<PAGE>
Exhibit 10.21
INTERCONNECTION AGREEMENT
BETWEEN
BELLSOUTH TELECOMMUNICATIONS INC.
AND
MEBTEL INTEGRATED COMMUNICATIONS SOLUTIONS, LLC,
D/B/A INTEGRATED COMMUNICATIONS SOLUTIONS
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TABLE OF CONTENTS
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General Terms and Conditions
Part A
1. Purpose
2. Term of the Agreement
3. Ordering Procedures
4. Parity
5. White Pages Listings
6. Bona Fide Request/New Business Request Process for Further
Unbundling
7. Liability and Indemnification
8. Intellectual Property Rights and Indemnification
9. Treatment of Proprietary and Confidential Information
10. Assignments
11. Resolution of Disputes
12. Taxes
13. Force Majeure
14. Year 2000 Compliance
15. Modification of Agreement
16, Waivers
17. Governing Law
18. Arm's Length Negotiations
19. Notices
20. Rule of Construction
21. Headings of No Force or Effect
22. Multiple Counterparts
23. Implementation of Agreement
24. Entire Agreement
Part B - Definitions
Attachment 1 - Resale
Attachment 2 - Unbundled Network Elements
Attachment 3 - Local Interconnection
Attachment 4 - Physical Collocation
Attachment 5 - Access to Numbers and Number Portability
Attachment 6 - Ordering and Provisioning
Attachment 7 - Billing and Billing Accuracy Certification
Attachment 8 - Rights-of-Way, Conduits and Pole Attachments
Attachment 9 - Bona Fide Request/New Business Request Process
Attachment 10 - Performance Measurements
Attachment 11 - Rates
Attachment 12 - Agreement Implementation Template
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General Terms and Conditions - Part A
Page 1
AGREEMENT
THIS AGREEMENT is made by and between BellSouth Telecommunications, Inc.,
("BellSouth"), a Georgia corporation, and Mebtel Integrated Communications
Solutions, LLC, d/b/a Integrated Communications Solutions ("ICS"), a Delaware
company, and shall be deemed effective as of December 18, 1998. This agreement
may refer to either BellSouth or ICS or both as a "Party" or "Parties.
WITNESSETH
WHEREAS, BellSouth is a local exchange telecommunications company
authorized to provide telecommunications services in the states of Alabama,
Florida, Georgia, Kentucky, Louisiana, Mississippi, North Carolina, South
Carolina, and Tennessee; and
WHEREAS, ICS is an alternative local exchange telecommunications company
("CLEC") authorized to provide telecommunications services in the states of
Alabama, Florida, Georgia, Kentucky, Louisiana, Mississippi, North Carolina,
South Carolina, and Tennessee; and
WHEREAS, the Parties wish to interconnect their facilities, purchase
unbundled elements, and exchange traffic specifically for the purposes of
fulfilling their obligations pursuant to sections 251 and 252 of the
Telecommunications Act of 1996 ("the Act").
NOW THEREFORE, in consideration of the mutual agreements contained herein,
BellSouth and ICS agree as follows:
1. Purpose
The Parties agree that the rates, terms and conditions contained
within this Agreement, including all Attachments, comply and conform
with each Parties' obligations under sections 251 and 252 of the Act.
The access and interconnection obligations contained herein enable ICS
to provide competing telephone exchange service to residential and
business subscribers within the territory of BellSouth. The Parties
agree that ICS will not be considered to have offered interconnection
in any state within BellSouth's region until such time as it has
ordered interconnection facilities for the purposes of providing
business and/or residential local exchange service to customers.
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General Terms and Conditions - Part A
Page 2
2. Term of the Agreement
2.1 The term of this Agreement shall be two years, beginning December 18,
1998.
2.2 The Parties agree that by no later than one hundred and eighty (180)
days prior to the expiration of this Agreement, they shall commence
negotiations with regard to the terms, conditions and prices of local
interconnection to be effective beginning on the expiration date of
this Agreement ("Subsequent Agreement"). The Parties further agree
that any such Subsequent Agreement shall be for a term of no less than
two (2) years unless the Parties agree otherwise.
2.3 If, within one hundred and thirty-five (135) days of commencing the
negotiation referred to in Section 2.2, above, the Parties are unable
to satisfactorily negotiate new local interconnection terms,
conditions and prices, either Party may petition the Commission to
establish appropriate local interconnection arrangements pursuant to
47 U.S.C. 252. The Parties agree that, in such event, they shall
encourage the Commission to issue its order regarding the appropriate
local interconnection arrangements no later than the expiration date
of this Agreement. The Parties further agree that in the event the
Commission does not issue its order prior to the expiration date of
this Agreement, or if the Parties continue beyond the expiration date
of this Agreement to negotiate the local interconnection arrangements
without Commission intervention, the terms, conditions and prices
ultimately ordered by the Commission, or negotiated by the Parties,
will be effective retroactive to the day following the expiration date
of this Agreement. Until the Subsequent Agreement becomes effective,
the Parties shall continue to exchange traffic pursuant to the terms
and conditions of this Agreement.
3. Ordering Procedures
3.1 ICS shall provide BellSouth its Carrier Identification Code (CIC),
Operating Company Number (OCN), Group Access Code (GAC) and Access
Customer Name and Address (ACNA) code prior to placing its first
order.
3.2 Detailed procedures for ordering and provisioning BellSouth services
are set forth in BellSouth's Local Interconnection and Facility Based
Ordering Guide and Resale Ordering Guide, as appropriate.
3.3 BellSouth has developed electronic systems for placing most resale and
some Unbundled Network Elements (UNE) orders. BellSouth has also
developed electronic systems for accessing data needed to place orders
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General Terms and Conditions - Part A
Page 3
including valid address, available services and features, available
telephone numbers, due date estimation on pre-order and calculation on
firm order, and customer service records where applicable. Charges for
Operational Support Systems (OSS) shall be as set forth in this
agreement in Exhibit A of Attachment 1 and in Attachment 11.
4. Parity
The services and service provisioning that BellSouth provides ICS for
resale will be at least equal in quality to that provided to
BellSouth, or any BellSouth subsidiary, affiliate or end user. In
connection with resale, BellSouth will provide ICS with pre-ordering,
ordering, maintenance and trouble reporting, and daily usage data
functionality that will enable ICS to provide equivalent levels of
customer service to their local exchange customers as BellSouth
provides to its own end users. BellSouth shall also provide ICS with
unbundled network elements, and access to those elements, that is at
least equal in quality to that which BellSouth provides BellSouth, or
any BellSouth subsidiary, affiliate or other CLEC. BellSouth will
provide number portability to ICS and their customers with minimum
impairment of functionality, quality, reliability and convenience.
5. White Pages Listings
BellSouth shall provide ICS and their customers access to white pages
directory listings under the following terms:
5.1 Listings. BellSouth or its agent will include ICS residential and
business customer listings in the appropriate White Pages (residential
and business) or alphabetical directories. Directory listings will
make no distinction between ICS and BellSouth subscribers.
5.2 Rates. Subscriber primary listing information in the White Pages shall
be provided at no charge to ICS or its subscribers provided that ICS
provides subscriber listing information to BellSouth at no charge.
5.3 Procedures for Submitting ICS Subscriber Information. BellSouth will
provide to ICS a magnetic tape or computer disk containing the proper
format for submitting subscriber listings. ICS will be required to
provide BellSouth with directory listings and daily updates to those
listings, including new, changed, and deleted listings, in an
industry-accepted format. These procedures are detailed in BellSouth's
Local Interconnection and Facility Based Ordering Guide.
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General Terms and Conditions - Part A
Page 4
5.4 Unlisted Subscribers. ICS will be required to provide to BellSouth the
names, addresses and telephone numbers of all ICS customers that wish
to be omitted from directories.
5.5 Inclusion of ICS Customers in Directory Assistance Database. BellSouth
will include and maintain ICS subscriber listings in BellSouth's
directory assistance databases at no charge. BellSouth and ICS will
formulate appropriate procedures regarding lead time, timeliness,
format and content of listing information.
5.6 Listing Information Confidentiality. BellSouth will accord ICS's
directory listing information the same level of confidentiality that
BellSouth accords its own directory listing information, and BellSouth
shall limit access to ICS's customer proprietary confidential
directory information to those BellSouth employees who are involved in
the preparation of listings.
5.7 Optional Listings. Additional listings and optional listings will be
offered by BellSouth at tariffed rates as set forth in the General
Subscriber Services Tariff.
5.8 Delivery. BellSouth or its agent shall deliver White Pages directories
to ICS subscribers at no charge.
6. Bona Fide Request/New Business Request Process for Futher Unbundling
BellSouth shall, upon request of ICS, provide to ICS access to its
unbundled elements at any technically feasible point for the provision
of ICS's telecommunications service where such access is necessary and
failure to provide access would impair the ability of ICS to provide
services that it seeks to offer. Any request by ICS for access to an
unbundled element that is not already available shall be treated as an
unbundled element Bona Fide Request/New Business Request, and shall be
submitted to BellSouth pursuant to the Bona Fide Request/New Business
Request process set forth in Attachment 9.
7. Liability and Indemnification
7.1 BellSouth Liability. BellSouth shall take financial responsibility for
its own actions in causing, or its lack of action in preventing,
unbillable or uncollectible ICS revenues.
7.2 Liability for Acts or Omissions of Third Parties. Neither BellSouth
nor ICS shall be liable for any act or omission of another
telecommunications
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General Terms and Conditions - Part A
Page 5
company providing a portion of the services provided under this
Agreement.
7.3 Limitation of Liability.
7.3.1 Each Party's liability to the other for any loss, cost, claim, injury
or liability or expense, including reasonable attorney's fees relating
to or arising out of any negligent act or omission in its performance
of this Agreement whether in contract or in tort, shall be limited to
a credit for the actual cost of the services or functions not
performed or improperly performed.
7.3.2 Limitations in Tariffs. A Party may, in its sole discretion, provide
in its tariffs and contracts with its Customer and third parties that
relate to any service, product or function provided or contemplated
under this Agreement, that to the maximum extent permitted by
Applicable Law, such Party shall not be liable to Customer or third
Party for (i) any Loss relating to or arising out of this Agreement,
whether in contract, tort or otherwise, that exceeds the amount such
party would have charged that applicable person for the service,
product or function that gave rise to such Loss and (ii) Consequential
Damages. To the extent that a Party elects not to place in its tariffs
or contracts such limitations of liability, and the other Party incurs
a Loss as a result thereof, such Party shall indemnify and reimburse
the other Party for that portion of the Loss that would have been
limited had the first Party included in its tariffs and contracts the
limitations of liability that such other Party included in its own
tariffs at the time of such Loss.
7.3.3 Neither BellSouth nor ICS shall be liable for damages to the other's
terminal location, POI or other company's customers' premises
resulting from the furnishing of a service, including, but not limited
to, the installation and removal of equipment or associated wiring,
except to the extent caused by a company's negligence or willful
misconduct or by a company's failure to properly ground a local loop
after disconnection.
7.3.4 Under no circumstance shall a Party be responsible or liable for
indirect, incidental, or consequential damages, including, but not
limited to, economic loss or lost business or profits, damages arising
from the use or performance of equipment or software, or the loss of
use of software or equipment, or accessories attached thereto, delay,
error, or loss of data. In connection with this limitation of
liability, each Party recognizes that the other Party may, from time
to time, provide advice, make recommendations, or supply other
analyses related to the Services, or facilities described in this
Agreement, and, while each Party shall use diligent efforts in this
regard, the Parties acknowledge and agree that this
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General Terms and Conditions - Part A
Page 6
limitation of liability shall apply to provision of such advice,
recommendations, and analyses.
7.4 Indemnification for Certain Claims. BellSouth and ICS providing
services, their affiliates and their parent company, shall be
indemnified, defended and held harmless by each other against any
claim, loss or damage arising from the receiving company's use of the
services provided under this Agreement pertaining to (1) claims for
libel, slander, invasion of privacy or copyright infringement arising
from the content of the receiving company's own communications, or (2)
any claim, loss or damage claimed by the other company's customer
arising from one company's use or reliance on the other company's
services, actions, duties, or obligations arising out of this
Agreement.
7.5 No liability for Certain Inaccurate Data. Neither BellSouth nor ICS
assumes any liability for the accuracy of data provided by one Party
to the other and each Party agrees to indemnify and hold harmless the
other for any claim, action, cause of action, damage, or injury that
might result from the supply of inaccurate data in conjunction with
the provision of any service provided pursuant to this Agreement.
7.6 Disclaimer. EXCEPT AS SPECIFICALLY PROVIDED TO THE CONTRARY IN THIS
AGREEMENT, NEITHER PARTY MAKES ANY REPRESENTATIONS OR WARRANTIES TO
THE OTHER PARTY CONCERNING THE SPECIFIC QUALITY OF ANY SERVICES, OR
FACILITIES PROVIDED UNDER THIS AGREEMENT. THE PARTIES DISCLAIM,
WITHOUT LIMITATION, ANY WARRANTY OR GUARANTEE OF MERCHANTABILITY OR
FITNESS FOR A PARTICULAR PURPOSE, ARISING FROM COURSE OF PERFORMANCE,
COURSE OF DEALING, OR FROM USAGES OF TRADE.
8. Intellectual Property Rights and Indemnification
8.1 No License. No patent, copyright, trademark or other proprietary right
is licensed, granted or otherwise transferred by this Agreement. ICS
is strictly prohibited from any use, including but not limited to in
sales, in marketing or advertising of telecommunications services, of
any BellSouth name, service mark or trademark.
8.2 Ownership of Intellectual Property. Any intellectual property which
originates from or is developed by a Party shall remain in the
exclusive ownership of that Party. Except for a limited license to use
patents or copyrights to the extent necessary for the Parties to use
any facilities or equipment (including software) or to receive any
service solely as provided under this Agreement, no license in patent,
copyright, trademark
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General Terms and Conditions - Part A
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or trade secret, or other proprietary or intellectual property right
now or hereafter owned, controlled or licensable by a Party, is
granted to the other Party or shall be implied or arise by estoppel.
It is the responsibility of each Party to ensure at no additional cost
to the other Party that it has obtained any necessary licenses in
relation to intellectual property of third Parties used in its network
that may be required to enable the other Party to use any facilities
or equipment (including software), to receive any service, or to
perform its respective obligations under this Agreement.
8.3 Indemnification. The Party providing a service pursuant to this
Agreement will defend the Party receiving such service or data
provided as a result of such service against claims of infringement
arising solely from the use by the receiving Party of such service and
will indemnify the receiving Party for any damages awarded based
solely on such claims in accordance with Section 7 of this Agreement.
8.4 Claim of Infringement. In the event that use of any facilities or
equipment (including software), becomes, or in reasonable judgment of
the Party who owns the affected network is likely to become, the
subject of a claim, action, suit, or proceeding based on intellectual
property infringement, then said Party shall promptly and at its sole
expense, but subject to the limitations of liability set forth below:
8.4.1 modify or replace the applicable facilities or equipment (including
software) while maintaining form and function, or
8.4.2 obtain a license sufficient to allow such use to continue.
8.4.3 In the event 8.4.1 or 8.4.2 are commercially unreasonable, then said
Party may, terminate, upon reasonable notice, this contract with
respect to use of, or services provided through use of, the affected
facilities or equipment (including software), but solely to the extent
required to avoid the infringement claim.
8.5 Exception to Obligations. Neither Party's obligations under this
Section shall apply to the extent the infringement is caused by: (i)
modification of the facilities or equipment (including software) by
the indemnitee; (ii) use by the indemnitee of the facilities or
equipment (including software) in combination with equipment or
facilities (including software) not provided or authorized by the
indemnitor provided the facilities or equipment (including software)
would not be infringing if used alone; (iii) conformance to
specifications of the indemnitee which would necessarily result in
infringement; or (iv) continued use by the indemnitee of the affected
facilities or equipment (including software) after being placed on
notice to discontinue use as set forth herein.
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General Terms and Conditions - Part A
Page 8
8.6 Exclusive Remedy. The foregoing shall constitute the Parties' sole and
exclusive remedies and obligations with respect to a third party claim
of intellectual property infringement arising out of the conduct of
business under this agreement.
9. Treatment of Proprietary and Confidential Information
9.1 Confidential Information. It may be necessary for BellSouth and ICS to
provide each other with certain confidential information, including
trade secret information, including but not limited to, technical and
business plans, technical information, proposals, specifications,
drawings, procedures, customer account data, call detail records and
like information (hereinafter collectively referred to as
"Information"). All Information shall be in writing or other tangible
form and clearly marked with a confidential, private or proprietary
legend and that the Information will be returned to the owner within a
reasonable time. The Information shall not be copied or reproduced in
any form. BellSouth and ICS shall receive such Information and not
disclose such Information. BellSouth and ICS shall protect the
Information received from distribution, disclosure or dissemination to
anyone except employees of BellSouth and ICS with a need to know such
Information and which employees agree to be bound by the terms of this
Section. BellSouth and ICS will use the same standard of care to
protect Information received as they would use to protect their own
confidential and proprietary Information.
9.2 Exception to Obligation. Notwithstanding the foregoing, there will be
no obligation on BellSouth or ICS to protect any portion of the
Information that is: (1) made publicly available by the owner of the
Information or lawfully disclosed by a Party other than BellSouth or
ICS; (2) lawfully obtained from any source other than the owner of the
Information; or (3) previously known to the receiving Party without an
obligation to keep it confidential.
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General Terms and Conditions - Part A
Page 9
10. Assignments
Any assignment by either Party to any non-affiliated entity of any
right, obligation or duty, or of any other interest hereunder, in
whole or in part, without the prior written consent of the other Party
shall be void. A Party may assign this Agreement or any right,
obligation, duty or other interest hereunder to an Affiliate company
of the Party without the consent of the other Party. All obligations
and duties of any Party under this Agreement shall be binding on all
successors in interest and assigns of such Party. No assignment of
delegation hereof shall relieve the assignor of its obligations under
this Agreement in the event that the assignee fails to perform such
obligations.
11. Resolution of Disputes
Except as otherwise stated in this Agreement, the Parties agree that
if any dispute arises as to the interpretation of any provision of
this Agreement or as to the proper implementation of this Agreement,
either Party may petition the Commission for a resolution of the
dispute. However, each Party reserves any rights it may have to seek
judicial review of any ruling made by the Commission concerning this
Agreement.
12. Taxes
12.1 Definition. For purposes of this Section, the terms"taxes" and "fees"
shall include but not limited to federal, state or local sales, use,
excise, gross receipts or other taxes or tax-like fees of whatever
nature and however designated (including tariff surcharges and any
fees, charges or other payments, contractual or otherwise, for the use
of public streets or rights of way, whether designated as franchise
fees or otherwise) imposed, or sought to be imposed, on or with
respect to the services furnished hereunder or measured by the charges
or payments therefore, excluding any taxes levied on income.
12.2 Taxes and Fees Imposed Directly On Either Seller or Purchaser.
12.2.1 Taxes and fees imposed on the providing Party, which are not permitted
or required to be passed on by the providing Party to its customer,
shall be borne and paid by the providing Party.
12.2.2 Taxes and fees imposed on the purchasing Party, which are not required
to be collected and/or remitted by the providing Party, shall be borne
and paid by the purchasing Party.
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General Terms and Conditions - Part A
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12.3 Taxes and Fees Imposed on Purchaser But Collected And Remitted By
Seller.
12.3.1 Taxes and fees imposed on the purchasing Party shall be borne by the
purchasing Party, even if the obligation to collect and/or remit such
taxes or fees is placed on the providing Party.
12.3.2 To the extent permitted by applicable law, any such taxes and/or fees
shall be shown as separate items on applicable billing documents
between the Parties. Notwithstanding the foregoing, the purchasing
Party shall remain liable for any such taxes and fees regardless of
whether they are actually billed by the providing Party at the time
that the respective service is billed.
12.3.3 If the purchasing Party determines that in its opinion any such taxes
or fees are not payable, the providing Party shall not bill such taxes
or fees to the purchasing Party if the purchasing Party provides
written certification, reasonably satisfactory to the providing Party,
stating that it is exempt or otherwise not subject to the tax or fee,
setting forth the basis therefor, and satisfying any other
requirements under applicable law. If any authority seeks to collect
any such tax or fee that the purchasing Party has determined and
certified not to be payable, or any such tax or fee that was not
billed by the providing Party, the purchasing Party may contest the
same in good faith, at its own expense. In any such contest, the
purchasing Party shall promptly furnish the providing Party with
copies of all filings in any proceeding, protest, or legal challenge,
all rulings issued in connection therewith, and all correspondence
between the purchasing Party and the taxing authority.
12.3.4 In the event that all or any portion of an amount sought to be
collected must be paid in order to contest the imposition of any such
tax or fee, or to avoid the existence of a lien on the assets of the
providing Party during the pendency of such contest, the purchasing
Party shall be responsible for such payment and shall be entitled to
the benefit of any refund or recovery.
12-3.5 If it is ultimately determined that any additional amount of such a
tax or fee is due to the imposing authority, the purchasing Party
shall pay such additional amount, including any interest and penalties
thereon.
12.3.6 Notwithstanding any provision to the contrary, the purchasing Party
shall protect, indemnify and hold harmless (and defend at the
purchasing Party's expense) the providing Party from and against any
such tax or fee, interest or penalties thereon, or other charges or
payable expenses (including reasonable attorney fees) with respect
thereto, which are
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General Terms and Conditions - Part A
Page 11
incurred by the providing Party in connection with any claim for or
contest of any such tax or fee.
12.3.7 Each Party shall notify the other Party in writing of any assessment,
proposed assessment or other claim for any additional amount of such a
tax or fee by a taxing authority; such notice to be provided, if
possible, at least ten (10) days prior to the date by which a
response, protest or other appeal must be filed, but in no event later
than thirty (30) days after receipt of such assessment, proposed
assessment or claim.
12.4 Taxes and Fees Imposed on Seller But Passed On To Purchaser.
12.4.1 Taxes and fees imposed on the providing Party, which are permitted or
required to be passed on by the providing Party to its customer, shall
be borne by the purchasing Party.
12.4.2 To the extent permitted by applicable law, any such taxes and/or fees
shall be shown as separate items on applicable billing documents
between the Parties. Notwithstanding the foregoing, the purchasing
Party shall remain liable for any such taxes and fees regardless of
whether they are actually billed by the providing Party at the time
that the respective service is billed.
12.4.3 If the purchasing Party disagrees with the providing Party's
determination as to the application or basis for any such tax or fee,
the Parties shall consult with respect to the imposition and billing
of such tax or fee. Notwithstanding the foregoing, the providing Party
shall retain ultimate responsibility for determining whether and to
what extent any such taxes or fees are applicable, and the purchasing
Party shall abide by such determination and pay such taxes or fees to
the providing Party. The providing Party shall further retain ultimate
responsibility for determining whether and how to contest the
imposition of such taxes and fees; provided, however, that any such
contest undertaken at the request of the purchasing Party shall be at
the purchasing Party's expense.
12.4.4 In the event that all or any portion of an amount sought to be
collected must be paid in order to contest the imposition of any such
tax or fee, or to avoid the existence of a lien on the assets of the
providing Party during the pendency of such contest, the purchasing
Party shall be responsible for such payment and shall be entitled to
the benefit of any refund or recovery.
12.4.5 If it is ultimately determined that any additional amount of such a
tax or fee is due to the imposing authority, the purchasing Party
shall pay such additional amount, including any interest and penalties
thereon.
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General Terms and Conditions - Part A
Page 12
12.4.6 Notwithstanding any provision to the contrary, the purchasing Party
shall protect indemnify and hold harmless (and defend at the
purchasing Party's expense) the providing Party from and against any
such tax or fee, interest or penalties thereon, or other reasonable
charges or payable expenses (including reasonable attorney fees) with
respect thereto, which are incurred by the providing Party in
connection with any claim for or contest of any such tax or fee.
12.4.7 Each Party shall notify the other Party in writing of any assessment,
proposed assessment or other claim for any additional amount of such a
tax or fee by a taxing authority; such notice to be provided, if
possible, at least ten (10) days prior to the date by which a
response, protest or other appeal must be filed, but in no event later
than thirty (30) days after receipt of such assessment, proposed
assessment or claim.
12.5 Mutual Cooperation. In any contest of a tax or fee by one Party, the
other Party shall cooperate fully by providing records, testimony and
such additional information or assistance as may reasonably be
necessary to pursue the contest. Further, the other Party shall be
reimbursed for any reasonable and necessary out-of-pocket copying and
travel expenses incurred in assisting in such contest.
13. Force Majeure
In the event performance of this Agreement, or any obligation
hereunder, is either directly or indirectly prevented, restricted, or
interfered with by reason of fire, flood, earthquake or like acts of
God, wars, revolution, civil commotion, explosion, acts of public
enemy, embargo, acts of the government in its sovereign capacity,
labor difficulties, including without limitation, strikes, slowdowns,
picketing, or boycotts, unavailability of equipment from vendor,
changes requested by Customer, or any other circumstances beyond the
reasonable control and without the fault or negligence of the Party
affected, the Party affected, upon giving prompt notice to the other
Party, shall be excused from such performance on a day-to-day basis to
the extent of such prevention, restriction, or interference (and the
other Party shall likewise be excused from performance of its
obligations on a day-to-day basis until the delay, restriction or
interference has ceased); provided however, that the Party so affected
shall use diligent efforts to avoid or remove such causes of non-
performance and both Parties shall proceed whenever such causes are
removed or cease.
14. Year 2000 Compliance
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General Terms and Conditions - Part A
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Each party warrants that it has implemented a program the goal of
which is to ensure that all software, hardware and related materials
(collectively called "Systems") delivered, connected with BellSouth or
supplied in the furtherance of the terms and conditions specified in
this Agreement: (i) will record, store, process and display calendar
dates falling on or after January 1, 2000, in the same manner, and
with the same functionality as such software records, stores,
processes and calendar dates failing on or before December 31, 1999;
and (ii) shall include without limitation date data century
recognition, calculations that accommodate same century and
multicentury formulas and date values, and date data interface values
that reflect the century.
15. Modification of Agreement
15.1 BellSouth shall make available to ICS any interconnection, service, or
network element provided under any other agreement filed and approved
pursuant to 47 USC (S) 252; provided however the parties shall adopt
such other agreement in its entirety. The adopted agreement shall
apply to the same states as such other agreement and for the identical
term.
15.2 No modification, amendment, supplement to, or waiver of the Agreement
or any of its provisions shall be effective and binding upon the
Parties unless it is made in writing and duly signed by the Parties.
15.3 Execution of this Agreement by either Party does not confirm or infer
that the executing Party agrees with any decision(s) issued pursuant
to the Telecommunications Act of 1996 and the consequences of those
decisions on specific language in this Agreement. Neither Party waives
its rights to appeal or otherwise challenge any such decision(s) and
each Party reserves all of its rights to pursue any and all legal
and/or equitable remedies, including appeals of any such decision(s).
15.4 In the event that any final and nonappealable legislative, regulatory,
judicial or other legal action materially affects any material terms
of this Agreement, or the ability of ICS or BellSouth to perform any
material terms of this Agreement, ICS or BellSouth may, on thirty (30)
days' written notice require that such terms be renegotiated, and the
Parties shall renegotiate in good faith such mutually acceptable new
terms as may be required. In the event that such new terms are not
renegotiated within ninety (90) days after such notice, the Dispute
shall be referred to the Dispute Resolution procedure set forth in
Section 11.
15.5 If any provision of this Agreement, or the application of such
provision to either Party or circumstance, shall be held invalid, the
remainder of the Agreement, or the application of any such provision
to the Parties or
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General Terms and Conditions - Part A
Page 14
circumstances other than those to which it is held invalid, shall not
be effective thereby, provided that the Parties shall attempt to
reformulate such invalid provision to give effect to such portions
thereof as may be valid without defeating the intent of such
provision.
16. Waivers
A failure or delay of either Party to enforce any of the provisions
hereof, to exercise any option which is herein provided, or to require
performance of any of the provisions hereof shall in no way be
construed to be a waiver of such provisions or options, and each
Party, notwithstanding such failure, shall have the right thereafter
to insist upon the specific performance of any and all of the
provisions of this Agreement.
17. Governing Law
This Agreement shall be governed by, and construed and enforced in
accordance with, the laws of the State of Georgia, without regard to
its conflict of laws principles.
18. Arm's Length Negotiations
This Agreement was executed after arm's length negotiations between
the undersigned Parties and reflects the conclusion of the undersigned
that this Agreement is in the best interests of all Parties.
19. Notices
19.1 Every notice, consent, approval, or other communications required or
contemplated by this Agreement shall be in writing and shall be
delivered in person or given by postage prepaid mail, address to:
BellSouth Telecommunications, Inc.
CLEC Account Team
9th Floor
600 North 19th Street
Birmingham, Alabama 35203
and
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General Terms and Conditions - Part A
Page 15
General Attorney - COU
Suite 4300
675 W. Peachtree St.
Atlanta, GA 30375
Integrated Communications Solutions, LLC
Bruce Becker
6330 Quadrangle Drive, Suite 325
Chapel Hill, NC 27514
or at such other address as the intended recipient previously shall
have designated by written notice to the other Party.
19.2 Where specifically required, notices shall be by certified or
registered mail. Unless otherwise provided in this Agreement, notice
by mail shall be effective on the date it is officially recorded as
delivered by return receipt or equivalent, and in the absence of such
record of delivery, it shall be presumed to have been delivered the
fifth day, or next business day after the fifth day, after it was
deposited in the mails.
19.3 BellSouth shall provide ICS 45-day advance notice via Internet posting
of price changes and of changes to the terms and conditions of
services available for resale. To the extent that revisions occur
between the time BellSouth notifies ICS of changes under this
Agreement and the time the changes are scheduled to be implemented,
BellSouth will immediately notify ICS of such revisions consistent
with its internal notification process. ICS may not hold BellSouth
responsible for any cost incurred as a result of such revisions,
unless such costs are incurred as a result of BellSouth's intentional
misconduct. ICS may not utilize any notice given under this subsection
concerning a service to market resold offerings of that service in
advance of BellSouth.
20. Rule of Construction
No rule of construction requiring interpretation against the drafting
Party hereof shall apply in the interpretation of this Agreement.
21. Headings of No Force or Effect
The headings of Articles and Sections of this Agreement are for
convenience of reference only, and shall in no way define, modify or
restrict the meaning or interpretation of the terms or provisions of
this Agreement.
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General Terms and Conditions - Part A
Page 16
22. Multiple Counterparts
This Agreement may be executed multiple counterparts, each of which
shall be deemed an original, but all of which shall together
constitute but one and the same document.
23. Implementation of Agreement
Within 60 days of the execution of this Agreement, the parties will
adopt a schedule for the implementation of the Agreement. The schedule
shall state with specificity time frames for submission of including
but not limited to, network design, interconnection points,
collocation arrangement requests, pre-sales testing and full
operational time frames for the business and residential markets. An
implementation template to be used for the implementation schedule is
contained in Attachment 12 of this Agreement.
24. Entire Agreement
This Agreement and its Attachments, incorporated herein by this
reference, sets forth the entire understanding and supersedes prior
agreements between the Parties relating to the subject matter
contained herein and merges all prior discussions between them, and
neither Party shall be bound by any definition, condition, provision,
representation, warranty, covenant or promise other than as expressly
stated in this Agreement or as is contemporaneously or subsequently
set forth in writing and executed by a duly authorized officer or
representative of the Party to be bound thereby.
This agreement includes attachments with provisions for the following
services:
Unbundled Network Elements (UNEs)
Local Interconnection
Resale
Collocation
The following services are included as options for purchase by ICS.
ICS shall elect said services by written request to its Account
Manager:
Optional Daily Usage File (ODUF)
Access Daily Usage File (ADUF)
Line Information Database (LIDB) Storage
Centralized Message Distribution Service (CMDS)
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General Terms and Conditions - Part A
Page 17
IN WITNESS WHEREOF, the Parties have executed this Agreement the day and year
above first written.
BellSouth Telecommunications, Inc. Integrated Communications
Solutions, LLC
/s/ Jerry Hendrix /s/ Bruce Becker
--------------------------------- ---------------------------------
Signature Signature
Jerry Hendrix Bruce Becker
--------------------------------- ---------------------------------
Name Name
Director President
--------------------------------- ---------------------------------
Title Title
December 18, 1998 December 14, 1998
--------------------------------- ---------------------------------
Date Date
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General Terms and Conditions -- Part B
Page 18
Definitions
Affiliate is defined as a person that (directly or indirectly) owns or controls,
is owned or controlled by, or is under common ownership or control with, another
person. For purposes of this paragraph, the term "own" means to own an equity
interest (or equivalent thereof) of more than 10 percent.
Centralized Message Distribution System is the BellCore administered national
system, based in Kansas City, Missouri, used to exchange Exchange Message
Interface (EMI) formatted data among host companies.
Commission is defined as the appropriate regulatory agency in each of
BellSouth's nine state region, Alabama, Florida, Georgia, Kentucky, Louisiana,
Mississippi, North Carolina, South Carolina, and Tennessee.
Daily Usage File is the compilation of messages or copies of messages in
standard Exchange Message Interface (EMI) format exchanged from BellSouth to an
CLEC.
Exchange Message Interface is the nationally administered standard format for
the exchange of data among the Exchange Carriers within the telecommunications
industry.
Intercompany Settlements (ICS) is the revenue associated with charges billed by
a company other than the company in whose service area such charges were
incurred. ICS on a national level includes third number and credit card calls
and is administered by BellCore's Credit Card and Third Number Settlement System
(CATS). Included is traffic that originates in one Regional Bell Operating
Company's (RBOC) territory and bills in another RBOC's territory.
Intermediary function is defined as the delivery of traffic from ICS; a CLEC
other than ICS or another telecommunications carder through the network of
BellSouth or ICS to an end user of ICS; a CLEC other than ICS or another
telecommunications carrier.
Local Interconnection is defined as 1) the delivery of local traffic to be
terminated on each Party's local network so that end users of either Party have
the ability to reach end users of the other Party without the use of any access
code or substantial delay in the processing of the call; 2) the LEC unbundled
network features, functions, and capabilities set forth in this Agreement; and
3) Service Provider Number Portability sometimes referred to as temporary
telephone number portability to be implemented pursuant to the terms of this
Agreement.
Local Traffic is defined as any telephone call that originates in one exchange
and terminates in either the same exchange, or a corresponding Extended Area
Service ("EAS"). The terms Exchange and EAS exchanges are defined and specified
in Section A3 of BellSouth's General Subscriber Service Tariff. The Parties
agree that this definition shall not include traffic that originates from or
terminates to an Enhanced
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General Terms and Conditions - Part B
Page 19
Service Provider (ESP) or Information Service Provider (ISP) until the
Commission, the FCC or a court of competent jurisdiction determines in a final
and nonappealable order that such traffic is Local Traffic. The Parties will
maintain billing records identifying all such Enhanced Service Provider and
Information Service Provider traffic and will adjust, if necessary, their mutual
compensation billing for such local traffic termination consistent with the
final Commission, FCC or court decision. The period of adjustment shall be from
the effective date of this Agreement to the date the order of the Commission,
the FCC or the court becomes final and nonappealable.
Message Distribution is routing determination and subsequent delivery of message
data from one company to another. Also included is the interface function with
CMDS, where appropriate.
Multiple Exchange Carrier Access Billing ("MECAB") means the document prepared
by the Billing Committee of the Ordering and Billing Forum ("OBF"), which
functions under the auspices of the Carrier Liaison Committee of the Alliance
for Telecommunications Industry Solutions ("ATIS") and by Bellcore as Special
Report SR-BDS-000983, Containing the recommended guidelines for the billing of
Exchange Service access provided by two or more LECs and/or CLECs or by one LEC
in two or more states within a single LATA.
Non-intercompany Settlement System (NICS) is the BellCore system that calculates
non-intercompany settlements amounts due from one company to another within the
same RBOC region. It includes credit card, third number and collect messages.
Percent of Interstate Usage (PIU) is defined as a factor to be applied to
terminating access services minutes of use to obtain those minutes that should
be rated as interstate access services minutes of use. The numerator includes
all interstate "non-intermediary" minutes of use, including interstate minutes
of use that are forwarded due to service provider number portability less any
interstate minutes of use for Terminating Party Pays services, such as 800
Services. The denominator includes all "non-intermediary", local, interstate,
intrastate, toll and access minutes of use adjusted for service provider number
portability less all minutes attributable to terminating Party pays services.
Percent Local Usage (PLU) is defined as a factor to be applied to intrastate
terminating minutes of use. The numerator shall include all "non-intermediary"
local minutes of use adjusted for those minutes of use that only apply local due
to Service Provider Number Portability. The denominator is the total intrastate
minutes of use including local, intrastate toll, and access, adjusted for
Service Provider Number Portability less intrastate terminating Party pays
minutes of use.
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General Terms and Conditions - Part B
Page 20
Revenue Accounting Office (RAO) Status Company is a local exchange
company/alternate local exchange company that has been assigned a unique
RAOcode. Message data exchanged among RAO status companies is grouped (i.e.
packed) according to From/To/Bill RAO combinations.
Service Control Points ("SCPs") are defined as databases that store information
and have the ability to manipulate data required to offer particular services.
Signal Transfer Points ("STPs") are signaling message switches that interconnect
Signaling Links to route signaling messages between switches and databases. STPs
enable the exchange of Signaling System 7 ("SS7") messages between switching
elements, database elements and STPs. STPs provide access to various BellSouth
and third party network elements such as local switching and databases.
Signaling links are dedicated transmission paths carrying signaling messages
between carrier switches and signaling networks. Signal Link Transport is a set
of two or four dedicated 56 kbps transmission paths between ICS designated
Signaling Points of Interconnection that provide a diverse transmission path and
cross connect to a BellSouth Signal Transfer Point.
Telecommunications Act of 1996 ("Act") means Public Law 104-104 of the United
States Congress effective February 8, 1996. The Act amended the Communications
Act of 1934 (47, U.S.C. Section 1 et. seq.).
