clients; business partners or other
affiliated entities or organizations; any other person, persons, organizations,
or entities whose IP traffic is either controlled, routed or processed by
Customer ("Authorized Users"). All obligations of Customer under these policies
also apply to all Authorized Users.
1. EMAIL POLICIES
SPAM Policies:
Customers, or their Authorized Users, may not send unsolicited bulk or other
mail messages ("junk mail", "spam", or "UE") to any person who does not wish to
receive it. Customer must comply with any request to desist sending any further
mail message upon receipt of such request. Complaints to Customer about any
mail, in situations where the email recipient had inadvertently received a
legitimate bulk or other email message, must be responded to within 48 hours of
receipt of complaint.
1) "Bulk" is defined as 25 or more electronic mail messages of the same
or substantially similar content within a 24 hour period.
2) Unsolicited email ("UE") is any electronic mail, message, file,
program or application sent via industry standard email programs where the
recipient did not specifically ask to receive it. Email programs include Bulk
Mailers, List processors, and third-party re-mailers, and any other software
whose function includes, but is not limited to, the sending of email messages,
files, applications, and programs. Included in this list of Unsolicited Email
messages, without limitation, are commercial advertising, informational
announcements, or any other message, file, program or application. Email
recipients who subscribe to a mailing list, Listserv, registered product update
alert service, or who otherwise indicate interest in the content of the email in
a positive manner are not considered recipients of UE for the purposes of this
document.
3) The use of third-party services to send unsolicited bulk or other
mail messages is tantamount to the Customer sending the message from its own
servers. Third-party re-mailers, processors, and "sanitizers" are those services
that for a fee or other consideration process and send Bulk or other electronic
mail, messages, files, programs, or applications on behalf of the Customer or
Client. Though transparently hiding the relay of first instance, the deleterious
effect on Qwest's network and the community at large of these mailings is the
same as if the Customer or Client had sent them out.
Other Mail Relaying:
Customer, or its Authorized Users, shall not use another non-Qwest site's mail
server to relay mail without the express permission of that site.
<PAGE> 82
1) "Relay" is defined as (a) the configuration of any software or
program to use a non-Qwest external mail machine to send Customer Bulk or other
email in unattended mode; (b) the direct, interactive attachment to port 25 of
any non-Qwest machine to conduct a sendmail "conversation" with it for the
purposes of having that machine send the Bulk or other mail; or (c) any other
use of non-Qwest sendmail services and servers to send mail or other electronic
messages or files, whether directly or indirectly, whether the software used is
attended or unattended.
2) Qwest servers and host may be used for relaying non-UE mail only upon
prior arrangement.
Mail Spoofing:
In no case shall the Customer use fictitious or deliberately inaccurate return
addresses in their outgoing mail ("Mail Spoofing"). This pertains to any
electronic message, file, program or application sent, whether UE or non-UE.
1) Email Spoofing is the deliberate configuration of fictitious or
inaccurate return email usernames or domains within any outgoing email or
message. Included in this definition is the use of "Stealth" email software
which randomizes return addresses, or which uses known inaccurate or fictitious
return email addresses. Defenses to a spoofing incident may not include the
declaration of Customer ignorance of the email address a Stealth mailer may use.
Stealth software is designed and marketed to spoof email addresses.
2) The unauthorized use of any Qwest-controlled domain in email without
the authorization of the domain registrant is prohibited.
2. USENET NEWS SERVICE POLICIES
Customers who use Qwest's Usenet News services shall observe acceptable use
policies which apply to Usenet News. These include but not limited to the
following:
Usenet SPAM Policies:
Customers, or their Authorized Users, may not post bulk Usenet News to multiple
News groups or unrelated News groups. Bulk Usenet News is defined as posting
same News message to 5 or more News groups with unrelated content. Customer must
comply with any request to cease and desist sending any further bulk Usenet News
message upon receipt of such request.
Unacknowledged complaints, if confirmed to be legitimate, may result in
temporary suspension of Usenet News feed to Customer until the problem is
resolved.
Usenet News Spoofing Policy:
In no case shall Customer use fictitious or deliberately inaccurate return
addresses in their Usenet News postings. Confirmed News spoofing may result in
temporary suspension of Usenet News feed to Customer until the problem is
resolved.
1) Usenet News Spoofing is the deliberate configuration of fictitious or
inaccurate return usernames or domains in any outgoing Usenet News header.
<PAGE> 83
2) The unauthorized use of any Qwest-controlled domain in Usenet News
posts without the authorization of the domain registrant is prohibited.
3. NETWORK - RELATED POLICIES
In any of the following circumstances Qwest reserves the right, in its
sole discretion, to either block Customer's traffic from access to the Qwest
network or other networks, terminate on either a temporary or permanent basis
Customer's access to or interconnection with the Qwest network or any other
network, or cease provision of power or other facility support to Customer:
1) Denial of Service attacks from Customer to other networks, verified
by Qwest using its own procedures. As used here, a "Denial of Service Attack"
means an attack to disable or disrupt the TCP/IP services, including but not
limited to TCPSYN attack, UDP Diagnostic port DoS attack, Smurfing attack or
similar attacks.
2) Any attempts by Customer or its Authorized Users to break in to or
intrude into other networks. As used here, this includes, but is not limited to,
cracking of password files, exploiting of known or unknown security holes, or
through any other means, to gain logins and/or passwords for unauthorized access
to other networks.
3) Deliberate or accidental Leaking of Routes. As used here, "Leaking of
Routes" means the failure to properly announce routes to Qwest according to
established protocol.
4) Use of any third party's DNS Server without permission or consent of
the third party.
5) Use of any third party's email server as MX backup without permission
or consent of the third party.
4. CONTENT - RELATED POLICIES
Although Qwest does not control, monitor, edit, approve or disapprove,
or necessarily have any knowledge of any of the content of Customer's or any
Client's servers, web pages, files, or other information, Qwest retains the
rights, in its sole discretion, to either block Customer's traffic from access
to the Qwest network or other networks, terminate on either a temporary or
permanent basis Customer's access to or interconnection with the Qwest network
or any other network, or cease provision of power or other facility support to
Customer in the event that Qwest becomes aware that Customer or any of its
Authorized Users has:
1) Posted or transmitted any unlawful, threatening, abusive, libelous,
defamatory, legally obscene, profane or otherwise objectionable information of
any kind, including without limitation any transmissions constituting or
encouraging conduct that would constitute a criminal offense, give rise to civil
liability, or otherwise violate any local, state, national or international law,
including without limitation the U.S. export control laws and regulations;
2) Posted or transmitted any information or software which contains a
virus, worm, Trojan horse, or other harmful component, or
3) Uploaded, posted, published, transmitted, reproduced, or distributed
in any way, information, software or other material which is protected by
copyright or other proprietary right or derivative works with respect thereto,
without obtaining permission of the copyright owner or rightholder.
4. CHANGE OF POLICIES AND LIMITATION OF LIABILITY
<PAGE> 84
These policies are subject to change at any time by Qwest acting in its
sole discretion, and all such changes shall be binding upon Customer upon
written notice to Customer by Qwest.
In the event that Qwest determines that Customer has violated or will
violate any of these policies, Qwest may take such action as Qwest solely
determines to be appropriate under the circumstances as known to Qwest at the
time such action was taken to eliminate or preclude such violation, and Qwest
shall not be liable for any damages of any nature suffered by any Customer,
Client, or third party resulting in whole or in part from its exercise of its
rights under these policies.
<PAGE> 85
[QWEST LOGO]
- --------------------------------------------------------------------------------
ADDENDUM C-1: DIA PRICING SCHEDULE
<TABLE>
<S> <C>
1 DS3 BURSTABLE IP ACCESS
Fixed Rate/Month/Location Rate (0 - 3 Mbps): [*]
Variable Rate/Month/Location/Incremental Mbps (4 - 18 Mbps) [*]
Variable Rate/Month/Location/Incremental Mbps (19 - 33 Mpbs) [*]
Variable Rate/Month/Location/Incremental Mbps (34 - 45 Mbps) [*]
1 OC3 BURSTABLE IP ACCESS
Fixed Rate/Month/Location (0 - 25 Mbps): [*]
Variable Rate/Month/Location/Incremental Mbps (26 - 65 Mbps) [*]
Variable Rate/Month/Location/Incremental Mbps (66 - 105 Mbps) [*]
Variable Rate/Month/Location/Incremental Mbps (106 - 155 Mbps) [*]
</TABLE>
NOTES: 1Mbps traffic measurement for billing purposes will be based on the
following calculation:
- Total bits (In and Out) for every 5-minute period for the month
divided by 300 to arrive at average bits per second.
- All bit per second data points for the month are ranked in
ascending order.
- The total number of data points for the month is multiplied by
.95 to arrive at "n", or the 95th percentile.
- The greater of the In or Out bits per second associated with the
nth data point is the rate that will be billed for the month.
- The rates above EXCLUDE local access connectivity between the
ATG POP and the Qwest POP.
- --------------------
[*] Information redacted pursuant to a confidential treatment request
throughout this exhibit.
<PAGE> 86
ADDENDUM C-2: DIA SERVICE LEVEL AGREEMENT
The Dedicated Internet Access Services identified on Attachment C -1("DIA
Pricing Schedule") shall be subject to the provisions of the following service
level agreement which are applicable to each such Service.
Qwest Network Availability
For the domestic Qwest Internet Products and Services provided to Customer under
a signed agreement with carrier, carrier IS COMMITTED TO MAINTAIN AN end-to-end
Network Availability of 99.7% based on a minimum of 10 sites and measured as
detailed below under "Calculation".
Calculation
The calculation for end-to-end network availability for a given month is as
follows:
<TABLE>
<S> <C>
(24 Hours x # of Days in Month x Number of Sites) - Network Outage Time = Network
------------------------------------------------------------------------ Availability
(24 Hours x Days in Month x Number of Sites)
</TABLE>
Components Included
The performance of the following components of the products and services shall
be included in the determination of Network Availability.
~ All components of the Qwest Internet Network (e.g. POP to POP)
~ Carrier-provided local access facilities used to access the carrier
Qwest Internet Network
~ Carrier-provided CSU/DSU/Channel Bank
Components Excluded
The following shall be excluded from any network outage time when calculating
the Network Availability:
~ The failure of any components beyond the Customer side of either the
access provider demarcation or the CSU/DSU/Channel Bank if not provided
by carrier
~ Scheduled network downtime during carrier's maintenance window
~ The failure of any components which cannot be corrected due to
inaccessibility of Customer, or causes beyond the reasonable control of
the carrier
Network Availability Measurement and Remedies
Network outage time in the Network Availability calculation is measured based on
the total outage time of all affected sites, subject to the included and
excluded components set forth herein. An outage condition shall exist when
Customer is unable to transmit data when recorded in the trouble ticket system.
Outage time is measured from the time the trouble ticket is opened to the time
the site is again able to transmit and receive data.
Upon verification that the actual Network Availability is below the Committed
Network Availability, Qwest shall evaluate the network and take corrective
action to remedy the problem. If the Actual Network Availability falls below the
Committed Network Availability, Qwest shall provide a service credit equal to
100 percent (100%) of one day's charge for all ports with validated outages in
the applicable day.
There shall be no caps on either monthly or yearly service credit amounts.
End-To-End Network availability
For domestic Qwest Internet products and services provided under this Agreement,
Qwest is committed to maintain an end-to-end network availability of 99.7%.
<PAGE> 87
Calculation
The calculation for end-to-end network availability for a given month is as
follows:
<TABLE>
<S> <C>
(24 Hours x # of Days in Month x Number of Sites) - Network Outage Time = Network
----------------------------------------------------------------------- Availability
(24 Hours x Days in Month x Number of Sites)
</TABLE>
Components Included
The performance of the following components of the products and services shall
be included in the determination of Network Availability.
~ All components of the Qwest Internet Network
~ Carrier-provided local access facilities used to access the Qwest
Internet Network (e.g. local loop)
Components Excluded
The following shall be excluded from any network outage time when calculating
the Network Availability:
~ The failure of any components beyond the premise of the Qwest
demarcation
~ Network downtime during carrier's scheduled maintenance window
~ The failure of any components which cannot be corrected due to
inaccessibility or causes beyond the reasonable control of Qwest
Network Availability Measurement and Remedies
Network outage time in the Network Availability calculation is measured based on
the total outage time of all affected sites, subject to the included and
excluded components set forth herein. An outage condition shall exist when a
site is unable to transmit data when recorded in the trouble ticket system.
Outage time is measured from the time the trouble ticket is opened to the time
the site is again able to transmit and receive data.
Upon verification that the actual Network Availability is below the Committed
Network Availability, Qwest shall evaluate the network and take corrective
action to remedy the problem. If the Actual Network Availability falls below the
Committed Network Availability, Qwest shall provide a service credit equal to
100 percent (100%) of one day's charge for all ports with validated outages in
the applicable day.
End-To-End Network Availability
For domestic Qwest Internet products and services provided under this Agreement,
Qwest is committed to maintain an end-to-end network availability of 99.7%.
Calculation
The calculation for end-to-end network availability for a given month is as
follows:
<TABLE>
<S> <C>
(24 Hours x # of Days in Month x Number of Sites) - Customer Outage Time = DIA Network
------------------------------------------------------------------------ Availability
(24 Hours x Days in Month x Number of Sites)
</TABLE>
Components Included
The performance of the following components of the products and services shall
be included in the determination of Network Availability.
~ All components of the Qwest Internet Network
~ Carrier-provided local access facilities used to access the Qwest
Internet Network (e.g. local loop) when provided by Qwest to Customer
Components Excluded
<PAGE> 88
The following shall be excluded from any network outage time when calculating
the Network Availability:
~ The failure of any components beyond the premise of the Qwest
demarcation
~ Network downtime during carrier's scheduled maintenance window (overlap)
~ The failure of any components which cannot be corrected due to
inaccessibility or causes beyond the reasonable control of Qwest
~ Nonpayment
~ Abuse/Unlawful Use
Network Availability Measurement and Remedies
Network outage time in the Network Availability calculation is measured based on
the total outage time of all Customer affected sites, subject to the included
and excluded components set forth herein. An outage condition shall exist when a
site is unable to transmit data when recorded in the trouble ticket system.
Outage time is measured from the time the trouble ticket is opened to the time
the site is again able to transmit and receive data.
Upon verification that the actual Network Availability is below the Committed
Network Availability, Qwest shall evaluate the network and take corrective
action to remedy the problem. If the Actual Network Availability falls below the
Committed Network Availability, Qwest shall provide a service credit equal to
100 percent (100%) of one day's charge for all affected ports.
Network Delay Service Level Agreement
For the domestic Qwest Internet Service provided to Customer under a signed
agreement with carrier, carrier is committed to maintain an average, end-to-end,
roundtrip on-network delay (Committed Network Delay) as follows;
95 milliseconds for DS-3 Access (POPs located in the continental United States
only).
Calculation
The calculation for average, end-to-end, roundtrip network delay (Average
Network Delay) for a given month is as follows based on the procedure criteria
defined below:
<TABLE>
<S> <C>
Total End-to-End, Roundtrip Delay for All Connections = Average Network Delay
-----------------------------------------------------
Total Number of Connections
</TABLE>
Components Included
The performance of the following components of the Products and Services shall
be included in the determination of Average Network Delay:
~ All components of the carrier Qwest Internet Network
~ Carrier-provided local access facilities used to access the carrier
Qwest Internet Network
~ Carrier-provided CSU/DSU/Channel Bank
Components Excluded
The following components shall be excluded in the determination of Average
Network Delay:
~ Equipment beyond the Customer side of either the access provider
demarcation or the CSU/DSU/Channel Bank if provided by carrier
~ International connections, Peering Interfaces to other ISPs and/or Qwest
Internet Gateways to other carrier products.
Average Network Delay Measurement and Remedies
Average Network Delay will be measured by a carrier/Customer test in accordance
with the following criteria:
<PAGE> 89
~ software and hardware components capable of measuring Customer
application traffic and responses shall be placed at each Customer site
to be measured for roundtrip delay.
~ Total End-to-End, Roundtrip Delay Measurements shall be performed during
the same four (4) hour period over a minimum of five (5) consecutive
business days to adequately determine a consistent average performance
level for the calculation.
~ Customer routers between which the data are transmitted are not more
than fifty (50) percent utilized during the hour in which the packets
are transmitted. Both the initiation and termination routers must be
directly connected via a carrier Qwest Internet connection. End points
must be located within the 48 contiguous United States.
~ The ports on both access ends between which packets are transmitted must
not be more than fifty percent (50%) utilized during the hour in which
packets are transmitted.
Upon verification by carrier that the actual Average Network Delay is below the
Committed Network Delay, the carrier shall take corrective action to remedy the
problem. Carrier shall have thirty (30) days from the date of such verification
to restore the Average Network Delay to the Committed Network Delay. If the
Average Network Delay is still below the committed Network Delay after such
thirty (30) day period, then, for each day that the carrier does not comply with
the Committed Network Delay, carrier shall provide Customer a service credit
equal to 50% percent (50%) of the daily charge for all Ports with validated
outages for the applicable day on a retroactive basis from the date of
verification.
There shall be no caps on either monthly or yearly service credit amounts.
Maintenance Window Definition
The maintenance window defines the process for normal upgrades of hardware and
software in a reasonable time frame, giving adequate warning to affected
customers.
There are three levels of urgency for upgrades and fixes:
1. Normal outages for increasing capacity or upgrading software. Normal
outages fit into a weekly window in the local off peak hours, with 2 or
more business day notice to customers.
2. More urgent problems that degrade service but don't always require
immediate repair. Maintenance is performed in the local off peak hours,
with as much notice as possible.
3. Service affecting problems that must be fixed immediately. These
services can take place at any time, with notification as soon as
possible.
<TABLE>
<CAPTION>
SEVERITY NOTICE DAY OF WORK TIME REQUIRED NOTICE SLA OUTAGE
-------- ------ ----------- ---- --------------- ----------
<S> <C> <C> <C> <C> <C>
Normal By Wed. night Sunday 2-4am local time 2 business days No
Urgent ASAP Any 2am-done As much as Yes
possible
Critical ASAP Any Any As much as Yes
possible
</TABLE>
SLA Implementation
1. Who does the customer call if they experience a problem? The Network
Operations Center via email, telephone, or fax.
2. What evidence is needed to apply for a service credit? The time stamp on
the return email from the Network Operations Center stating when the
problem was detected and when it was corrected.
3. How does the customer get credited?
4.
<PAGE> 90
The Network Operations Center will notify billing upon request by the
customer, or the customer can email their trouble ticket notification
direct to billing.
** Service level agreements for new customers begin to take effect on the
first day of the second month after initial installation of service.
Overall responsibility to claim any credits belongs to the Customer and
must be done within 30 days of a Service Outage. Customer may only obtain one
credit per month.
<PAGE> 91
EXHIBIT D
TO
QWEST COMMUNICATIONS
TELECOMMUNICATIONS SERVICES AGREEMENT
REVENUE COMMITMENT
1. REVENUE COMMITMENT: Customer acknowledges and agrees that certain rates,
charges and discounts are provided to Customer in consideration of Customer's
agreement to meet or exceed the revenue commitments established in this Exhibit
D, and that such rates, charges and discounts would not be offered to Customer
without Customer's agreement to make such commitments. The parties agree that
any agreed-upon true up payments, deficiency charges, early termination fees or
other relief (the "Commitment Remedies") set forth in this Exhibit D to any
agreed-upon revenue commitments represent mutual good faith estimates of, and
bear reasonable relationships to, the actual damages of Qwest in the event of a
failure by Customer to meet or exceed such revenue commitments. The parties
further agree that such Commitment Remedies do not represent a penalty of any
kind and shall be obligations of Customer subject to specific performance.
1.1 During the Term of the Agreement, Customer commits to purchase Services
from Qwest in accordance with the amounts set forth in Table D-1 below
("Total Minimum Revenue Commitment"). Revenue from any collocation
agreements entered into by the parties shall not contribute toward the
Total Minimum Revenue Commitment or the Minimum Revenue Commitment. The
"Commitment Period" of the Agreement shall not commence until Qwest
delivers to CUSTOMER any Facility pursuant to the terms of this
Agreement.
TABLE D-1
<TABLE>
<CAPTION>
COMMITMENT PERIOD MINIMUM REVENUE COMMITMENT
(IN MONTHS) BY TIME PERIOD
----------- --------------
<S> <C>
0-36 [*]
37-48 [*]
49-60 [*]
61-72 [*]
73-84 [*]
TOTAL MINIMUM COMMITMENT [*]
</TABLE>
1.2 In the event CUSTOMER fails to meet its minimum revenue commitment
("MRC") as identified in Table D-1 and Qwest has otherwise fulfilled its
material obligations to CUSTOMER, Qwest shall be entitled to a true up
payment for the short fall in services purchased during that period.
This true up payment shall be due and payable within fifteen (15) days
of receipt of such true up invoice from Qwest after the end of such
period. In the event that the services or purchases
- --------------------
[*] Information redacted pursuant to a confidential treatment request
throughout this exhibit.
<PAGE> 92
paid for by CUSTOMER during any period of the contract term are in
excess of the MRC for such period, CUSTOMER shall have the option to
either 1) apply such excess toward the subsequent period; or 2) apply
such excess, or a portion thereof, as a credit payment for services;
provided, however, that option (2) herein shall only be available if
CUSTOMER has previously made a true up payment to Qwest; and the amount
of credit payment for services shall be limited to the amount of such
previously paid true up payment by CUSTOMER. In the event that such
excess amount is greater than the amount of any previous true up payment
and CUSTOMER elects option (2), the difference between such excess
amount and true up payment shall be applied toward the next MRC in
accordance with option (1).
1.3 Qwest will provide CUSTOMER a "Meet the Market" option that will apply
to the price of Qwest services being purchased by CUSTOMER. This option
provides that Qwest will meet the rates as set forth in any bona fide
offer received by CUSTOMER for like services, like guaranteed service
level agreement and like term of agreement, provided, that CUSTOMER
shall provide to Qwest sufficient documentation evidencing such bona
fide offer. If Qwest opts to not meet the bona fide service offer,
CUSTOMER's sole remedy shall be to terminate the Agreement without any
further obligation to Qwest, and without any Termination Charge as
specified in Section 3 herein. This option will be exercisable for
Switched Voice Services only on an annual basis, in months [*]. For all
other communication services purchased by CUSTOMER, this option will
only be exercisable by CUSTOMER in month [*] and month [*] of the
Agreement.
1.4 In the event that CUSTOMER exceeds the Total Minimum Commitment detailed
in Table D-1 prior to the expiration of the Initial Term, CUSTOMER shall
have the option to renegotiate or expand the terms of the TSA
2. CONTRACT ESCROW:
2.1 CUSTOMER shall deliver the following payments to Qwest as an
additional assurance of contract commitment ("Total Minimum Commitment")
detailed above. Should CUSTOMER fail to meet or exceed the first Minimum
Revenue Commitment ("MRC") for the first commitment period ([*] for
Months 0 - 36) the Contract Escrow payments detailed below, plus earned
interest, shall: 1) if greater than the MRC shortfall, be utilized to
make the true up payment with the excess amount over the MRC shortfall
applied against CUSTOMER's subsequent service invoice(s), or 2) if less
than the MRC shortfall, be remitted to Qwest in addition to payment of
the MRC shortfall payment. However, if CUSTOMER exceeds the MRC for the
first commitment period [*] for Months 0 - 36), the Contract Escrow
payments detailed below, plus earned interest, shall be
- --------------------
[*] Information redacted pursuant to a confidential treatment request
throughout this exhibit.
<PAGE> 93
applied against CUSTOMER service invoice(s) within fifteen (15) days of
verification of MRC attainment.
<TABLE>
<CAPTION>
MONTH CONTRACT ESCROW PAYMENT
----- -----------------------
<S> <C>
1 [*]
13 [*]
25 [*]
TOTAL CONTRACT ESCROW [*]
</TABLE>
3. TERMINATION CHARGE:
3.1 At any time after the Effective Date through the end of the Term,
Customer may terminate this Agreement in its entirety, without cause, by
delivering to Qwest a written notice of termination. Customer shall, in
the event that it exercises its right to terminate for convenience
hereunder, pay Qwest (in certified funds) the applicable termination
charge ("Termination Charge") calculated as set forth in Section 3.2
below. In the event that the Total Minimum Commitment has been fully
satisfied, Customer may terminate this Agreement without payment of any
Termination Charge. The notice of termination shall set forth the
effective date for termination of the Agreement, and the Termination
Charge shall be due and payable within thirty (30) days after Customer's
receipt of the final invoice for Services delivered prior to the
effective date of termination.
3.2 In the event Customer elects to exercise its right to terminate this
Agreement for convenience under Section 3.1 above, Customer shall pay to
Qwest a Termination Charge calculated as follows:
(a) If the amount actually paid by Customer for all Services and
Products delivered through the date of termination of the
Agreement is less than [*], then the difference between fifty
percent (50%) of the Total Minimum Commitment (or [*]) and the
amount actually paid by Customer for all Services delivered to
through the date of termination of the Agreement; plus
(b) fifty percent (50%) of the remaining Total Minimum Commitment.
Two examples of the method for calculation of the Termination Charge are
set forth below:
<TABLE>
<S> <C> <C>
Total Minimum Commitment [*] [*]
Actual revenue paid [*] [*]
Modified to (a) above [*] [*]
50% of remaining amount [*] [*]
</TABLE>
- --------------------
[*] Information redacted pursuant to a confidential treatment request
throughout this exhibit.
<PAGE> 94
<TABLE>
<S> <C> <C>
Termination Charge [*] [*]
</TABLE>
4. FURTHER ASSURANCES:
4.1 In consideration of the Total Minimum Commitment, Qwest New Business
Development Organization will negotiate in good faith with CUSTOMER
regarding a dark fiber lease between Salem, Oregon and Eugene, Oregon,
as well as additional markets on a case-by-case basis, in the future.
Notwithstanding anything to the contrary herein, neither party shall
have the obligation to complete or consummate such dark fiber
transactions.
4.2 In consideration of the Total Minimum Commitment, Qwest Wholesale
Markets Division will, for switched voice services purchased from Qwest,
provide CUSTOMER with a discount from negotiated base rates equal to the
greater of i) the actual monthly dollar volume for switched voice
services achieved by CUSTOMER, or ii) the amortized monthly dollar
volume associated with the Total Minimum Commitment (i.e.; [*]) as
detailed in Table D-1. The volume discount structure utilized will be as
contained in Qwest's standard wholesale switched voice services product
offering (as set forth in the Carrier Services Agreement dated July 14,
1998 provided to CUSTOMER) plus an additional two percent (2%)
consideration for the expanded term of the Total Minimum Commitment
period, the total discount from base rates not to exceed 15% at any
time. Only the true up payment defined in Section 1.2 of this Exhibit D
shall apply.
4.3 In consideration of the Total Minimum Commitment, Qwest Wholesale
Markets Division will, for ATM Services purchased from Qwest, provide
CUSTOMER with a discount from base rates equal to the greater of i) the
actual monthly dollar volume for ATM Services achieved by CUSTOMER, or
ii) the amortized monthly dollar volume associated with the Total
Minimum Commitment (i.e.; [*]) as detailed in Table D-1. The volume
discount structure utilized will be as defined below.
<TABLE>
<CAPTION>
MONTHLY ATM SERVICE REVENUE DISCOUNT
--------------------------- --------
<S> <C>
[*] [*]
[*] [*]
[*] [*]
[*] [*]
[*] [*]
[*] [*]
[*] [*]
</TABLE>
- --------------------
[*] Information redacted pursuant to a confidential treatment request
throughout this exhibit.
<PAGE> 95
4.4 In consideration of the Total Minimum Commitment, for all other Qwest
Wholesale Products and Services which currently exist or which may be
developed in the future AND which may, at Qwest's sole discretion, allow
for volume discount pricing and which are purchased from Qwest by
CUSTOMER, Qwest Wholesale Markets Division will provide CUSTOMER with a
discount from base rates equal to the greater of i) the actual monthly
dollar volume for such Products and Services purchased by CUSTOMER, or
ii) the amortized monthly dollar volume associated with the Total
Minimum Commitment (i.e.; [*]) as detailed in Table D-1. Only the
true up payment defined in Section 1.2 of this Exhibit D shall apply.
4.5 In consideration of the Total Minimum Commitment, Qwest will establish,
at its sole expense, a "Virtual POP" in Santa Rosa, CA for CUSTOMER,
provided that CUSTOMER will, at a minimum, be purchasing a DS-3 or more
in revenue bearing services from Qwest in Santa Rosa, CA for as long as
CUSTOMER maintains such "Virtual POP".
4.6 Qwest may, at its own discretion, utilize CUSTOMER for Access and Local
Exchange Services in those markets under contemplation by CUSTOMER for
entry.
4.7 The parties agree to renegotiate the Switched/Switchless Voice
termination rates applicable to this Agreement within sixty (60) days of
the Effective Date.
4.8 Qwest will, at its discretion, provide CUSTOMER a POP or a meet-point in
Tacoma, WA. CUSTOMER shall, at its sole expense, establish a
Point-of-Interconnect ("POI") at the Qwest fiber route in Tacoma as
established by the Qwest New Business Development Organization. The
timing of the deployment of the Tacoma POP or meet-point shall be
mutually agreed upon by the parties in writing.
<PAGE> 1
EXHIBIT 10.18
Contract No. 99TX-10266
LICENSE AGREEMENT
EXECUTED BY THE
UNITED STATES OF AMERICA
DEPARTMENT OF ENERGY
ACTING BY AND THROUGH THE
BONNEVILLE POWER ADMINISTRATION
AND
ADVANCED TELCOM GROUP, INC.
INDEX TO SECTIONS
<TABLE>
<CAPTION>
SECTION PAGE
<S> <C>
1. Definitions ................................................... 2
2. Term .......................................................... 3
3. Exhibits....................................................... 3
4. Amendment of Agreement ........................................ 3
5. Ownership ..................................................... 4
6. License ....................................................... 4
7. Payment ....................................................... 4
8. Maintenance, Repair, and Restoration of the Cable ............. 6
9. Regenerator Building(s) ....................................... 8
10. Rights and Obligations Concerning the Cable ................... 9
11. Relocation of the Cable ....................................... 10
12. Representations and Warranties ................................ 11
13. Audit Procedures .............................................. 13
14. Insurance ..................................................... 14
15. Default ....................................................... 16
16. Indemnification; Waiver of Damages ............................ 18
17. Dispute Resolution ............................................ 20
18. General ....................................................... 20
19. Entire Agreement .............................................. 25
</TABLE>
Exhibit A (Route Description)
Exhibit B (Fiber Specifications)
Exhibit C (Detailed Restoration Plan)
Exhibit D (Regeneration Site Lease Agreements and Letter of Entry)
Exhibit E (Acceptance Testing Standards)
- --------------------
[*] Information redacted pursuant to a confidential treatment request
throughout this exhibit.
<PAGE> 2
This LICENSE AGREEMENT (Agreement) executed on __________, 1999, by the
UNITED STATES OF AMERICA (Government), Department of Energy, acting by and
through the BONNEVILLE POWER ADMINISTRATION (Bonneville), and ADVANCED TELCOM
GROUP, INC. (ATG). Both Bonneville and ATG may be referred to herein
individually as "Party" and collectively as "Parties."
1. DEFINITIONS
The following terms, when used in this Agreement, shall have the
meanings set forth in this section:
(a) "ATG Fiber" means six (6) optical fibers within the Cable
located on the Commercial Route owned by Bonneville and
designated to be licensed to ATG for the term of this Agreement.
(b) "Bonneville Facilities" means all Bonneville-owned and/or leased
structures, buildings, land, access roads, and equipment along
the Route.
(c) "Bonneville Fiber" means all fiber (except the six (6) dark
optical fibers licensed to ATG) within the Cable designated for
Bonneville's use.
(d) "Bonneville Route" means the portion of the Cable that contains
Bonneville Fiber extending approximately eighty-four (84) miles
between Bonneville's Alvey and Salem Substations.
(e) "Cable" means Bonneville owned seventy-two (72) SMF28 fibers or
installed by Bonneville along the Bonneville Route.
(f) "Cable Accessories" means the equipment necessary to support the
attachment of the Cable to the Bonneville Facilities.
(g) "Cable Restoration" means repairing and returning a damaged
cable back to service following an unscheduled outage.
(h) "Cable Specifications" means the drawings and specifications
regarding the hardware and materials incorporated into the
construction project.
(i) "Commercial Route" means the portion of the Cable that contains
ATG Fiber extending approximately eighty-four (84) miles between
Bonneville's Alvey and Salem Substations as further described in
Exhibit A.
(j) "Fiber Specifications" means the performance attributes of the
fiber within the Cable as described in Exhibit B.
2
<PAGE> 3
(k) "Interest Rate" means 1.25 percent per month to be compounded
monthly for each month or portion thereof during which interest
accrues.
(l) "License" means the License granted to ATG in section 6(a).
(m) "Regenerator Building(s)" means the building(s) along the Route
that house the terminal and regenerator equipment owned and
operated by ATG including any optronics or electronics required
by ATG to make use of the ATG Fibers. For the purpose of this
Agreement, the Regenerator Building(s) include conduit and fiber
optic cable, from the Regenerator Building(s) up to Bonneville's
nearest fiber optic splice box which is located adjacent to the
substation fence.
(n) "Route" means the Bonneville Route and the Commercial Route.
2. TERM
(a) This Agreement shall be effective at 2400 hours on the date of
execution by both Parties (Effective Date) and shall continue in
effect for a period of ten (10) years or unless sooner
terminated in accordance with the terms of this Agreement.
(b) The terms of this Agreement may be extended only by mutual
agreement of the Parties.
(c) All obligations incurred and outstanding shall survive the
expiration or termination of this Agreement.
3. EXHIBITS
Exhibit A (Route Description), Exhibit B (Fiber Specifications), Exhibit
C (Detailed Restoration Plan), Exhibit D (Regeneration Site Lease
Agreement and Letter of Entry) and Exhibit E (Acceptance Testing
Standards) are attached hereto and made a part of this Agreement.
4. AMENDMENT OF AGREEMENT
This Agreement may be amended or modified only by written agreement
executed by both Parties. No course of performance or dealing shall
operate to amend or modify this Agreement.
3
<PAGE> 4
5. OWNERSHIP
(a) The Cable shall be owned by Bonneville.
(b) Each Party shall own its own electronic and optronic devices
necessary to transmit signals over the fibers each controls.
(c) Bonneville shall also retain ownership of all Bonneville
electric transmission facilities, rights-of-way, structures,
improvements, and components installed on such facilities and
the Route as part of this Agreement.
(d) The Regenerator Building(s) and related equipment within the
Regenerator Building(s) shall be owned by ATG. To the extent
that any such Regenerator Building(s) or related equipment are
fixtures of Bonneville real property at the termination of this
Agreement, Bonneville shall have title to and ownership of such
fixtures.
6. LICENSE
(a) Grant
Bonneville hereby grants to ATG an exclusive and indefeasible
right and License to use the six (6) ATG Fiber along the
Commercial Route as specified in Exhibit A for the Term of this
Agreement.
(b) No Property Interest
This Agreement shall not confer upon ATG any ownership or
possessory interest in the Route or other property owned by
Bonneville except as provided herein, and ATG agrees that it
shall never make any claim of such interest based upon this
Agreement.
7. PAYMENT
(a) ATG shall pay to Bonneville a one-time payment of [*] no later
than September 30, 1999.
(b) ATG shall pay to Bonneville an annual maintenance payment of [*]
per route mile of Cable used by ATG as specified in Exhibit A.
The first such payment shall occur within thirty (30) days of
the execution of this Agreement by both Parties. All subsequent
annual maintenance-payments shall be payable each year on the
anniversary date of the execution of this Agreement.
- --------------------
[*] Information redacted pursuant to a confidential treatment request
throughout this exhibit.
4
<PAGE> 5
(c) Within any given calendar year, ATG will pay to Bonneville its
pro-rata share (based on ATG fiber count compared to the total
fiber count of the Cable) for restoration costs pertaining to
the Commercial Route incurred on or before September 30 of each
year. ATG shall pay Bonneville on or before September 30 of each
year after receipt of an invoice.
(d) ATG shall pay by wire or ACH transfer, using procedures
established by Bonneville's Financial Services Group. ATG may
pay its bill by mail, provided that Bonneville receives full
payment by the due date. ATG shall include the following
information in the description field of each transfer:
Bonneville contract number, Revenue PL6, and End Item Code.
If ATG is paying by mail, payments shall be mailed to:
Bonneville Power Administration
P.O. Box 6040
Portland, OR 97228-6040
(e) Late Payment. Payments not received by Bonneville when due shall
bear interest at the Interest Rate from the date payment was due
until the date payment is made to Bonneville. Late payments
shall be collected pursuant to the Debt Collection Act, 1982, 5
U.S.C. 5514.
(f) Escalation of Annual Charge
All annual payments shall be increased annually on September 30
to an amount equal to such annual payments as escalated by the
Consumer Price Index, All Urban Consumers (CPI-U), U.S. City
Average, All Items, published by the United States Department of
Labor, Bureau of Labor Statistics (1982-84=100) ("Index") as of
the month immediately preceding September 30 of each year. If
the Index is discontinued or revised, the parties shall agree to
another index to be used in order to obtain substantially the
same result as would be obtained if the Index had not been
discontinued or revised.
(g) ATG at its sole cost and expense, shall have the right to have
an engineering consultant review the Bonneville fiber optic
route design and to monitor the ongoing costs of construction of
the Cable. Bonneville agrees to cooperate in good faith with ATG
in this regard and to provide all documentation reasonably
required by ATG.
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8. MAINTENANCE, REPAIR, AND RESTORATION OF THE CABLE
(a) Maintenance of the Cable
(1) During the term of this Agreement, Bonneville shall be
responsible for all physical maintenance of the Cable
and the Cable Accessories. Bonneville shall maintain the
Cable and the Route at all times in good working order
and in a safe condition, in conformity with the Cable
Specifications and all applicable laws and regulations.
(2) ATG shall be responsible for maintenance of its
property, including the Regenerator Building(s) along
the Route.
(b) Detailed Restoration Plan
(1) Restoration activities will be integral to ensuring
successful implementation of this Agreement. Timely
restoration is dependent upon the timely coordination
and cooperation between Bonneville and ATG. The Parties
agree to jointly develop a Detailed Restoration Plan,
which shall, upon its completion become part of this
Agreement as Exhibit C.
(2) The Parties agree to develop within sixty (60) days of
signature of this Agreement by both Parties a Detailed
Restoration Plan, the specifics of which will be based
upon the provisions of this section 8.
(3) The provisions described in this section shall form the
principles and basis for the development of such a plan.
(c) Restoration Priorities and General Requirements
(1) Bonneville's obligation to maintain and repair the Cable
and any activity incidental thereto shall be subordinate
to, and shall not conflict with, Bonneville's rightful
use and operation of its transmission facilities. In the
event both Bonneville's transmission facilities and the
Cable require maintenance or repair, the restoration of
the Cable shall be at all times subordinate to the
restoration of Bonneville's transmission facilities,
unless otherwise agreed to by Bonneville in advance. The
restoration of Bonneville's telecommunications system
shall take priority over restoration activities related
to ATG Fiber as shall restoration rights contained in
pre-existing contracts. The restoration of the ATG Fiber
shall take priority over restoration activities related
to any fibers licensed in contracts subsequent to the
agreement.
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(2) Any and all Bonneville or ATG representatives that
construct, install, repair, replace, or otherwise handle
the Cable, Cable Accessories, ATG Fiber, Bonneville
Fiber, or any related materials and equipment shall be
properly trained and equipped to meet all current
industry standards.
(3) A Bonneville representative must be on site during all
repair and restoration work to perform functions such as
safety watch, protection of Bonneville's transmission
facilities, or obtain line clearances. Bonneville shall
make its best efforts to have a representative arrive
at the site requiring an emergency maintenance activity
pursuant to section 8(d)(1) of this Agreement.
(4) The Party performing the repair and restoration shall
use prudent business methods to acquire the most cost
effective restoration procedures and materials
available given the Cable Specifications, Fiber
Specifications, and current industry standard.
(5) Bonneville shall require all employees or agents of ATG
who work near Bonneville's transmission facilities to
demonstrate that they have been properly trained and
equipped to perform the work. The Parties shall agree in
advance what constitutes proper training and reasonable
costs. The costs of agreed upon training for ATG
employees or agents of ATG shall be borne by ATG.
(6) A Bonneville representative shall have the authority to
stop work for reasons that involve potential health
hazards, safety concerns, and potential disruption to
Bonneville's operating system.
(d) Restoration of the Cable
(1) Bonneville shall immediately, upon notification from
ATG, of a confirmed cable related interruption in
service, failure, disrepair, impairment or other need
for repair or restoration of the ATG Fiber, begin to
mobilize Bonneville crews and make its continuous best
effort to achieve such necessary repair or restoration,
including making its best effort to have maintenance
personnel at the affected site within four (4) hours
after receipt of such notice, provided, however, that in
the event any of ATG rights are interrupted by events
described in section 18(a), repairs and restoration
shall be made as expeditiously as possible consistent
with section 8(c)(1). ATG recognizes that the four (4)
hour response time represents optimal conditions, and
may be impossible to achieve when responding to certain
remote locations. Actual response times will be
influenced by factors such as the terrain, weather
conditions present at the time the request is made, and
the actual mileage from Bonneville's dispatch station to
the fault site.
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(2) For purposes of this section, best efforts means
activities and performance consistent with prudent
utility practice, existing contract provisions for
Bonneville's hourly employees ("Collective Agreement
between BPA and Columbia Power Trades Council"), and
response times that do not jeopardize the health and
safety of Bonneville employees, agents of Bonneville,
ATG employees or agents of ATG.
(3) The Detailed Restoration Plan shall set forth the roles
and responsibilities of the respective parties, and
shall address issues regarding logistical
considerations, response interval factors, communication
between the Parties, sequential activity requirements,
and other related items which would impact response time
and restoration intervals. The aforementioned issues
will be taken into consideration in the determination of
whether Bonneville has used its best efforts in such
restoration or repair activities.
(4) If Bonneville is unable to begin to provide restoration
within the agreed-upon timeframe pursuant to section
8(d)(1), Bonneville shall provide ATG or its Bonneville-
approved subcontractor access to the Cable, pursuant to
the Detailed Restoration Plan, after notification from
ATG of confirmed cable related interruption in service,
failure, disrepair, impairment, or other need for
repair, so that ATG or its Bonneville-approved
subcontractor can make necessary repairs to the Cable
provided such repairs are made in accordance with all
current Bonneville and industry safety standards.
(5) Given that the Cable has been maintained by Bonneville
pursuant to 9(a)(1), and if the cable's ability to
transmit a signal degrades over time to a level
unacceptable to either Party, the Parties will jointly
determine the action to be taken and share any costs
associated with the action on a pro rata basis based
upon the number of fibers in each Party's control.
9. REGENERATOR BUILDING(S)
(a) ATG shall have sole responsibility for the expense and
acquisition of any property or utilities necessary for its
equipment along the Route. If space is available at Bonneville
substations, such space shall be provided to ATG pursuant to the
Regenerator Site Lease Agreement form attached as Exhibit D.
(b) Other than the Bonneville Facilities, ATG shall provide and own
the Cable Accessories splice boxes, and other components
necessary for the operation of the ATG Fiber as set forth in
Exhibit D.
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(c) Bonneville will provide to ATG the Bonneville Safety
Requirements. ATG shall have sole responsibility to comply with
Bonneville Safety Requirements with regard to the installation
and maintenance of ATG facilities on or about Bonneville's
right-of-way and property. ATG's compliance with Bonneville
Safety Requirements and for maintenance of certain environmental
control procedures such as maintenance of the grounds around the
Regenerator Building(s) will be at ATG's expense.
(d) ATG may use Bonneville's access roads to access the Regenerator
Building(s), provided that heavy vehicles or other equipment
being used on the access road will not impair the use of the
access road by Bonneville. Access to the roads shall be limited
to the times and frequency required for maintenance and
operation of the Regenerator Building(s) and equipment, and any
repair and restoration of the Cable pursuant to section 8. ATG
shall at ATG's expense repair any damage to the access roads
caused as a result of ATG use of the access roads.
10. RIGHTS AND OBLIGATIONS CONCERNING THE CABLE
(a) Permits
Bonneville shall acquire all necessary regulatory or
governmental permits and approvals with the exception of any
permits and/or approvals that may be required for the
Regenerator Building(s). Additionally, Bonneville shall acquire
all necessary National Environmental Policy Act (NEPA) permits
for the Regenerator Building(s) pursuant to paragraph (d) of
this section.
When feasible and necessary, Bonneville shall acquire permits,
easements, or additional rights-of-way for the Regenerator
Building(s) provided ATG pays for the full cost of such
assistance and protects Bonneville from future liability
resulting from such actions.
(b) Taxes, Mechanic's Liens, and Encumbrances
ATG shall pay its own income taxes as well as all franchise fees
and other fees and taxes resulting from ATG License over the ATG
Fiber along the Route. ATG shall keep the Route free from all
liens and encumbrances resulting from its performance of this
Agreement. If ATG does not pay the foregoing taxes and fees when
such become due, and such nonpayment results in the imposition
of a lien on, or encumbrance of, the Route, then Bonneville
shall have the right, but not the obligation, to pay all amounts
due and discharge such lien or encumbrance, upon thirty (30)
calendar days prior written notice to ATG and charge the amount
thereof to ATG. In the event Bonneville causes such liens or
encumbrances to be discharged, ATG shall pay such amounts to
Bonneville upon demand together with interest thereon at the
Interest Rate, accruing from the date that Bonneville makes
payment discharging such liens or encumbrances until the date
Bonneville receives full reimbursement from ATG. ATG shall have
the absolute right to dispute or challenge any tax or fee
assessed on its use of the ATG Fibers.
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(c) Access to Local Landowners
Contacts made by ATG with local landowners adjacent to the Route
shall be coordinated with Bonneville as specified in the
Detailed Restoration Plan.
(d) Environmental Compliance Activities
Bonneville shall be responsible for compliance with the Federal,
State, and local laws and regulations pertaining to NEPA and
related public involvement and information exchange in relation
to the proposed project activities. Bonneville shall acquire all
necessary permits associated with the project operations,
maintenance, and construction. The project activities will be
limited to construction and operation of cable, hardware;
Regenerator Building(s), access roads and distribution lines if
needed for Regenerator Building(s). If any mitigation measures
are identified as part of the NEPA compliance activities, these
measures will be performed by Bonneville at the sole cost of ATG
provided, however, that ATG shall not be liable for the costs of
any mitigation measures that arise from activities unrelated to
activities authorized by this Agreement. Contacts with the local
landowners will be performed by Bonneville-appointed
representatives. Any landowner compensation required as part of
the NEPA and project activities will be made by ATG. All of the
compliance activities undertaken by Bonneville pursuant to this
subparagraph shall be at the cost and expense of ATG.
(e) Taxes, title to and ownership of the ATG Fiber shall remain in
Bonneville which will be responsible for ad valorem taxes, if
any, imposed on its ownership of the ATG Fiber. If requested in
writing, Bonneville will reasonably assist ATG in any dispute or
challenge of any tax or fee assessed that ATG believes should be
properly assessed based on the ownership of the ATG Fiber.
11. RELOCATION OF THE CABLE
The Cable or a portion thereof may require relocation or replacement
during the term of this Agreement. The cost of such relocation or
replacement shall be allocated as follows:
(a) If requested by ATG for its operational purposes, ATG shall pay
all such costs, provided, however, that Bonneville shall, in its
sole discretion, determine whether such relocation of the Cable
may be accommodated considering Bonneville's own need to provide
economical and reliable electric power;
(b) If requested by Bonneville due to requirements necessary to
provide economical and reliable electric power, Bonneville shall
pay all such costs;
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(c) If the Cable must be relocated due to the order of any court or
governmental agency, or because of a force majeure event
Bonneville shall, in consultation with ATG designate a new route
for the Cable. The costs associated with such required
relocation that are not paid by a third party, shall be
allocated between the Parties on a pro rata basis.
(d) If the Cable must be relocated pursuant to section 11(c) above,
Bonneville and ATG shall work together to select contractors and
materials to achieve the most cost effective relocation
available in the market place given the Cable Specifications
Fiber, Specifications, and current industry standards.
12. REPRESENTATIONS AND WARRANTIES
(a) ATG represents and warrants to Bonneville as follows:
(1) ATG has full power and authority to execute, deliver,
and perform its obligations under this Agreement. The
execution of this Agreement by ATG has been duly and
validly authorized by all necessary action on the part
of ATG. This Agreement is a legal, valid, and binding
obligation of ATG enforceable against ATG in accordance
with its terms. The execution and delivery of this
Agreement by ATG and the performance of the terms,
covenants, and conditions contained herein will not
violate the articles of the limited partnership or
bylaws of ATG or any applicable law or regulation or any
order of court or arbitrator, and will not conflict with
and will not constitute a material breach of, or default
under, the provisions of any contract by which ATG is
bound. Except as otherwise stated herein, no approval,
authorization, or other action by any governmental
authority or filing with any such authority which has
not been obtained or accomplished is required in
connection with the execution, delivery, and performance
by ATG of this Agreement.
(2) There are no known actions, suits, or proceedings
pending or overtly threatened against ATG before any
court or administrative agency that would materially
impair ATG's performance of its obligations under this
Agreement.
(b) Bonneville represents and warrants to ATG as follows:
(1) Bonneville is duly authorized to execute and deliver
this Agreement and to perform its obligations hereunder.
This Agreement constitutes a legal and valid obligation
of Bonneville enforceable in accordance with its terms
to the full extent provided by law. The enforceability
of this Agreement is qualified as to:
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(A) limitations imposed by bankruptcy laws of the
United States, insolvency, reorganization,
arrangement, moratorium, or other laws relating
to or affecting the enforcement of creditor's
rights generally.
(2) Upon execution of this Agreement, Bonneville warrants
that there are no known conflicts with this Agreement
and that neither execution and delivery of this
Agreement nor performance by Bonneville of its
obligations hereunder constitutes a material breach of
or a default under any constitutional provision, or any
law or administrative regulation, or violate any
judgment, decree, or other instrument, or any other
contract related to the Route to which Bonneville is a
Party or to which Bonneville or any of its property or
assets is subject.
(3) Bonneville has sufficient interests in the real property
along the Route to construct its Cable and carry out its
obligations under this Agreement.
(c) Materials Warranties.
(1) Except as otherwise specifically set forth in the
representations, warranties, covenants and conditions of
this agreement, each party makes no warranty to the
other party or to any other person or entity, whether
express, implied or statutory, as to the installation,
description, quality, merchantability, completeness or
fitness for any purpose of any portion of the system or
any service provided hereunder or described herein, or
as to any other matter, all of which warranties are
hereby excluded and disclaimed.
(2) In procuring and obtaining materials, each Party shall
use reasonable efforts to obtain from the vendors and
suppliers, for the mutual benefit of the Parties,
warranties that such materials are:
(A) of the kind and quality described in the
purchase order or supply contract;
(B) free of defects in workmanship, material, design
and title;
(C) of good and merchantable quality; and where
appropriate, fit for their intended purpose.
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(3) Each Party shall attempt to obtain standard warranty
periods for all materials it is responsible to procure,
and shall use reasonable efforts to obtain longer
warranty periods, if such extended warranties do not
materially increase the cost of such materials. Each
Party's sole obligation and liability to the other with
respect to the materials warranties shall be to
administer such warranties. In no event shall either
Party be deemed to have guaranteed any such warranties
provided by vendors or suppliers.
(4) Each Party will cooperate and assist the other with
respect to any claim that a Party may assert against
vendors and suppliers under such warranties, including
such reasonable actions as may be necessary to assign or
otherwise make available to a Party the right to make
such claims.
(d) No Bonneville Warranty Concerning Route
Bonneville makes no representation or warranty whatsoever
concerning the physical characteristics of the Route. ATG
acknowledges that neither Bonneville nor any of Bonneville's
officers, employees, representatives, contractors, or
subcontractors or agents have made any such representation, nor
is Bonneville or ATG entering into this Agreement in reliance
upon any such representation or warranty.
13. AUDIT PROCEDURES
(a) Records
The Parties shall maintain true and correct sets of records in
connection with the performance of this Agreement and all
transactions related thereto and shall retain all such records
for a period of not less than three (3) years after the
Effective Date has been provided in accordance with section 2 of
this Agreement. The Parties shall also maintain true and correct
sets of records in connection with its accounting, billing, and
collection of its payment of the restoration of the Cable, and
shall retain all such records for a period of not less that
three (3) years after each such transaction.
(b) Reimbursement
If Bonneville or ATG is entitled under this Agreement to be paid
amounts determined in whole or in part on a reimbursement of
costs basis, the costs to be reimbursed shall be only those
reasonably necessary to perform the work in an efficient manner
in accordance with the time schedule required.
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(c) Audit Rights
Notwithstanding anything in this Agreement to the contrary,
either Party which is required to make payment under this
Agreement, may, at the paying Party's sole discretion and
expense, request and perform a complete audit of the records of
the Party requesting reimbursement which are described in
Paragraph 14(a) above. In the event that the Parties agree that
the auditing Party's audit is determined to be correct, the
nonauditing Party shall reimburse the auditing Party the agreed
upon amount. In the event that the nonauditing Party disagrees
with the results of the Party's audit and resolution is not
reached between the Parties, the Parties agree to resolve the
dispute pursuant to Section 17 of this Agreement.
14. INSURANCE
(a) General
At all times during the term of this Agreement and the License
term, ATG at its own cost and expense, shall provide the
insurance specified by this section.
(b) Evidence Required
On the Effective Date of this Agreement, ATG shall provide
Bonneville with a certificate of insurance (Certificate of
Insurance) executed by an authorized representative of the
insurer(s) evidencing that ATG insurance complies with this
section.
(c) Notice of Cancellation, Reduction, or Material Change in
Coverage
Policies shall include a provision requiring written notice by
the insurer(s) to Bonneville not less than thirty (30) calendar
days prior to any cancellation, reduction, or material change in
coverage. If insurance coverage is canceled, reduced, or
materially changed, ATG shall, prior to the effective date of
such cancellation, reduction, or material change, obtain the
coverage required under this section 14 and provide to
Bonneville documentation evidencing such coverage. ATG shall be
responsible to the extent not caused by Bonneville's negligence,
for the costs of any damage, liability, or injury occurring
during such cancellation, reduction, or material change in
insurance coverage which are not otherwise covered by insurance.
(d) Qualifying Insurers
Policies shall be issued by companies which hold a current
policyholders alphabetic and financial size category rating of
not less than A- according to Best's Insurance Report or a
similar rating from another recognized rating agency.
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(e) Insurance Required
(1) Liability
Commercial general liability insurance for bodily injury
(including death) and property damage shall provide
limits of not less than $10 million per occurrence.
(A) Coverage included shall be:
(i) premises and operations;
(ii) broad form property damage;
(iii) products and completed operations;
(iv) blanket contractual liability;
(v) personal injury liability;
(vi) cross-liability and severability of
interests; and
(vii) independent contractors liability.
(B) Coverage shall be endorsed to include the
following:
(i) inclusion of Bonneville, its officers,
representatives, agents, and employees
as an additional insured as respects
services or operations in connection
with this Agreement; and
(ii) stipulation that the insurance is
primary insurance and that no insurance
or self-insurance of Bonneville will be
called upon to contribute to a loss:
(2) Business Automobile Liability Insurance
Business Automobile Liability Insurance for bodily
injury (including death) and property damage shall
provide total limits of not less than $2 million
combined single limit per occurrence to all owned,
non-owned, and hired vehicles.
(3) Workers' Compensation/Employer's Liability Insurance
Statutory Workers' Compensation and Employer's Liability
Insurance for not less than $l million per occurrence
shall apply to employer's liability coverage for all
employees engaged in services or operations under this
Agreement. The policy shall include broad form
all-States/other States coverage.
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(f) Special Provisions
(1) The foregoing requirements as to the types and limits of
insurance coverage to be maintained by ATG and any
approval of said insurance by Bonneville or ATG are not
intended to and shall not in any manner limit or qualify
the liabilities and obligations otherwise assumed by ATG
pursuant to this Agreement, including, but not limited
to, the provisions concerning indemnification.
(2) Bonneville acknowledges that some insurance requirements
contained in this section 14 may be fulfilled by a
formal self-insurance program of ATG. However, this
shall not in any way limit liabilities assumed by ATG
under this Agreement. Any self-insurance program must be
first approved in writing by Bonneville.
15. DEFAULT
(a) Events of Default
If either Party is in material breach or default (Defaulting
Party), under this Agreement, the other Party (Nondefaulting
Party) may notify in writing the Defaulting Party that it is in
material breach or default, such notice to be effective upon its
receipt by the Defaulting Party. The following events shall
constitute material breach or default under this Agreement:
(1) failure to make any payment when due hereunder, with the
exception of payments that become payable to either
Party during the period of any Force Majeure, when the
event of Force Majeure results in a Party's physical
inability to make such payment. During these periods,
the Party experiencing Force Majeure shall immediately
notify the other Party to make alternative arrangements
that are agreeable to both Parties.
(2) failure to perform in any material respect any
obligations required to be observed or performed
hereunder;
(3) any representation or warranty made by one Party to the
other herein proving incorrect in any material respect
as of the date of the making thereof;
(4) ATG files a voluntary petition in bankruptcy, or a
petition in bankruptcy is filed against ATG and not
dismissed within sixty (60) days, or ATG is adjudicated
as bankrupt or insolvent, or files any petition or
answer seeking or acquiescing in any reorganization,
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arrangement, composition, readjustment, liquidation,
dissolution, or similar relief under any present or
future Federal, State, or other statute, law, or
regulation relating to bankruptcy, insolvency, or other
relief for debtors, or seeks or consents to or
acquiesces in the appointment of any trustee,
receiver, custodian, liquidator, or similar official of
ATG or makes any general assignment for the benefit of
creditors;
(5) willful and material interference by one Party to the
other Party's operations; or
(6) failure to make full restitution for any damage to one
Party's real property or equipment caused as a result of
the sole negligent or willful actions by the other
Party.
(b) Remedies
(1) Defaulting Party's Right to Cure
The Defaulting Party shall have the right to cure any
material breach or default under this Agreement within
thirty (30) calendar days after the receipt by the
Defaulting Party of notification of such material breach
or default. In the case of any material breach or
default which may not reasonably be cured within thirty
(30) calendar days, the Defaulting Party shall have the
right to provide the Nondefaulting Party with a plan for
the appropriate actions to cure such material breach or
default. Within the thirty (30) calendar day period, the
Defaulting Party must commence diligently pursuing
appropriate action under the plan to cure the material
breach or default, in which event the Defaulting Party
shall have a longer period of time to cure the material
breach or default so long as the Defaulting Party shall
continue to be diligently pursuing appropriate action
during such period; provided, however, that in no event
shall such time period exceed one hundred twenty (120)
days.
(2) Nondefaulting Party's Remedies
After the time allowed the Defaulting Party to cure any
material breach or default has expired, then the
Nondefaulting Party shall have the right to: (A)
terminate this Agreement; (B) cure any material breach
or default of the Defaulting Party to preserve the
Nondefaulting Party's rights that may be prejudiced as a
result of such material breach or default; and (C)
exercise and pursue all other rights and remedies
available to it under applicable law.
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(3) Rights and Remedies Cumulative
Except as otherwise provided in this Agreement, any
right, or remedy afforded to either ATG or Bonneville
under any provision of this Agreement on account of
material breach or default by the other is in addition
to, and not in lieu of, all rights or remedies afforded
either ATG or Bonneville under any other provision of
this Agreement, by law or otherwise on account of the
material breach or default.
16. INDEMNIFICATION; WAIVER OF DAMAGES.
(a) Indemnification by ATG
(1) To the extent allowed by law, ATG shall release and
indemnify, defend, and hold harmless Bonneville and each
of its directors, officers, agents, representatives,
subcontractors, and employees (the "Bonneville
Indemnitees") from and against any and all liabilities,
losses, claims, demands and actions of any nature
("Claims") for injury to or death of a person, including
an employee of ATG or a Bonneville Indemnitee, or for
loss of or damage to property resulting directly or
indirectly from ATG's performance or nonperformance of
this Agreement, except to the extent that such Claim is
the result of negligence or willful misconduct of a
Bonneville Indemnitee.
(2) ATG accepts responsibility and liability, whether now
existing or arising, in connection with any Federal or
state statute, law, ordinance, regulation or judgment
related to the existence, disposal, or release of
hazardous waste, contaminants or pollutants, including
but not limited to polychlorinated biphenyl (PCB) on the
Route, directly or indirectly resulting from or caused
by ATG or ATG performance or nonperformance of this
Agreement.
(3) If negligence nor willful misconduct of a Bonneville
Indemnitee has contributed to a Claim, ATG shall not be
obligated to indemnify the Bonneville Indemnitees for
the proportionate share of such Claims caused by such
negligence or willful misconduct. Bonneville shall have
the right, at its own cost, to retain counsel, to
monitor, or participate in the defense of any Claim that
is covered by ATG's indemnity hereunder. Bonneville
shall reimburse ATG for that portion of a Claim
determined or agreed to be caused by Bonneville's
negligence or willful misconduct. Reimbursement shall be
due to ATG thirty (30) calendar days after the
determination or agreement with respect thereto, and
shall bear interest at the Interest Rate from said date
until the date of payment by Bonneville.
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(b) Indemnification by Bonneville
(1) To the extent allowed by law, Bonneville shall release
and indemnify, defend, and hold harmless ATG and each of
its directors, officers, agents, representatives,
subcontractors, and employees (the "ATG Indemnitees")
from and against any and all Claims as defined in
section 16(a)(1) for injury to or death of a person,
including an employee of Bonneville or an ATG
Indemnitee, or for loss of or damage to property
resulting directly or indirectly from Bonneville's
performance or nonperformance of this Agreement, except
to the extent that such Claim is the result of
negligence or willful misconduct of a ATG Indemnitee.
(2) Bonneville accepts responsibility and liability, whether
now existing or arising, in connection with any Federal
or state statute, law, ordinance, regulation or judgment
related to the existence, disposal, or release of
hazardous waste, contaminants or pollutants, including
but not limited to PCB on the Route, directly or
indirectly resulting from or caused by Bonneville or
Bonneville's performance or nonperformance of this
Agreement.
(3) If negligence or willful misconduct of a ATG Indemnitee
has contributed to a Claim, Bonneville shall not be
obligated to indemnify the ATG Indemnitees for the
proportionate share of such Claims caused by such
negligence or willful misconduct. ATG shall have the
right, at its own cost, to retain counsel, to monitor,
or participate in the defense of any Claim that is
covered by Bonneville's indemnity hereunder. ATG shall
reimburse Bonneville for that portion of a Claim
determined or agreed to be caused by ATG's negligence or
willful misconduct. Reimbursement shall be due to
Bonneville thirty (30) calendar days after the
determination or agreement with respect thereto, and
shall bear interest at the Interest Rate from said date
until the date of payment by ATG.
(4) Bonneville agrees to indemnify ATG against any claims of
underlying landowners along the Route of damage to
property resulting from Bonneville's construction and
maintenance of the Cable.
(c) Waiver of Certain Damages
Each Party hereby waives any right to consequential, incidental,
special or indirect damages, or damages for lost profits or
exemplary damages with respect to any claim arising out of or
related to this Agreement. The Parties acknowledge that the
foregoing waiver shall not prejudice the right of indemnity
respecting any Claim under this section.
19
<PAGE> 20
(d) The provisions of this section shall survive the expiration or
termination of this Agreement.
17. DISPUTE RESOLUTION
(a) Pending resolution of a disputed matter, the Parties shall
continue performance of their respective obligations hereunder.
Any controversy between the Parties rising out of this Agreement
or breach thereof, or out of performance under this Agreement, is
subject to the mediation process described below. If not resolved
by mediation, then the matter must be submitted to the American
Arbitration Association ("AAA") for arbitration before a sole
arbitrator.
(b) A meeting will be held promptly between the Parties to attempt in
good faith to negotiate a resolution of the dispute. The meeting
will be attended by individuals with decision-making authority
regarding the dispute. If within thirty (30) calendar days after
such meeting the Parties have not succeeded in resolving the
dispute, either party may within thirty (30) calendar days
thereafter serve written notice to the other party and submit the
dispute to a mutually acceptable third-party mediator who is
acquainted with dispute resolution methods. If the dispute is not
resolved by mediation either Party may initiate arbitration with
the AAA, upon the written notice from either Party to the other
Party. The dispute shall be resolved by arbitration under the
AAA's Complex Commercial rules. The arbitrator's authority shall
be limited by Federal Law. Judgment upon the award rendered by the
arbitrator may be entered in any court having jurisdiction
thereof. Neither Party is entitled to seek or recover punitive
damages in considering or fixing any award under these
proceedings.
(c) The costs of mediation and arbitration, including any mediator's
fees, AAA administration fee, the arbitrators fee, and costs for
the use of facilities during the hearings," shall be borne equally
by the Parties. Reasonable attorneys' fees may be awarded to the
prevailing Party (provided such a Party can clearly be determined
from the proceedings) at the discretion of the arbitrator. Each
Party's other costs and expenses will be borne by the Party
incurring them.
18. GENERAL
(a) Force Majeure
(1) As used in this Agreement, the term "Force Majeure" means
acts of God (including but not limited to, earthquakes,
fires, floods, windstorms, landslides, and ice storms);
strikes, lockouts, or other labor disputes; acts of public
enemy; acts of vandalism, wars, riots,
20
<PAGE> 21
and insurrection; epidemics; civil disturbances; explosions;
train derailments; breakdown or failure of machinery or
facilities (excluding the Cable and Cable Accessories);
accidents to machinery or equipment (excluding the Cable and
Cable Accessories), and delay in delivery of equipment to
the extent such occurrences are beyond the reasonable
control of the Parties; electrical disturbance originating
in or transmitted through such Party's electrical system or
equipment or any electrical system with which such Party's
system or equipment is interconnected; and any other event,
cause, or condition beyond the party's reasonable control,
which, by the exercise of reasonable diligence, prevents the
Party claiming Force Majeure from performing its obligations
under this Agreement.
(2) If either Party is unable to carry out its obligations
under this Agreement as a result of an event, cause, or
condition of Force Majeure, the Party claiming Force Majeure
shall give notice and full particulars of such Force Majeure
in writing to the other Party within five (5) calendar days
at the beginning of the occurrence of the Force Majeure
event, cause, or condition. Any obligations that such Party
is unable to perform due to an event, cause, or condition of
Force Majeure shall be suspended during the continuance of
such event of Force Majeure. The Party claiming Force
Majeure shall use reasonable efforts to remedy and minimize
the effects of such event of Force Majeure with all
reasonable dispatch.
(3) Neither Party shall be liable under this Agreement for, or
be considered to be in material breach or default under,
this Agreement on account of any delay in or failure of
performance due to Force Majeure unless specifically stated
in this Agreement.
(4) If Bonneville is the Party claiming Force Majeure and such
event of Force Majeure prevents restoration by Bonneville or
ATG within one (1) year from the event of such Force
Majeure, then ATG shall have the option to terminate this
Agreement under the provisions of section 15(b)(1).
(b) Notices
All notices and other communications under this Agreement shall be
properly given only if made in writing; and
(1) mailed by certified mail, return receipt requested, postage
prepaid; or
21
<PAGE> 22
(2) delivered by facsimile transmission followed by certified
mail to the Party's at the address or facsimile number set
forth in this section 18(b) or such other address or
facsimile number as such Party may designate by notice to
the other Party. Such notices and other communications
shall be effective on the date of receipt. If any such
notice or communication is not received or cannot be
delivered due to a change in the address of the receiving
Party of which notice was not previously given to the
sending Party or due to a refusal to accept by the receiving
Party, such notice or other communication shall be effective
on the date delivery is attempted.
If to Bonneville:
The Bonneville Power Administration
P.O. Box 491
Vancouver, WA 98666-0491
Attn: To be identified under separate letter
With a copy to:
The Bonneville Power Administration
P.O. Box 491
Vancouver, WA 98666-0491
Attn: To be identified under separate letter
If to ATG:
Advanced TelCom Group, Inc.
100 Stony Point Road, Suite 130
Santa Rosa, CA 95401
Attn: Mr. Luis Aguilar
Telephone: (707)535-8900
(c) Assignment
ATG may sell, assign, lease, sublease, or otherwise allow use of
ATG License under this Agreement to any person or entity only
after receiving Bonneville's written approval. Bonneville's
written approval shall not be unreasonably withheld. ATG shall
have the right, without Bonneville's consent, to assign or
otherwise transfer this Agreement in whole or in part (a) as
collateral to any institutional lender to ATG (or institutional
lender to any permitted transferee or assignee of ATG) subject to
the prior rights and obligations of the parties hereunder, (b) to
any parent, subsidiary or affiliate of ATG, (c) to any person,
firm or corporation which shall control, be under the control of
or be under common control with ATG, or (d) any other entity into
which ATG may be merged or consolidated or which purchases all or
substantially all of the stock or assets of ATG; provided that the
assignee or transferee in any such circumstance shall continue to
be subject to all of the
22
<PAGE> 23
provisions of this Agreement, including without limitation this
section 18(c) (except that any lender referred to in clause (a)
above shall not incur any obligations under this Agreement, nor
shall it be restricted from exercising any right of enforcement or
foreclosure with respect to any related security interest or lien,
so long as the purchaser in foreclosure is subject to the
provisions of this Agreement, including, without limitation, this
section 18(c); and provided further that in any of the
circumstances described in clauses (b), (c) or (d) all of the
payment obligations of ATG hereunder for the remainder of the Term
shall be paid in full as a condition to such transfer or
assignment; and provided further that promptly following any such
assignment or transfer, ATG shall give Bonneville written notice
identifying the assignee or transferee.
(d) Partial Invalidity
If any provision of this Agreement is determined by a proper court
to be invalid, illegal or unenforceable, such invalidity,
illegality or unenforceability shall not affect the performance of
other provisions of this Agreement and this Agreement shall remain
in full force and effect without such invalid, illegal or
unenforceable provision.
(e) Governing Law
This Agreement shall be governed by and construed in accordance
with Federal law.
(f) Terms Generally
The defined terms in this Agreement shall apply equally to both
the singular and the plural forms of the terms defined. Whenever
the context may require, any pronoun shall include the
corresponding masculine, feminine, and neuter forms. The term
"person" includes individuals, limited partnerships, partnerships,
trusts, other legal entities, organizations, anti associations,
and any Government or governmental agency or authority. The words
"include," "includes" and "including" shall be deemed to be
followed by the phrase "without limitation." The words "approval,"
"consent" and "notice" shall be deemed to be preceded by the word
"written."
(g) Waivers
No waiver of any provision or breach of this Agreement shall be
effective unless such waiver is in writing and signed by the
waiving Party and any such waiver shall not be deemed a waiver of
any other provision of this Agreement or any other breach of this
Agreement.
23
<PAGE> 24
(h) Confidentiality
If and to the extent any information or documents furnished by one
Party to the other under this Agreement is confidential or
proprietary to the furnishing Party, the receiving Party shall
treat such information or documents as confidential and
proprietary and shall take reasonable steps to protect against the
unauthorized use or disclosure of such information or documents;
PROVIDED, that such information and documents are conspicuously
marked or otherwise clearly identified as confidential or
proprietary when furnished; and PROVIDED, FURTHER, that this
section 18(g) shall not apply to information or documents in the
public domain or to information or documents required to be
disclosed by any law, rule, regulation, order, or other
requirement of any governmental authority having jurisdiction. If
a Freedom of Information Act request is received by Bonneville for
such written information or documents, Bonneville must promptly
notify ATG of such request and will, further, notify ATG if
Bonneville is required to disclose such written information or
documents.
(i) No Third-Party Beneficiaries
This Agreement creates rights and obligations only between the
Parties hereto. The Parties hereto expressly do not intend to
create any obligations or promise of performance to any other
third person or entity nor have the Parties conferred any rights
or remedy upon any third person or entity other than the Parties
hereto, their respective successor or assigns to enforce this
Agreement.
(j) Miscellaneous
Neither Party shall make public announcement of this Agreement or
the transactions contemplated by this Agreement without the prior
consent of the other Party, unless such public announcement is
necessary to comply with applicable law. This Agreement shall
benefit and bind ATG and Bonneville and their respective permitted
successors and assigns. Time is of the essence of this Agreement.
This Agreement may be executed in counterparts, each of, which
shall be an original, but all of which shall constitute one and
the same Agreement. This Agreement may not be amended or modified
except by a written instrument signed by ATG and Bonneville.
24
<PAGE> 25
19. ENTIRE AGREEMENT
Except as stated otherwise herein, this Service Agreement constitutes
the entire Agreement between the Parties with respect to the subject
matter hereof and there are no other understandings or agreements
between the Parties with respect thereof.
IN WITNESS WHEREOF, the Parties hereto have executed this Agreement in two
counterparts.
ADVANCED TELCOM GROUP, INC. UNITED STATES OF AMERICA
Department of Energy
Bonneville Power Administration
By: /s/ CLIFFORD RUDOLPH By: /s/ KEVIN A. WARD
---------------------------- ----------------------------
Name: Clifford Rudolph Name: Kevin A. Ward
---------------------------- ----------------------------
Print/Type Print/Type
Title: Chairman and CEO Title: Account Executive
---------------------------- ----------------------------
Date: 9/8/99 Date: 8/24/99
---------------------------- ----------------------------
25
<PAGE> 26
EXHIBIT A
ROUTE DESCRIPTION
The following Route description is a best estimate of how the Route will be laid
out.
From the Salem Substation, the Cable will then traverse a distance of
approximately 23.4 miles to the Albany Substation on the Salem-to-Albany No. l,
115-kv H-frame wood pole line, encountering two river crossings on steel towers.
From Albany Substation, the Cable will span a distance of approximately 39.5
miles to the Eugene Substation, traveling along the Albany-to.-Eugene No. 1,
115-kv H-frame wood pole line, with one river crossing on steel towers. From
Eugene Substation, the Cable will run a distance of approximately. 8.3 miles on
the Albany - Eugene No. 1 and Marion-Lane 500-kV lattice steel tower line to
Lane Substation. From Lane Substation, the Cable will run a distance of
approximately 13.2 miles on the Alvey-Lane 230-kV lattice steel tower line to
the southern terminus of the Cable to be located at the Alvey Substation.
Page 1 of 1
<PAGE> 27
EXHIBIT B
FIBER SPECIFICATIONS
CORNING(R) SMF-28(TM) CPC6
SINGLE-MODE OPTICAL FIBER
GENERAL
Corning(R) SMF-28(TM) single mode fiber is considered the "standard" optical
fiber for telephony, cable television, submarine, and private network
applications in the transmission of data, voice, and/or video services. Corning
SMF-28 fiber is manufactured to the most demanding specifications in the
industry.
SMF-28 fiber is optimized for use in the 1310 nm wavelength region. The
information carrying capacity of the fiber is at its highest in this
transmission window, and it is also where dispersion is the lowest. SMF-28 fiber
can also be effectively used in the 1550 nm wavelength region.
Corning's enhanced, dual layer acrylate CPC6 coating provides excellent fiber
protection and is easy to work with. CPC6 can be mechanically stripped and has
an outside diameter of 245 (Micron)m. CPC6 is optimized for use in many single
and multi-fiber cable designs including loose tube, ribbon, slotted core, and
tight buffer cables.
SMF-28 fiber is manufactured using the Outside Vapor Deposition (OVD) process,
which produces a totally synthetic, ultra-pure fiber. As a result, Corning
SMF-28 has consistent geometric properties, high strength, and low attenuation.
Corning SMF-28 fiber can be counted on to deliver excellent performance and high
reliability, reel after reel.
FEATURES AND BENEFITS
- - Versatility in 1310 nm and 1550 nm applications.
- - Outstanding geometrical properties for low splice loss and high splice yields.
- - OVD manufacturing reliability and product consistency.
- - Optimized for use in ribbon, loose tube, and other common cable designs.
Page 1 of 4
<PAGE> 28
OPTICAL SPECIFICATIONS
Attenuation
<TABLE>
<CAPTION>
UNCABLED FIBER ATTENUATION CELLS
- --------------------------------------------
Attenuation Cells
(dB/km)
----------------------------
Wavelength
(nm) Standard
- ---------- ----------------------------
<S> <C>
1310 (less than/equal to) 0.40
1550 (less than/equal to) 0.30
</TABLE>
POINT DISCONTINUITY
No point of discontinuity greater than 0.10 dB at either 1310 nm or 1550 nm.
ATTENUATION AT THE WATER PEAK
The attenuation at 1383 (plus/minus) 3 nm shall not exceed 2.1 dB/km.
<TABLE>
<CAPTION>
ATTENUATION VS. WAVELENGTH
- -----------------------------------------------------------
Max
Range Ref. (Greek lambda) Increase
(nm) (nm) (Greek Alpha) (dB/km)
----- ------------------- ---------------------
<S> <C> <C>
1285-1330 1310 0.05
1525-1575 1550 0.05
</TABLE>
The attenuation in a given wavelength range does not exceed the attenuation of
the reference
wavelength (Greek lambda) by more than the value (Greek alpha).
<TABLE>
<CAPTION>
ATTENUATION WITH BENDING
- ----------------------------------------------------------------
Mandrel Induced
Diameter Number Wavelength Attenuation
(mm) of Turns (nm) (dB)
- -------- -------- ---------- -----------
<S> <C> <C> <C>
32 1 1550 (less than/equal to) 0.50
75 100 1310 (less than/equal to) 0.05
75 100 1550 (less than/equal to) 0.10
</TABLE>
The induced attenuation due to fiber wrapped around a mandrel of a specified
diameter.
- - CABLE CUTOFF WAVELENGTH ((Greek lambda)ccf)
(Greek lambda)ccf (less than) 1260 nm
- - MODE-FIELD DIAMETER
9.30 (plus/minus) 0.50 (Greek mu)m at 1310 nm
10.50 (plus/minus) 1.00 (Greek mu)m at 1550 nm
- - DISPERSION
Zero Dispersion Wavelength ((Greek lambda)o): 1301.5 nm (less than/equal to)
(Greek lambda) (less than or equal to 1321.5 nm
Zero Dispersion Slope (So): (less than/equal to) 0.092 ps/(nm2 (times) km)
Fiber Polarization Mode Dispersion Coefficient (PMD): (less than/equal to)
0.5 psec/(square root of)km
Page 2 of 4
<PAGE> 29
DISPERSION CALCULATION
Dispersion = D(Lambda): (approximately equal to) S (sub 0) divided by 4
[(Lambda) minus (Lambda) (base 0) (power of 4) divided by (Lambda) (cubed)]
ps/nm X km), for 1200 nm (less than or equal to) Lambda (less than or equal to)
1600 nm
(Lambda) = Operating Wavelength
ENVIRONMENTAL SPECIFICATIONS
<TABLE>
<CAPTION>
INDUCED
ENVIRONMENTAL TEXT ATTENUATION
CONDITION (dB/km)
<S> <C> <C>
Temperature Dependence (less than or equal to) 0.05 (less than or equal to) 0.05
- -60(degrees) to + 85(degrees)C
Temperature-Humidity Cycling (less than or equal to) 0.05 (less than or equal to) 0.05
- -10(degrees)C to +85(degrees)C, up to 98% RH
Water Immersion, 23(degrees)C (less than or equal to) 0.05 (less than or equal to) 0.05
Heat Aging, 85(degrees)C (less than or equal to) 0.05 (less than or equal to) 0.05
</TABLE>
DIMENSIONAL SPECIFICATIONS
Standard Length (km/reel): 2.2 - 25.0
<TABLE>
<CAPTION>
GLASS GEOMETRY COATING GEOMETRY
<S> <C>
Fiber Curl: (less than or equal to) 2.0 m radius of curvature Coating Diameter: 245 (plus or minus) 10 (greek mu)m
Cladding Diameter: 125.0 (plus or minus) 1.0 (greek mu)m
Core-Clad Concentricity: (less than or equal to) 0.8 (greek mu)m Coating-Cladding Concentricity: < 12 (greek mu)m
Cladding Non-Circularity: < 1.0%
</TABLE>
| Min. Cladding Diameter |
Defined as: | 1- ------------------------ | x 100
| Max. Cladding Diameter |
- --------------------------------------------------------------------------------
Page 3 of 4
<PAGE> 30
MECHANICAL SPECIFICATIONS
PROOF TEST:
The entire length of fiber is subjected to a tensile proof stress (greater than
or equal to) 100 kpsi (0.7 GN/m(squared))
PERFORMANCE CHARACTERIZATIONS
Characterized parameters are typical values.
<TABLE>
<S> <C>
CORE DIAMETER: REFRACTIVE INDEX DIFFERENCE:
8.3 (greek mu)m 0.36%
NUMERICAL APERTURE: EFFECTIVE GROUP INDEX OF REFRACTION (N (inferior eff)):
0.13 1.4675 at 1310 nm
NA was measured at the one percent 1.4681 at 1550 nm
power angle of a one-dimensional far
field scan at 1310 nm.
ZERO DISPERSION WAVELENGTH FATIGUE RESISTANCE PARAMETER (n (inferior d)):
(Lambda (inferior o)): (Greater than or equal to) 20
1312 nm
ZERO DISPERSION SLOPE (So): COATING STRIP FORCE:
0.090 ps/(nm(squared) - km) Dry: 0.7 lbs. (3.2 N)
Wet: 14 days room temperature: 0.7 lbs. (3.2 N)
</TABLE>
Page 4 of 4
<PAGE> 31
EXHIBIT C
DETAILED RESTORATION PLAN
The Detailed Restoration Plan will be developed within sixty (60) days
of signature of this Agreement by both Parties.
Page 1 of 1
<PAGE> 32
EXHIBIT D
REGENERATION SITE LEASE AGREEMENTS AND LETTER OF ENTRY.
If needed, information to be provided at a later date.
Page 1 of 1
<PAGE> 33
EXHIBIT E
ACCEPTANCE TESTING STANDARDS
Bonneville shall meet the Acceptance Testing Standards set forth below. In the
event Bonneville's performance requirements for its communications system
requires Bonneville to exceed the standards and requirements specified in this
Exhibit, Bonneville shall apply the higher standard.
Client Network Span and Final Acceptance Requirements:
1. DESIGN CRITERIA
The number of cable splices at the time of original construction will be
designed to maximize reel lengths between splices. Due to cable cuts,
project changes and cable relocation, additional splices may be
necessary and are allowed. The number of splices will be monitored to
insure that attenuation and reflection tolerances are maintained.
2. CONSTRUCTION
Cable must be constructed in accordance with sound commercial practices.
Bonneville requirements will in general be more stringent however. The
National Electric Code shall be followed as a minimum.
3. TYPICAL FIBER CABLE INFORMATION
Single mode fiber specifications may vary, depending on the fiber
manufacturer. Typical concatenated levels of 0.40 dB per km @ 1310nm
(for SMF-28) and 0.25 per km @ 1550nm (for SMF-28 fibers and LEAF(TM)).
4. SPAN REQUIREMENTS
Span loss measurements must be performed using the two following
methods: OTDR (optical time domain reflectometer) and insertion loss
(stabilized light source and power meter) measurement in each direction
at 1550nm wavelength. Insertion loss testing will not be completed until
Client fibers have been terminated at each site.
(a) Maximum dB/km loss must not exceed 0.35 dB/km at 1550nm including
splice losses.
Page 1 of 3
<PAGE> 34
(b) In no case shall a fiber show a point discontinuity greater than
0.1dB. Discontinuities (known as steps, splices, or attenuation
non-uniformity's) shall be measured with an OTDR to determine the
loss of the localized attenuation. The least squares fit method of
measurement must be used to determine the magnitude of the loss of
a point discontinuity.
(c) Client shall provide Bonneville access to it's fiber termination
panels at each but on the route to perform these measurements.
(d) Preliminary power meter testing consisting of a mechanical fiber
coupler, stabilized light source and a power meter (to assure that
no transposed fibers are spliced) may be completed within 60 days
of the completion of construction.
(e) Test data including OTDR trace data in hard copy or electronic
format must be submitted to Client within 60 days of Bonneville's
receipt of a written request for this data. This data will not be
available until after construction is complete.
In the event the measured span values exceeds the calculated values, Bonneville
will perform corrective maintenance as required to restore the Commercial Fiber
to the tolerances noted in this exhibit.
5. SPLICE LOSS
The bi-directional splice loss average shall be 0.l0dB or less over the
span. All splicing will be performed by the proprietor pursuant to the
Fiber Lease Agreement. All fiber splicing must be fusion type.
6. COMPLIANCE
Client, at its discretion, may choose to physically monitor any or all
testing associated with acceptance of the Commercial Fiber. If requested
in writing test data including OTDR trace data in- hard copies or
electronic form must be submitted to Client for review. Client has the
option to waive any specifications and/or requirements listed in the
technical specification criteria by providing written notice to
Bonneville.
Page 2 of 3
<PAGE> 35
7. KEY OPTICAL PERFORMANCE CHARACTERISTICS REQUIRED FOR SINGLE-MODE AND
LEAF OPTICAL CABLES
Client fiber shall be Corning LEAF(TM) (see attachment) and a portion of
Bonneville's fiber shall be Single Mode (see attachment).
Page 3 of 3
<PAGE> 1
EXHIBIT 10.19
FIBER OPTIC PRIVATE NETWORK AGREEMENT
PRODUCT ORDER
This product Order ("Product Order") together with Exhibit A and the General
Terms and Conditions and all addenda attached hereto constitute the Fiber Optic
Private Network Agreement ("Agreement") which is effective as of October 1,
1999 by and between Metromedia Fiber Network Services, Inc. ("MFN"), 1 North
Lexington Avenue, 4th Floor, White Plains, New York 10601, and Advanced Telcom
Group, Inc. ("Carrier") whose address is 100 Stoney Point Road, Suite 130,
Santa Rosa, California 95401. Definitions of terms used in this Agreement
appear in this Product Order and in the General Terms and Conditions.
1. Carrier will order and MFN will provide Leased Fiber as follows:
1.1 Fiber Lease Term: Twenty (20) years
1.2 Number of Leased Fibers: [*] fibers in a ring configuration
1.3 Carrier locations ("Location(s)"):
Ring 1:
1130 Elden Street, Herndon, VA (HRNDVAHE)
Route 29 & 211, Centreville, VA (CNVIVACT)
Potomac View Drive, Sterling, VA (HRNDVAST)
Ring 2:
10431 Lee Highway, Fairfax, VA (FRFXVAFF)
9401 Peabody Street, Manassas, VA (MNSSVAXA)
Ring #:
490 Fleet Street, Rockville, MD (RKVLMDRV)
6015 Montrose Road, Rockville, MD (RKVLMDMR)
4533 Stanford Street, Chevy Chase, MD (CHCHMDBE)
1.4 Leased Fiber specifications: See Exhibit A.
1.5 Installation Charge and Lease Payments:
One Time Installation Charge: There will be a one-time charge of [*]
per central office location listed in Section 1.3 above, which will
cover delivery of Leased Fiber from the MFN-negative one manhole
through the assigned zero manhole to the Competitive Alternative
Transport Terminal (CATT) located in the ASA room or fiber vault
within each such central office location. MFN will provide dual
entrances to each Central Office when possible. Consequently, the
total one time installation charge shall be [*].
Prepaid Lease Payment: [*] due and payable as follows:
(i) 40% upon execution of this Product Order and (ii) 20% upon the
Turnover Date for Ring 1, 20% upon the Turnover Date for Ring 2 and 20%
upon the Turnover Date for Ring 3.
1.6 Carrier will pay all Applicable Taxes (as defined in the General Terms
and Conditions) on the Installation Charge and all Leased Payments as
and when due.
1
- --------------------
[*] Information redacted pursuant to a confidential treatment request
throughout this exhibit.
<PAGE> 2
2. Estimated Backbone Network Installation Completion Date:
Ring 1: January 3, 2000
Ring 2: June 30, 2000
Ring 3: January 3, 2000
3. Installation Requirements:
3.1 Carrier will arrange for its own cage space within each of the ILEC
Central Offices, and other Locations. Carrier shall also be
responsible for extending the fiber from the Competitive Alternate
Transport Terminal room to its collocation space.
3.2 The estimated time required for completion of connectivity from the
MFN CATT to the Carrier collocation space will be 30-60 days after
Carrier gives MFN written notice of completion of ILEC approval and
an executed copy of the ILEC MOP for each ILEC Central Office.
3.3 The Prepaid Lease Payment includes fiber termination into existing
MFN splice points.
3.4 Collocation in MFN POPs is not included in the Prepaid Lease Payment.
4. MFN address (and contact person) is as follows:
Metromedia Fiber Network Services, Inc.
1 North Lexington Avenue, 4th Floor
White Plains, New York 10601
Attn: Vice President -- Marketing
If declaring a default or termination, a copy of the notice must be
sent to:
Metromedia Fiber Network Services, Inc.
1 North Lexington Avenue, 4th Floor
White Plains, New York 10601
Attn: Vice President -- Legal Affairs
5. Carrier address (and contact person) is as follows:
Advanced Telcom Group, Inc.
100 Stony Point Road, Suite 130
Santa Rosa, California 95401
Attn: Chief Operating Officer
6. Special Requirements:
6.1 If during the Lease Term Customer wishes to add a new location in the
same MFN market to either ring described in Section 1.3 above, Customer
will so notify MFN in writing specifying the new location. MFN will
complete engineering for the new location within forty-five (45) days after
receipt of Customer's request and will thereupon deliver to Customer a
Product Order which will include an Estimated Installation Completion Date
and an estimated One Time Installation Charge, which will be based upon the
estimated cost of all additional engineering and construction, installation
and related work, permitting and other directly associated costs required
for the additional location plus [*]. If such location is
one which is already part of the MFN Network, there shall be no One Time
Installation Charge. The Monthly Lease Payment or Prepaid Lease Payment
shall be mutually agreed upon by the parties. Customer will have thirty
- --------------------
[*] Information redacted pursuant to a confidential treatment request
throughout this exhibit.
2
<PAGE> 3
(30) days after receipt of the proposed Product Order to accept the Product
Order by signing and returning the Product Order to MFN, failing which such
Product Order shall be deemed rejected.
6.2 Customer may lease additional fiber strands, at any time and from time
to time, in a ring configuration among the same Locations and on the same
Rings as set forth in Section 1.3 above. Such additional fiber strands
shall consist of no less than two (2) and no more than twelve (12)
additional fiber strands in the aggregate for all such additional Product
Orders. The price for each such additional fiber strand, which fiber strand
must be taken on all three rings set forth in Section 1.3 above, shall be
[*] on a prepaid lease basis. If Customer desires to lease such
additional fiber strands, Customer shall send a written notice to MFN at
least sixty (60) days prior to Customer's desired Service Date for such
additional fiber strands. Such notice shall indicate the number of fiber
strands and Service Date desired. Within forty-five (45) days after receipt
of such notice, MFN shall confirm the availability of the fiber strands and
provide a Product Order, including an Estimated Installation Completion
Date and a lease term coterminous with the Lease Term. The exercise of this
option shall in all events be subject to the availability of the fiber
strands on MFN's Network. Customer shall sign and return such Product Order
within five (5) business days of receipt thereof, failing which such
Product Order shall be deemed rejected.
The persons signing this Agreement are authorized by the respective parties to
do so. Signature constitutes acceptance of all terms and conditions in this
Product Order, the Exhibits and the General Terms and Conditions.
ADVANCED TELCOM GROUP, INC. METROMEDIA FIBER NETWORK SERVICES, INC.
By: /s/ R.T. WARSTLER By: /s/ GERARD BENEDETTO
----------------------- --------------------------
Name: R.T. Warstler Gerard Benedetto
---------------------
Title: President VP, Chief Financial Officer
-------------------- ---------------------------
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[*] Information redacted pursuant to a confidential treatment request
throughout this exhibit.
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FIBER OPTIC PRIVATE NETWORK AGREEMENT
EXHIBIT A
FIBER TESTING & PERFORMANCE CRITERIA
MFN will perform fiber testing as described below on each Leased Fiber and will
provide the documentation (hard copy and/or diskette) of results to the Carrier
at the Turnover Date. Each "span" will be defined in documentation included in
the Carrier's Turnover Date package. Acceptance of a span by Carrier will be an
acknowledgement by the Carrier that all Leased Fiber complies with all
performance criteria contained herein.
1) POWER TESTING: This end-to-end loss measurement will be conducted for each
Leased Fiber in the span and from both directions using an
industry-accepted laser source and power meter. The bi-directional average
will be used to determine the end-to-end loss of the span at each
appropriate wavelength. This test will be conducted at both 1310 nm and
1550 nm for Standard Single Mode Fiber; Dispersion Shifted Fiber (True
Wave(TM), LEAF(TM), etc.) will be tested at 1550 nm only. In the event that
a span consists of both Standard Single Mode and Dispersion Shifted fiber
types, only 1550 nm testing will be conducted. This power testing will
ensure fiber continuity and the absence of crossed fibers in the span.
Power testing will only be conducted where the Leased Fiber is terminated
by MFN in fiber distribution panels at both ends of the span.
2) OTDR TESTING: All traces will be provided in hard copy and diskette form
using GR 196 format. This testing will be conducted at both 1310 nm and
1550 nm wavelengths when the Leased Fiber consists of Standard Single Mode
Fiber, but will be done at 1550 nm only if the Leased Fiber consists of
either Dispersion Shifted Fiber (True-Wave(TM), LEAF(TM), etc.) or a
combination of Single Mode and Dispersion Shifted fiber types.
OTDR testing will be conducted on a bi-directional basis for each Leased
Fiber in each span at the appropriate wavelengths for the Leased Fiber
described above. However, if due to length or attenuation reasons that the
Leased Fiber span exceeds the dynamic range of an OTDR, a portion or all of
the span may be tested on a unidirectional basis only. Alternatively, the
Leased Fiber span may be divided into shorter testing spans, to the extent
reasonably possible, in order to obtain bi-directional analysis. Also, in
instances where a Carrier intends to accept Leased Fiber that is not
terminated at one end by MFN in a fiber distribution panel (such as in a
manhole or handhole) only unidirectional testing will be performed.
The Turnover documentation package delivered at the Turnover Date will
contain the actual traces that detail the testing parameters (including
pulse width, averaging and range). The average bi-directional splice loss
for all splices within each span will be of 0.15 dB or less while each
connector pair (such as at a FDP) will have an average bi-directional
connector loss for all splices within each span of 0.5 dB or less for all
connectors within each span. (Note that the front and end connector of the
span can only be measured uni-directionally and will also have a loss equal
to or less than 0.5 dB). In the event that OTDR acceptance testing must be
done on a unidirectional basis (for reasons described above), an average
per span splice loss will be 0.30 dB.
All traces will be provided in hard copy and diskette form using GR 196
format. If the average bi-directional splice loss of each span exceeds 0.15
dB (or 0.30 dB uni-directionally), MFN will provide upon the Carrier's
request documentation of at least three attempts to reduce this value to
below 0.15 dB (0.30 dB uni-directionally). The only exception to this will
be in the instance of a splice between two different fiber types (Standard
Single-mode to Dispersion Shifted, Depressed-Clad to Matched Clad, fibers
with different mode-field diameters).
Carrier should also note that the loss and/or reflectance of the front-end
connector (as measured using a launch cord) is only an indicator of a problem
such as a defective port, bulkhead, or the like. Since a
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different patch cord will be used by Carrier (that connects to their equipment,
for example) to mate to this connector, a different loss and/or reflectance may
occur.
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FIBER OPTIC PRIVATE NETWORK AGREEMENT
GENERAL TERMS AND CONDITIONS
1. TERM AND LEASE
1.1 MFN hereby leases to Carrier optical fiber ("Leased Fiber") on MFN's fiber
optic cable network ("Network") and/or constructed and installed
specifically for Carrier and the equipment and interfaces described in the
Product Order ("Equipment") , as provided in the Product Order. The Leased
Fiber and Equipment leased by Carrier will be referred to as the
"Product". The lease term ("Lease Term") and other specific terms
pertaining to the Product are set forth in the Product Order. The term
"Party" will refer, individually, to either MFN or Carrier and the term
"Parties" will refer to both of them. The term "Agreement" will mean and
include the Product Order and all Exhibits thereto and these General Terms
and Conditions.
1.2 MFN will use commercially reasonable efforts to complete installation of
and provide Carrier with access to the Product on or about the Estimated
Installation Completion Date specified in the Product Order at the
Locations specified in the Product Order ("Turnover Date"). For a period
of time not to exceed ten (10) business days after the Turnover Date (the
"Acceptance Test Period"), Carrier will conduct such testing as it
reasonably deems necessary to ensure that the Product conforms in all
material respects to the material technical specifications set forth in
the relevant Exhibits ("Specifications"), Carrier will complete such
acceptance testing and notify MFN in writing within the Acceptance Test
Period of any "Deficiencies" (as defined herein) in the Product, otherwise
the Product shall be deemed to be accepted by Carrier, Deficiencies exist
if the Product does not conform in all material respects to the relevant
Specifications. Upon receipt of such notification from Carrier, MFN will
promptly undertake correction of such Deficiencies and restore access to
and use of the Product to Carrier. The "Service Date," whereupon the Lease
Term commences, will be the earlier of (i) completion of testing and
acceptance of Product by Carrier or (ii) expiration of the Acceptance Test
Period. MFN shall test the Leased Fibers in accordance with the procedures
specified in the Exhibits to verify that the Lased Fibers are installed
and operational in accordance with the specifications described in the
Exhibits. Fiber testing shall progress span by span along each portion of
the Product as cable splicing progresses, so that test results may be
reviewed in a timely manner. MFN shall provide Carrier reasonable advance
notice of the date and time of each fiber test such that Carrier shall
have the opportunity to have a person or persons present to observe MFN's
fiber testing. When MFN has determined that the results of the fiber
testing with respect to a particular span show that the Leased Fibers so
tested are installed and operating in conformity with the applicable
specifications set forth in the Exhibits, MFN shall promptly provide
Carrier with a copy of such test results.
1.3 Carrier will obtain all necessary approvals for access into the Location
buildings and for the use of any required building riser conduit or other
required building facilities at all Locations. Unless otherwise provided
for in the Product Order, if there is no existing and available riser
conduit or other required facilities within such buildings then MFN will
perform all construction and installation of such riser conduit and
Carrier will reimburse MFN for the entire cost to construct and install
such riser conduit plus [*] plus applicable sales or
other taxes.
1.4 Upon the expiration of the Lease Term, or any earlier termination of this
Agreement, Carrier will promptly remove from any property owned, leased or
licensed by MFN all Carrier property, equipment and other materials used
in connection with the Product within forty five (45) days from such
expiration or termination. Carrier will complete such removal in a manner
that does not interfere with or damage the Product or the Network. If
Carrier fails to
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[*] Information redacted pursuant to a confidential treatment request
throughout this exhibit.
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<PAGE> 7
remove its property within such period, such property will be deemed abandoned,
and MFN will make such disposition of the property as it deems necessary at
Carrier's sole expense.
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<PAGE> 8
2. TERMS OF PAYMENT
2.1 Unless otherwise provided for in the Product Order, Carrier agrees to pay
the One Time Installation Charge upon the execution of this Agreement and
the Prepaid Lease Payment as provided in the Product Order. Carrier will
also pay to MFN all applicable sales or other taxes other than taxes on or
measured by MFN's income or capital, ("Applicable Taxes"), unless Carrier
is eligible for an exemption and Carrier provides to MFN an exemption
certificate or other documentation. Commencing on the earlier of (i) the
Service Date for the first Location of each Ring or (ii) 180 days after
the effective date of the product Order (unless all such delays are caused
by or result from the act or omission of MFN), Carrier will pay the
Prepaid Lease Payment (and the Monthly Maintenance Payment for the
Equipment, if applicable) plus Applicable Taxes. The Prepaid Lease
Payment, if any, will be paid as provided in the Product Order.
2.2 The Monthly Lease Payment for the Leased Fiber and, if applicable, the
Monthly Maintenance Payment for the Equipment and any payment pursuant to
a collocation agreement, if any, (together, the "Payment") will be
increased (but not decreased) each year during the Lease Term by the
percentage increase, if any, in the Consumer Price Index -- Urban Wage
Earners and Clerical Workers (U.S. City Average, All Items, Base
1982-1984 equals 100) (the "Index"), as published by the United States
Department of Labor, Bureau of Labor Statistics (the "Bureau"). The Index
for the calendar month which is four (4) months prior to the Service Date
will be compared with the Index for the calendar month which is four (4)
months prior to each anniversary of the Service Date during the Lease Term
and the Payment will be increased in accordance with the percentage
increase, if any, between such Indexes.
2.3 If Carrier fails to pay any sum when due pursuant to this Agreement, then,
in addition to such sum, Carrier will pay interest on such unpaid sum at
the lower of the highest legal rate of interest permitted in the State of
New York or one and [*] per month.
3. MAINTENANCE, RESTORATION AND REPAIR OF THE NETWORK AND PRODUCT MONITORING
3.1 MFN will provide remote monitoring of the Network and the Product to the
extent that the Product is incorporated into the Network. MFN will use
commercially reasonable efforts to maintain the Product in accordance
with the Specifications (subject to reasonable wear and tear) and the
Network in good operating condition at all times during the Lease Term.
The foregoing maintenance will be at no additional charge to Carrier,
except as set forth in Section 3.4 hereof.
3.2 An "Outage" will mean the complete interruption of communications on one
or more of Carrier's Leased Fibers resulting from physical damage to, or
severance of, or a break in, or other failure for any Product. If an Outage
or any other material degradation of service on any Leased Fibers occurs
Carrier will immediately notify MFN by telephone at (888) 636-2778 or
through such other notification procedure as Parties may establish.
Provided that MFN personnel or contractors have access to affected Carrier
facilities immediately upon notification, MFN will respond and commence
work within two (2) hours after the time of notification by Carrier and
restore effective use of the Product as expeditiously as practicable, but
in no event more than four (4) hours after receipt by MFN of Carrier's
notification, subject to "Force Majeure" as provided in Section 11 hereof.
3.3 Except for any Outage caused by or resulting from (i) Force Majeure as set
forth in Section 11 hereof; (ii) the act or omission of Carrier, its
employees, agents or contractors; (iii) any of Carrier's equipment or
facilities used in connection with the Product; or (iv) planned Outages by
reason of Services which have been scheduled and approved in advance by
Carrier ("Excepted Outages") in the event of an Outage, Carrier will
receive from MFN a
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[*] Information redacted pursuant to a confidential treatment request
throughout this exhibit.
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<PAGE> 9
credit ("Outage Credit") calculated at [*] of the Leased Fiber Monthly
Lease Payment for the affected Leased Fiber strands for each [*] of Outage,
up to a maximum of the Leased Fiber Monthly Lease Payment for [*]. Except
in the case of a Prepaid Lease Payment or termination as provided in this
Section 3.3, the Outage Credit will be applied against future payments
which may become due and payable by Carrier to MFN. The Outage Credit will
be determined by dividing the total Leased Fiber Monthly Lease Payment by
the number of Locations and dividing this result by the number of Leased
Fiber strands to determine the Leased Fiber Monthly Lease Payment per
Leased Fiber Strand. This result is then multiplied by [*] and by the
number of [*] Outage periods. For example, if the Leased Fiber Monthly
Lease Payment for six (6) Locations is [*], the Leased Fiber Monthly Lease
Payment for each Location would be [*], and if there were four (4) Leased
Fiber strands for each Location, the result would be [*] per Fiber Strand.
If the Outage affected two (2) strands at one Location for [*], the Outage
Credit would be [*]. For purposes of determining the Outage Credit pursuant
to this Section 3.3, if the Product Order provides for a Prepaid Lease
Payment, then the Monthly lease payment will be determined by dividing the
Prepaid Lease Payment by the total number of months of the Lease Term. The
Outage Credit will be in the form of a cash payment to Carrier by MFN if
Carrier has paid the Prepaid Lease Payment in full or if this Agreement is
terminated by either Party as provided in Section 3.4 hereof. Outage
Credits will not be credited or payable for any period of time during which
MFN personnel or contractors are denied access to Carrier Locations or
other facilities to remedy an Outage.
3.4 If an Outage occurs and continues for a period longer than fifteen (15)
days for any reason other than "Force Majeure" as defined in this
Agreement, then at any a time thereafter, unless and until such Outage is
corrected, either Party can terminate this Agreement and the Product Order
with respect to the Product subject to the Outage by written notice of
such termination delivered to the other Party. Notwithstanding the
foregoing, if such Outage occurs and continues by reason of a breach by a
Party of its obligations under this Agreement, such breaching Party will
not have any right to terminate this Agreement. The Outage Credit and
right to terminate will be the sole and exclusive remedy of Carrier and
liability of MFN for any Outage regardless of the cause of such Outage.
3.5 If all or part of the Product requires restoration, replacement or repair
by reason of an act or omission of Carrier, its employees, agents or
contractors or any of Carrier's equipment or facilities used in connection
with the Product, such repair, replacement and/or restoration will be made
by MFN, at Carrier's sole expense, in accordance with MFN's then current
time and materials rates plus Applicable Taxes. In addition, Carrier will
not receive any Outage Credit by reason of the foregoing.
3.6 MFN may assign or subcontract to any third party any or all of its
performance obligations (including limitation maintenance) under this
Agreement and Product Order at any time, without the consent of Carrier,
provided that MFN will remain obligated for such performance in accordance
with the terms of this Agreement.
3.7 MFN will have the right to inspect Carrier's use of the Product at any
time and from time to time during normal business hours upon at least
"twenty-four (24) hours" prior notice by MFN.
4. USE AND OWNERSHIP OF THE PRODUCT
4.1 Carrier will not, by itself or through any agent or contractor, make any
repair to or replacement of the Product or the Network or any other
equipment or facilities provided by MFN in connection with the Product or
otherwise. Carrier will not install any equipment to be used with the
Product or use the Product in any manner which damages or interferes with
the Product or the Network. Subject to the provisions of this Agreement,
Carrier shall
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[*] Information redacted pursuant to a confidential treatment request
throughout this exhibit.
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<PAGE> 10
have full and complete control and responsibility for determining the
equipment to be used in conjunction with the Product.
4.2 Carrier will use the Product in full compliance with all applicable
federal, state and local laws, rules and regulations and all applicable
franchises, rights of way, leases, licenses, contracts and other
obligations to third parties with respect to the Network or Product.
Carrier will obtain and maintain in effect during the Lease term all
rights, leases, licenses, permits and governmental or non-governmental
approvals necessary for use of the Product by Carrier and its customers.
4.3 Carrier acknowledges and agrees that the Product is provided for use (1)
exclusively by Carrier and/or affiliated entities which control or are
controlled by or commonly controlled with Carrier ("Affiliates") which are
named in the Product Order (if so named, then the term "Carrier" as used in
this Agreement will include any such Affiliates of Carrier), (2) customers
of Carrier and (3) in either case only in the ordinary course of business
of Carrier. For purposes of this Agreement, the ordinary course of
Carrier's business shall not include the sale, leasing or granting of any
rights of use in "dark fiber", as such term is commonly understood in the
telecommunications industry. Carrier will not under any circumstances (a)
permit or provide access to or use of the Product, in whole or part, to any
third party (other than a customer of Carrier in the ordinary course of
business of Carrier), pursuant to (by way of example and not in limitation)
sublease, license, sublicense or resale, or any other right to use, or (b)
share or otherwise utilize in conjunction with a third party (including
without limitation in any joint venture or as part of any outsourcing
activity) any of the Product. Any breach of this Section 4.3 will be deemed
to be a material breach of this Agreement and in the event of such material
breach MFN will have the right to immediately terminate this Agreement, any
applicable Product Orders and Carrier's access to the Network, in addition
to any and all rights and remedies.
4.4 MFN retains all right, title and interest in and to the Product and the
Network to the points within the locations specified in the Product Order
at which MFN's facilities end and Carrier's facilities begin, subject only
to the grant of access and use provided to Carrier pursuant to this
Agreement. MFN agrees to use commercially reasonable efforts to obtain a
non-disturbance agreement from any third party in favor of which MFN in its
discretion shall have granted after the date hereof a security interest or
lien on all or part of the Product.
4.5 MFN reserves the right to utilize unused external building access and space
within the building conduit(s) occupied by the Product at the locations and
otherwise, provided that such use does not interfere with or hinder
Carrier's use of its Product as permitted hereunder.
5. AUTHORIZATIONS; RELOCATION; CONDEMNATION
5.1 "Authorization(s)" will mean all material and applicable governmental or
non-governmental licenses, easements, rights of way, conduit, pole
attachment and any other facilities or property rights, licenses,
contracts, franchises, approvals, permits, orders, consents, and all other
rights required for MFN to operate and maintain the Network or provide the
Product to Carrier pursuant to this Agreement.
5.2 MFN will use commercially reasonable efforts to have or obtain by the
Service Date, all Authorizations and to maintain or renew all such
Authorizations through the Initial Term and to replace such Authorizations
with reasonably suitable replacement Authorizations if any expire or are
terminated or discontinued during the Initial Term. If any Authorizations
are modified, terminated or discontinued and not replaced, and the loss of
such Authorizations threatens to cause or does cause material financial
harm to MFN, or prevents or materially interferes with MFN's control,
possession and/or use of the Network or ability to lease the Product or
materially and adversely affects the use by Carrier of the Product, then
MFN will
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<PAGE> 11
at its option either (i) provide Carrier with comparable Product or fiber
optic capacity on portions of MFN's then existing Network (and/or other
MFN Networks, including networks belonging to or controlled by MFN
Affiliates) or on networks of third parties, or (ii) terminate this
Agreement with respect to the effected Product and rebate to Carrier the
pro rata portion of all Prepaid Lease Payments allocable to the terminated
Product and amortized over the remainder of the Lease Term. The foregoing
will be MFN's sole and exclusive liability and Carrier's sole and
exclusive remedy with respect to the foregoing.
5.3 If MFN receives notice of any request, intent or plan by any governmental
or non-governmental third party, to relocate any material part of the
Product or any material segment of MFN's Network used in the provision of
the Product, MFN will notify Carrier of such request, intent or plan. If
MFN is required by any such third party to relocate any segment of MFN's
network used in providing the Product, MFN will give Carrier at least
sixty (60) days (or such lesser period of notice that MFN may have
received) prior written notice of any such relocation ("Relocation
Notice"). Together with the Relocation Notice, MFN will provide an
estimate of the cost of such relocation. MFN will relocate the Leased
Fibers, and, to the extent MFN is not reimbursed for the cost of such
relocation by a third party, governmental entity or otherwise, Carrier
will pay its pro rata share of the costs associated with the relocation of
the Product; except, however, to the extent that such relocation is the
direct result of any negligent or willful act or omission of MFN, MFN will
use its commercially reasonable efforts to secure an agreement for
reimbursement from any third party, governmental entity or otherwise,
requiring any relocation of the Network and the Product.
5.4 If any portion of the Network or the Product and/or the Authorizations in
or upon which the Product has been installed, become the subject of a
condemnation proceeding which is not dismissed within one hundred eighty
(180) days after the date of filing of such proceeding and which could
reasonably be expected to result in a taking by any governmental agency or
other party having the power of eminent domain for public purpose or use,
both Parties will be entitled, to the extent permitted under applicable
law, to participate in any condemnation proceedings for compensation by
either joint or separate awards for the economic value of their respective
interests in the Leased Fibers that are subject to such condemnation
proceeding.
5.5 MFN shall be responsible for and shall timely pay any and all fees, taxes,
levies, charges or withholdings of any nature, together with any
penalties, fines, or interest thereon relating to the Authorizations.
6. WARRANTIES
6.1 MFN warrants to Carrier that upon the Service Date the Product will
operate in accordance with the specifications related thereto.
EXCEPT AS OTHERWISE EXPRESSLY PROVIDED IN THIS AGREEMENT, MFN
DISCLAIMS ALL WARRANTIES WHETHER EXPRESS OR IMPLIED INCLUDING ANY
AND ALL WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR
PURPOSE WITH RESPECT TO THE (i) NETWORK OR PRODUCT, (ii) THE LEASE
GRANTED PURSUANT HERETO, (iii) MAINTENANCE SERVICES (iv)
CONSTRUCTION AND INSTALLATION SERVICES, IF ANY, AND (v) ANY OTHER
SERVICES(S) (HEREINAFTER (iii) THROUGH (v) WILL COLLECTIVELY BE
REFERRED TO AS "SERVICES") PROVIDED BY OR ON BEHALF OF MFN
HEREUNDER.
7. LIABILITY/INDEMNIFICATION
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<PAGE> 12
7.1 Except for the gross negligence or willful misconduct of a Party
hereto and except where a specific remedy is provided in this Agreement,
the liability of each Party to the other Party for damages will be
limited to [*]. In no event will either Party be liable to the other
Party for any incidental, indirect, special, consequential, exemplary, or
punitive damages arising out of or relating to this Agreement, the lease
granted hereunder, the Network, Product or Services provided hereunder,
including damages based on loss of revenues, profits or lost business
opportunities, regardless of whether the respective Party had been
advised of or could have foreseen the possibility of such damages.
7.2 Each Party agrees to indemnify, defend and hold the other, its officers,
directors, employees, agents and contractors harmless from and against
all loss, damage, liability, cost and expense (including reasonable
attorney's fees and expenses) by reason of any claims or actions by third
parties for (i) bodily injury, including death, (ii) damage, loss or
destruction of any real or tangible personal property (including without
limitation the Network and Product) which third party claims arise out of
or relate or (a) any Product or Services provided by or on behalf of MFN
hereunder, (b) a Party's performance of or failure to perform any term,
condition or obligation under this Agreement, (c) any act or omission of
a Party's directors, agents, employees, contractors, representatives or
invitees, or (d) Carrier's or its customer's use of the Product and
conduct of their respective businesses including without limitation the
content of any video, voice or data carried by Carrier or its customers
on the Product or Network.
7.3 Except as otherwise set forth in this Agreement, nothing contained herein
will operate as a limitation on the right of either Party to bring an
action for damages against any third party based on any act or omission
of such third party as such act or omission may affect the construction,
operation, or use of the Product. Each Party agrees to execute such
documents and provide such commercially reasonable assistance, at the
claiming Party's sole expense, as may be reasonably necessary to enable
the claiming Party to pursue any such action against such third party.
8. CONFIDENTIALITY
--------------
8.1 The Parties acknowledge and agree that this Agreement and the information
each Party has provided or will provide in connection with this
Agreement or that the other Party learns or obtains from a source other
than public domain or from a source (including a Party) not in violation
of any obligation of confidentiality, are and will be confidential
and proprietary to the Party providing such information (the "Providing
Party"). The Party in receipt of or learning or obtaining the
confidential information (the "Receiving Party") agrees not to
distribute, use or disclose to any third party the confidential
information of the Providing Party.
8.2 Except as may be required by applicable legal requirements in the
course of defending or prosecuting a legal, insurance or other claim
or as required by applicable law, rule or regulation, Receiving Party
will restrict dissemination of confidential information to only those
persons who must have access to such confidential information in order
to perform their respective rights or obligations hereunder. The
Receiving Party will promptly notify the Disclosing Party of any such
required disclosure to enable the Disclosing Party to seek protective
relief therefrom and shall cooperate as the Disclosing Party may
request in connection therewith.
8.3 Carrier may disclose the identity of MFN as a supplier of Carrier, and
MFN may disclose the identity of Carrier as customer of MFN, each with
the prior written consent from the others which consent will not be
unreasonably withheld or delayed; provided; that no such disclosure
shall imply any endorsement of the disclosed Party or contain any
misleading reference to the nature of the relationship between the
Parties.
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throughout this exhibit.
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8.4 Each Party acknowledges and agrees that the information of the Disclosing
Party described in this Section 8 constitutes valuable property of the
Disclosing Party and that Disclosing Party will suffer irreparable injury
not compensable by money damages for which the Disclosing Party will not
have an adequate remedy at law in the event of a breach by the Receiving
Party of the provisions for this Section 8 and therefore the Disclosing
Party shall be entitled to injunctive relief to prevent or curtail any such
breach, threatened or actual. The foregoing shall be without prejudice to
or limitation on any other rights a Party may have under this Agreement, at
law or in equity.
9. NOTICES
Unless otherwise provided herein, all notices and communications concerning
this Agreement will be in writing and sent to the address (and contact person)
specified in the Product Order, or at such other address as may be designated
in writing by a Party. Unless otherwise provided herein, notices will be sent
by certified US Postal Service, return receipt requested, or by commercial
overnight delivery service, or by facsimile, and will be deemed delivered, if
sent by US Postal Service, five (5) days after deposit, if sent by facsimile,
upon verification or receipt or, if sent by commercial overnight delivery
service, one (1) business day after deposit therewith.
10. RENEWAL TERM
Provided that Carrier is not in breach of any of its material obligations under
this Agreement and subject to the conditions of this Agreement, Carrier may
renew the term of this Agreement for the Product for one (1) additional renewal
term upon the terms and conditions of this Agreement, except for the length of
such renewal term and the Installation and Lease Fee payments, which the Parties
will negotiate in good fifth following Carrier's written request for renewal
delivered to MFN no earlier than one year before the scheduled expiration date
of the initial term and no later that ninety (90) days before such expiration
date.
11. TERMINATION/FORCE MAJEURE
11.1 If any of the following events of default occur, the non-breaching
Party (if MFN) will have the right to deny access by Carrier to the
Product or Network and (if either Party) to terminate this Agreement
by written notice following the expiration of any periods of time
included in the following, such termination to be effective in the on
the date set forth in the written notice of termination:
11.1 (a) If Carrier terminates any Product Order at any time before
the expiration of the Lease Term (whether before or after
the Turnover Date) or falls to make any payment hereunder
within five (5) days or receipt of written notice of late
payment from MFN, MFN will have the right to terminate this
Agreement and deny access by Carrier to the Product or
Network immediately without further notice to Carrier.
11.1 (b) If a Party breaches any material term or condition of this
Agreement and such breach remains uncured thirty (30) days
after delivery to the breaching Party of written notice of
such breach, unless the breach is of a nature or involves
circumstances requiring more than thirty (30) days to cure,
or if MFN's failure is failure to complete construction,
installation, and successful fiber acceptance and testing by
the Estimated Installation Completion Date, the time period
may be extended for such time as will be reasonably
required, provided the defaulting party proceeds diligently
to cure the breach.
11.1 (c) A Party applies for or consents to the appointment of a
receiver, trustee or similar officer for it or any
substantial part of its property or assets, or any such
appointment is made without such application or consent by
such Party and remains undischarged for a period of sixty
(60) days; or
8
<PAGE> 14
11.1 (d) A Party consents to the institution of a petition,
application, answer, consent, default of otherwise of any
bankruptcy, insolvency or reorganization and any such
proceeding as instituted against such Party remains
undischarged for a period of sixty (60) days.
11.2 In the event of termination of the Product Order by MFN pursuant to
Section 11.1 hereof or by Carrier after execution of the Product Order
or before the end of the Lease Term (other than by Carrier for cause
as provided in this Section 11), MFN will be entitled to receive, and
Carrier will immediately pay, the early termination charge ("Early
Termination Charge") set forth in the Product Order, and to offset any
remaining portion of the Prepaid Lease Payment against any sums
otherwise due and payable by Carrier to MFN pursuant to this
Agreement.
11.3 If any Authorization is modified, terminated or discontinued and not
replaced as provided in Section 5.2 of these General Terms and
Conditions, and MFN has not notified Carrier in writing within sixty
(60) days after the occurrence of such modification, termination or
discontinuance that MFN will provide additional or substitute Product
or capacity as provided in Section 5.2, then and thereafter either
party has the right, exercisable in its sole discretion, to terminate
the Product Order with respect to the affected Product upon thirty
(30) days prior written notice (or such other notice as is
practicable under the circumstances) without liability whatsoever by
either Party to the other Party or any party claiming by, through or
under such other Party other than the return to Carrier, of the
unamortized portion of any Prepaid Lease Payment as of the date of
such termination as provided in Section 5.2.
11.4 Neither Party will be in breach of this Agreement resulting from delay
or prevention of performance of such Party which is caused by any act
attributable to an occurrence or an event of "Fore Majeure" as defined
herein. Neither party will, however, be relieved of liability for
failure of performance due to a claimed Force Majeure hereunder if
such failure is due to causes arising out of its own negligence or to
removable or remedial causes that it fails to remove or remedy using
commercially reasonable efforts and within a reasonable period of
time.
11.5 The term "Force Majeure" will mean any cause beyond the control of
Carrier (or MFN, as applicable) which, by the exercise of due
foresight, Carrier (or MFN) could not reasonably have been expected to
avoid, and which by the exercise of reasonable diligence, Carrier (or
MFN) will be unable to overcome, including but not limited to action
by governmental authority including without limitation moratorium on
any activities related to the Agreement, third party labor dispute,
flood, earthquake, fire, lightning, epidemic, war, riot, civil
disturbance, sabotage and the like. The party affected by an event of
Force Majeure (the "Affected Party") will notify the other party (the
"Other Party") promptly of any occurrence or condition which, in the
Affected Party's reasonable opinion, warrants an extension of time.
Such notice will specify in detail the anticipated length of delay,
the cause of the delay and a timetable by which any remedial measures
will be implemented.
12. ASSIGNMENT; SUCCESSION
12.1 Carrier will not assign any right nor delegate any duty under this
Agreement, in whole or in part, whether by operation of law or otherwise,
without the prior written consent of MFN, such consent not to be unreasonably
withheld or delayed. Carrier shall have the right, without MFN' consent, to
assign this Agreement to (i) any entity which controls, is controlled by or is
under common control with Carrier or (ii) any entity into which Carrier may be
merged or consolidated or which purchases all or substantially all of the stock
or assets of Carrier; provided that the assignee or transferee in any such
circumstance shall continue to be subject to all of the provisions of this
Agreement, including, without limitation, the provisions of this section; and
provided further that in any of the circumstances
9
<PAGE> 15
described in clauses (i) and (ii) all of the payment obligations of
Carrier hereunder for the remainder of the Lease Term shall be paid in
full as a condition to such transfer or assignment; and provided further
that Carrier shall give MFN written notice identifying the assignee or
transferee. Upon any permitted assignment (or delegation) hereunder,
Carrier will remain jointly and severally responsible for the performance
under this Agreement unless released in writing by MFN. Any permitted
assignee will expressly assume all liabilities hereunder prior to the
effectiveness of such assignment. Any attempted assignment or delegation
without such consent will be null and void and may be deemed by MFN, in
its sole discretion, to constitute a material breach of this Agreement.
12.2 The Agreement and Product Order will be binding upon and inure to the
benefit of the Parties hereto and their respective successors and
permitted assigns.
13. GOVERNING LAW
13.1 THIS AGREEMENT WILL BE INTERPRETED AND CONSTRUED IN ACCORDANCE WITH THE
INTERNAL LAWS OF THE STATE OF NEW YORK WITHOUT GIVING EFFECT TO ITS
PRINCIPLES OF CONFLICTS OF LAWS.
14. SURVIVAL
The Parties' respective representation, warranties, and covenants, together
with obligations of indemnification, confidentiality and limitations on
liability will survive the expiration, termination or rescission of this
Agreement and continue in full force and effect.
15. ENTIRE AGREEMENT
This Agreement, Product Order, Exhibits and all addenda attached hereto
constitute the entire agreement between the parties hereto with respect to the
subject matter hereof and supersede any and all prior negotiations,
understandings, and agreement with respect hereto, whether oral or written.
16. REMEDIES CUMULATIVE
Except as otherwise expressly provided, the rights and remedies set forth in
this Agreement will be in addition to, and cumulative of, all other rights and
remedies at law or in equity.
17. REPRESENTATIONS, WARRANTIES AND COVENANTS
Each Party represents, warrants and covenants to the other that (a) it is a
corporation, limited liability company, partnership, or other legal entity,
duly organized, validly existing and in good standing under the laws of the
state of its organization, (b) it has all requisite power and authority to
enter into, and perform its obligations under this Agreement and Product Order
and (c) this Agreement, when executed, will become the legal, valid and binding
obligation of such Party.
18. CONSTRUCTION OF NETWORK
18.1 MFN shall, at MFN's sole cost and expense, be responsible for and shall
effect the design, engineering, installation and construction of those portions
of the Network nor already constructed as of the date hereof in accordance with
the Specifications set forth in the Exhibits. All Leased Fiber shall meet or
exceed the applicable fiber specifications set forth in the Exhibits.
Carter shall have the right, upon written request, to inspect the construction,
installation, splicing and testing of the Product during the course and at the
time of the relevant design, construction and installation period as may be
reasonably permitted by MFN for the purpose of verifying conformity with the
Specifications set forth in the Exhibits.
10
<PAGE> 16
19. DOCUMENTATION
Not later than ninety (90) days after the Service Date for the Leased Fibers,
MFN shall provide Carrier with as-built drawings for such Leased Fibers.
20. NETWORK ACCESS
20.1 MFN shall provide Carrier with access to, and Carrier shall have the
right to connect, at Carrier's sole cost and expense, its telecommunications
Network with the Product at various network access points on the Network as may
be requested by Carrier and agreed to by MFN. The specific locations of each
such connections shall be as mutually reasonably agreed upon by the parties.
Any such connection will be performed by MFN, at Carrier's sole cost and
expense, in accordance with MFN's applicable specifications and operating
procedures.
20.2 Carrier shall pay MFN's cost for each such connection within thirty (30)
days of the date of Carrier's receipt of MFN's invoice therefor. In order to
schedule a connection of this type, Carrier shall request and coordinate such
work not less than ninety (90) days in advance of the date the connection is
requested to be completed.
21. INSURANCE
21.1 During the construction period with respect to any portion of the
Product, and until the Acceptance Date with respect thereto, MFN shall procure
and maintain in force the following insurance coverage from companies lawfully
approved to do business in the state where the construction will be performed:
(a) not less than $5,000,000 combined single-limit liability insurance,
on an occurrence basis, for personal injury and property damage,
including, without limitation, injury or damage arising from the
operation of vehicles or equipment and liability for completed
operations;
(b) workers' compensation insurance in amounts required by applicable
law and employers' liability insurance with a limit of at least
$1,000,000 per occurrence;
(c) automobile liability insurance covering death or injury to any
person or persons, or damage to property arising from the operation
of vehicles or equipment, with limits of not less than $2,000,000
per occurrence; and
(d) any other insurance coverage required pursuant to MFN's right-of-way
agreements with railroads or other third parties.
21.2 MFN shall require its subcontractors who are engaged in connection with
the construction of the Network to maintain insurance in the types and amounts
as would be obtained by a prudent person to provide adequate protection against
loss. In all circumstances, MFN shall require its subcontractors to carry a
minimum of $1,000,000 in commercial general liability.
22. DISPUTE RESOLUTION
22.1 Except as provided in Article 11, if the parties are unable to resolve
any disagreement or dispute arising under or related to this Agreement,
including without limitation, the failure to agree upon any item requiring a
mutual agreement of the parties hereunder, they shall resolve the disagreement
or dispute by arbitration as prescribed in this Section. The Federal
Arbitration Act, 9 U.S.C. Sections 1-15, not state law, shall govern the
arbitrability of all claims.
11
<PAGE> 17
22.2 Three arbitrators engaged in the practice of law who are knowledgeable
about the subject matter of this Agreement shall conduct the arbitration
under the then current rules of the American Arbitration Association (the
"AAA"). The arbitrator shall be selected in accordance with AAA procedures
from a list of qualified people maintained by the AAA.
22.3 The arbitration shall be conducted in the AAA office in Washington, D.C.,
and all expedited procedures prescribed by the AAA rules shall apply.
22.4 There shall be no discovery other than the exchange of information which is
provided to the arbitrator by the parties. The arbitrator shall have
authority only to award compensatory damages and shall not have authority
to award punitive damages, other noncompensatory damages or any other form
of relief; the parties hereby waive all rights to any claims for relief
other than compensatory damages. The arbitrators' fees and other costs of
the arbitration shall be borne by the party against whom the award is
rendered, except as the arbitration panel may otherwise provide in its
written opinion.
22.5 If any party files a judicial or administrative action asserting claims
subject to arbitration as prescribed herein, and another party successfully
stays such action or compels arbitration of said claims, the party filing
said action shall pay the other party's costs and expenses incurred in
seeking such stay or compelling arbitration, including reasonable
attorneys' fees.
23 MISCELLANEOUS
23.1 The covenants, undertakings, and agreements set forth in this Agreement
will be solely for the benefit of and will be enforceable only by the
Parties hereto or their respective successors or permitted assigns.
23.2 The headings of the Sections of this Agreement are strictly for convenience
and will not in any way be construed as amplifying or limiting any of the
terms, provisions or conditions thereof.
23.3 In the event any term of this Agreement will be held invalid, illegal or
unenforceable, in whole or in part, neither the validity of the remaining
part of such term nor the validity of the remaining terms of this Agreement
will be in any way affected thereby.
23.4 This Agreement may be amended only by a written instrument executed by the
Parties.
23.5 No failure to exercise and no delay in exercising, on the part of either
Party hereunder, any right, power or privilege hereunder will operate as a
waiver hereof, except as expressly provided herein.
23.6 This Agreement may be executed in multiple counterparts, each of which will
constitute one and the same instrument.
12
<PAGE> 1
EXHIBIT 10.20
Billing Number 503-982-9464
Agreement Number AC00606
U S WEST NETWORK SERVICE AGREEMENT
GENERAL TERMS
Intrastate
This is an agreement between SHARED COMMUNICATIONS SERVICES ("CUSTOMER")
and U S WEST COMMUNICATIONS, INC. ("USWC"), for the provision of the USWC
Service defined on Attachment 1 ("Service"), which is incorporated herein by
this reference. Where Attachment 1 conflicts with these General Terms,
Attachment 1 will prevail.
1. SCOPE. Under this Agreement, USWC shall furnish and CUSTOMER shall pay
for Service as defined on Attachment 1. USWC shall provide Service up to the
Standard Network Interface ("SNI") at CUSTOMER's premises. The SNI is that
location where USWC's protected network facilities end and CUSTOMER's inside
wire or network begins. USWC provides Service in accordance with the applicable
Tariff, Price List, and/or Catalog ("Tariff") which governs Service in the state
Service is provided, incorporated herein by this reference.
2. TERM. This Agreement will commence on the latest signature date,
provided mandatory filing requirements are met. The term of this Agreement will
expire sixty (60) months from the date of January 30, 1997.
Should USWC continue to provide Service after this term without a further
agreement, the Service charges will convert to the applicable month-to-month
rate under the terms and conditions of the applicable Tariff.
3. CHARGES AND BILLING. CUSTOMER agrees to pay the charges for Service as
specified on Attachment 1. These charges do not include applicable taxes imposed
by law. CUSTOMER shall pay each bill in full by the payment due date on each
bill. Where permitted by law, late payment charges shall be assessed according
to Tariff, or law. The charges for Services under this Agreement, including any
and all discounts to which CUSTOMER may be entitled, will be offered and charged
to CUSTOMER independently from and regardless of the CUSTOMER's purchase of any
customer premises equipment or enhanced services from USWC.
4. TERMINATION. Either party may terminate this Agreement for cause
provided written notice specifying the cause for termination and requesting
correction within thirty (30) days is given the other party and such cause is
not corrected within such thirty (30) day period. Cause is any material breach
of the terms of this Agreement. If USWC terminates this Agreement for cause, or
if CUSTOMER terminates this Agreement WITHOUT cause, CUSTOMER shall pay
discontinuance charges. If termination is prior to installation of Service,
discontinuance charges shall be those reasonable costs incurred by USWC through
the date of termination. Termination Charges for Service discontinued after
installation are defined on Attachment 1.
5. INTERRUPTIONS TO SERVICE. Tariff specifies the credit allowance due
CUSTOMER, if any, for interruptions to Service which are not caused by
CUSTOMER's negligence.
6. PERSONAL INJURY; PROPERTY DAMAGE. Each party shall be responsible for
any actual physical damages it directly causes to the other in the course of its
performance under this Agreement, limited to damages resulting from personal
injuries, death, or property damage arising from negligent acts or omissions;
PROVIDED HOWEVER, THAT NEITHER PARTY SHALL BE LIABLE TO THE OTHER FOR ANY
INCIDENTAL, CONSEQUENTIAL, INDIRECT, OR SPECIAL, DAMAGES OF ANY KIND, INCLUDING
BUT NOT LIMITED TO ANY LOSS OF USE, LOSS OF BUSINESS, OR LOSS OF PROFIT.
7. LIMITATION OF LIABILITY. USWC SHALL NOT BE LIABLE TO CUSTOMER FOR ANY
INCIDENTAL, INDIRECT, SPECIAL, OR CONSEQUENTIAL DAMAGES OF ANY KIND INCLUDING
BUT NOT LIMITED TO ANY LOSS OF USE, LOSS OF BUSINESS, OR LOSS OF PROFIT. EXCEPT
AS PROVIDED UNDER "PERSONAL INJURY; PROPERTY DAMAGE" ABOVE, ANY USWC LIABILITY
TO CUSTOMER FOR ANY DAMAGES OF ANY KIND UNDER THIS AGREEMENT SHALL NOT EXCEED,
IN
- --------------------
[*] Information redacted pursuant to a confidential treatment request
throughout this exhibit.
PAGE 1
<PAGE> 2
AMOUNT, A SUM EQUIVALENT TO THE APPLICABLE CREDIT FOR INTERRUPTIONS TO SERVICE
UNDER THIS AGREEMENT. REMEDIES UNDER THIS AGREEMENT ARE EXCLUSIVE AND LIMITED TO
THOSE EXPRESSLY DESCRIBED IN THIS AGREEMENT.
8. NO WARRANTIES. THERE ARE NO WARRANTIES, EXPRESS OR IMPLIED, INCLUDING
BUT NOT LIMITED TO WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR
PURPOSE.
9. UNCONTROLLABLE CIRCUMSTANCES. Neither party shall be deemed in
violation of this Agreement if it is prevented from performing any of the
obligations under this Agreement by reason of severe weather and storms;
earthquakes or other natural occurrences; strikes or other labor unrest; power
failures; nuclear or other civil or military emergencies; acts of legislative,
judicial, executive or administrative authorities; or any other circumstances
which are not within its reasonable control.
10. DISPUTE RESOLUTION.
10.1. Other than those claims over which a regulatory agency has exclusive
jurisdiction, all claims, regardless of legal theory, whenever brought and
whether between the parties or between one of the parties to this Agreement and
the employees, agents or affiliated businesses of the other party, shall be
resolved by arbitration. A single arbitrator engaged in the practice of law and
knowledgeable about telecommunications law shall conduct the arbitration in
accordance with the then current rules of the American Arbitration Association
("AAA").
10.2. All expedited procedures prescribed by the AAA shall apply. The
arbitrator's decision shall be final and binding and judgment may be entered in
any court having jurisdiction thereof.
10.3. Other than the determination of those claims over which a regulatory
agency has exclusive jurisdiction, federal law (including the provisions of the
Federal Arbitration Act, 9 U.S.C. Sections 1-16) shall govern and control with
respect to any issue relating to the validity of this Agreement to arbitrate and
the arbitrability of the claims.
10.4. If any party files a judicial or administrative action asserting claims
subject to arbitration, and another party successfully stays such action and/or
compels arbitration of such claims, the party filing the action shall pay the
other party's costs and expenses incurred in seeking such stay or compelling
arbitration, including reasonable attorney's fees.
11. LAWFULNESS. This Agreement and the parties' actions under this
Agreement shall comply with all applicable federal, state, and local laws,
rules, regulations, court orders, and governmental agency orders. Any change in
rates, charges or regulations mandated by the legally constituted authorities
will act as a modification of any contract to that extent without further
notice. This Agreement shall be governed by the laws of the state where Service
is provided.
12. SEVERABILITY. In the event that a court, governmental agency, or
regulatory agency with proper jurisdiction determines that this Agreement or a
provision of this Agreement is unlawful, this Agreement, or that provision of
the Agreement to the extent it is unlawful, shall terminate. If a provision of
this Agreement is terminated but the parties can legally, commercially and
practicably continue without the terminated provision, the remainder of this
Agreement shall continue in effect.
13. GENERAL PROVISIONS.
13.1. Failure or delay by either party to exercise any right, power, or
privilege hereunder, shall not operate as a waiver hereto.
13.2. This Agreement shall not be assignable by CUSTOMER without the express
written consent of USWC.
13.3. This Agreement benefits CUSTOMER and USWC. There are no third party
beneficiaries.
PAGE 2
<PAGE> 3
13.4. This Agreement constitutes the entire understanding between CUSTOMER and
USWC with respect to Service provided herein and supersedes any prior agreements
or understandings.
The parties hereby execute and authorize this Agreement as of the latest date
shown below:
SHARED COMMUNICATIONS SERVICES U S WEST COMMUNICATIONS, INC.
/s/ JEFF RAINES
- --------------------------------- --------------------------------------
Authorized Signature Authorized Signature
JEFF RAINES
- --------------------------------- --------------------------------------
Named Typed or Printed Named Typed or Printed
President
- --------------------------------- --------------------------------------
Title Title
4-15-97
- --------------------------------- --------------------------------------
Date Date
Address for Notices Address for Notices
PO BOX 12039
Salem, OR 97309-0039
<PAGE> 4
ATTACHMENT 1
U S WEST CENTREX PLUS SERVICE RATE STABILITY PLAN
1. SCOPE. USWC shall provide and CUSTOMER shall purchase CENTREX PLUS
Service ("Service"). Service is an intrastate, intraLATA, USWC central
office-based local exchange telecommunications service which includes: 1)
transport of CUSTOMER'S business communications between the SNI at CUSTOMERS
locations) covered by this Agreement and USWC's serving central office; 2)
intraCUSTOMER calling capability (intercommunication); 3) use of related Service
features; and 4) Exchange/Network Access. Service is provided by means of Main
Station Lines, stored program controlled central office switching equipment, and
either a per Main Station Line (non-blocked) access to the general network or
controlled (blocked) access through the use of Network Access Registers, as
determined by CUSTOMER. THIS AGREEMENT PROVIDES RATE STABILITY FOR ALL SERVICE
ELEMENTS EXCEPT EXCHANGE/NETWORK ACCESS, COMMON ACCESS LINE CHARGES (CALC) OR
END USER COMMON LINE CHARGES (EUCL) AND INTER-OFFICE MILEAGE CHARGES.
2. MOVES, CHANGES. CUSTOMER may request changes to location, quantity,
type, or grade of Service and USWC shall grant such requests subject to the
availability of facilities and the terms and conditions of the applicable
Tariff. CUSTOMER agrees to pay all rates and charges that apply to the requested
changes.
3. TERMINATION.
3.1. If after installation of Service CUSTOMER requests termination of its Main
Station Lines to a level that is less than sixty percent (60%) of the actual
initial number of Main Station Lines installed per common block ("Threshold") as
evidenced by USWC's records, CUSTOMER shall pay early termination charges based
on: total remaining monthly charges for Service terminated below the sixty
percent (60%) Threshold, multiplied by [*], plus the balance of all billed but
unpaid recurring and all outstanding non-recurring charges.
3.2. A termination charge will be waived when the CUSTOMER discontinues
Services) and ALL of the following conditions are met:
(a) CUSTOMER signs a new service agreement for any other USWC provided
service(s). All applicable nonrecurring charges will be assessed for the new
service(s);
(b) Both the current Service and the new service(s) are provided solely by
USWC;
(c) The order to discontinue Service and the order to establish new
service(s) are received by USWC at the same time;
(d) The new service(s) installation must be completed within thirty (30)
calendar days of the disconnection of Service, unless such installation delay is
caused by USWC;
(e) The total value of the new service(s), excluding any special
construction charges, is equal to or greater than one hundred fifteen percent
(115%) of the remaining value of this Agreement;
(f) A new Minimum Service Period, if applicable, will go into effect when
the new service(s) agreement term begins; and
(g) CUSTOMER agrees to pay any previously billed, but unpaid recurring,
and any outstanding nonrecurring charges. These charges cannot be included as
part of the new service(s) agreement.
4. CHARGES.
4.1. The initial number of Main Station Lines covered by this Agreement is three
(3) which shall be provided between USWC's Woodburn CO and CUSTOMER's
associated Service locations. CUSTOMER's total initial monthly recurring and
non-recurring charges for the rate stabilized Service
PAGE 4
<PAGE> 5
elements are: Monthly Recurring [*] Non-Recurring [*]. USWC's service and
billing records shall document CUSTOMER's Service elements, locations, and
quantities initially installed or added during the term of this Agreement and
the associated Tariff monthly recurring stabilized rates. USWC's records are
incorporated into this Agreement by reference.
4.2. Each stabilized monthly recurring Main Station Line rate shown on
CUSTOMER's bill is the sum of the applicable USWC Tariff flat Main Station Line
rate and the current Federal Communications Commission ("FCC") End User Common
Line charge. If the FCC End User Common Line charge changes during the term of
this Agreement, USWC shall adjust the flat Main Station Line rate so that the
sum remains the same.
- -----------------------
[*] Information redacted pursuant to a confidential treatment request
throughout this exhibit.
PAGE 5
<PAGE> 6
Agreement Number AC00606
ATTACHMENT 1A TO
U S WEST CENTREX PLUS SERVICE RATE STABILITY PLAN AGREEMENT
This Attachment 1A to the Agreement referenced above ("Underlying Agreement"),
lists the initial CUSTOMER business address location(s) that shall receive
Service from the USWC Central Office specified in the Underlying Agreement. All
terms and conditions of the Underlying Agreement apply to each location.
Initial Number of
Service Location(s) Main Station Lines
------------------- ------------------
1. 1890 Newberg Hy, Woodburn, OR 3
2.
3.
4.
5.
6.
7.
8.
9.
10.
11.
12.
13.
14.
15.
16.
17.
18.
19.
20.
21.
22.
23.
24.
25.
26.
27.
28.
29.
30.
PAGE 6
<PAGE> 7
Agreement Number AC 01022
Billing Number 503-338-3889
U S WEST CENTREX PLUS SERVICE RATE STABILITY PLAN AGREEMENT
This is an Agreement between Shared Communications Services, Inc. ("CUSTOMER"),
and U S WEST Communications, Inc. ("USWC"), for the provision of U S WEST
CENTREX PLUS Service.
1. SCOPE.
1.1. USWC shall provide and CUSTOMER shall purchase CENTREX PLUS Service
("Service"). Service is an intrastate, intraLATA, USWC central office-based
local exchange telecommunications service which includes: 1) transport of
CUSTOMER's business communications between the SNI at CUSTOMER's location(s)
covered by this Agreement and USWC's serving central office; 2) intraCUSTOMER
calling capability (intercommunication); 3) use of related Service features; and
4) Exchange/Network Access. Service is provided by means of Main Station Lines,
stored program controlled central office switching equipment, and either a per
Main Station Line (non-blocked) access to the general network or controlled
(blocked) access through the use of Network Access Registers, as determined by
CUSTOMER. THIS AGREEMENT PROVIDES RATE STABILITY FOR ALL SERVICE ELEMENTS EXCEPT
EXCHANGE/NETWORK ACCESS, COMMON ACCESS LINE CHARGES (CALC) OR END USER COMMON
LINE CHARGES (EUCL), AND INTER-OFFICE MILEAGE CHARGES.
1.2. USWC shall provide Service up to the ("SNI") at CUSTOMER's premises. The
SNI is that location where USWC's protected network facilities end and
CUSTOMER's inside wire or network begins. USWC provides Service in accordance
with the applicable Tariff, Price List, and/or Catalog ("Tariff") which governs
Service in the state Service is provided, incorporated herein by this reference.
Where any term or condition of this Agreement and/or Attachment conflicts with
the Tariff, the then current Tariff shall prevail.
1.3. CUSTOMER may elect to subscribe to additional services that are governed by
USWC's State and/or Federal Communications Commission ("FCC") Tariffs, Catalogs,
and/or Price Lists and are not priced or covered under this Agreement.
2. TERM.
2.1. The term of this Agreement will commence on the latest signature date in
the execution section, provided mandatory filing requirements are met. This
Agreement will expire sixty (60) months from either:
a. The first installation date of Service as evidenced by USWC's records,
if Service is new; or
b. the date of 6-1-99.
2.2. Should USWC continue to provide Service after this term without a further
agreement, the Service charges will convert to the applicable month-to-month
rate under the terms of the applicable Tariff, or, in its absence, this
Agreement.
3. CHARGES.
3.1. The initial number of Main Station Lines covered by this Agreement is three
(3) which shall be provided between USWC's Astoria Central Office and CUSTOMER's
associated Service locations. CUSTOMER's total initial monthly recurring and
non-recurring charges for the rate stabilized Service elements are: Monthly
Recurring [*] Non-Recurring [*]. USWC's service and billing records shall
document CUSTOMER's Service elements, locations, and quantities initially
installed or added during the term of this Agreement and the associated Tariff
monthly recurring stabilized rates. USWC's records are incorporated into this
Agreement by reference.
3.2. Each stabilized monthly recurring Main Station Line rate shown on
CUSTOMER's bill is the sum of the applicable USWC Tariff flat Main Station Line
rate and the current Federal Communications Commission ("FCC") End User Common
Line charge. If the FCC End User Common Line charge changes during the term of
this Agreement, USWC shall adjust the flat Main Station Line rate so that the
sum remains the same.
4. BILLING FOR SERVICE. CUSTOMER shall pay each bill in full by the payment due
date on each bill. Where permitted by law, late payment charges shall be
assessed according to Tariff, or law.
- -----------------------
[*] Information redacted pursuant to a confidential treatment request
throughout this exhibit.
<PAGE> 8
5. MOVES, CHANGES. CUSTOMER may request changes to location, quantity, type, or
grade of Service and USWC shall grant such requests subject to the availability
of facilities and the terms and conditions of the applicable Tariff, Price List
and/or Catalog. CUSTOMER agrees to pay all rates and charges that apply to the
requested changes.
6. TERMINATION.
6.1. Either party may terminate this Agreement for cause provided written notice
specifying the cause for termination and requesting correction within thirty
(30) days is given the other party and such cause is not corrected within that
thirty (30) day period. Cause is any material breach of the terms of this
Agreement. If USWC terminates this Agreement for cause or if CUSTOMER terminates
this Agreement WITHOUT cause, CUSTOMER shall pay early termination charges. If
termination is prior to installation of Service and after execution of this
Agreement, early termination charges shall be those reasonable expenses incurred
by USWC through the date of termination. If after installation of Service
CUSTOMER requests termination of its Main Station Lines to a level that is less
than sixty percent (60%) of the actual initial number of Main Station Lines
installed per common block ("Threshold") as evidenced by USWC's records,
CUSTOMER shall pay early termination charges based on: total remaining monthly
charges for Service terminated below the sixty percent (60%) Threshold,
multiplied by [*], plus the balance of all billed but unpaid recurring and all
outstanding non-recurring charges.
6.2. A termination charge will be waived when the CUSTOMER discontinues
Service(s) and ALL of the following conditions are met:
a. CUSTOMER signs a service agreement for any other USWC provided new
service(s). All applicable nonrecurring charges will be assessed for the new
service(s);
b. Both the current Service and the new service(s) are provided solely by USWC;
c. The order to discontinue Service and the order to establish new service(s)
are received by USWC at the same time;
d. The new service(s) installation must be completed within thirty (30) calendar
days of the disconnection of Service, unless such installation delay is caused
by USWC;
e. The total value of the new service(s), excluding any special construction
charges, is equal to or greater than one hundred fifteen percent (115%) of the
remaining value of this Agreement;
f. A new Minimum Service Period, if applicable, will go into effect when the new
service(s) agreement term begins; and
g. CUSTOMER agrees to pay any previously billed, but unpaid recurring, and any
outstanding nonrecurring charges. These charges cannot be included as part of
the new service(s) agreement.
6.3. New service is defined as a newly installed service placed under a new
service agreement(s), or newly installed additions to an existing service
agreement(s), but does not include renewals of expiring service agreement(s),
renegotiations of existing service agreement(s) and conversions from
month-to-month service to contracted service.
7. INTERRUPTIONS TO SERVICE. Tariff specifies the credit allowance due CUSTOMER,
if any, for interruptions to Service which are not caused by CUSTOMER's
negligence.
8. PERSONAL INJURY; PROPERTY DAMAGE. Each party shall be responsible for any
actual physical damages it directly causes to the other in the course of its
performance under this Agreement, limited to damages resulting from personal
injuries, death, or property damage arising from negligent acts or omissions;
PROVIDED HOWEVER, THAT NEITHER PARTY SHALL BE LIABLE TO THE OTHER FOR ANY
INCIDENTAL, CONSEQUENTIAL, INDIRECT, OR SPECIAL DAMAGES OF ANY KIND, INCLUDING
BUT NOT LIMITED TO ANY LOSS OF USE, LOSS OF BUSINESS, OR LOSS OF PROFIT.
9. LIMITATION OF LIABILITY. USWC SHALL NOT BE LIABLE TO CUSTOMER FOR ANY
INCIDENTAL, INDIRECT, SPECIAL, OR CONSEQUENTIAL DAMAGES OF ANY KIND INCLUDING
BUT NOT LIMITED TO ANY LOSS OF USE, LOSS OF BUSINESS, OR LOSS OF PROFIT. EXCEPT
AS PROVIDED IN "PERSONAL INJURY; PROPERTY DAMAGE" SECTION, ANY USWC LIABILITY TO
CUSTOMER FOR ANY DAMAGES OF ANY KIND UNDER THIS AGREEMENT SHALL NOT EXCEED, IN
AMOUNT, A SUM EQUIVALENT TO THE [*]. REMEDIES UNDER THIS AGREEMENT ARE EXCLUSIVE
AND LIMITED TO THOSE EXPRESSLY DESCRIBED 1N THIS AGREEMENT.
10. NO WARRANTIES. THERE ARE NO WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT
NOT LIMITED TO WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR
PURPOSE.
- -----------------------
[*] Information redacted pursuant to a confidential treatment request
throughout this exhibit.
<PAGE> 9
11. UNCONTROLLABLE CONDITIONS. Neither party shall be deemed in violation of
this Agreement if it is prevented from performing any of the obligations
hereunder by reason of severe weather and storms; earthquakes or other natural
occurrences; strikes or other labor unrest; power failures; nuclear or other
civil or military emergencies; acts of legislative, judicial, executive or
administrative authorities; or any other circumstances which are not within
its reasonable control.
12. DISPUTE RESOLUTION.
12.1. Other than those claims over which a regulatory agency has exclusive
jurisdiction, all claims, regardless of legal theory, whenever brought and
whether between the parties or between one of the parties to this Agreement and
the employees, agents or affiliated businesses of the other party, shall be
resolved by arbitration. A single arbitrator engaged in the practice of law and
knowledgeable about telecommunications law shall conduct the arbitration in
accordance with the then current rules of the American Arbitration Association
("AAA").
12.2. All expedited procedures prescribed by the AAA shall apply. The
arbitrator's decision shall be final and binding and judgment may be entered in
any court having jurisdiction thereof.
12.3. Other than the determination of those claims over which a regulatory
agency has exclusive jurisdiction, federal law (including the provisions of the
Federal Arbitration Act, 9 U.S.C. Sections 1-16) shall govern and control with
respect to any issue relating to the validity of this Agreement to arbitrate and
the arbitrability of the claims.
12.4. If any party files a judicial or administrative action asserting claims
subject to arbitration, and another party successfully stays such action and/or
compels arbitration of such claims, the party filing the action shall pay the
other party's costs and expenses incurred in seeking such stay or compelling
arbitration, including reasonable attorney's fees.
13. LAWFULNESS. This Agreement and the parties' actions under this Agreement
shall comply with all applicable federal, state, and local laws, rules,
regulations, court orders, and governmental agency orders. Any change in the
rates, charges or regulations authorized by the legally constituted authorities
will act as a modification of all contracts to that extent without further
notice. This Agreement shall be governed by the laws of the state where Service
is provided.
14. SEVERABILITY. In the event that a court, governmental agency, or regulatory
agency with proper jurisdiction determines that this Agreement or a provision of
this Agreement is unlawful, this Agreement, or that provision of this Agreement
to the extent it is unlawful, shall terminate. If a provision of this Agreement
is terminated but the parties can legally, commercially and practicably continue
without the terminated provision, the remainder of this Agreement shall continue
in effect.
<PAGE> 10
15. GENERAL PROVISIONS
15.1 Failure or delay by either party to exercise any right, power, or
privilege hereunder shall not operate as a waiver hereto.
15.2 This is a retail end user contract. It may be assigned only with the
consent on USWC. It may not be assigned to a reseller or a telecommunications
carrier under any circumstances.
15.3 This Agreement benefits CUSTOMER and USWC. There are no third party
beneficiaries.
15.4 This Agreement constitutes the entire understanding between CUSTOMER
and USWC with respect to Service provided herein and supersedes any prior
agreements or understandings.
The parties hereby execute and authorize this Agreement as of the latest date
shown below:
CUSTOMER U S WEST COMMUNICATIONS, INC.
/s/ JEFF RAINES /s/ LYNN ARTHUR
- -------------------------------- --------------------------------
Authorized Signature Authorized Signature
Jeff Raines/President Lynn Arthur - Senior Acct. Mgr.
- -------------------------------- --------------------------------
Name/Title - Typed or Printed Name/Title - Typed or Printed
4-14-99 6-2-99
- -------------------------------- --------------------------------
Date Date
1600 7th Ave. Rm 1806
Seattle, WA 98191
- -------------------------------- --------------------------------
Address for Notices Address for Notices
<PAGE> 11
Agreement Number AC 01022
ADDENDUM TO
U S WEST CENTREX PLUS SERVICE RATE STABILITY PLAN AGREEMENT
This Addendum is executed by and between CUSTOMER, as named in the agreement
specified above ("Underlying Agreement"), and U S WEST Communications, Inc. to
list the CUSTOMER business address locations that shall receive Service from the
USWC Central Office specified in the Underlying Agreement. All terms and
conditions of the Underlying Agreement apply to each location.
<TABLE>
<CAPTION>
Initial Number of
Service Location(s) Main Station Lines
------------------- ------------------
<S> <C> <C>
1. 653 W. Marine Dr. Astoria 3
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2.
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3.
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4.
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5.
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6.
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7.
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8.
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9.
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10.
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11.
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12.
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13.
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14.
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15.
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16.
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17.
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18.
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19.
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20.
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</TABLE>
The parties hereby execute and authorize this Addendum as of the latest date
shown below:
CUSTOMER US WEST COMMUNICATIONS, INC.
/s/ JEFF RAINES /s/ LYNN ARTHUR
- -------------------------------- --------------------------------
Authorized Signature Authorized Signature
Jeff Raines/President Lynn Arthur - Sr. Acct. Mgr.
- -------------------------------- --------------------------------
Name/Title - Typed or Printed Name/Title - Typed or Printed
4-14-99 6-2-99
- -------------------------------- --------------------------------
Date Date
