WHOLESALE SOLUTIONS SWITCHED SERVICES AGREEMENT
THIS AGREEMENT (the "Agreement") is entered into by and between SPRINT
COMMUNICATIONS COMPANY L.P. ("Sprint"), and GTC TELECOM ("Customer"). Sprint
and Customer are "Parties" hereto.
In consideration of the mutual promises contained herein, the Parties agree as
follows:
1. DEFINITIONS. Capitalized terms appearing in bold print are defined in
EXHIBIT 1.
2. CONFIDENTIALITY. During the TERM and thereafter, neither Party shall
disclose any terms of this Agreement, including pricing, or PROPRIETARY
INFORMATION of the other Party. PROPRIETARY INFORMATION shall remain the
property of the disclosing Party. A Party receiving PROPRIETARY INFORMATION
shall: (i) use or reproduce such information only when necessary to perform this
Agreement; (ii) provide at least the same care to avoid disclosure or
unauthorized use of such information as it provides to protect its own
PROPRIETARY INFORMATION; (iii) limit access to such information to its employees
or agents who need such information to perform this Agreement; and (iv) return
or destroy all such information, including copies, after the need for it has
expired, upon request of the disclosing Party, or upon termination of this
Agreement.
Because of the unique nature of PROPRIETARY INFORMATION, a breach of this
paragraph may cause irreparable harm for which monetary damages may be
inadequate compensation. Accordingly, in addition to other available remedies,
a Party may seek injunctive relief to enforce this paragraph.
3. TERM. The TERM is specified in ATTACHMENT A and will begin on the
COMMENCEMENT DATE. "COMMENCEMENT DATE" means the first day of the first billing
month after the Parties sign this Agreement, if Customer signs and returns this
Agreement to Sprint's Wholesale Market and Business Analysis Group by the 8th
day of the current billing month. If the parties meet the requirements of the
preceding sentence, the Agreement's pricing will be effective on the later of:
(a) the date Customer signs this Agreement; or (b) the date that is 45 days
before the Commencement Date. Pricing on invoices may be reflected as a
credit(s) for any usage prior to systemic billing implementation. Except for
pricing, all other arrangements under this Agreement will take effect on the
COMMENCEMENT DATE. If Customer fails to sign and return this Agreement to
Sprint by the 8th day of the current billing month, the COMMENCEMENT DATE will
be the first day of the second billing month following the month in which Sprint
executes this Agreement.
4. TERMINATION FOR CAUSE.
4.1. 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) Customer's assignment
or attempted assignment of the Agreement or any interest therein, except as
permitted by Paragraph 24 hereof; (c) change in majority ownership of Customer
without Sprint'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) material breach of any other provision of this Agreement not otherwise
referred to in Paragraph 4.
4.2. If Customer fails to cure a breach as provided in Paragraph 8 or if
Customer breaches a provision of Paragraph 17 or 18, Sprint may, at its option
and in addition to other remedies available in law or equity, take one or more
of the following steps: (i) refuse to accept additional orders for SERVICE;
(ii) refuse to install new SERVICE types or SERVICE locations; (iii) disconnect
or block ANIs, circuits, or other SERVICE ELEMENTS; (iv) discontinue PROMOTIONAL
DISCOUNTS and or international discount rates for SERVICEs provided until such
time as Customer is in full compliance with this Agreement; and/or (v) terminate
this Agreement without notice.
4.3. Customer may terminate the Agreement upon 30 days written notice if Sprint
fails to cure any non-compliance with subparagraph 16.2 of this Agreement.
4.4. Upon termination of this Agreement a Party may recover from the other all
sums it is owed at the time of termination.
5. TERMINATION WITHOUT CAUSE; EARLY TERMINATION CHARGE.
5.1. Customer may terminate this Agreement at any time without cause upon 90
days prior written notice to Sprint and payment to Sprint of the EARLY
TERMINATION CHARGE described in Subparagraph 5.2. SERVICE will be discontinued
the first business day of the fourth month after such notice of termination.
5.2. SPRINT WHOLESALE SOLUTION 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 Sprint's loss if Customer terminates
the Agreement pursuant to Subparagraph 5.1 or breaches the Agreement prior to
the end of the TERM. Therefore, to compensate Sprint for such loss, and not as
a penalty, Customer shall pay Sprint an EARLY TERMINATION CHARGE in the event of
such termination or breach. The EARLY TERMINATION CHARGE shall equal 50% of the
sum of the MINIMUM COMMITMENT for each month remaining in the TERM when SERVICE
is discontinued pursuant to Subparagraph 5.1 or terminated due to Customer's
breach. The EARLY TERMINATION CHARGE shall be paid within 30 days after the
notice provided pursuant to Subparagraph 5.1.
6. APPLICATION OF TARIFFS AND SPRINT SCHEDULES; INTERSTATE ADJUSTMENT.
6.1. Interstate and international SERVICE shall be provided pursuant to this
Agreement and SPRINT SCHEDULES. The Parties intend for the terms and conditions
of this Agreement and the SPRINT SCHEDULES to be consistent with one another,
and any interpretation should be made so as to avoid any inconsistency to the
extent possible. In the event of a conflict, between this Agreement's terms and
conditions and the SPRINT SCHEDULES, this Agreement's terms and conditions will
control. The fact that a condition, right, obligation or other term appears in
this Agreement's terms and conditions, or in the SPRINT SCHEDULES, but not in
each, will not be interpreted as, or be deemed grounds for finding, a conflict.
6.2. Intrastate SERVICE is provided pursuant to TARIFF in every respect.
PROMOTIONAL DISCOUNTS will not apply to intrastate SERVICE. An INTERSTATE
ADJUSTMENT may be applied based on intrastate usage as provided in ATTACHMENT D.
The INTERSTATE ADJUSTMENT shall be based on intrastate usage at the PRODUCT
HIERARCHY LEVEL and will equal the difference between (a) such usage priced at
TARIFF less TARIFF discounts and (b) such usage priced at the INTERSTATE
ADJUSTMENT RATE in ATTACHMENT D less DISCOUNT ONE discounts. The INTERSTATE
ADJUSTMENT for a given month shall not exceed interstate billing for such month.
6.3. Customer shall pay all applicable TARIFF and SPRINT SCHEDULE charges
including, but not limited to, fixed charges, feature charges, enhanced Toll
Free charges, access facility charges, and installation and other non-recurring
charges. Additionally, Customer will pay, in accordance with applicable TARIFFS
and SPRINT SCHEDULES, any taxes, levies, surcharges, or other costs that Sprint
is obligated to pay to any governmental entity or other third party, provided
that (i) such obligation is imposed by valid and lawful legislation or
regulation, and (ii) such obligation arises out of the use of Sprint's services.
6.4. Sprint may modify or withdraw TARIFFS or SPRINT SCHEDULES from time to
time, which may include discontinuation of any SERVICE without Sprint's
liability. In the event that a SERVICE is discontinued and such discontinuation
materially and adversely affects Customer's ability to do business as
anticipated in this Agreement, then Customer may terminate this Agreement upon
thirty (30) days written notice to Sprint without liability for the EARLY
TERMINATION CHARGE, but must repay to Sprint a prorata
portion of any credits issued under this Agreement, based on the number of
months remaining in the TERM.
6.5. In the event Sprint withdraws its filed TARIFFS or SPRINT SCHEDULES the
TARIFF or SPRINT SCHEDULES (as applicable) terms and conditions in effect on the
date of such withdrawal will continue to apply to this Agreement. After
withdrawal of the applicable TARIFFS or SPRINT SCHEDULES, the terms of this
Agreement will control over any inconsistent provision in the former TARIFFS or
SPRINT SCHEDULES, subject to standard contract interpretation rules. TARIFFS or
SPRINT SCHEDULES not withdrawn shall continue to have the same force and effect.
7. RELATIONSHIP OF PARTIES. Neither this Agreement nor the provision of SERVICE
may be construed to constitute or create an association, joint venture,
partnership or other form of legal entity or business enterprise between
Customer and Sprint, its agents, employees and/or affiliates. Customer is the
service provider with respect to END USERS. Sprint is merely a supplier to
Customer with no relationship to END USERS.
8. USE OF NAME AND MARKS.
8.1 This Agreement confers no right to use the name, service marks, trademarks,
copyrights, patents or CIC of either Party except as expressly provided herein.
Neither Party shall take any action which would compromise the registered
copyrights or service marks of the other. Sprint's name is proprietary and
nothing herein constitutes a general license authorizing its use. Customer may
not: (a) promote or advertise Sprint's name or capabilities to END USERS or
prospective END USERS; (b) attempt to sell its service using Sprint's name; or
(c) represent to END USERS or prospective END USERS that they would be Sprint
customers or that they may obtain Sprint service from Customer.
8.2 Sprint shall provide Customer written notice of a breach of this paragraph.
Customer shall use its best efforts to immediately cure such breach, advising
Sprint of such corrective action. If, in Sprint's opinion, Customer fails to
effect a cure within 15 days of Sprint's notice, then Sprint may, at its option,
terminate the Agreement pursuant to Subparagraph 4.2.
8.3 Sprint's provision of Switched Outbound SERVICE may result in END USERS
being notified by their LEC that Sprint is their designated PIC. Therefore, to
avoid confusion and potential "slamming" complaints, Sprint hereby authorizes
Customer to use Sprint's name under the following conditions to provide END
USERS from whom Customer has obtained a PIC AUTHORIZATION with a fulfillment
piece containing the following Notice (the "Notice"):
We want to affirm how ___ will provide your long distance service. Although ___
will provide your invoice and customer service, we use major national carriers
to actually carry your long distance calls.
After subscribing to our service, you may receive a notice from your local phone
company which says that your long distance "Carrier of Choice" is Sprint. ___
has selected Sprint as the long distance network provider it will use to handle
your calls. That selection was based on your quality and price requirements.
If you have any questions about your order, please call our toll free customer
service number, 1- -___-____.
8.4 If Customer subscribes to Switched Outbound, calls placed by END USERS to
the Sprint access number will be answered "Sprint operator." This may cause
confusion if the END USER does not know its calls are being carried on the
Sprint network. Therefore, to avoid such confusion, Sprint hereby authorizes
Customer to provide END USERS who use Sprint Express with a fulfillment piece
containing the following notice (the "Sprint Express Notice"): "International
call origination may be provided by a Sprint operator." Sprint may withdraw
consent to use the Sprint Express Notice upon 10 days written notice.
9. SERVICE. SERVICES provided hereunder are described in EXHIBIT 2.
10. LEGAL COMPLIANCE; REMEDIES FOR NON-COMPLIANCE.
10.1 Customer represents and warrants that (a) it has obtained appropriate
certificates of public convenience and necessity, licenses and all required
regulatory approvals and that it is legally authorized to provide service as
contemplated under the terms and conditions of this Agreement and (b) it will
immediately notify Sprint in the event such certificates of public convenience
and necessity, licenses or other required regulatory approvals should be
revoked, suspended or, for whatever reason, cease to be effective.
10.2 Customer's failure to comply with paragraph 10.1 above will constitute a
material breach of this Agreement and Sprint may reject END USER ANIS submitted
by Customer for placement under its account and/or terminate this Agreement
immediately. Sprint will resume accepting ANIS only after Customer produces
evidence satisfactory to Sprint that it is in compliance with paragraph 10.1.
11.CUSTOMER DUTIES, OBLIGATIONS AND RESPONSIBILITIES.
11.1 Customer will not be relieved of any duty, obligation or responsibility
hereunder due to the fact that SERVICE is ultimately provided to END USERS.
11.2 Customer represents and warrants that it will comply with all applicable
laws and applicable rules and regulations promulgated by federal and state
regulatory agencies, including, but not limited to, those concerning
interexchange carrier selection. Customer represents and warrants that it will
not submit to Sprint an END USER ANI for activation without obtaining and
maintaining a proper PIC AUTHORIZATION that complies with all applicable federal
and state laws, rules and regulations. Customer shall produce for Sprint's
inspection, at Customer's expense, any PIC AUTHORIZATION within 48 hours after
Sprint's oral or written request, or within any shorter period required by a LEC
or regulatory agency.
11.3 Customer's failure to comply with paragraph 11.2 above will constitute
a material breach of this Agreement and Sprint may refuse to activate additional
ANIS under Customer's account and/or terminate this Agreement immediately.
Sprint will resume accepting ANIS only after Customer produces evidence
satisfactory to Sprint that it is in compliance with paragraph 11.2.
11.4 Customer will reimburse Sprint for any charge assessed by a LEC for
processing a PIC change due to a Customer initiated dispute.
11.5 Customer will defend at Sprint's request, indemnify and hold harmless
Sprint and each of its officers, directors, employees and agents against and in
respect of any loss, debt, liability, damage, obligation, claim, demand,
judgment or settlement of any nature or kind, known or unknown, liquidated or
unliquidated, including without limitation, all reasonable costs and expenses
incurred (legal, accounting or otherwise) (collectively, "Damages") arising out
of, resulting from or based upon any pending or threatened complaint, claim,
action, proceeding or suit by any third party (a "Claim") alleging Customer's
violation of any law or any rule or regulation of a federal or state regulatory
agency, including, but not limited to, those laws, rules and regulations with
respect to the unauthorized switch of an END USER'S preferred interexchange
carrier ("slamming").
11.6 Customer will be solely responsible for END USER solicitation, service
requests, creditworthiness, customer service, billing and collection. Customer
remains responsible for compliance with all terms and conditions of this
Agreement, including, but not limited to, payment responsibilities, without
regard to Customer's ability to charge for SERVICES used by END USERS or to
collect payment from END USERS.
11.7 Customer will be financially responsible for usage generated by each END
USER ANI activated by Sprint until such ANI is presubscribed to another IXC.
Customer may request Sprint to block NETWORK EXTENSION SERVICE to an ANI upon
the END USER'S failure to pay Customer, subject to Customer's prior
certification to Sprint that it has given the END USER any notice required by
any applicable statute, rule or regulation. Customer will reimburse Sprint for
expenses incurred to block an ANI.
11.8 Customer will be solely responsible for amounts it cannot collect from
END USERS, including all fraudulent charges and for billing adjustments it
grants END USERS, including adjustments for fraudulent charges, directory
assistance or any other form of credit.
11.9 Customer will comply with Sprint's network interface procedures when it
orders it own access facilities.
11.10 The minimum installation and disconnect intervals for switched SERVICE
ELEMENTS is 15 calendar days and for dedicated SERVICE ELEMENTS is 35 calendar
days.
12. SERVICE ACTIVATION. Sprint will use reasonable efforts to provide switched
SERVICE within 15 days, and dedicated SERVICE within 30 days, following
Customer's order, or the requested delivery date, whichever is later. These
installation objectives will be extended by the time it takes to address
activation errors or obtain from Customer a complete and accurate order or PIC
AUTHORIZATION. Customer shall reimburse Sprint for LEC imposed fees resulting
from a request to expedite SERVICE.
13. PRICING; FORWARD PRICING; GENERAL CONDITIONS.
13.1. Pricing. SPRINT WHOLESALE SOLUTION BASE RATES and PROMOTIONAL DISCOUNTS
are contained in the ATTACHMENTS hereto.
13.2. Prices in Lieu of Other Discounts. SPRINT WHOLESALE SOLUTION BASE RATES
and PROMOTIONAL DISCOUNTS are extended in lieu of any other TARIFF, SPRINT
SCHEDULE or contractual discount, special pricing, or discount term plan.
Discounts upon discounts are only permitted if expressly provided for herein.
13.3. Prices Contingent on Performance. SPRINT WHOLESALE SOLUTION 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 17, Sprint may, at its option and in addition to
other remedies available in law or equity, take one or more of the following
steps: (i) refuse to accept additional orders for SERVICE; (ii) refuse to
install new SERVICE types or SERVICE locations; (iii) disconnect or block ANIs,
circuits, or other SERVICE ELEMENTS for which full payment has not been made;
and/or (iv) discontinue PROMOTIONAL DISCOUNTS for SERVICEs provided until such
time as Customer is in full compliance with Paragraph 17 of this Agreement.
13.4. Per Minute Charges. SPRINT WHOLESALE SOLUTION BASE RATES are invoiced
based on PER MINUTE CHARGES utilizing the RATE PERIODS and BILLING INCREMENTs in
ATTACHMENT B.
13.5. Non-▇▇▇▇ Switched Origination, Termination and Toll Free Origination
Charges. Customer shall pay the charges specified in ATTACHMENT B for each
originating minute and each terminating minute of an interstate call that
originates and/or terminates in a NON-▇▇▇▇ SERVICE AREA.
13.6. Switched Origination, and Termination Charges. Customer shall pay the
charges specified in ATTACHMENT B for each originating minute and each
terminating minute of an interstate call.
13.7. Promotional Pricing Levels. Customer will receive DISCOUNT ONE and
DISCOUNT TWO discounts applied only to RATE ELEMENTs as provided in ATTACHMENTs
C and D.
13.8. Forward Pricing. As a transition to the pricing hereunder, DISCOUNT TWO
discounts may be based for a period of time on the greater of Customer's actual
DISCOUNT TWO 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 ATTACHMENT A.
14. SURCHARGES.
14.1. Minimum Commitment Surcharge. For any period during which Customer fails
to meet the MINIMUM COMMITMENT stated on ATTACHMENT A, Customer shall pay a
surcharge for SERVICE provided during such period equal to 25% of the difference
between the MINIMUM COMMITMENT for such period and Customer's actual NET USAGE
during such period. Customer's satisfaction of the MINIMUM COMMITMENT shall not
relieve Customer of any credit or security obligations set forth in this
Agreement.
14.2. LEC Cap Surcharge. Any month Customer exceeds the MAXIMUM NON-▇▇▇▇
TRAFFIC PERCENTAGE specified in ATTACHMENT B for any SERVICE type, Customer
shall pay Sprint the per minute surcharge for such SERVICE specified in
ATTACHMENT B for each minute above the MAXIMUM NON-▇▇▇▇ TRAFFIC PERCENTAGE that
originates from or terminates to a NON-▇▇▇▇ SERVICE AREA. MAXIMUM NON-▇▇▇▇
TRAFFIC PERCENTAGES will be calculated independently for originating and
terminating minutes at each PRODUCT HIERARCHY LEVEL.
14.3. Minimum Average Time Requirement Surcharge. Any month Customer fails to
equal or exceed the MINIMUM AVERAGE TIME REQUIREMENT specified in ATTACHMENT B
for SERVICES specified in ATTACHMENT B, then Customer shall pay Sprint a per
minute surcharge on such usage equal to (a) the per minute surcharge specified
in ATTACHMENT B multiplied by (b) the difference between (i) the number of
minutes the SERVICE was used and (ii) the number of calls using the SERVICE
multiplied by the MINIMUM AVERAGE TIME REQUIREMENT. This surcharge shall be
calculated at each PRODUCT HIERARCHY LEVEL.
14.4. Noncomplete Call Surcharge. Any month Customer exceeds the MAXIMUM
NONCOMPLETE TOLL FREE CALL PERCENTAGE for interstate Dedicated Toll Free, Toll
Free Extension, and/or interstate Switched Toll Free traffic as stated on
ATTACHMENT B, Customer shall pay Sprint a surcharge equal to the amount stated
in ATTACHMENT B for each NONCOMPLETE TOLL FREE CALL in excess of the MAXIMUM
NONCOMPLETE TOLL FREE CALL PERCENTAGE. This surcharge shall be calculated at
each PRODUCT HIERARCHY LEVEL.
14.5. Minimum Port Usage Surcharge. Any month Customer fails to equal or
exceed the MINIMUM PORT USAGE per ACTIVE DEDICATED OUTBOUND PORT (calculated as
Customer's actual NET USAGE for Dedicated Outbound SERVICE divided by Customer's
total number of ACTIVE DEDICATED OUTBOUND PORTs at each PRODUCT HIERARCHY LEVEL)
as stated on ATTACHMENT A, Customer shall pay Sprint a surcharge on its
Dedicated Outbound SERVICE usage equal to the difference between (a) Customer's
actual NET USAGE for Dedicated Outbound SERVICE and (b) the MINIMUM PORT USAGE
multiplied by the total number of ACTIVE DEDICATED OUTBOUND PORTS.
15. SERVICE CHARGES.
For each END USER ANI or Toll Free number Customer submits for activation that
requires Sprint to disconnect or transfer such ANI or Toll Free number from
Sprint's data base before placing it within Customer's CTIS hierarchy, Customer
will pay to Sprint a service charge of $25.00. Notwithstanding the foregoing,
the service charge described in this paragraph 15 will be waived if such ANIs,
or Toll Free numbers do not exceed 15% of the total ANIs or Toll Free numbers
submitted by Customer during the immediately preceding ninety (90) days.
16. SPECIAL RATE ADJUSTMENTS.
16.1. Sprint may adjust the price of SERVICE provided hereunder to reflect
changes in international cost of service or currency exchange rates. Price
decreases will be effective as stated in notice to Customer or immediately upon
notification if no specific effective date is noted. Price increases will be
effective upon 5 days' notice to Customer.
16.2. Sprint will unilaterally amend ATTACHMENT B switched origination and
switched termination access charges effective on the first day of January and
July. The adjustment will consider increases and/or decreases in statewide
average minute of use originating and terminating interstate LEC access charges
imposed on Sprint during a measurement period ending approximately ninety (90)
days prior to the effective date of the amendment. Customer will pay amended
ATTACHMENT B charges for SERVICE usage beginning on the effective date of the
amendment until the effective date of the succeeding amendment. ATTACHMENT B
charges apply only to those SERVICEs identified in ATTACHMENT B, paragraph
B.13.6.
17. PAYMENT FOR SERVICE.
17.1. Payment Obligation. Customer shall pay Sprint for SERVICE pursuant to
the terms of this Agreement and applicable TARIFFS and SPRINT SCHEDULES.
17.2. Call Detail. Sprint will provide Customer with a Carrier Transport Call
Detail Record file containing Customer's SERVICE usage. Sprint may, at its
option and without liability to Customer, modify the format of the Carrier
Transport Call Detail Record file upon sixty (60) days written notice to
Customer.
17.3. Payment Procedure. Sprint will invoice Customer monthly for SERVICEs
provided hereunder. Invoices shall be due and payable upon thirty days from
invoice date. All undisputed charges for SERVICEs provided that remain unpaid
by Customer for a period of thirty (30) days or more after the date of the
invoice will be subject to interest from the date of the invoice at a rate of up
to one and one-half percent (1-1/2%) per month, or the maximum rate allowable by
applicable law. If Customer fails to pay for services in accordance with the
terms set forth in this Section, Sprint may, at its option and in addition to
other remedies available in law or equity, take one or more of the following
steps: (i) refuse to accept additional orders for SERVICE; (ii) refuse to
install new SERVICE types or SERVICE locations; (iii) disconnect or block ANIs,
circuits, or other SERVICE ELEMENTS for which full payment has not been made;
and/or (iv) discontinue PROMOTIONAL DISCOUNTS for SERVICEs provided until such
time as Customer is in full compliance with this Paragraph 17. The price of
SERVICE is exclusive of applicable taxes. RESALE SOLUTION BASE RATES and
PROMOTIONAL DISCOUNTS are contingent on Customer providing Sprint with
certificates from appropriate taxing authorities exempting Customer from taxes
that would otherwise be invoiced hereunder.
17.4. Billing Disputes. In the event Customer, in good faith, disputes Sprint's
computation of amounts due and owing within all applicable legal periods of
limitation, Customer may withhold payment of the disputed amount. Customer must
pay all charges which are not in dispute in accordance with the payment terms
set forth in this Section. An amount will not be considered "in dispute" until
Customer has provided Sprint with written documentation explaining the disputed
amount and describing the factual and legal basis of the dispute. Customer must
cooperate with Sprint to resolve any dispute expeditiously. All disputed amounts
are due and payable immediately upon Sprint's written denial of the dispute.
18. PAYMENT SECURITY. Provision of SERVICE is contingent on credit approval by
Sprint. Upon request by Sprint, Customer shall provide Sprint with financial
statements or other indications of Customer's financial and business
circumstances. If Customer's financial or business circumstances or payment
history is or, during the TERM, becomes unacceptable to Sprint, then Sprint may
require a deposit, irrevocable letter of credit or other form of security
acceptable to Sprint. Customer's failure to provide such security within 10
days following Sprint's reasonable request shall constitute a default under
Subparagraph 4.2.
19. PROPERTY AND PERSONAL INJURY INDEMNIFICATION. Each Party agrees to
indemnify, hold harmless, and defend the other Party, its directors, officers,
employees, agents and their successors and assigns from and against any and all
claims, demands, causes of action, losses, damages, expenses or liabilities,
including costs and reasonable attorney's fees, arising out of claims made by
third parties for personal injury (or death) or loss or damage to personal
property, arising out of or related to the negligent or willful misconduct,
errors or omissions, of the indemnifying Party or its subcontractors, directors,
officers, employees, agents or representatives. Claims made by employees of a
Party which are covered under applicable workers' compensation laws are not
indemnified hereunder.
20. PROPRIETARY RIGHTS INDEMNITY. If Customer is made the subject of any claim
or lawsuit by reason of its use of the SERVICEs provided hereunder based on the
allegation that the SERVICE as provided by Sprint constitutes an infringement of
any third party patent, copyright or trade secret, enforceable in countries
ratifying the Berne Convention, Customer will promptly notify Sprint thereof in
writing. Sprint will defend and indemnify Customer against all such claims,
demands, and causes of action based on the actual or alleged infringement of any
such third party right. The indemnities set forth in this Section will include,
without limitation, all penalties, awards and judgments, all court and
arbitration costs, attorney's fees and other out-of-pocket costs reasonably
incurred in connection with such claims, demands and causes of action. Sprint
will have sole discretion to settle or compromise such claim or lawsuit without
the written consent of Customer provided that such settlement or compromise does
not require Customer to make any payment not indemnified. Sprint will have the
sole right to retain and select counsel to represent its interests in defending
any such claim or litigation as part of its indemnification obligation
hereunder. Sprint will not reimburse Customer for its attorneys' fees and costs
in connection with Customer's separate retention of counsel, unless Sprint will
have wrongly failed to defend and indemnify Customer.
If any action results in a final injunction against Customer with respect to the
SERVICEs provided pursuant to this Agreement, Sprint agrees that it will at its
option and its sole expense, either (1) procure for Customer the right to
continue using the infringing SERVICEs or (2) replace or modify the same so that
it becomes non-infringing or (3) substitute for the SERVICEs non-infringing
replacement SERVICEs having a capability equivalent to the SERVICEs provided
herein. If none of the foregoing alternatives is reasonably available to
Sprint, then Customer will have the right to terminate the affected portions of
this Agreement. Sprint will have no liability under this indemnity provision to
the extent the claim is based on a use, a modification, or a combination of
Sprint SERVICEs with products, goods or services not directly provided by
Sprint.
21. LIMITATION OF LIABILITY.
21.1 SPRINT'S ENTIRE LIABILITY RESULTING FROM ITS FAILURE TO PERFORM ANY OF ITS
OBLIGATIONS UNDER THIS AGREEMENT IN NO EVENT WILL EXCEED AN AMOUNT EQUAL TO THE
NET USAGE CHARGES PAID TO SPRINT BY CUSTOMER DURING THE THREE (3) MONTHS
IMMEDIATELY PRECEDING THE EVENT OUT OF WHICH THE LIABILITY AROSE. SPRINT
WILL NOT BE LIABLE FOR ANY UNAVOIDABLE DAMAGE TO CUSTOMER'S PREMISES.
21.2 IN NO EVENT WILL SPRINT BE LIABLE FOR ANY CONSEQUENTIAL, INCIDENTAL OR
INDIRECT DAMAGES FOR ANY CAUSE OF ACTION, WHETHER IN CONTRACT OR TORT.
INCIDENTAL, CONSEQUENTIAL, OR INDIRECT DAMAGES INCLUDE, BUT ARE NOT LIMITED TO,
LOST PROFITS OR REVENUES AND LOSS OF BUSINESS OPPORTUNITY, WHETHER OR NOT SPRINT
WAS AWARE OR SHOULD HAVE BEEN AWARE OF THE POSSIBILITY OF SUCH DAMAGES.
21.3 WITH RESPECT TO THE SERVICES, MATERIALS AND EQUIPMENT PROVIDED
HEREUNDER, SPRINT HEREBY DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, NOT
EXPLICITLY STATED IN THE AGREEMENT, AND IN PARTICULAR DISCLAIMS ALL WARRANTIES
OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
22. ARBITRATION. Any dispute arising out of or relating to the Agreement may,
at the option of the Parties, be finally settled by arbitration. If the Parties
elect arbitration, such arbitration will be in accordance with the rules of the
American Arbitration Association. The arbitration will be governed by the
United States Arbitration Act, 9 U.S.C. Sec. 1, et. seq., and judgment upon the
award rendered by the arbitrator(s) may be entered by any court with
jurisdiction. The arbitration will be held in the Kansas City, MO metropolitan
area.
23. NOTICES. All notices or other communications required or permitted under
this Agreement (excluding invoices) will be in writing and sent by: (a)
facsimile with a copy sent by regular or overnight mail; or (b) certified mail;
or (c) overnight mail; or (d) electronic mail, addressed to the Parties as
follows:
If to Sprint: Sprint Communications Company L.P.
Attention: Vice President-Wholesale Services
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
With copy to: Sprint Communications Company L.P.
Attn: Law Dept. - Marketing & Sales (Business)
KSOPHT0101-Z2525
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
If to Customer:
Attention:
Email Address:
24. ASSIGNMENT. Customer may not assign or delegate its responsibilities,
duties, rights or obligations under this Agreement to any person, corporation or
other entity without the written consent of Sprint, such consent not to be
unreasonably withheld.
25. EXCUSABLE DELAY.
25.1 Except for the performance of obligations set forth in Paragraphs 17 and
18 of this Agreement, Sprint and Customer agree that neither Party will be
responsible for any delay, interruption or other failure to perform hereunder
due to acts beyond the control of the responsible Party. Such acts include, but
are not limited to, natural disasters such as lightening, earthquakes,
hurricanes, floods or other like causes; war, riot, civil commotion; cable cuts;
explosion or fire; embargoes, strikes or labor disputes; or decrees of
governmental entities.
25.2 The affected Party will give notice to the other Party in the event of any
of the foregoing occurrences. Upon such notice, Sprint may cancel or delay
performance for as long as such performance is delayed by such occurrence or
occurrences, and in such event will have no liability to Customer. Should such
occurrence continue for more than 60 days and adversely and materially impact
the other party, such other party may terminate this Agreement without liability
upon payment for all SERVICEs delivered prior to the date of such termination,
plus all other charges and costs then incurred.
26. HEADINGS. The headings set forth in this Agreement are for purposes of
reference only and do not in any way limit or otherwise affect the meaning or
interpretation of any of the terms of this Agreement.
27. CHOICE OF LAW. This Agreement and all claims relating to the relationship
between Sprint and Customer, including all claims in tort, contract, at law or
in equity will be governed by, construed, enforced and interpreted in accordance
with the laws of the state of Kansas without regard to the choice of law
principles thereof.
28. RULES OF CONSTRUCTION. No rule of construction requiring interpretation
against the draftsman shall apply in the interpretation of this Agreement.
29. MODIFICATION OF AGREEMENT. This Agreement may be modified only by written
amendment, executed by officers of Customer and Sprint. Any oral agreement
contrary to the terms of any SERVICE Agreement will not be admissible in any
dispute, whether in a court of law or in arbitration.
30. WAIVER OF TERMS. If either Party fails, at any time, to enforce any right or
remedy available to it under this Agreement, that failure will not be construed
to be a waiver of the right or remedy with respect to any other breach or
failure by the other Party.
31. PARTIAL INVALIDITY. In the event any of the provisions of this Agreement are
held to be invalid, illegal, or unenforceable, the unaffected provisions of this
Agreement will be unimpaired and remain in full force and effect. Sprint and
Customer will negotiate to substitute for such invalid, illegal or unenforceable
provision a mutually acceptable provision consistent with the original intention
of the Parties
32. CUMULATIVE REMEDIES. Except as otherwise provided herein, the remedies
provided for in this Agreement are in addition to any other remedies available
at law or in equity.
33. ENTIRE AGREEMENT. This Agreement, including EXHIBITS, ATTACHMENTS, and the
documents and instruments referred to herein, constitutes the entire
understanding between the Parties relating to its subject matter and supersedes
all prior or contemporaneous negotiations or agreements, whether oral or
written, relating to the subject matter hereof. Customer is not relying upon
any representations or promises made by or on behalf of Sprint in entering into
this Agreement.
34. EXPIRATION OF OFFER. Sprint'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 ATTACHMENT A.
EXECUTED and made effective when signed below by both parties.
GTC TELECOM SPRINT COMMUNICATIONS COMPANY L.P.
By: By:
Art ▇▇▇▇▇▇▇▇▇
Title: Vice President, Wholesale Services Group
Date: Date:
EXHIBIT 1
DEFINITIONS
Capitalized terms appearing in bold print in the Agreement, its EXHIBITS and
ATTACHMENTs are defined as follows:
"ACTIVE DEDICATED OUTBOUND PORT" means a Customer access port (DS-0 equivalent)
connected to Sprint and activated as Dedicated Outbound Service.
"ANI" means a calling telephone number identification which is forwarded to an
IXC by a LEC as a call is placed.
"ASSOCIATED LOCATION" means a physical premise to or from which Sprint 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.
"BILLING INCREMENT" means a Tariffed or SPRINT SCHEDULED billing increment,
unless otherwise stated in ATTACHMENT B.
"CALLING CARD" means a card issued to an END USER in Customer's name containing
an authorization code that the END USER may use to originate calls over Sprint's
network as provided in EXHIBIT 2.
"CIC" means an IXC carrier identification code.
"CTIS" means Sprint's Carrier Transport Invoicing System.
"DAY RATE PERIOD" means the Tariff or SPRINT SCHEDULE day rate period unless
otherwise specified herein.
"DISCOUNT ONE" means a RATE ELEMENT specific discount that (1) is based on
Customer's DISCOUNT ONE MONTHLY VOLUME OF SERVICE and (2) is applied to usage at
the SERVICE HIERARCHY LEVEL that has been priced at SPRINT WHOLESALE SOLUTION
BASE RATES.
"DISCOUNT ONE MONTHLY VOLUME OF SERVICE" means the volume of Customer's monthly
usage, at each PRODUCT HIERARCHY LEVEL, for a specific RATE ELEMENT priced at
SPRINT WHOLESALE SOLUTION BASE RATES.
"DISCOUNT RATE PERIOD" means the SPRINT SCHEDULE international discount rate
period unless otherwise specified herein.
"DISCOUNT THREE" means a RATE ELEMENT specific discount that (1) is based on
Customer's DISCOUNT THREE MONTHLY VOLUME OF SERVICE and (2) is applied at the
PRODUCT HIERARCHY LEVEL or the SERVICE HIERARCHY LEVEL to interstate or
international usage to the LATAs or countries specified in ATTACHMENT C.
"DISCOUNT THREE MONTHLY VOLUME OF SERVICE" means the volume of Customer's
monthly usage, at the PRODUCT HIERARCHY LEVEL or SERVICE HIERARCHY LEVEL, of
interstate or international minutes to the specific LATAs or countries
identified in ATTACHMENT C and priced based on the usage levels and RATE PERIODS
specified in ATTACHMENT C.
"DISCOUNT TWO" means a RATE ELEMENT specific discount that (1) is based on
Customer's DISCOUNT TWO MONTHLY VOLUME OF SERVICE and (2) is applied to usage at
the SERVICE HIERARCHY LEVEL that has been priced at SPRINT WHOLESALE SOLUTION
BASE RATES less DISCOUNT ONE discounts.
"DISCOUNT TWO MONTHLY VOLUME OF SERVICE" means the volume of Customer's monthly
usage, at the MASTER HIERARCHY LEVEL, of all RESALE SOLUTION SERVICEs, including
directory assistance SERVICEs, priced at SPRINT WHOLESALE SOLUTION BASE RATES
after the application of DISCOUNT ONE discounts, but prior to the application of
DISCOUNT TWO discounts. DISCOUNT TWO MONTHLY VOLUME OF SERVICE does not include
SPRINT WHOLESALE SOLUTION SERVICE charges that are not based on usage, Clearline
Service charges, 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.
"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 SPRINT SCHEDULE international economy rate
period.
"END USER" means a customer of Customer to whom Sprint extends NETWORK EXTENSION
SERVICE at a NON-ASSOCIATED LOCATION.
"EVENING RATE PERIOD" means the TARIFF or SPRINT SCHEDULE evening rate period
unless otherwise specified herein.
"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.
"FORWARD PRICING VOLUME OF SERVICE" means the volume of service specified in
ATTACHMENT A upon which DISCOUNT TWO discounts may be based as provided in
Subparagraph 13.8 of the Agreement.
"INTERSTATE ADJUSTMENT" means the adjustment under Subparagraph 6.2 to the
invoice for interstate usage that is based on the level of intrastate usage.
"INTERSTATE ADJUSTMENT RATE" means the rate identified in ATTACHMENT D that is
used to determine the INTERSTATE ADJUSTMENT as provided in Subparagraph 6.2.
"IXC" means interexchange carrier.
"LEC" means local exchange carrier.
"MASTER HIERARCHY LEVEL" means billing hierarchy level 1.
"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 PRODUCT HIERARCHY LEVEL.
"MAXIMUM NON-▇▇▇▇ TRAFFIC PERCENTAGE" means, for each month, the ratio,
expressed as a percentage, of (i) the number of minutes during such period that
originate from, or terminate in, a NON-▇▇▇▇ SERVICE AREA, divided by (ii) the
total number of minutes during such period. MAXIMUM NON-▇▇▇▇ TRAFFIC
PERCENTAGEs will be calculated independently for originating and terminating
minutes at the PRODUCT HIERARCHY LEVEL.
"MINIMUM AVERAGE TIME REQUIREMENT" means the minimum average call duration,
expressed in minutes, for SERVICEs as specified in ATTACHMENT B. MINIMUM
AVERAGE TIME REQUIREMENT calculations will be made at each PRODUCT HIERARCHY
LEVEL.
"MINIMUM COMMITMENT" means the minimum monthly usage commitment stated on
ATTACHMENT A. The calculation to determine whether Customer has met the MINIMUM
COMMITMENT shall be based on Customer's invoiced NET USAGE.
"MINIMUM PORT USAGE" means the minimum NET USAGE for Dedicated Outbound Service
stated on ATTACHMENT A that Customer shall generate per ACTIVE DEDICATED
OUTBOUND PORT.
"NETWORK EXTENSION SERVICE" means SERVICE that Sprint extends to the
NON-ASSOCIATED LOCATION of an END USER.
"NET USAGE" means the monthly amount invoiced for use of a SERVICE net of
DISCOUNT ONE, DISCOUNT TWO and DISCOUNT THREE 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; Noncomplete Call Surcharges;
FONCard surcharges; and LEC Cap Surcharges.
"NIGHT/WEEKEND RATE PERIOD" means the TARIFF or SPRINT SCHEDULE night/weekend
rate period unless otherwise specified herein.
"NONCOMPLETE TOLL FREE CALL" means an attempted Switched Toll Free, Dedicated
Toll Free, or Toll Free Extension call that is not completed to the called
number for any reason.
"NON-ASSOCIATED LOCATION" means any physical premise to or from which Sprint
provides SERVICE that is not an ASSOCIATED LOCATION.
"NON-▇▇▇▇ SERVICE AREA" means the geographic service area of any "independent"
LEC which is not a ▇▇▇▇ Operating Company.
"OFF PEAK RATE PERIOD" means (a) the EVENING RATE PERIOD and the NIGHT/WEEKEND
RATE PERIOD for interstate traffic 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 and (b)
the STANDARD RATE PERIOD for international traffic.
"PER MINUTE CHARGE" means the per minute charge for SERVICE as set forth in
EXHIBIT C based on RATE PERIODS and BILLING INCREMENTs stated in ATTACHMENT B.
"PIC " means primary interexchange carrier
"PIC AUTHORIZATION" means an END USER's selection of a PIC that meets the
requirements of federal and state law.
"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 ATTACHMENT A for which
Sprint shall be Customer's PRIMARY CARRIER.
"PRODUCT HIERARCHY LEVEL" means the fifth 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 DISCOUNT ONE, LEC
Cap Surcharges, MINIMUM AVERAGE TIME REQUIREMENT Surcharges, NONCOMPLETE TOLL
FREE CALL Surcharges and MINIMUM PORT USAGE Surcharges.
"PROMOTIONAL DISCOUNTS" is a collective reference to DISCOUNT ONE, DISCOUNT TWO,
DISCOUNT THREE and INTERSTATE ADJUSTMENTs.
"PROPOSAL DATE" means the date indicated on ATTACHMENT A that the Agreement is
offered by Sprint to Customer.
"PROPRIETARY INFORMATION" means (a) written information of a Party which is
clearly and conspicuously marked as proprietary or confidential or which is
accompanied by written notice that such information is confidential, or (b) a
verbal communication which is subsequently confirmed in writing to the other
Party as confidential or proprietary information which (i) is maintained in
confidence and secrecy by the disclosing Party, (ii) is valuable to the
disclosing Party because of such confidence or secrecy, and (iii) is subject to
the disclosing Party's reasonable efforts to maintain such confidentiality and
secrecy. PROPRIETARY INFORMATION shall not include information which (1) is at
any time in the public domain other than through wrongdoing on the part of an
entity owing a duty of confidentiality to the disclosing Party, (2) is within
legitimate possession of the receiving Party without obligation of
confidentiality, (3) is lawfully received from a third party having rights
therein without restriction of the right to disseminate the information, (4) is
independently developed without breach of any obligation of confidentiality
through parties without access to or knowledge of such PROPRIETARY INFORMATION,
(5) is disclosed with prior written approval of the other Party, (6) is
transmitted after the disclosing Party has received written notice from the
receiving Party that it does not desire to receive further PROPRIETARY
INFORMATION, or (7) is obligated to be produced under order of a court of
competent jurisdiction.
"RATE ELEMENT" means a jurisdictional element of the rate for a particular
SERVICE. For example, Dedicated Outbound rates consist of separate RATE
ELEMENTS for interstate, intrastate, Canada, Mexico domestic, Mexico
international, other international, and directory assistance usage.
"RATE PERIODS" is a collective reference to the DAY RATE PERIOD, DISCOUNT RATE
PERIOD, ECONOMY RATE PERIOD, EVENING RATE PERIOD, NIGHT/WEEKEND RATE PERIOD, OFF
PEAK RATE PERIOD, PEAK RATE PERIOD, and STANDARD RATE PERIOD.
"SERVICE" means the service identified in the EXHIBITS and ATTACHMENTS that
Sprint shall provide and Customer shall purchase hereunder.
"SERVICE ELEMENT" means any line, circuit or other unit of a SERVICE. In the
case of switched or virtual SERVICEs, "SERVICE ELEMENT" means switched or
virtual SERVICES provided at a Customer location.
"SERVICE HIERARCHY LEVEL" means the sixth and lowest level in the Customer's
billing hierarchy.
"SPRINT SCHEDULE(S)" means the applicable schedule posted by Sprint on Sprint's
web site at ▇▇▇.▇▇▇▇▇▇.▇▇▇/▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇, under "Rates for Business."
"SPRINT WHOLESALE FONCARD SERVICE" means a SERVICE consisting of a Sprint
authorization code incorporated into Customer's CALLING CARD which, together
with Customer's service enhancements, is provided to END USERS for use in
originating calls over Sprint's network as provided in EXHIBIT 2.
"SPRINT WHOLESALE SOLUTION BASE RATES" means the prices provided herein for
SPRINT WHOLESALE SOLUTION SERVICE.
"SPRINT WHOLESALE SOLUTION SERVICE" means switched SERVICE purchased under the
Agreement and invoiced under CTIS.
"STANDARD RATE PERIOD" means the SPRINT SCHEDULE standard rate period for
international SERVICE unless otherwise specified herein.
"TARIFF(S)" means any applicable tariff filed by Sprint with a state regulatory
commission for intrastate SERVICE. Should Sprint 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.
EXHIBIT 2
SERVICES
The following SERVICEs are provided pursuant to the Agreement:
1. OUTBOUND SERVICE.
1.1. SPRINT WHOLESALE DEDICATED OUTBOUND AND SPRINT WHOLESALE OUTBOUND
EXTENSION. Dedicated Outbound and Outbound Extension as further defined below
are provided hereunder for switched outbound traffic with interstate or
international termination that originates over dedicated special access (DS-1 or
DS-3) circuits.
1.2. SPRINT WHOLESALE DEDICATED OUTBOUND (also referred to herein as Dedicated
Outbound). Dedicated Outbound is SERVICE subscribed to, and paid for, by
Customer that originates from an ASSOCIATED LOCATION. Dedicated Outbound may be
obtained only by a carrier with its own CIC.
1.3. SPRINT WHOLESALE OUTBOUND EXTENSION (also referred to herein as Outbound
Extension). Outbound Extension is SERVICE subscribed to, and paid for, by
Customer but connected directly to a NON-ASSOCIATED LOCATION.
1.4. SPRINT WHOLESALE SWITCHED OUTBOUND (also referred to herein as Switched
Outbound). Switched Outbound is provided hereunder for switched access outbound
traffic utilizing Feature Group D protocol having interstate or international
termination.
2. TOLL FREE SERVICE.
2.1. SPRINT WHOLESALE DEDICATED TOLL FREE and SPRINT WHOLESALE TOLL FREE
EXTENSION. Dedicated Toll Free and Toll Free Extension as further defined below
are provided hereunder for Customer switched inbound traffic with interstate or
international origination that terminates over dedicated special access (DS-1 or
DS-3) circuits.
2.2. SPRINT WHOLESALE DEDICATED TOLL FREE (also referred to herein as Dedicated
Toll Free). Dedicated Toll Free is Toll Free SERVICE subscribed to, and paid
for, by Customer that terminates to an ASSOCIATED LOCATION. Dedicated Toll Free
may be obtained only by a carrier with its own CIC.
2.3. SPRINT WHOLESALE TOLL FREE EXTENSION (also referred to herein as Toll Free
Extension). Toll Free Extension is Toll Free SERVICE subscribed to, and paid
for, by Customer but connected directly to a NON-ASSOCIATED LOCATION.
2.4. SPRINT WHOLESALE SWITCHED TOLL FREE (also referred to herein as Switched
Toll Free). Switched Toll Free is provided hereunder for switched inbound
traffic, terminating on Feature Group D protocol, having interstate or
international origination.
2.5. INTERNATIONAL TOLL FREE ORIGINATION. International Toll Free SERVICE
("ITFS") shall be provided subject to availability. Because of a limited
quantity of Toll Free numbers in some countries, Sprint may, as it deems
appropriate, after 30 days notice, disconnect any ITFS number which does not
generate at least 60 minutes of usage during any period of three consecutive
months. ITFS traffic must be terminated directly in the continental U.S. If
reorigination occurs, ITFS traffic is subject to foreign PTT interruption and is
beyond Sprint's control. ITFS SERVICE shall be provided pursuant to SPRINT
SCHEDULE, including rates, discounts and Toll Free number charges, unless
otherwise provided herein.
3. DIRECTORY ASSISTANCE.
3.1. INTERSTATE. Interstate directory assistance provided hereunder must have
a domestic origination over Customer's circuits. Sprint may modify directory
assistance prices provided in the Agreement to reflect changes in LEC directory
assistance charges.
3.2. INTERNATIONAL. International directory assistance is provided pursuant to
SPRINT SCHEDULE. International directory assistance must have a domestic
origination over Customer's circuits and request numbers must be located in the
countries listed in SPRINT SCHEDULE NO. 1, Section 2.1. International directory
assistance may be obtained by calling a Sprint operator who will request the
number from the appropriate country's international operator. Sprint may modify
directory assistance prices provided in the Agreement to reflect changes in
directory assistance charges of other countries.
3.3. TOLL FREE DIRECTORY LISTINGS. Customer's Toll Free numbers shall not be
eligible for any toll free directory listing at Sprint's expense.
4. SPRINT WHOLESALE FONCARD SERVICE.
4.1. SPRINT WHOLESALE FONCARD SERVICE (also referrred to herein as FONCard)
consists of an authorization code issued by Sprint which Customer will
incorporate into a CALLING CARD. The CALLING CARD, together with Customer
provided service enhancements, will be provided in Customer's name to END USERs
who may use the card to originate calls over Sprint's network in the contiguous
U.S. and selected countries. Sprint will transport Customer's CALLING CARD
traffic with the same quality as Sprint FONCard traffic.
4.2. Availability. SPRINT WHOLESALE FONCARD SERVICE is provided subject to (a)
availability and compatibility of facilities, (b) Customer fulfillment, and (c)
Toll Free access origination, which Customer agrees may be withheld by Sprint in
certain LATAs because of facility constraints.
4.3. Activation. Sprint will provide Customer with activated authorization
codes to be imprinted on Customer's CALLING CARDS. The codes will be provided
within 30 days following Customer's request and notice to Sprint of Customer's
fulfillment vendor.
4.4. Toll Free Access. Customer may elect CALLING CARD access to a Sprint
operator using either a "Generic" or "Branded" Toll Free access number. The
operator response to a Generic Toll Free call will be similar to: "Long
Distance, may I help you?" Calls to a Branded access number will be answered by
an operator assigned exclusively to Customer. Operator response to Branded
access calls will be similar to: "(Customer) Long Distance Operator."
Customer shall pay a non-recurring charge for establishing account access as
provided in ATTACHMENT B.
4.5. Service Representative. Sprint will designate a representative to provide
Customer service. This representative will not be available for direct contact
by END USERs.
4.6. Non-Emergency Deactivation. Sprint will advise Customer of the process
for requesting non-emergency deactivation of an authorization code. Sprint may
periodically deactivate unused authorization codes to minimize potential fraud.
Sprint will notify Customer of any such deactivation. Emergency deactivation is
provided for in Subparagraph 4.9 of this ATTACHMENT.
4.7. Remedy for Service Failure. Notwithstanding anything to the contrary in
Subparagraph 4.1(e) of the Agreement, Customer's sole and exclusive remedy for
failure of a particular SPRINT WHOLESALE FONCARD SERVICE shall be
discontinuation of the affected SERVICE subject to Paragraph 25 of the
Agreement.
4.8. Customer Obligations. Customer shall, at Customer's expense: (a) design,
manufacture and distribute its CALLING CARDS; (b) solicit END USERs in its own
name in compliance with Paragraph 8 of the Agreement; (c) address END USER
service requests; (d) determine END USER creditworthiness; (e) define its
relationship with END USERs relative to its CALLING CARD service by tariff or
contract; (f) provide CALLING CARD fulfillment using a bonded fulfillment
vendor; (g) supply its fulfillment vendor with necessary END USER information;
(h) maintain its own END USER data base; (i) provide END USER customer service,
billing and collection; (j) maintain its own END USER customer service number,
which shall be printed on each CALLING CARD; (k) establish internal CALLING CARD
management procedures; (l) monitor for fraud and code abuse; and (m) cooperate
and interface with Sprint to prevent fraud or code abuse as provided herein.
Customer shall provide Sprint with all order authorizations, service
applications and information that Sprint requires to establish and maintain
SPRINT WHOLESALE FONCARD SERVICE and proper invoicing.
Customer shall be liable for (a) all usage charged to an activated authorization
code after the code is provided to Customer or its agent, (b) non payment by END
USERs, and (c) billing adjustments granted to END USERs as provided in
Subparagraph 11.6 of the Agreement.
Customer shall indemnify and hold Sprint harmless from any claim or damages
resulting from Sprint's deactivation of an authorization code at Customer's
request.
4.9. Code Abuse; Fraud; Emergency Deactivation. Sprint and Customer will
cooperate to deter CALLING CARD fraud and code abuse. Sprint will monitor usage
of Customer CALLING CARDS to detect fraud or code abuse in the same manner that
it monitors FONCard usage of its own customers. This activity will not create
any liability on the part of Sprint resulting from code abuse or fraud.
Customer shall be liable for all usage charged to an activated authorization
code that results from fraud or code abuse.
Sprint will notify Customer of (a) the process Customer may use to obtain
emergency deactivation of a lost or stolen CALLING CARD and (b) the process
Sprint will use to notify Customer of suspected fraud or code abuse.
Customer shall maintain a 7 day per week, 24 hour per day, contact that Sprint
will immediately notify if fraud or code abuse is suspected. Customer shall
advise Sprint within 30 minutes after receiving such notice whether it wants the
authorization code deactivated. If Sprint is unable to reach Customer's
contact, or if Customer fails to respond to Sprint's notice within 30 minutes,
Sprint may, in its discretion, deactivate the authorization code and advise
Customer of its actions. Sprint shall incur no liability for such deactivation.
Sprint shall be liable for calls charged to an authorization code after a period
of 4 hours following an appropriate emergency deactivation request.
Requests for credit pursuant to this subparagraph shall be supported by
appropriate documentation. Sprint will investigate and, in its discretion,
either approve or reject such requests. Notwithstanding anything in Paragraph
18 of the Agreement, the amount of any credit request under this subparagraph
shall not be deducted as a disputed charge prior to payment of an invoice.
5.0. ANI Screening Suppression. In the event Sprint provides ANI Screening
Suppression (ANI-S-S) to any of the Parties executing this Agreement below, such
Party: (i) agrees that all fraud monitoring is disabled, therefore, Party
accepts full responsibility for any and all fraud liability; (ii) will not
utilize the same trunk for both reseller equal access traffic and resale
cellular traffic, (iii) will block access to any and all Sprint 800 access
numbers as well as 10333 access, if technically capable, and (iv) agrees that
the following restrictions apply to ANI Screening Suppression:
- Is only supported on dedicated FGD originations for Sprint Wholesale
Dedicated Outbound and Sprint Wholesale Dedicated Extension services
- Renders reseller ineligible for products and services that require Feature
Look-Ups to the SCP
- Disallows fraud blocks - applies to entire switch/trunk group
- Supports only domestic ANI delivery
- Does not support ANI based features such as Class Of Service, Account
Code, Bong Off, and ANI routing, to include OPART
