NEW YORK TELEPHONE COMPANY RESALE LOCAL EXCHANGE SERVICE AGREEMENT
This Agreement is by and between New York Telephone Company
("Company") and United Telemanagement Services, Inc. ("Customer").
WHEREAS, the Company will offer business local exchange services
("Service(s)") for resale;
WHEREAS, the Customer is a certified reseller in the State of New
York;
WHEREAS, the Company and the Customer have negotiated in good faith
for the resale of such Services pursuant to and consistent with the
Telecommunications Act of 1996; and
WHEREAS, the parties agree that the Discount Rates, as defined below,
are in excess of the Company's avoided costs as filed in Cases 92-C-0657,
94-C-0095, and 91-C-1174 and, as such, fully comply with Section 251(c)(4) of
the Telecommunications Act of 1996.
NOW, THEREFORE, in consideration of the mutual obligations set forth
herein, and for other good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the Company and the Customer agree
as follows:
1. SERVICE TERM
The Customer subscribes to the Services for ten (10) years ("Service
Term"). The Service Term shall begin upon implementation of Service.
Implementation of Service commences upon the provisioning of any portion of
the Service by the Company that includes the use of electronic interfaces
as required herein.
2. SERVICES ORDERED
The Customer subscribes to Services pursuant to this Agreement for the
sole purpose of resale. The Customer may not utilize any Service or
portion thereof for its own use or that of its parent, subsidiaries,
or affiliates, except on an incidental basis; provided, however, this
section shall not preclude the resale of Services to another certified
reseller by Customer. The Customer subscribes to those Services in the
volumes stated in Attachment 1 on a monthly basis for the Service
Term. Except as provided elsewhere in this Agreement, the Customer
agrees to have in service a monthly average of Local Exchange Access
Lines as stated in Attachment 1 for each year of the Service Term
("Volume Commitment"). As of the date of execution of this Agreement
by both parties, the Company shall only provide such Services in New
York State. Such
Service shall be provided pursuant to New York Telephone Company's PSC
915 Tariff, which is incorporated by reference as if set forth fully
herein, and pursuant to the terms and conditions set forth in this
Agreement.
3. SERVICE RATES
The Customer shall pay the Company a charge for Services for the Service
Term calculated as a percentage discount off the Company's month-to-month
or applicable time and volume retail rates as stated in the Company's
retail tariff at the time Service is provided ("Discount Rate"). The
applicable Discount Rates are stated in Attachment 1. Except as otherwise
provided in this Agreement, such Discount Rates shall be the sole means of
calculating the charges applicable to Services provided pursuant to this
Agreement. Unless otherwise required by a Commission order, no other
discounts or promotions, included but not limited to, discounts and
promotions offered as part of the sale of retail services and NYNEX Local
Usage Plans provided pursuant to tariff, are applicable hereunder.
4. SERVICE ORDERS AND SERVICE ORDERING CHARGES
4.1 The Customer shall order, modify or cancel the Service using the
electronic interfaces designated by the Company as soon as such
interfaces are made available by the Company; provided, however, the
Customer may submit orders in a manner other than through the
designated electronic interfaces as agreed to by the parties from
October 1, 1996 to the later of December 29, 1996 or the date such
interfaces are made available by the Company as capable of processing
orders from any reseller ("Interim Period") and such orders shall
count toward Customer's Volume Commitment. The Company intends to
utilize an EIF interface except where an industry EDI interface is
available. All orders by Customer must contain the information
required by the Company in its sole discretion. During the Interim
Period, the Discount Rates specified in this Agreement shall not apply
and the resale tariff month-to-month discount rates shall apply.
Service orders submitted to the Company in excess of the Volume
Commitment will not increase the Volume Commitment unless this
Agreement is amended as provided below.
4.2 In addition to the Discount Rates set forth herein, the Customer
shall pay all service ordering charges, channel charges, special
construction charges, non-recurring charges, and other scheduled rates
and charges, as applicable, as set forth in the Company's PSC 900,
901, and 915 tariffs, which tariffed charges are incorporated by
reference as if set forth fully herein. Additionally, the Customer
shall pay a EUCL charge for each Local Exchange Access Line it orders.
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5. IMPLEMENTATION
5.1 The Company shall begin implementation of the Service within thirty
(30) days of the execution of this Agreement by both parties provided
that the Customer has submitted timely and adequate service orders. If
Customer's service orders are inadequate, the Company shall promptly
notify Customer of that inadequacy. Notwithstanding any other
provision of this Agreement, implementation shall not occur prior to
October 1, 1996 or the date upon which the Company makes the
electronic interfaces available, whichever is later.
5.2 Upon execution of this Agreement by both parties, the Company and
Customer shall endeavor to jointly develop an implementation plan for
Services.
5.3 The Company shall implement Customer's service orders on a timely
basis and within implementation intervals no less promptly than
Company implements other service orders for the same resold service
provided to similarly situated retail customers or other similarly
situated resellers.
5.4 For maintenance and repair services performed on the Company's side of
the network interface, Company agrees that quality and timeliness of
such services will be no less than the services provided to similarly
situated retail customers or other similarly situated resellers
provided such Service by the Company.
6. FAILURE TO MEET VOLUME COMMITMENT DURING SERVICE TERM
6.1 The Customer shall not be liable to the Company for meeting its Volume
Commitment for the first thirty-six (36) consecutive months following
implementation of any portion of the Service (the "Ramp Up Period);
provided, however, any orders submitted during the Interim Period
without the use of the electronic interfaces designated by the Company
shall not commence the Ramp Up Period. Upon expiration of the Ramp Up
Period, the Customer shall meet its Volume Commitment on an annual
basis for the remaining years of the Service Term or otherwise pay the
Company as follows. On an annual basis beginning twelve (12) months
after the expiration of the Ramp Up Period, the Company shall
calculate the Customer's average monthly volume for the prior twelve
month period of the Service Term by measuring the number of Local
Exchange Access Lines in service for each month ("Actual Usage") and
dividing by twelve (12)("Annual Volume Commitment Calculation"). For
purposes of the Annual Volume Commitment Calculation only, in addition
to the Local Exchange Access Lines in service, the Customer's Actual
Usage shall include any Centrex lines, Intellipath II lines, and NYNEX
Resale
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Business Service lines, which the Customer subscribes to and paid for
during the applicable twelve (12) month period up to a maximum of
fifty percent (50%) of the Volume Commitment.
6.2 If the Customer's Annual Volume Commitment Calculation is less than or
greater than the Volume Commitment ("Shortfall" or "Excess,"
respectively), the amount of such difference shall be set aside in a
carryover pool ("Carryover Pool"); provided, however, the Customer may
elect at any time to pay the Company an amount equal to (i) the
Shortfall; (ii) multiplied by the Customer's average rate per line for
Local Exchange Access Lines derived from the Customer's most recent
monthly xxxx ("Average Monthly Local Exchange Access Line Rate"); and
(iii) that product multiplied by nine (9). The amount in the Carryover
Pool shall not exceed two hundred percent (200%) of the Volume
Commitment ("Carryover Pool Cap"). A Shortfall shall be reflected in
the Carryover Pool as a positive number. The number of lines in excess
of the Customer's Annual Volume in the Carryover Pool shall be
reflected as a negative number.
6.3 At any time the amount of lines in the Carryover Pool exceeds the
Carryover Pool Cap, the Customer shall pay to the Company an amount
equal to (i) the difference between the amount of lines in the
Carryover Pool and the Carryover Pool Cap; (ii) multiplied by the
Average Monthly Local Exchange Access Line Rate; and (iii) that
product multiplied by nine (9).
6.4 Notwithstanding any other provision of this Agreement, the Customer
shall not be liable to the Company for that portion of the Shortfall
that in all material respects is due to a material breach of this
Agreement by the Company.
7. FAILURE TO MEET VOLUME COMMITMENT UPON EXPIRATION OF SERVICE TERM
7.1 If the number of lines in the Carryover Pool is zero (0) or less at
the end of the Service Term, the Customer has satisfied its Volume
Commitment. If the number of lines in the Carryover Pool at the end of
the Service Term is greater than zero (0), Customer shall, at its sole
discretion, either (a) pay the Company an amount equal to (i) the
number of lines in the Carryover Pool; (ii) multiplied by the Average
Monthly Local Exchange Access Line Rate; and (iii) that product
multiplied by nine (9); or (b) shall subscribe to an equivalent number
of lines as in the Carryover Pool for up to an additional thirty-six
(36) month term at the Discount Rate in effect at the expiration of
the Service Term ("Extension Term"). Such amounts shall reduce the
Carryover Pool on a line-by-line basis.
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7.2 At the end of the Extension Term, the Customer shall pay the Company
for any lines remaining in the Carryover Pool. Customer shall pay the
Company an amount equal to (i) the number of remaining lines; (ii)
multiplied by the Average Monthly Local Exchange Access Line Rate;
and (iii) that product multiplied by nine (9).
8. TERMINATION LIABILITY
8.1 If the Customer terminates this Agreement prior to implementation of
the Service or fails to submit any orders for Service within ninety
(90) days from the date of execution of this Agreement by the parties
or October 1, 1996 ("Failure"), whichever date is later, the Customer
shall pay to the Company its reasonable costs and expenses incurred by
the Company with respect to that Customer up until the date of
termination or Failure as determined by Company.
8.2 Except as otherwise provided herein, if the Customer terminates this
Agreement prior to the expiration of the Service Term for any reason
other than a material breach of this Agreement by the Company, the
Customer shall pay the Company a termination charge ("Termination
Charge"). The Termination Charge shall equal (i) the Average Monthly
Local Exchange Access Rate; (ii) multiplied by the Volume Commitment;
and (iii) that product multiplied by the number of years or portion of
years remaining in the Service Term as of the date of termination
excluding the Ramp Up Period. This amount shall be adjusted to net
present worth using the Company's cost of money as of the date such
Termination Charge is assessed.
8.3 In addition to the Termination Charge, the Customer shall also pay the
Company if, at the date of termination or Failure, there is a
Shortfall, or be credited with, if there is an Excess, an amount
equal to (i) the number of lines, if any, in the Carryover Pool; (ii)
multiplied by the Monthly Average Business Line Rate; and (iii) that
product multiplied by nine (9) months.
9. PAYMENT TERMS
9.1 The Company shall xxxx the Customer for Service on a monthly basis.
The Customer shall pay all bills within thirty-one (31) days from date
of xxxx or by the next xxxx date, whichever is sooner. If timely
payment is not received by the Company, the Company may xxxx and the
Customer shall pay all costs, including reasonable attorneys' fees,
expended in collecting unpaid amounts and a late payment charge on the
unpaid balance calculated as the lesser of: (i) The highest interest
rate (in decimal value) which may be levied by law for commercial
transactions, for the number
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of days from the payment date to and including the date that the
Customer actually makes the payment to the Company, or (ii) 0.0005 per
day, simple interest, for the number of days from the payment date to
and including the date that the Customer actually makes the payment to
the Company.
9.2 If a Customer fails to comply with the payment terms of this
Agreement, the Company may, on thirty (30) days written notice by
Certified U.S. Mail to the Customer, refuse additional applications
for Service, refuse to complete any pending orders for Service, and/or
discontinue the provision of Service. In the case of discontinuance of
Service, all applicable charges, including termination charges and
amounts due in the Carryover Pool, shall become due. If the Company
does not discontinue Service and/or refuse additional applications for
Service on the date specified in the thirty (30) days notice, and the
Customer's noncompliance continues, nothing contained herein shall
preclude the Company's right to discontinue Service and/or refuse
additional applications for Service without further notice to the
Customer.
9.3 The Company reserves the right to refuse an application for Service
made by the Customer, its majority owner or affiliate, while it is
indebted to the Company for Service previously furnished, until the
indebtedness is satisfied. In the event that Service is connected for
the Customer who is indebted to the Company for Service previously
furnished to the Customer, the Service may be terminated by the
Company unless the Customer satisfies the indebtedness within thirty
(30) days after written notification.
10. RATE CHANGES
10.1 If the Company, either pursuant to contract or tariff, provides the
same Service in a state at a greater Discount Rate or pursuant to more
favorable terms and conditions to a similarly situated customer in
that state (i.e., a company reselling or repackaging Local Exchange
Access Lines), then the Company shall provide such Discount Rate
and/or more favorable term and condition to the Customer in the
affected state only. If such greater Discount Rate is associated with
a greater term and volume commitment than that made by the Customer,
the Company and Customer shall negotiate a reasonable transition to
the same or similar term and volume commitment. In the instance of a
change hereunder pursuant to a contract, the Company shall notify the
Customer within forty-five (45) days of such Discount Rate and/or
provision(s) becoming available.
10.2 Notwithstanding any other provision of this Agreement, if the
application of the Discount Rate to the Company's retail tariff rate
results in an effective price for the Service lower than the Company's
long run
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incremental costs of providing that Service, the Discount Rate shall
be that rate which provides the Service at the Company's long run
incremental costs, unless otherwise required by the FCC or the New
York Public Service Commission.
11. PROMOTIONAL MATERIAL
The Company shall provide the Customer with a reasonable amount of
information related to the use of the Services for Customer's use in its
marketing and product materials. The Company, in consultation with
Customer, shall determine the type, quantity, and availability of the
information to be provided to Customer. The Company shall also make
available to Customer's personnel basic training related to the use and
operation of the services. The Company shall reasonably determine the
timing and content of such training. Such training and promotional material
shall be provided to the Customer only and the Company is under no
obligation to provide any training or promotional material to any other
person or entity the Customer may engage in the sale, provision, or use of
the Services.
12. CREDIT ALLOWANCES FOR SERVICE INTERRUPTIONS
The Customer shall be entitled to credit allowances for Service
interruptions in accordance with applicable Company tariffs.
13. CHANGED CIRCUMSTANCES
13.1 Upon thirty (30) days notice provided by either party, the Company
and Customer shall meet to review any unforeseen material changes in
the competitive circumstances in the industry including the
competitiveness of the rates herein.
13.2 In the event the Customer subscribes to a new Company service that
utilizes a new technology or network configuration to provide the
same or an equivalent service to Customer by means of fewer Local
Exchange Access lines, and, by reason of this conversion alone, the
Customer fails to achieve the Volume Commitment for the applicable
twelve (12) month period of the Service Term, the Company and the
Customer shall renegotiate to adjust the Volume Commitment for the
current term and for each twelve (12) month period remaining in the
Service Term to reflect the Customer's use of the new service.
13.3 If the Company files a state tariff or otherwise provides any Service
subscribed to by the Customer in that state at an effective month-to
month resale price that is less than the effective resale price
obtained by applying the minimum discount rate then offered by the
Company for Services in
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the aggregate, whether such filing is ordered by the Commission or
made voluntarily by the Company, the Customer shall be entitled to
renegotiate this Agreement with respect to the affected Service in
the affected state only. If the parties cannot agree in good faith
on a renegotiated Discount Rate, the Company shall credit the
Customer's Volume Commitment for the number of lines of the
affected Service in the affected state that the Customer purchases
at the month-to-month tariff discount rate.
14. TARIFF(S)
14.1 Except for the rates provided in Section 9.1.1 of the Company's PSC
915 Tariff, all terms and conditions of that resale tariff, shall
apply to the provision of Services herein.
14.2 The Company shall use its best efforts to maintain its tariffs in a
manner consistent with the terms of this Agreement, except where the
terms of this Agreement may lawfully differ from the tariff. If the
Company revises any tariff in a manner inconsistent with the
provisions of this Agreement in any material manner and the Company
fails to remedy such inconsistency within one hundred and twenty
(120) days after receipt of written notice, the parties shall first
seek to renegotiate in good faith revisions of the Agreement.
Failing agreement on material issues, the Customer may elect to
terminate this Agreement without liability after an additional
thirty (30) days written notice.
15. BRANDING
Neither the Company nor the Customer may offer Services to its end users
or others under any of the brand names of the other party or any of its
parents, subsidiaries or affiliates, regardless of whether or not such
brand names are registered trademarks or servicemarks, without the other
party's written authorization. Neither party shall state or imply that
there is any partnership or other joint business arrangement with the
other party, its parent, subsidiaries, or affiliates, for the provision of
Services to the other party's end users or others. The Company and
Customer may jointly develop a press release publicizing their
relationship under this Agreement, subject to both (1) any prior non-
disclosure agreement, and (2) mutually agree upon language and media.
Notwithstanding this section, the Customer is entitled to identify NYNEX
as the underlying carrier of these Services.
16. LEGAL RELATIONSHIPS
16.1 Neither this Agreement, nor any actions taken by the Company or the
Customer in compliance with this Agreement, shall be deemed to
create an
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agency or joint venture relationship between Customer and Company, or
any relationship other than that of purchaser and seller of services.
16.2 Neither this Agreement, nor any actions taken by the Company or the
Customer in compliance with this Agreement, shall create a
contractual, agency, or any other type of relationship or third party
liability between the Company and the Customer's end users or others.
17. PROVISION OF CERTIFICATIONS, INFORMATION, ETC.
17.1 The Customer shall provide the Company with any certifications or
other documentation that may be required under state or federal tax
law. The Customer will be required to indemnify the Company against
any liability the Company may incur in reliance on such certificates
and documentation. So long as the Customer provides assurances of
indemnification on request of the Company, the Customer may elect to
contest or otherwise pursue proceedings related to its tax liability
or status in accordance with applicable procedures.
17.2 The Customer shall provide, within sixty (60) days of a request by
the Company, forecasts of the approximate number of Local Exchange
Access Lines and other services that the Customer expects to require
from the Company in particular geographic areas as stated in the
request. The Company shall provide, within sixty (60) days of a
request by Customer, forecasts regarding the current availability of
Services by specified end office. Such forecasts shall be fully
subject to the confidentiality provisions set forth herein.
17.3 Each party shall provide to the other party any additional
information that is reasonably necessary to enable each party to
fulfill its obligations under this Agreement, subject to all
applicable legal and regulatory constraints.
17.4 If at any time during the Service Term, the Customer ceases to be a
certified reseller, this Agreement shall terminate and the Customer
shall pay to the Company the termination charges stated in Section 8;
provided, however, the Company shall not terminate this Agreement
pursuant to this section if Customer restores its certification
within forty-five (45) days of the loss or expiration of
certification.
18. DISCLOSURE OF RESELLER INFORMATION TO OTHER RESELLERS OR TO TELEPHONE
COMPANY RETAIL MARKETING PERSONNEL
18.1 Except as provided otherwise in this section, neither Company
personnel involved in the marketing of services to end user
customers, nor other
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resellers, will have access to information relating to specific
orders placed by Customer under this Agreement.
18.2 Section 18.1, above, shall not prohibit the disclosure to any local
exchange carrier (including the Company or any reseller), of the fact
that a particular end user who was previously a customer of such
carrier, is no longer one of its customers.
18.3 Section 18.1, above, shall not prohibit the use by the Company of
aggregate data relating to sales to resellers for any legitimate
business purpose of the Company.
18.4 Section 18.1, above, shall not preclude the disclosure to Company
retail marketing personnel or to other resellers of information
pertaining to a Customer's end user where the end user consents to
and authorizes such disclosure.
18.5 Section 18.1, above, shall not prohibit attempts to sell Company
services by Company employees who have access to information relating
to specific orders placed by Customer under this Agreement so long
as:
(a) the employee is not primarily involved in the marketing of
Company services, and
(b) the employee does not utilize the Customer's information in
such sales attempts.
18.6 In the case of an end user customer who chooses to switch his/her/its
service from Customer to the Company, or to another reseller, Section
18.1 above shall not prohibit the disclosure to Company marketing
personnel, or to such other reseller, of information necessary to
enable the Company or such other reseller to assume the account,
including the end user customer's service configuration and Billed
Name and Address.
18.7 Section 18.1, above shall not preclude the disclosure to Company
marketing personnel of the identity of the Customer as providing
service to an end user for the purpose of responding to a question
from the end user about the identity of his/her/its service provider.
18.8 Notwithstanding any other provison of this Agreement, neither party
is obligated to hold in confidence information that:
(i) was already known to the party free of any obligation to keep
confidential;
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(ii) was or becomes publicly available by other than unauthorized
disclosure; or
(iii) was rightfully obtained from a third party not obligated to
hold such information in confidence;
(iv) was independently developed by a party; or
(v) that is required to be disclosed by law or regulatory or
judicial decree or order.
19. DISCLOSURE OF CUSTOMER INFORMATION
19.1 Except as otherwise provided in this Agreement, the Company will not
provide information on any end user customer to Customer without the
consent and authorization of such customer.
19.2 If a Company end user customer subsequently becomes an end user of
Customer, the Company will provide the Customer with all information
necessary to enable it to assume the end user's account, including
the end user's service configuration and Billed Name and Address.
19.3 Section 19.1, above shall not preclude disclosure of information
pursuant to industry-wide arrangements for the exchange of
information on end user credit histories, consistent with New York
State Public Service Commission requirements.
19.4 Where under the preceding sections end user consent is required for
particular use or disclosure of information, such consent must be
obtained, and must be confirmed and verified, in the manner set forth
in 47 C.F.R. (S) 64.1100.
20. ADDITIONAL OBLIGATIONS OF CUSTOMER
20.1 Except as otherwise provided in this Agreement, Customer purchasing
Service under this Agreement has all of the obligations that would be
imposed by the retail tariff for such Service upon an end user
purchasing the service directly from the Company. Such obligations
include, without limitation, the obligation to pay for the Service,
whether or not the Customer is being paid by its own customers.
20.2 The Customer assumes the responsibility for enforcement of all retail
tariff regulations and class of service restrictions imposed for any
particular service (e.g., prohibitions against unlawful use, damage
to Company property, distinctions between residences and businesses)
and any liability arising from violations thereof.
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20.3 The Customer shall be responsible for monitoring the accuracy of the
Company's bills and shall have the duty to notify the Company of any
discrepancies between such bills and the services provided by the
Company.
21. RESPONSIBILITY FOR ENFORCEMENT OF TARIFF REGULATIONS
21.1 Where Customer resells Service to an end user customer, such end user
will be able to access any and all services that an end user customer
of the Company would normally be able to access on a Local Exchange
Access Line. Such services, to the extent provided by the Company,
will be deemed to have been sold by the Company to the Customer as
they are utilized by the Customer's end user, and the Customer will
be responsible to the Company for payment for such services.
21.2 Customer will be allowed to purchase services that restrict end user
access to particular capabilities to the extent such services are
available under, and on the same terms and conditions as set forth
in, the Company tariffs applicable to end user customers.
22. NO OBLIGATION TO DEAL WITH RESELLER'S CUSTOMERS
22.1 The Company will render bills for Services only to the Customer, and
will seek payment only from the Customer. The Company will not be
required to seek payment from the Customer's customers prior to
terminating the Customer's service or pursuing any other remedies for
nonpayment by the Customer. The Customer will be a direct obligor of
the Company, and not guarantor or surety for any obligations of the
Customer's customer.
22.2 Repair requests, complaints, orders for the purchase of Services, and
requests for additions to, rearrangements of, or discontinuance of
existing Services will be accepted by the Company only from the
Customer, and not from the Customer's end users.
22.3 Notices relating to Services will be provided by the Company only to
the Customer, and not to the Customer's end users. The Customer, and
not the Company, will be responsible for providing to the end users
any notices, xxxx inserts, or other information required by
Commission rule or order (or otherwise required by law) to be
provided to end users.
22.4 The Company shall have no responsibility for allocating the
Customer's total xxxx among its end users. The Company will have no
responsibility for preparing or mailing separate bills to each of the
Customer's end users.
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22.5 The Customer shall be responsible for the accuracy and completeness
of all orders it submits. The Company will not be responsible for
Service discrepancies resulting from the Customer's failure to place
a service order or the placement of an incorrect service order. By
way of example, and without limitation, the Customer will remain
responsible for charges for all Services on a line until it submits
an order to discontinue the provision of such Services, whether or
not the Customer's end user is still using such Services.
23. CHOICE OF PRIMARY INTEREXCHANGE CARRIER ON RESOLD LINES
The Company will only accept an order to change the primary interexchange
carrier (whether inter- or intraLATA) for a resold telephone exchange
service line from the Customer. The Company will not accept an order to
"freeze" the primary interexchange carrier (whether inter- or intraLATA)
for resold telephone exchange service line from the Customer. The Customer
will be responsible for all charges for such changes.
24. GOVERNING LAW
This Agreement shall be governed by and construed in accordance with the
laws of the State of New York, except a provision of law which would refer
any issue to another jurisdiction.
25. ENTIRE AGREEMENT
This Agreement, its Attachment(s), and incorporated tariffs constitute the
entire understanding between the parties with respect to the subject matter
hereof and supersedes all prior understandings, oral or written
representations, statements, negotiations, proposals and undertakings in
oral written form. Attachment 1 attached hereto is hereby incorporated by
reference. In the event of a conflict between this Agreement and any
applicable Company tariff, the tariff shall prevail.
26. AMENDMENT AND WAIVERS
26.1 This Agreement may be amended or additional provisions may be added
by written agreement signed by or on behalf of both parties. No
amendment or waiver of any provisions of this Agreement, and no
consent to any default under this Agreement, shall be effective
unless the same shall be in writing and signed by a duly authorized
representative on behalf of the party against whom such amendment,
waiver or consent is claimed, except as otherwise provided in this
Agreement preceding. In addition, no course of dealing or failure of
any party to enforce strictly any
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term, right or condition of this Agreement shall be construed as a
waiver of such term, right or condition.
26.2 Either party's failure at any time to enforce any of the provisions
of this Agreement or any right with respect thereto, or to exercise
any option herein provided, will in no way be construed to be a
waiver of such provisions, rights, or options or in any way to affect
the validity of this Agreement. The exercise by either party of any
rights or options under the terms herein shall not preclude or
prejudice the exercise thereafter of the same or other rights under
this Agreement.
27. ASSIGNMENT
Neither party may assign or transfer (whether by operation of law or
otherwise) this Agreement (or any rights or obligations hereunder) to a
third party without the prior written consent of the other party which
consent shall not be unreasonably withheld; provided, however, each party
may assign this Agreement to a corporate affiliate or an entity under its
common control or an entity acquiring all or substantially all of its
assets or equity by providing prior written notice to the other party of
such assignment or transfer. Any attempted assignment or transfer that is
not permitted shall be void ab initio. All obligations and duties of any
---------
party shall be binding on all successors in interest and assigns of such
party.
28. NOTICE AND DEMAND
Except as otherwise provided under this Agreement, all notices, demands, or
requests which may be given by any party to the other party shall be in
writing and shall be deemed to have been duly given on the date delivered
in person or deposited, postage prepaid, in the United States Mail via
Certified Mail or nationally recognized overnight carrier, return receipt
requested, and addressed as follows:
To Customer: General Counsel
----------- United Telemanagement Services, Inc.
00 Xxxxx Xxxxxxxxx Xxxxx
Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
To Company: Account Manager - Resale Services
---------- 000 Xxxxxxxxxxxx Xxxx
0xx xxxxx
Xxxxx Xxxxxx, XX 00000
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cc: NYNEX Corporation
General Counsel
1095 Avenue of the Xxxxxxxx
00xx xxxxx
Xxx Xxxx, XX 00000
If personal delivery is selected as the method of giving notice under this
Section, a receipt of such delivery shall be obtained. The address to which
such notices, demands, requests, elections or other communications are to
be given by either party may be changed by written notice given by such
party to the other party pursuant to this Section.
29. THIRD-PARTY BENEFICIARIES
This Agreement shall not provide any person not a party to this Agreement
with any remedy, claim, liability, reimbursement, claim of action or other
right in excess of those existing without reference to this Agreement.
30. FORCE MAJEURE
Neither party shall be deemed to be negligent, at fault, or otherwise
liable in any respect for any delay or failure in performance of any part
of this Agreement to the extent that such failure or delay is caused by
acts of God, acts of civil or military authority, government regulations,
embargoes, epidemics, war, terrorist acts, riots, insurrections, fires,
explosions, earthquakes, nuclear accidents, floods, strikes, power
blackouts, volcanic action, other major environmental disturbances,
unusually severe weather conditions, inability to secure products or
services of other persons or transportation facilities, or acts or
omissions of transportation common carries or other causes beyond the
control of the party obligated to perform. If any force majeure condition
occurs, the party delayed or unable to perform shall give immediate notice
to the other Party and shall take all reasonable steps to correct the force
majeure condition. During the pendency of the force majeure, the duties of
the parties under this Agreement affected by the force majeure condition
shall be abated and shall resume without liability thereafter.
31. LIMITATION OF LIABILITY
31.1 Notwithstanding any other provision of this Agreement, neither party,
nor its parent, subsidiaries, or affiliates shall be liable to the
other party, whether such liability arises under warranty, xxxxxx,
xxxxxxxx, xxxxxx liability in tort, negligence, or otherwise, for
lost revenues, lost profits or other special, incidental, indirect
consequential damages or for loss, damages or expenses indirectly
arising from the Company's provision or the
15
Customer's resale of services, even if one party has advised the
other party of the possibility of such damages.
31.2 The Company's liability to the Customer shall be limited by the
Company's PSC 900, 901, and 915 tariffs and all other New York State
public service laws and regulations, which are incorporated by
reference as if set forth fully herein.
32. CONTINGENCY
Notwithstanding any other provision of this Agreement, this Agreement is
subject to change, modification, or cancellation as may be required by a
regulatory authority or court in the exercise of its lawful jurisdiction.
33. NON-EXCLUSIVE AGREEMENT
This Agreement is non-exclusive. The Company reserves the right to extend
to others the Services and rights provided for herein.
34. INDEMNIFICATION
Each party (the "Indemnifying Party") shall indemnify and hold harmless the
other party ("Indemnified Party") from any loss, cost, claim, liability,
damage, and expense (including reasonable attorneys' fees) to third
parties, relating to or arising out of the performance or non-performance
of this Agreement by the Indemnifying Party, its employees, agents, or
contractors. In addition, the Indemnifying Party shall defend any action or
suit brought by a third party against the Indemnified Party for any such
loss, cost, claim, liability, damage or expense. The Indemnified Party will
notify the Indemnifying Party promptly in writing or any written claims,
lawsuits, or demands by third parties for which the Indemnified Party
alleges that the Indemnifying Party is responsible under this Section, and,
if requested by the Indemnifying Party, will tender the defense of such
claim, lawsuit or demand. The parties will cooperate in every reasonable
manner with the defense or settlement of such claim, demand, or lawsuit.
The Indemnifying Party will not be liable under this Section for
settlements by the Indemnified Party of any claim, demand, or lawsuit
unless the Indemnifying Party has approved the settlement in advance or
unless the defense of the claim, demand, or lawsuit has been tendered to
the Indemnifying Party in writing and the Indemnifying Party has failed
promptly to undertake the defense.
16
35. SURVIVAL OF OBLIGATIONS
Any liabilities or obligations of a party or acts or omissions prior to the
cancellation or termination of this Agreement, any obligation of a party
under the provisions regarding indemnification, disclosure of information,
limitation of liability, termination liability, and any other provisions of
this Agreement which, by their terms, are contemplated to survive (or to be
performed after) termination of this Agreement, shall survive cancellation
or termination thereof.
36. EEO CLAUSE
Both parties agree and warrant that, in the performance of this Agreement,
neither will discriminate or permit discrimination in employment against
any person or group of persons on the grounds of sex, race, age, religion,
national origin or handicap in any manner prohibited by the laws of the
United States or any state or local government having jurisdiction.
37. TERMINATION
Except as provided in Section 9 above, in the event of a default under or
breach of any material term or condition of this Agreement by either party,
the other party shall have the right to terminate this Agreement upon sixty
(60) days written notice to the party in breach, if the default or breach
is not cured within sixty (60) days of the date that written notice of such
default or breach is given by one party to the other. A party shall also
have an immediate right to terminate this Agreement in the event of the
other party's bankruptcy, liquidation, insolvency or receivership.
38. NON-PUBLICITY
Both the Company and the Customer agree that neither will use the other's
name without the written permission of the other in connection with
promotional, advertising or other marketing material.
39. SEVERABILITY
In the event any of the provisions of this Agreement are found to be
invalid by any administrative agency, arbitrator or court or competent
jurisdiction, the remaining provisions of this Agreement, whether relating
to similar or dissimilar subjects, shall nevertheless be binding with the
same effect as though the invalid provisions were deleted, unless the
result would be to substantially change the rights or obligations of either
party, in which event the parties shall seek to negotiate in good faith
revisions to the Agreement consistent with their earlier intent. Failing
further agreement, this Agreement shall terminate and no party shall be
liable to the other, except for outstanding amounts due under this
17
Agreement, including, but not limited to, amounts due pursuant to the
payment terms, the carryover pool, and any other amounts which survive
termination as stated in this Agreement.
40. EXECUTED IN COUNTERPARTS
This Agreement may be executed in any number of counterparts, each of which
shall be an original, but such counterparts shall together constitute but
one and the same document.
41. HEADINGS
The headings in this Agreement are for convenience and shall not be
construed to define or limit any of the terms herein or affect the meanings
or interpretation of this Agreement.
42. DISCLAIMER OF REPRESENTATIONS AND WARRANTIES
EXCEPT AS EXPRESSLY PROVIDED UNDER THIS AGREEMENT, NO PARTY MAKES OR
RECEIVES ANY WARRANTY, EXPRESS OR IMPLIED, WITH RESPECT TO THE SERVICES,
FUNCTIONS AND PRODUCTS IT PROVIDES UNDER OR CONTEMPLATED BY THIS AGREEMENT
AND THE PARTIES DISCLAIM THE IMPLIED WARRANTIES OF MERCHANTABILITY OR OF
FITNESS FOR A PARTICULAR PURPOSE.
43. JOINT WORK PRODUCT
This Agreement is the joint work product of the Parties and has been
negotiated by the Parties and their respective counsel and shall be fairly
interpreted in accordance with its terms and, in the event of any
ambiguities, no inferences shall be drawn against either party.
IN WITNESS WHEREOF, the parties have executed this Agreement.
NEW YORK TELEPHONE COMPANY UNITED TELEMANAGEMENT
SERVICES, INC.
By: /s/ X. Xxxxxxxx By: /s/ Xxxx Xxxxxx Xxxxxxx
------------------------ -----------------------
Date: ________________________ Date: 7/8/96
-----------------------
18
ATTACHMENT 1
LOCAL EXCHANGE SERVICES
Volume Discount Rate
------ -------------
Commitment (%)
---------- ---
1. Local Exchange Access Lines
IMB
DID Trunks
PBX Trunks (digital or analog)
Total: 100,00 12.50%
-----
2. Local Usage Service 15.00%
-----
Message Rate Service
3. Telecommunications Features 45.00%
-----
Touch-Tone Calling Service
--------------------------
Custom Calling Services
-----------------------
Speed Calling 8
Speed Calling 30
Three-way Calling
Call Forwarding
Call Waiting
Call Forwarding II
------------------
PhoneSmart(R) Services
----------------------
Call Return
Repeat Dialing
Caller ID
Per Call Blocking
All Call Blocking
Call Trace
Anonymous Call Rejection
Caller ID Deluxe
Call Waiting ID
Call Waiting ID Deluxe
Call Manager
Call Manager Deluxe
Voice Messaging Service
-----------------------
Listings
--------
Alphabetical Directory
Classified Directory
4. IntraLATA Toll Services 25.00%
-----
Message Rate Service
