WHOLESALE-SOLUTIONS SWITCHED SERVICES-AGREEMENT
THIS AGREEMENT (the "Agreement") is entered into by and between SPRINT
COMMUNICATIONS COMPANY LP. ("Sprint"), and NORSTAN NETWORK SERVICES ("Customer")
Sprint and Customer are "Parties" hereto. The Parties agree that this Agreement
will supersede and replace the Carrier Transport Switched Services Agreement
between Sprint and Norstan Network Services signed by Customer on August 14,1998
and Sprint on September 4, 1998, and as amended, as of the Commencement Date of
this Agreement. In consideration of the mutual premises contained herein, the
Parties agree as follows:
1, DEFINITIONS. Capitalized terms appearing in bold print arc 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 Xxxxx. Proprietary Information shall remain in 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; (e) 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; ('ii') 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. Upon termination of this Agreement a Party may recover from the other all
sums it is owed at the tine 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 term 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 sane 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-COMPLLANCR.
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
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.
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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 of settlement of any nature of 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 tine 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 arc 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-Xxxx Switched Origination, Termination and Toll Free Origination
Charges. Customer shall pay the charges specified in Attachment B for each
origination minute and each termination minute of an interstate call that
originates and/or terminates in a Non-dell 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 as 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 which Customer fails to meet
the Minimum Commitment stated on Attachment 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 a credit or security obligations set forth in this Agreement.
14.2. LEC Cap Surcharge. Any month Customer exceeds the Maximum Non-Xxxx Tragic
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-Xxxx Traffic Percentage that originates from
or terminates to a Non-Xxxx Service Area. Maximum Non-Xxxx 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 state in
Attachment B of 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.
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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 Face 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.
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 daft 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 KPCT0198 CT062602 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 subcontractor, 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 Borne 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 of 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
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NET USAGE CHARGES PAID TO SPRINTBY 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, WHEN IN CONTRACT OR TORT. INCIDENTAL,
CONSEQUENTIAL, OR INDIRECT DAMAGES INCLUDE, BUT ARE NOT LIMITED T0, 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 rating 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, ct. seq., and judgment upon the award
rendered by the arbitrators) 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 (e) 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
0000 Xxxxxx Xxxxxx Xxxxx
Xxxxxx, XX 00000-0000
With copy to: Sprint Communications Company L.P.
Attn: Law Dept.- Marketing & Sales (Business)
KySOPHT0101-22525
0000 Xxxxxx Xxxxxxx
Xxxxxxxx Xxxx, XX 00000-0000
If to Customer. Norstan Network Services, Inc.
Attn: Xxxx Xxxxxxxx
0000 Xxxxx Xxx Xxxx
Xxxxxxxxxx, XX 00000
Email: xxxxxxxxxx@xxxxxx.xxx
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 KPCT0198
CT062602 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 Y '
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. SPRINT PROPRIETARY
INFORMATION
30. WAIVER OF TERMS. If either Xxxxx 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 arc 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, constitute 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 matters hereof, including, but not limited to,
the Carrier Transport Switched Services Agreement between Sprint and Norstan
Network Services signed by Customer on August 14, 1998 and Sprint on September
4, 1998. 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.
5
EXECUTED and made effective when signed below by both parties.
NORSTAN NETWORK SERVICES SPRINT COMMUNICATIONS COMPANY L.P.
By: /s/ Xxxxx Xxxxx by: /s/ Art Xxxxxxxxx
Xxxxx Xxxxx Art Xxxxxxxxx
Title: President Vice President, Wholesale Services Group
Date 7/25/02
