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EXHIBIT 10.6
MASTER RESALE AGREEMENT
FOR THE STATE OF INDIANA
NOVEMBER 1, ▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇ TELECOMMUNICATIONS, INC.
AND
UNITED TELEPHONE COMPANY OF INDIANA, INC.
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TABLE OF CONTENTS
PART A -- DEFINITIONS . . . . . . . . . . . . . . . . . . . . . . . . . . 2
1. Defined Terms. . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
PART B -- GENERAL TERMS AND CONDITIONS. . . . . . . . . . . . . . . . . . 5
1. Scope of this Agreement. . . . . . . . . . . . . . . . . . . . . . . 5
2. Regulatory Approvals . . . . . . . . . . . . . . . . . . . . . . . . 5
3. Term and Termination . . . . . . . . . . . . . . . . . . . . . . . . 6
4. Post Termination Interim Service Arrangements. . . . . . . . . . . . 7
5. Charges and Payment. . . . . . . . . . . . . . . . . . . . . . . . . 8
6. Audits and Examinations. . . . . . . . . . . . . . . . . . . . . . . 9
7. Intellectual Property Rights . . . . . . . . . . . . . . . . . . . . 10
8. Limitation of Liability. . . . . . . . . . . . . . . . . . . . . . . 10
9. Indemnification. . . . . . . . . . . . . . . . . . . . . . . . . . . 10
10. Remedies . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
11. Confidentiality and Publicity. . . . . . . . . . . . . . . . . . . . 12
12. Disclaimer of Warranties . . . . . . . . . . . . . . . . . . . . . . 13
13. Assignment and Subcontract . . . . . . . . . . . . . . . . . . . . . 14
14. Governing Law. . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
15. Relationship of Parties. . . . . . . . . . . . . . . . . . . . . . . 14
16. No Third Party Beneficiaries . . . . . . . . . . . . . . . . . . . . 15
17. Notices. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
18. Waivers. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
19. Survival . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
20. Force Majeure. . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
21. Dispute Resolution Procedures. . . . . . . . . . . . . . . . . . . . 16
22. Cooperation on Fraud . . . . . . . . . . . . . . . . . . . . . . . . 17
23. Taxes. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
24. Amendments and Modifications . . . . . . . . . . . . . . . . . . . . 17
25. Severability . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
26. Headings Not Controlling . . . . . . . . . . . . . . . . . . . . . . 18
27. Entire Agreement . . . . . . . . . . . . . . . . . . . . . . . . . . 18
28. Counterparts . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
29. Successors and Assigns . . . . . . . . . . . . . . . . . . . . . . . 18
30. Implementation . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
31. Federal Jurisdiction . . . . . . . . . . . . . . . . . . . . . . . . 19
PART C -- PROVISIONS RELATING TO RESALE . . . . . . . . . . . . . . . . . 20
1. Resale of Local Services . . . . . . . . . . . . . . . . . . . . . . 20
2. Network Maintenance and Management . . . . . . . . . . . . . . . . . 24
3. Additional Services. . . . . . . . . . . . . . . . . . . . . . . . . 26
4. Additional Responsibilities. . . . . . . . . . . . . . . . . . . . . 31
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MASTER RESALE AGREEMENT
This Agreement is between United States Telecommunications, Inc.
("Carrier") and United Telephone Company of Indiana, Inc. ("Sprint")
hereinafter collectively, "the Parties", entered into this 1st day of November,
1998, for the State of Indiana.
WHEREAS, the Parties wish to establish terms and conditions for the
purposes of allowing the Carrier to have access to Sprint services for the
purpose of resale; and
WHEREAS, the Parties intend the rates, terms and conditions of this
Agreement, and their performance of obligations thereunder, to comply with the
Communications Act of 1934, as amended (the "Act"), the Rules and Regulations
of the Federal Communications Commission ("FCC"), and the orders, rules and
regulations of the Indiana Utility Regulatory Commission (the "Commission"); and
WHEREAS, the parties wish to replace any and all other prior
agreements, both written and oral, applicable to the state of Indiana;
THEREFORE, the Parties hereby agree as follows:
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PART A -- DEFINITIONS
1. DEFINED TERMS
1.1 Certain terms used in this Agreement shall have the meanings as
otherwise defined throughout this Agreement. Other terms used but
not defined herein will have the meanings ascribed to them in the
Act or in the Rules and Regulations of the FCC or the Commission.
The Parties acknowledged that other terms appear in this Agreement,
which are not defined or ascribed as stated above. The parties agree
that any such terms shall be construed in accordance with their
customary usage in the telecommunications industry as of the
effective date of this Agreement.
1.2. "ACT" means the Communications Act of 1934, as amended.
1.3. "AFFILIATE" is as defined in the Act.
1.4. "CENTRAL OFFICE SWITCH, END OFFICE OR TANDEM (HEREINAFTER "CENTRAL
OFFICE" OR "CO")" means switching facility within the public
switched telecommunications network, including but not limited to:
1.4.1. End Office Switches, which are switches from which
end-user Telephone Exchange Services are directly
connected and offered.
1.4.2. Tandem Switches are switches which are used to connect and
switch trunk circuits between and among Central Office
Switches.
1.5. "COMMISSION" means the Indiana Regulatory Commission.
1.6. "COMMERCIAL MOBILE RADIO SERVICES ("CMRS")" means a radio
communication service as set forth in 47 CFR ss. 20.3.
1.7. "COMPETITIVE LOCAL EXCHANGE CARRIER ("CLEC")" OR "ALTERNATIVE
LOCAL EXCHANGE CARRIER ("ALEC")" means any entity or
person authorized to provide local exchange services in
competition with an ILEC.
1.8. "EFFECTIVE DATE" is either thirty (30) days after the date
referenced in the opening paragraph of the Agreement, the filing
date of this Agreement with the Commission if the Commission has
defined the Effective Date as such, or as otherwise required by
the Commission.
1.9. "ELECTRONIC INTERFACES" means access to operations support systems
consisting of pre-ordering, ordering, provisioning, maintenance and
repair and billing functions.
1.10. "FCC" means the Federal Communications Commission.
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1.11. "INCUMBENT LOCAL EXCHANGE CARRIER ("ILEC")" is any local exchange
carrier that was, as of February 8, 1996, deemed to be a member of
the Exchange Carrier Association as set forth in 47 CFR ss.
69.601(b) of the FCC's regulations.
1.12. "INTEREXCHANGE CARRIER ("IXC")" means a provider of interexchange
telecommunications services.
1.13. "LOCAL SERVICE REQUEST ("LSR")" means an industry standard form
used by the Parties to add, establish, change or disconnect local
services.
1.14. "LOCAL TRAFFIC" means traffic (excluding CMRS traffic) that is
originated and terminated within Sprint's local calling area, or
mandatory expanded area service (EAS) area, as defined by State
commissions or, if not, defined by State commission, then as
defined in existing Sprint Tariffs.
1.15. "ORDERING AND BILLING FORUM ("OBF")" refers to functions under the
auspices of the Carrier Liaison Committee (CLC) of the Alliance for
Telecommunications Industry Solutions (ATIS).
1.16. "PARITY" means, subject to the availability, development and
implementation of necessary industry standard Electronic
Interfaces, the provision by Sprint of services, Network Elements,
functionality or telephone numbering resources under this Agreement
to Carrier on terms and conditions, including provisioning and
repair intervals, at least equal in quality to those offered to
Sprint, its Affiliates or any other entity that obtains such
services, Network elements, functionality or telephone numbering
resources. Until the implementation of necessary Electronic
Interfaces, Sprint shall provide such services, Network Elements,
functionality or telephone numbering resources on a
non-discriminatory basis to Carrier as it provides to is Affiliates.
1.17. "PARTIES" means, jointly, United States Telecommunications, Inc.
and United Telephone Company of Indiana, Inc., and no other entity,
affiliate, subsidiary or assign.
1.18. "REBRANDING" occurs when Carrier purchases a wholesale service from
Sprint when the Carrier brand is substituted for the Sprint brand.
1.19. "TARIFF" means a filing made at the state of federal level for the
provision of a telecommunications service by a telecommunications
carrier that provides for the terms, conditions and pricing of that
service. Such filing may be required or voluntary and may or may
not be specifically approved by the Commission or FCC.
1.20. "TELECOMMUNICATIONS" means the transmission, between or among
points specified by the user, of information of the user's
choosing, without change in the form or content of the information
as sent and received.
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1.21. "TELECOMMUNICATIONS CARRIER" means any provider of
Telecommunications Services as defined in 47 USC ss. 153, (44).
1.22. "TELECOMMUNICATION SERVICES" means the offering of
Telecommunications for a fee directly to the public, or to such
classes of users as to be effectively available directly to the
public, regardless of the facilities used.
1.23. "WHOLESALE SERVICE" means Telecommunication Services that Sprint
provides at retail to subscribers who are not telecommunications
Carriers as set forth in 47 USC ss. 251(c)(4).
1.24. "WIRE CENTER" denotes a building or space within a building which
serves as an aggregation point on a given carrier's network, where
transmission facilities and circuits are connected or switched.
Wire center can also denote a building in which one or more
central offices, used for the provision of Basic Exchange Services
and access services, are located.
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PART B -- GENERAL TERMS AND CONDITIONS
1. SCOPE OF THIS AGREEMENT
1.1. This Agreement specifies the rights and obligations of each party
with respect to the establishment of rates for resale of local
telecommunications services.
1.2. Sprint shall not discontinue any Telecommunications Service
provided or required hereunder without providing Carrier
reasonable notice, as required by law, of such discontinuation of
such service. Sprint agrees to cooperate with Carrier in any
transition resulting from such discontinuation of service.
1.3. The services and facilities to be provided to Carrier by Sprint in
satisfaction of this Agreement will be provided pursuant to Sprint
Tariffs and then current practices on file with the appropriate
Commission or FCC.
2. REGULATORY APPROVALS
2.1. This Agreement, and any amendment or modification hereof, will be
submitted to the Commission for approval in accordance with ss.
252 of the Act within thirty (30) days after obtaining the last
required contract signature. Sprint and Carrier shall use their
best efforts to obtain approval of this Agreement by any
regulatory body having jurisdiction over this Agreement. Carrier
shall not order services under this Agreement before the Effective
Date as defined herein, except as may otherwise be agreed in
writing between the Parties. In the event any governmental
authority or agency rejects any provision hereof, the Parties
shall negotiate promptly and in good faith such revisions as may
reasonably be required to achieve approval.
2.2. The Parties acknowledge that the respective rights and obligations
of each Party as set forth in this Agreement are based on the text
of the Act and the rules and regulations promulgated thereunder
by the FCC and the Commission as of the Effective Date
("Applicable Rules"). In the event of any amendment to the Act,
any effective legislative action or any effective regulatory or
judicial order, rule, regulation, arbitration award, dispute
resolution procedures under this Agreement or other legal action
purporting to apply the provisions of the Act to the Parties or in
which the FCC or the Commission makes a generic determination that
is generally applicable which revises, modifies or reverses the
Applicable Rules (individually and collectively, Amended Rules),
either Party may, by providing written notice to the other party,
require that the affected provisions of this Agreement be
renegotiated in good faith and this Agreement shall be amended
accordingly to reflect the pricing, terms and
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conditions of each such Amended Rules relating to any of the
provisions in this Agreement.
2.3. Notwithstanding any other provision of this Agreement to the
contrary ss. 2.2 hereof shall control. Any rates, terms or
conditions thus developed or modified shall be substituted in place
of those previously in effect and shall be deemed to have been
effective under this Agreement as of the effective date established
by the Amended Rules, whether such action was commenced before or
after the Effective Date of this Agreement. Should the Parties be
unable to reach agreement with respect to the applicability of such
order or the resulting party may invoke the Dispute Resolution
provisions of this Agreement, it being the intent of the parties
that this Agreement shall be brought into conformity with the then
current obligations under the Act as determined by the Amended
Rules.
2.4. Additional services, beyond those specified herein, requested by
either party relating to the subject matter of this Agreement will
be incorporated into this Agreement by written amendment hereto.
3. TERM AND TERMINATION
3.1. This Agreement shall be deemed effective upon the Effective Date,
provided however that if the Carrier has any outstanding past due
obligations to Sprint, this Agreement will not be effective until
such time as any past due obligations with Sprint are paid in full.
No order or request for services under this Agreement shall be
processed before the Effective Date.
3.2. Except as provided herein, Sprint and Carrier agree to provide
service to each other on the terms of this Agreement for a period
ending November 1, 2000 ("End Date").
3.3. In the event that Carrier desires uninterrupted service under this
Agreement during negotiations, Carrier shall provide to Sprint
written notification appropriate under the Act, and if the Parties
are actually in arbitration or mediation before the appropriate
Commission or FCC prior to the End Date, this Agreement will
continue in effect only until the issuance of an order, whether a
final non-appealable order or not, by the Commission or FCC
resolving the issues set forth in such arbitration or mediation
request.
3.4. In the event of default, either Party may terminate this Agreement
in whole or in part provided that the non-defaulting Party so
advises the defaulting Party in writing of the event of the alleged
default and the defaulting Party does not remedy the default within
sixty (60) days after written notice thereof. Default is defined to
include:
3.4.1. Either Party's insolvency or initiation of bankruptcy or
receivership proceedings by or against the Party; or
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3.4.2. Either Party's material breach of any of the terms or
conditions hereof, including the failure to make any
undisputed payment when due.
3.5. Termination of this Agreement for any cause shall not release
either Party from any liability which at the time of termination
has already accrued to the other Party or which thereafter may
accrue in respect to any act or omission prior to termination or
from any obligation which is expressly stated herein to survive
termination.
3.6. In the event this Agreement is terminated under ss. 3.4, Sprint may
immediately discontinue processing orders for new service from
Carrier and file with the Commission to terminate this agreement
and reassign Carrier's customers pursuant to the Commission's
guidelines for Carriers that abandon service.
3.7. Notwithstanding the above, should Sprint sell or trade
substantially all the assets in an exchange or group of exchanges
that Sprint uses to provide Telecommunications Services, then
Sprint may terminate this Agreement in whole or in part as to that
particular exchange or group of exchanges upon sixty (60) days prior
written notice.
4. POST TERMINATION INTERIM SERVICE ARRANGEMENTS
4.1. In the event that this Agreement expires under ss. 3.2, it is the
intent of the Parties to provide in this Section for interim
service arrangements between the Parties at the time of expiration
so that service to end users will not be interrupted should a new
agreement not be consummated prior to the End Date. Therefore,
except in the case of termination as a result of either Party's
default under ss. 3.4, or for termination upon sale under ss. 3.7,
for service made available under this Agreement and existing as of
the End Date, the Parties agree that those services may continue
uninterrupted at the request of either Party provided that
4.1.1. a new agreement is voluntarily entered into by Parties; or
4.1.2. service is provided under such standard terms and
conditions or tariffs approved by and made generally
available by the Commission, if they exist at the time of
termination; or
4.1.3. Carrier elects to take service pursuant to the entire terms
and conditions of an existing agreement between Sprint and
another carrier for the remaining term of that agreement.
If neither ss. 4.1.1 nor ss. 4.1.2 are in effect, and
Carrier does not designate an agreement under this
subsection Sprint may designate such agreement.
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5. CHARGES AND PAYMENT
5.1. In consideration of the services provided under this Agreement,
the Parties shall pay the charges set forth in Exhibit 1 subject
to the provisions of ss. 2.2 and ss. 2.3 hereof.
5.2. Subject to the terms of this Agreement, the Parties shall pay
invoices by the due date shown on the invoice. For invoices not
paid when due, late payment charges will be assessed under ss. 5.4.
If the payment due date is a Saturday, Sunday or a designated bank
holiday, payment shall be made the next business day.
5.3. Billed amounts which are being investigated, queried, or for which
claims have been or may be filed, are not due for payment until
such investigations, claims, or queries have been resolved in
accordance with the provisions governing dispute resolution of
this Agreement.
5.4. Sprint will assess late payment charges to the other Carrier just
as it would its own end user in accordance with the applicable
General Exchange tariff or, if there is not specific reference in
the applicable General Exchange tariff, Sprint shall assess a late
payment charge equal to the lesser of one and one-half percent
(1.5%) or the maximum rate allowed by law per month of the balance
due, until the amount due is paid in full.
5.5. In addition to late payment charges, Sprint will use the following
collection procedures in connection with Carrier's past due
amounts.
5.5.1. First, a late payment charge will be added to accounts
that are not paid within a thirty- (30) day period.
5.5.2. Second, a notice will be sent to Carrier on day 31 stating
that unless full payment is received within the next
thirty- (30) days Sprint will suspend processing new
orders.
5.5.3. Third, if the Carrier account remains delinquent on day 61
Sprint will send a second notice to Carrier stating that
Sprint has suspended processing new orders and unless
payment is received by day 90, service for all Carrier end
user customers will be suspended.
5.5.4. Fourth, should the Carrier account remain outstanding on
day 91 Sprint will deny service and send a letter to
Carrier stating that their service has been suspended for
non-payment.
5.6. Sprint reserves the right to periodically revise its collection
procedure to conform to then current business practices and
regulations. Sprint will provide timely notification to Carrier of
changes to its collection practice in a manner consistent with its
own customer notification.
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6. AUDITS AND EXAMINATIONS
6.1. As used herein "Audit" shall mean a comprehensive review of
services performed under this Agreement. Either party (the
"Requesting Party") may perform one (1) Audit per 12-month period
commencing with the Effective Date.
6.2. Upon thirty (30) days written notice by the Requesting Party to
the other "Audited Party," Requesting Party shall have the right
through its authorized representative to make an Audit, during
normal business hours, of any records, accounts and processes which
contain information bearing upon the provision of the services
provided and performance standards agreed to under this Agreement.
Within the above-described 30-day period, the Parties shall
reasonably agree upon the scope of the Audit, the documents and
processes to be reviewed, and the time, place and manner in which
the Audit shall be performed. Audited Party agrees to provide
Audit support, including appropriate access to and use of Audited
Party's facilities (e.g., conference rooms, telephones, copying
machines).
6.3. Each party shall bear its own expenses in connection with the
conduct of the Audit. The Requesting Party will pay for the
reasonable cost of special data extraction required by the
Requesting Party to conduct the Audit. For purposes of this ss.
6.3, a special data extraction shall mean the creation of an output
record or informational report (form existing data files) that is
not created in the normal course of business. If any program is
developed to Requesting Party's specifications and at Requesting
Party's expense, Requesting Party shall specify at the time of
request whether the program is to be retained by Audited party for
reuse for any subsequent Audit.
6.4. Adjustments, credits or payments shall be made and any corrective
action shall commence within thirty (30) days from Requesting
Party's receipt of the final audit report to compensate for any
errors or omissions which are disclosed by such Audit and are
agreed to by the Parties. One and one-half percent (1.15%) or the
highest interest rate allowable by law for commercial transactions,
whichever is lower, shall be assessed and shall be computed by
compounding monthly form the time of the error or omission to the
day of payment or credit.
6.5. Neither the right to audit nor the right to receive an adjustment
shall be affected by any statement to the contrary appearing on
checks or otherwise, unless a statement expressly waiving such
right appears in writing, is signed by an authorized representative
of the party having such right and is delivered to the other party
in a manner sanctioned by this Agreement.
6.6. This Article 6 shall survive expiration or termination of the
Agreement for a period of one (1) year after expiration or
termination of this Agreement.
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7. INTELLECTUAL PROPERTY RIGHTS
7.1. Any intellectual property which originates from or is developed by
a Party shall remain in the exclusive ownership of that Party.
Except for a limited license to use patents or copyrights to the
extent necessary for the Parties to use any facilities or
equipment (including software) or to receive any service solely as
provided under this Agreement, no license in patent, copyright,
trademark or trade secret, or other proprietary or intellectual
property right now or hereafter owned, controlled or licensable by
a Party, is granted to the other Party of shall be implied or
arise by estoppel. It is the responsibility of Sprint to ensure,
at no separate or additional cost to the Carrier, that it has
obtained any necessary licenses in relation to intellectual
property of third parties used in Sprint's network to the extent
of Sprint's own use of facilities or equipment (including
software) in the provision of service to its end user customers,
but not that may be required to enable Carrier to use any
facilities or equipment (including software), to receive any
service, to perform its respective obligations under this
Agreement, or to provide service by Carrier to its end user
customers.
7.2. Following notice of an infringement claim against Sprint based on
the use by Carrier of a service or facility, Carrier shall at
Carrier's expense, procure from the appropriate third parties the
right to continue to use the alleged infringing intellectual
property or if Carrier fails to do so, Sprint may charge Carrier
for such costs as permitted under a Commission order.
8. LIMITATION OF LIABILITY
8.1. Neither Party shall be responsible to the other for any indirect,
special, consequential or punitive damages, including (without
limitation) damages for loss of anticipated profits or revenue or
other economic loss in connection with or arising from anything
said, omitted, or done hereunder (collectively "Consequential
Damages:), whether arising in contract or tort, provided that the
foregoing shall not limit a Party's obligation under Article 9 to
indemnify, defend, and hold the other Party harmless against
amounts payable to third parties. Notwithstanding the foregoing,
in no event shall either Party's liability to the other for a
service outage exceed an amount equal to the proportionate charge
for the service(s) provided for the period during which the
service was affected.
9. INDEMNIFICATION
9.1. Each Party agrees to indemnify and hold harmless the other Party
from and against claims for damage to tangible personal or real
property and/or personal injuries arising out of the negligence or
willful misconduct or omission of the indemnifying Party. To the
extent not prohibited by law, each Party shall defend, indemnify,
and hold the other Party harmless against any loss to a third
party arising out of the negligence or willful
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misconduct by such indemnifying Party. Notwithstanding the above,
in the case of any loss alleged or damage claim made by a Customer
of either Party in connection with the service provided by that
Party, and which allegation or claim related in some way to a
service provided under this Agreement, the Party whose customer
alleged such loss shall indemnify the other Party and hold it
harmless against any or all of such loss alleged by each and every
Customer which arises out of the negligence or willful misconduct
of the indemnifying Party. The indemnifying Party under this
Section agrees to defend any suit brought against the other Party
either individually or jointly with the indemnifying Party for any
such loss, injury, liability, claim or demand. The indemnified
Party agrees to notify the other Party promptly, in writing, of any
written claims, lawsuits, or demands for which it is claimed that
the indemnifying Party is responsible under this Section and to
cooperate in every reasonable way to facilitate defense or
settlement of claims. The indemnifying Party shall have complete
control over defense of the case and over the terms of any proposed
settlement or compromise thereof. The indemnifying Party shall not
be liable under this Section for settlement by the indemnified
Party for any claim, lawsuit, or demand, if the indemnifying Party
has not approved the settlement in advance, unless the indemnifying
Party has had defense of the claim, lawsuit, or demand tendered to
it in writing and has failed to promptly assume such defense. In
the event of such failure to assume defense, the indemnifying Party
shall be liable for any reasonable settlement made by the
indemnified Party without approval of the indemnifying Party.
9.2. Each Party agrees to indemnify and hold harmless the other Party
from all claims and damages arising form the Indemnifying Party's
discontinuance of service to one of the Indemnified Party's
subscribers for nonpayment.
9.3. When the lines or services of other companies and Carriers are used
in establishing connections to and/or from points not reached by a
Party's lines, neither Party shall be liable for any act or
omission of the other companies or Carriers.
9.4. In addition to its indemnity obligations hereunder, each Party
shall, to the extent allowed by law or Commission Order, provide,
in its Tariffs and contracts with its subscribers that relate to
any Telecommunications Services provided or contemplated under this
Agreement, that in no case shall such Party or any of its agents,
contractors or others retained by such Party be liable to any
subscriber or third party for (i) any loss relating to or arising
out of this Agreement, whether in contract or tort, that exceeds
the amount such Party would have charged the applicable subscriber
for the service(s) or function(s) that gave rise to such loss, and
(ii) Consequential Damages (as defined in Article 8 above).
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10. REMEDIES
10.1. In addition to any other rights or remedies, and unless
specifically provided herein and to the contrary, either Party may
▇▇▇ in equity for specific performance.
10.2. Except as otherwise provided herein, all rights of termination
cancellation or other remedies prescribed in this Agreement, or
otherwise available, are cumulative and are not intended to be
exclusive of other remedies to which the injured Party may be
entitled at law or in equity in case of any breach or threatened
breach by the other Party of any provision of this Agreement, and
use of one or more remedies shall not bar use of any other remedy
for the purpose of enforcing the provisions of this Agreement.
11. CONFIDENTIALITY AND PUBLICITY
11.1. All information which is disclosed by one party ("Disclosing
Party") to the other ("Recipient") in connection with this
Agreement, or acquired in the course of performance of this
Agreement, shall be deemed confidential and proprietary to the
Disclosing Party and subject to this Agreement, such information
including but not limited to, orders for services, usage
information in any form, and Customer Proprietary Network
Information ("CPNI") as that term is defined by the Act and the
rules and regulations of the FCC ("Confidential and/or Proprietary
Information").
11.2. During the term of this Agreement, and for a period of one (1) year
thereafter, Recipient shall (i) use it only for the purpose of
performing under this Agreement, (ii) hold it in confidence and
disclose it only to employees or agents who need to know it in
order to perform under this Agreement, and (iii) safeguard it from
unauthorized use or Disclosure using no less than the degree of
care with which Recipient safeguards its own Confidential
Information.
11.3. Recipient shall have no obligation to safeguard Confidential
Information (i) which was in the Recipient's possession free of
restriction prior to its receipt from Disclosing Party, (ii) which
becomes publicly known or available through no breach of this
Agreement by Recipient, (iii) which is rightfully acquired by
Recipient free of restrictions on its Disclosure, or (iv) which is
independently developed by personnel of Recipient to whom the
Disclosing Party's Confidential Information if required by law, a
court, or governmental agency, provided that Disclosing Party has
been notified of the requirement promptly after Recipient becomes
aware of the requirement, and provided that Recipient undertakes
all lawful measures to avoid disclosing such information until
Disclosing Party has had reasonable time to obtain a protective
order. Recipient agrees to
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comply with any protective order that covers the Confidential
Information to be disclosed.
11.4. Each Party agrees that Disclosing Party would be irreparably
injured by a breach of this Article II by Recipient or its
representatives and that Disclosing Party shall be entitled to
seek equitable relief, including injunctive relief and specific
performance, in the event of any breach of this Article 11. Such
remedies shall not be exclusive, but shall be in addition to all
other remedies available at law or in equity.
11.5. Unless otherwise agreed, neither Party shall publish or use the
other Party's logo, trademark, service ▇▇▇▇, name, language,
pictures, or symbols or words from which the other Party's name
may reasonably be inferred or implied in any product, service,
advertisement, promotion, or any other publicity matter, except
that nothing in this paragraph shall prohibit a Party from
engaging in valid comparative advertising. This ss. 10.2 shall
confer no rights on a Party to the service marks, trademarks and
trade names owned or used in connection with services by the other
Party or its Affiliates, except as expressly permitted by the
other Party.
11.6. Neither Party shall produce, publish, or distribute any press
release nor other publicity referring to the other Party or its
Affiliates, or referring to this Agreement, without the prior
written approval of the other Party. Each party shall obtain the
other Party's prior approval before discussing this Agreement in
any press or media interviews. In no event shall either Party
mischaracterize the contents of this Agreement in any public
statement or in any representation to a governmental entity or
member thereof.
11.7. Except as otherwise expressly provided in this Article 11, nothing
herein shall be construed as limiting the rights of either Party
with respect to its customer information under any applicable law,
including without limitation ss. 222 of the Act.
12. DISCLAIMER OF WARRANTIES
12.1. EXCEPT AS SPECIFICALLY PROVIDED ELSEWHERE IN THIS AGREEMENT TO THE
CONTRARY, NEITHER PARTY MAKES ANY REPRESENTATIONS OR WARRANTIES,
EXPRESS OR IMPLIED, WITH RESPECT TO QUALITY, FUNCTIONALITY OR
CHARACTERISTICS OF THE SERVICES PROVIDED PURSUANT TO THIS
AGREEMENT, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF
MERCHANTABILITY AND/OR FITNESS FOR A PARTICULAR PURPOSE. NO
REPRESENTATION OR STATEMENT MADE BY EITHER PARTY OR ANY OF ITS
AGENTS OR EMPLOYEES, ORAL OR WRITTEN, INCLUDING, BUT NOT LIMITED
TO,
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ANY SPECIFICATIONS, DESCRIPTIONS OR STATEMENTS
PROVIDED OR MADE SHALL BE BINDING UPON EITHER
PARTY AS A WARRANTY.
13. ASSIGNMENT AND SUBCONTRACT
13.1. If any Affiliate of either Party succeeds to that portion of
the business of such Party that is responsible for, or
entitled to, any rights, obligations, duties, or other
interests under this Agreement, such Affiliate may succeed to
those rights, obligations, duties, and interest of such Party
under this Agreement. In the event of any such succession
hereunder, the successor shall expressly undertake in writing
to the other Party the performance and liability for those
obligations and duties as to which it is succeeding a Party
to this Agreement. Thereafter, the successor Party shall be
deemed Carrier or Sprint and the original Party shall be
relieved of such obligations and duties, except for matters
arising out of events occurring prior to the date of such
undertaking.
13.2. Except as herein before provided, and except for an
assignment confined solely to moneys due or to become due,
any assignment of this Agreement or of the work to be
performed, in whole or in part, or of any other interest of a
Party hereunder, without the other Party's written consent,
which consent shall not be unreasonably withheld or delayed,
shall be void. It is expressly agreed that any assignment of
moneys shall be void to the extent that it attempts to impose
additional obligations other than the payment of such moneys
on the other Party or the assignee additional to the payment
of such moneys.
14. GOVERNING LAW
14.1. This Agreement shall be governed by and construed in
accordance with the Act and the FCC's Rules and Regulations,
and other authoritative statements, except insofar as state
law may control any aspect of this Agreement, in which case
the domestic laws of the state of Indiana, without regard to
its conflicts of laws principles, shall govern.
15. RELATIONSHIP OF PARTIES
15.1. It is the intention of the Parties that each shall be an
independent contractor and nothing contained herein shall
constitute the Parties as joint venturers, partners,
employees or agents of one another, and neither Party shall
have the right or power to bind or obligate the other.
16. NO THIRD PARTY BENEFICIARIES
16.1. The provisions of this Agreement are for the benefit of the
Parties hereto and not for any other person, and this
Agreement shall not provide any
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person not a party hereto with any remedy, claim, liability,
reimbursement, right of action, or other right in excess of
those existing without reference hereto. This shall not be
construed to prevent Carrier from providing its
Telecommunications Services to other carriers.
17. NOTICES
17.1. Except as otherwise provided herein, all notices or other
communication hereunder shall be deemed to have been duly
given when made in writing and delivered in person, or sent
by certified mail, postage prepaid, return receipt requested,
on the date the mail is delivered or its delivery attempted.
If to Sprint: If to
Field Service Manager Carrier: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ President
Mailstop FLAPKA0202 ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
With a CLEC Account Manager With a
copy to: Sprint Copy to:
▇.▇. ▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
17.2. If personal delivery is selected to give notice, a receipt of
such delivery shall be obtained. The address to which notices
or communications may be given to either party may be changed
by written notice given by such Party to the other pursuant
to this Article 17.
18. WAIVERS
18.1. No 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 properly executed by
or on behalf of the Party against whom such waiver or consent
is claimed.
18.2. No course of dealing or failure of any Party to strictly
enforce any term, right, or condition of this Agreement in
any instance shall be construed as a general waiver or
relinquishment of such term, right or condition.
18.3. Waiver by either party of any default by the other Party
shall not be deemed a waiver of any other default.
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19. SURVIVAL
19.1. Termination of this Agreement, or any part hereof, for any
cause shall not release either Party from any liability which
at the time of termination had already accrued to the other
Party or which thereafter accrues in any respect to any act
or omission occurring prior to the termination or from an
obligation which is expressly stated in this Agreement to
survive termination including but not limited to ▇▇.▇▇. 5, 6,
7, 8, 9, 10, 14, 18, 21, 23, and 25.
20. FORCE MAJEURE
20.1. Neither Party shall be held liable for any delay or failure
in performance of any part of this Agreement from any cause
beyond its control and without its fault or negligence, such
as acts of God, acts of civil or military authority,
embargoes, epidemics, war, terrorist acts, riots,
insurrections, fires, explosions, earthquakes, nuclear
accidents, floods, power blackouts, strikes, work stoppage
affecting a supplier or unusually severe weather. No delay or
other failure to perform shall be excused pursuant to this
Article 20 unless delay or failure and consequences thereof
are beyond the control and without the fault or negligence of
the Party claiming excusable delay or other failure to
perform. Subject to Article 3 hereof, in the event of any
such excused delay in the performance of a Party's
obligation(s) under this Agreement, the due date for the
performance of the original obligation(s) shall be extended
by a term equal to the time lost by reason of the delay. In
the event of such delay, the delayed Party shall perform its
obligations at a performance level no less than that which it
uses for its own operations. In the event of such performance
delay or failure by Sprint, Sprint agrees to resume
performance in a nondiscriminatory manner and not favor its
own provision of Telecommunications Services above that of
Carrier.
21. DISPUTE RESOLUTION PROCEDURES
21.1. If any matter is subject to a bona fide dispute between the
Parties, the disputing Party shall within thirty (30) days of
the event giving rise to the dispute, give written notice to
the other Party of the dispute and include in such notice the
specific details and reasons for disputing each item.
21.2. If the Parties are unable to resolve the issues related to
the dispute in the normal course of business within thirty
(30) days after delivery of notice of the Dispute, to the
other Party the dispute shall be escalated to a designated
representative who has authority to settle the dispute and
who is at a higher level of management than the persons with
direct responsibility for administration of this Agreement.
The designated representatives shall meet as often as they
reasonably deem necessary in order to discuss the dispute and
negotiate in good faith in an effort to resolve such dispute,
but
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in no event shall such resolution exceed 60 days from the
initial notice. The specific format for such discussions will
be left to the discretion of the designated representatives,
provided, however, that all reasonable requests for relevant
information made by one Party to the other Party shall be
honored.
21.3. After such period either Party may file a complaint with the
FCC or Commission to resolve such issues.
22. COOPERATION ON FRAUD
22.1. The Parties agree that they shall cooperate with one another
to investigate, minimize and take corrective action in cases
of fraud. The Parties fraud minimization procedures are to be
cost effective and implemented so as not to unduly burden or
harm one party as compared to the other.
23. TAXES
23.1. Any Federal, state or local excise, license, sales, use, or
other taxes or tax-like charges (excluding any taxes levied on
income) resulting from the performance of this Agreement
shall be borne by the Party upon which the obligation for
payment is imposed under applicable law, even if the
obligation to collect and remit such taxes is placed upon the
other party. Any such taxes shall be shown as separate items
on applicable billing documents between the Parties. The
Party obligated to collect and remit taxes shall do so unless
the other Party provides such Party with the required
evidence of exemption. The Party so obligated to pay any such
taxes may contest the same in good faith, at its own expense,
and shall be entitled to the benefit of any refund or
recovery, provided that such party shall not permit any lien
to exist on any asset of the other party by reason of the
contest. The Party obligated to collect and remit taxes shall
cooperate fully in any such contest by the other Party by
providing records, testimony and such additional information
or assistance as may reasonably be necessary to pursue the
contest.
24. AMENDMENTS AND MODIFICATIONS
24.1. No provision of this Agreement shall be deemed waived,
amended or modified by either party unless such a waiver,
amendment or modification is in writing, dated, and signed by
both Parties.
25. SEVERABILITY
25.1. Subject to Article 2, if any part of this Agreement becomes
or is held to be invalid for any reason, such invalidity will
affect only the portion of this Agreement which is invalid.
In all other respects this Agreement will stand
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as if such invalid provision had not been a part thereof, and
the remainder of the Agreement shall remain in full force and
effect.
26. HEADINGS NOT CONTROLLING
26.1. The headings and numbering of Article, Sections, Parts and
Attachments in this Agreement are for convenience only and
shall not be construed to define or limit any of the terms
herein or affect the meaning or interpretation of this
Agreement.
27. ENTIRE AGREEMENT
27.1. This Agreement, including all Parts and Attachments and
subordinate documents attached hereto or referenced herein,
all of which are hereby incorporated by reference, constitute
the entire matter thereof, and supersede all prior oral or
written agreements, representations, statements,
negotiations, understandings, proposals, and undertakings
with respect to the subject matter thereof
28. COUNTERPARTS
28.1. This Agreement may be executed in counterparts. Each
counterpart shall be considered an original and such
counterparts shall together constitute one and the same
instrument.
29. SUCCESSORS AND ASSIGNS
29.1. This Agreement shall be binding upon, and inure to the
benefit of, the Parties hereto and their respective
successors and permitted assigns.
30. IMPLEMENTATION
30.1. This Agreement sets forth the overall terms and conditions,
and standards of performance for services, processes, and
systems capabilities that the Parties will provide to each
other. The Parties understand that the arrangements and
provision of services described in this Agreement shall
require technical and operational coordination between the
Parties. Accordingly, the Parties may agree to form a team
that shall further develop and identify those processes,
guidelines, specifications, standards and additional terms
and conditions necessary to support the terms of this
Agreement.
31. FEDERAL JURISDICTION
31.1. Carrier understands and agrees that this agreement serves as
actual notice that Sprint and its Affiliates have entered
into a binding contract to provide exclusive
telecommunications services for the Army and Air Force
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Exchange Service ("AAFES") during the term of this agreement.
The AAFES contract specifies, among other things, that Sprint
shall provide all telecommunications services to officer and
enlisted temporary living facilities (commonly named Bachelor
Officer Quarters and Bachelor Enlisted Quarters) and to all
unaccompanied enlisted personnel barracks on United States
Army bases. Carrier agrees it will not market to or attempt
to secure any customer located in an area governed by this
exclusive telecommunications service provider contract.
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PART C - PROVISIONS RELATING TO RESALE
1. RESALE OF LOCAL SERVICES
1.1. Scope
1.1.1. Sprint retail Telecommunications Services shall be
available for resale at wholesale prices pursuant to
47 USC ss. 251(c)(4). Services that are not retail
Telecommunications Services and, thus, not covered
by this Agreement and not available for resale at
wholesale prices include, but are not limited to,
Voice Mail/MessageLine, Paging, Inside Wire
Installation and Maintenance, CMRS services,
Lifeline services and similar government programs
(underlying Telecommunications Service will be
resold but Carrier must qualify its offering for
these programs), promotions of ninety (90) days or
less and Employee Concessions.
1.1.2. COCOT lines or Pay Telephone Access Lines will not
be resold at wholesale prices under this Agreement.
1.1.3. Except as set forth above and as may be allowed by
the FCC or Commission, Sprint shall not place
conditions or restrictions on Carrier's resale of
wholesale regulated Telecommunications Services,
except for restrictions on the resale of residential
service to other classifications (e.g., residential
service to business customers) and for promotions of
90-days or less in length. In addition, Carrier
shall be prohibited from marketing its products
using the Sprint product name (i.e., Carrier may
purchase the features package called "Sprint
Essential" but shall be prohibited from reselling
this product using the Sprint brand name or the
Sprint product name.) Every regulated retail service
rate, including promotions over ninety (90) days in
length, discounts, and option plans will have a
corresponding wholesale rate. Sprint will make
wholesale telecommunications service offerings
available for all new regulated services at the same
time the retail service becomes available.
1.1.4. Sprint will continue to provide existing databases
and signaling support for wholesale services at no
additional cost.
1.1.5. Sprint will make any service grandfathered to an
end-user or any Individual Case Basis ("ICB")
service available to Carrier for resale to that same
end-user at the same location(s). Should Sprint
discontinue any grandfathered or ICB service Sprint
will provide to Carrier any legally required notice
as soon as practicable and at least equal in quality
and timeliness to that which is provided to Sprint's
own customers, prior to the effective date of
changes in or
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discontinuation of any product or service that is
available for resale under this Subsection.
1.1.6. Sprint will continue to provide Primary
Interexchange Carrier ("PIC") processing for those
end-users obtaining resold service from Carrier.
Sprint will ▇▇▇▇ and Carrier will pay any PIC change
charges. Sprint will only accept said requests for
PIC changes from Carrier and not from Carrier's end
users.
1.1.7. Sprint shall allow Carrier customers to retain their
current telephone number when technically feasible
within the same Sprint Wire Center and shall install
Carrier customers at Parity unless Carrier customers
currently subscribe to Vacation Service only or are
currently in the process of having their service
suspended for non-pay. In such cases Sprint will
treat the Carrier customer as a new installation at
the request of the Carrier.
1.2. Charges and Billing
1.2.1. Access services, including revenues associated
therewith, provided in connection with the resale of
services hereunder shall be the responsibility of
Sprint and Sprint shall directly ▇▇▇▇ and receive
payment on its own behalf from an IXC for access
related to interexchange calls generated by resold
or rebranded customers.
1.2.2. Sprint will be responsible for returning EMI/EMR
records to IXCs with the proper EMR Return Code
along with the Operating Company Number ("OCN") of
the associated Automatic Number Identification
("ANI"), (i.e., Billing Number).
1.2.3. Sprint will deliver a monthly statement for
wholesale services as follows:
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1.2.3.1. Invoices will be provided in a standard Carrier
access billing format or other such format as Sprint
may determine;
1.2.3.2. Where local usage charges apply and message detail
is created to support available services, the
originating local usage at the call detail level in
standard EMR industry format will be exchanged daily
or at other mutually agreed upon intervals;
1.2.3.3. The Parties will work cooperatively to
exchange information to facilitate the
billing of in and out collect and
inter/intra-region alternately billed
messages;
1.2.3.4. Sprint agrees to provide information on the
end-user's selection of special features
where Sprint maintains such information
(e.g., billing method, special language)
when Carrier places the order for service;
1.2.3.5. Monthly recurring charges for
Telecommunications Services sold pursuant
to this Agreement shall be billed monthly
in advance.
1.2.4. For billing purposes, and except as otherwise
specifically agreed to in writing, the
Telecommunications Services provided hereunder are
furnished for a minimum term of one month. Each
month is presumed to have thirty (30) days. Sprint
shall ▇▇▇▇ for message provisioning, data tape
charges, and for additional copies of the monthly
invoice.
1.3. Pricing
1.3.1. Pricing shall be developed based on 47 USC ss.
252(d)(3), as now enacted or as hereafter amended,
where wholesale prices are retail prices less
avoided costs, net of any additional costs imposed
by wholesale operations, unless otherwise ordered by
the Commission. The wholesale rate shall be as set
forth on Exhibit 1. Additional rates for new or
additional services shall be added at the time said
new or additional services are offered.
1.4. Provisioning and Installation
1.4.1. Electronic Interfaces for the exchange of ordering
information will be adopted and made available to
Carrier in accordance with Sprint operating
procedures.
1.4.2. Carrier and Sprint may order PLC and PIC record
changes using the same order process and on a
unified order (the "LSR").
1.4.3. A general Letter of Agency ("LOA") initiated by
Carrier or Sprint will be required to process a PLC
or PIC change order. No LOA
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signed by the end-user will be required to process a
PLC or PIC change ordered by Carrier or Sprint.
Carrier and Sprint agree that PLC and PIC change
orders will be supported with appropriate
documentation and verification as required by FCC
and Commission rules. In the event of a subscriber
complaint of an unauthorized PLC record change where
the Party that ordered such change is unable to
produce appropriate documentation and verification
as required by FCC and Commission rules, or, if
there are no rules applicable to PLC record changes,
then such rules as are applicable to changes in long
distance carriers of record shall apply, such Party
shall be liable to pay and shall pay all
nonrecurring charges associated with reestablishing
the subscriber's local service with the original
local carrier as well as an Unauthorized Local
Service Provider Change Charge as detailed in the
applicable State Local Access Tariff. Where Sprint
offers, and if the Carrier so desires, a separate
agreement may be entered into with Sprint to
establish themselves as a "No Fault" Carrier. This
option is also detailed in the appropriate State
Local Access Tariff.
1.4.4. Each Party will provide the other, if requested, as
agent of the end-user customer, at the time of the
PLC order, current "As Is" preordering/ordering
information relative to the end-user consisting of
local features, products, services, elements,
combinations, and any customer status qualifying the
customer for a special service (e.g., DA exempt,
lifeline, etc.) provided by the Party to that
end-user. Each Party is responsible for ordering the
Telecommunications Services desired by the end-user
customer.
1.4.5. Sprint shall provide Carrier the ability to obtain
telephone numbers, including vanity numbers from
Sprint where Sprint offers these services to its end
users, and to assign these numbers with the Carrier
customer. Reservation and aging of numbers remain
the responsibility of the Sprint. Carrier shall pay
Sprint the reasonable administrative costs of this
function, and the monthly recurring charges listed
in the appropriate State Local Access Tariff.
1.4.6. Sprint shall provide Carrier the ability to order
all available features on its switches at parity
with what Sprint offers to its own end user
customers (e.g., call blocking of 900 and 976 calls
by line or trunk).
1.4.7. Sprint will direct customer to Carrier for requests
changing their Carrier service. Sprint shall process
all PIC changes provided by Carrier on behalf of
IXCs. If PIC changes are received by Sprint directly
from IXCs, Sprint shall reject the PIC change back
to the IXC with the OCN of Carrier in the
appropriate field of the industry standard CARE
record.
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2. NETWORK MAINTENANCE AND MANAGEMENT
2.1. General Requirements
2.1.1. The Parties will exchange appropriate network
maintenance information (e.g., maintenance contact
numbers, network information, information required
to comply with law enforcement and other security
agencies of the government, etc.).
2.1.2. Each Party shall provide a 24-hour contact number
for network service issues. A fax number must also
be provided to facilitate event notifications for
planned mass calling events. The Parties shall agree
upon appropriate network service control
capabilities,
2.1.3. Voice response units, similar technologies,
intercept solutions or live referrals should be
used, where available to refer/transfer calls from
customers to the proper Telecommunications Carrier
for action. Neither Party shall market to end-users
during a call when that customer contacts the Party
solely as a result of a misdirected call.
2.1.4. Notice of Network Event. Each party has the duty to
alert the other to any network events that can
result or have resulted in service interruption,
blocked calls, or negative changes in network
performance as follows:
2.1.4.1. Any cable or electronics outage that
affects 50% or more of the in-service lines
of a central office or 1000 access lines,
whichever is less with a duration of two
(2) minutes or more.
2.1.4.2. Toll or EAS isolation of an entire exchange
with duration of two (2) minutes or more.
2.1.4.3. Any digital cross-connect or fiber optic
complete system failure lasting two (2)
minutes or more.
2.1.5. Notice of Network Change. The Parties agree to
provide each other reasonable notice of changes
including the information necessary for the
transmission and routing of services using that
local exchange carrier's facilities or networks, as
well as other changes that would affect the
interoperability of those facilities and networks.
Correct Local Exchange Routing Guide (LERG) data is
considered part of this requirement.
2.1.6. Sprint will close all trouble reports with Carrier.
Carrier will close all trouble reports with its
end-user.
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2.1.7. A non-branded, customer-not-at-home card shall be
left by Sprint at the customer's premises when a
Carrier customer is not at home for an appointment
and Sprint performs repair or installation services
on behalf of Carrier.
2.2. Transfer of Service Announcements. When an end-user who
continues to be located within the local calling area changes
from Sprint to Carrier and does not retain its original
telephone number which was provided by Sprint, Sprint will
provide a new number announcement on the inactive telephone
number upon request, for a minimum period of ninety (90) days
(or some shorter reasonable period, as permitted by the
Commission, when numbers are in short supply), at no charge
to the end-user or the Carrier unless Sprint has a Tariff on
file to charge end-users. This announcement will provide
details on the new number to be dialed to reach this
customer.
2.3. Repair Calls. Carrier and Sprint will employ the following
procedures for handling misdirected repair calls:
2.3.1. Carrier and Sprint will educate their respective
customers as to the correct telephone numbers to
call in order to access their respective repair
bureaus.
2.3.2. To the extent the correct provider can be
determined, misdirected repair calls will be
referred to the proper provider of local exchange
service in a courteous manner, at no charge, and the
end-user will be provided the correct contact
telephone number. In responding to repair calls,
neither Party shall make disparaging remarks about
the other, nor shall they use these repair calls as
the basis for internal referrals or to solicit
customers or to market services. Either Party may
respond with accurate information in answering
customer questions.
2.3.3. Carrier and Sprint will provide their respective
repair contact numbers to one another on a
reciprocal basis.
2.4. Restoration of Service in the Event of Outages. Sprint
restoration of service in the event of outages due to
equipment failures, human error, fire, natural disaster, acts
of God, or similar occurrences shall be performed in
accordance with the following priorities. First, restoration
priority shall be afforded to those services affecting its
own end-users and identified Carrier end-users relative to
national security or emergency preparedness capabilities and
those affecting public safety, health, and welfare, as those
elements and services are identified by the appropriate
government agencies. Second, restoration priority shall be
afforded between Sprint and Carrier in general. Third, should
Sprint be providing or performing Tandem Switching
functionality for Carrier, third level priority restoration
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should be afforded to any trunk. Lastly, all service shall be
restored as expeditiously as practicable and in a
non-discriminatory manner.
2.5. Service Projections. Carrier shall make available to Sprint
Periodic Service projections, on a semiannual basis.
2.6. Quality of Service
2.6.1. Upon deployment of Electronic Interfaces, Sprint
shall provide Carrier with the same intervals and
level of service provided by Sprint to its end-users
or other Carriers at any given time.
2.6.2. Upon deployment of Electronic Interfaces, Sprint
shall provide Carrier maintenance and repair
services in a manner that is timely, consistent with
service provided to Sprint end-users and/or other
Carriers.
3. ADDITIONAL SERVICES
3.1. 911/E911
3.1.1. Where Sprint is the owner or operator of the
911/E911 database, Sprint will maintain daily
updating of 911/E911 database information related
to Carrier end-users.
3.1.2. Sprint will provide Carrier a default arrangement/
disaster recovery plan including an emergency
back-up number in case of massive trunk failures.
3.2 Directory Listings and Distribution
3.2.1. White Page Directories; Distribution; Use of Listing
Information
3.2.1.1. Sprint agrees to include one basic White Pages
listing for each Carrier customer located with the
geographic scope of its White Pages directories, at
no additional charge to Carrier. A basic White Pages
listing is defined as a customer name, address and
either the Carrier assigned number for a customer or
the number for which number portability is provided,
but not both numbers. Basic White Pages listing of
Carrier customers will be interfiled with listings
of Sprint and other CLECs' customers.
3.2.1.2. Carrier agrees to provide Carrier customer listing
information, including without limitation directory
distribution information, to Sprint at no charge.
Sprint will provide Carrier with the appropriate
format for provision of Carrier customer listing
information and service order updates to Sprint.
3.2.1.3. Sprint agrees to provide White Pages database
maintenance
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services to Carrier. Carrier will be charged a
Service Order entry fee upon submission of Service
Orders into Sprint's Service Order Entry System,
which will include compensation for such database
maintenance services. Service Order entry fees apply
when Service Orders containing directory records are
entered in Sprint's Service Order Entry System
initially, and when Service Orders are entered in
order to process a requested change to directory
records.
3.2.1.4. Carrier customer listing information will be used
solely for the provision of directory services,
including the sale of directory advertising to
Carrier customers.
3.2.1.5. In addition to a basic White Pages listing, Sprint
will provide, at the rates set forth in the
appropriate Sprint Tariff, Tariffed White Pages
listings (e.g., additional, alternate, foreign and
non-published listings) for Carrier to offer for
resale to Carrier's customers.
3.2.1.6. Sprint agrees to provide White Pages distribution
services to Carrier customers within Sprint's
service territory at no additional charge to
Carrier. Sprint represents that the quality,
timeliness, and manner of such distribution services
will be at parity with those provided to Sprint and
to other CLEC customers provided that Carrier
provides required information and meets criteria and
specifications established by its directory
publisher.
3.2.1.7. Sprint agrees to include critical contact
information pertaining to Carrier in the
"Information Pages" of those of its White Pages
directories provided that Carrier meets criteria
established by its directory publisher.
3.2.2. Sprint will accord Carrier customer listing
information the same level of confidentiality that
Sprint accords its own proprietary customer listing
information. Sprint shall ensure that access to
Carrier customer proprietary listing information
will be limited solely to those of Sprint and
Sprint's directory publisher's employees, agents and
contractors that are directly involved in the
preparation of listings, the production and
distribution of directories, and the sale of
directory advertising. Sprint will advise its own
employees, agents and contractors and its directory
publisher of the existence of this confidentiality
obligation and will take appropriate measures to
ensure their compliance with this obligation.
Notwithstanding any provision herein to the
contrary, the furnishing of White Pages proofs to a
CLEC that contains customer listings of both Sprint
and Carrier will not be deemed a violation of this
confidentiality provision.
3.2.3. Sprint will not sell or license Carrier's customer
listing information
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to any third parties unless Carrier provides written
notice to the contrary. Once Sprint's system is able
to distinguish Sprint and Carrier listings, Sprint
and Carrier will share in revenues derived from the
sale or licensing of customer listing information
net of administration expenses incurred by Sprint in
providing such information to third parties.
3.2.4. Other Directory Services
3.2.4.1. Sprint will exercise reasonable efforts to cause its
directory publisher to enter into a separate
agreement with Carrier which will address other
directory services desired by Carrier as described
in this ss. 3.2. Both parties acknowledge that
Sprint's directory publisher is not a party to this
Agreement and that the provisions contained in this
ss.3.2 are not binding upon Sprint's directory
publisher.
3.2.4.2. Sprint's directory publisher will negotiate with
Carrier concerning the provision of a basic Yellow
Pages listing to Carrier customers located within
the geographic scope of publisher's Yellow Pages
directories and distribution of Yellow Pages
directories to Carrier customers.
3.2.4.3. Directory advertising will be offered to Carrier
customers on a nondiscriminatory basis and subject
to the same terms and conditions that such
advertising is offered to Sprint and other CLEC
customers. Directory advertising will be billed to
Carrier customers by directory publisher.
3.2.4.4. Directory publisher will use commercially reasonable
efforts to ensure that directory advertising
purchased by customers who switch their service to
Carrier is maintained without interruption.
3.2.4.5. Information pages, in addition to any information
page or portion of an information page containing
critical contact information as described above in
ss. 3.2.1.7, may be purchased from Sprint's
directory publisher, subject to applicable directory
publisher guidelines and regulatory requirements.
3.2.4.6. Directory publisher maintains full authority as
publisher over its publishing policies, standards
and practices, including decisions regarding
directory coverage area, directory issue period,
compilation, headings, covers, design, content or
format of directories, and directory advertising
sales.
3.3. Directory Assistance
3.3.1. General Requirements for Resale of Directory
Assistance
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3.3.1.1. Where Sprint is a directory assistance service
provider, at Carrier's request, subject to any
existing system capacity restraints which Sprint
shall work to overcome, Sprint will provide to
Carrier resale of Carrier branded directory
assistance service which is at parity with the
directory assistance service Sprint makes available
to its own end-users.
3.3.1.2. Sprint will make Carrier's data available to anyone
calling Sprint's DA and will update its database
with Carrier's data at Parity with updates from its
own data.
3.3.1.3. Sprint may store proprietary customer information
provided by Carrier in its Directory Assistance
database; such information should be able to be
identified by source provider in order to provide
the necessary protection of Carrier's or Carrier
customer's proprietary or protected information.
3.3.1.4. Carrier may limit Sprint's use of Carrier's data to
Directory Assistance or, pursuant to written
agreement, grant greater flexibility in the use of
the data subject to proper compensation.
3.3.1.5. Where Directory Assistance is a separate retail
service provided by Sprint, Sprint will allow
wholesale resale of Sprint DA service.
3.3.1.6. To the extent Sprint provides Directory Assistance
service, Carrier will provide its listings to Sprint
via data and processed directory assistance feeds in
accordance with an agreed upon industry format.
Sprint shall include Carrier listings in its
Directory Assistance database.
3.3.1.7. Carrier has the right to license Sprint unbundled
directory databases and sub databases and utilize
them in the provision of its own DA service. To the
extent that Carrier includes Sprint listings in its
own Directory Assistance database, Carrier shall
make Sprint's data available to anyone calling
Carrier's DA.
3.3.1.8. Sprint will make available to Carrier all DA service
enhancements on a non-discriminatory basis.
3.3.2. When requested by Carrier where Carrier provides its own DA,
and if technically feasible, Sprint will route Carrier
customer DA calls to Carrier DA centers at Carrier's expense.
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3.3.3. Business Processes
3.3.3.1. Sprint will, consistent with ss. 222 of the Act,
update and maintain the DA database with Carrier
data, utilizing the same procedures it uses for its
own customers, for those Carrier customers who:
3.3.3.1.1. Disconnect
3.3.3.1.2. Change Carrier
3.3.3.1.3. Install
3.3.3.1.4. "Change" orders
3.3.3.1.5. Are Non-Published
3.3.3.1.6. Are Non-Listed
3.3.3.1.7. Are Non-Published/Non-Listed
3.3.4. Carrier shall ▇▇▇▇ its own end-users.
3.3.5. Carrier will be billed in an agreed upon standard format.
3.3.6. Compensation
3.3.6.1. When Carrier is rebranding the local service of
Sprint, directory assistance that is provided
without separate charge to end-users will be
provided to Carrier end-users without separate
charge, subject to any additional actual expense to
brand the service with Carrier's brand. Where DA is
separately charged as a retail service by Sprint,
Carrier shall pay for DA service at retail less
avoided cost.
3.3.6.2. Sprint shall place Carrier end-users listings in its
directory assistance database for no charge.
3.3.6.3. Sprint shall, subject to ss. 222 of the Act, as
enacted or hereafter amended, make its unbundled
directory assistance database available to Carrier.
3.3.6.4. Any additional actual trunking costs necessary to
provide a Carrier branded resold directory
assistance service or routing to Carrier's own
directory assistance service location shall be paid
by Carrier.
3.4. Operator Services
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3.4.1. General Requirements
3.4.1.1. Where Sprint (or a Sprint Affiliate on
behalf of Sprint) provides operator
services, at Carrier's request (subject to
any existing system capacity restraints)
Sprint will provide to Carrier, Carrier
branded operator service at parity with the
operator services Sprint makes available to
its own end-users.
3.4.1.2. At Carrier's request, subject to any
existing system capacity restraints, Sprint
will route Operator Service traffic of
Carrier's customers to the Carrier's
Operator Service Center at Carrier's
expense.
3.4.1.3. Sprint shall provide operator service
features to include the following: (i)
local call completion 0- and 0+, billed to
calling cards, billed collect, and billed
to third party, and (ii) billable time and
charges, etc. Depending upon the operating
region, Blocking feature associated with
Operator Services may also be available.
3.4.2. Compensation
3.4.2.1. Sprint shall provide operator services for
resale at wholesale prices.
3.4.2.2. When Carrier requests Carrier branded
Sprint operator services for resale any
actual additional trunking costs associated
with Carrier branding shall be paid by
Carrier.
3.4.2.3. Where Carrier provides its own Operator
Services, the Parties shall jointly
establish a procedure whereby they will
coordinate Busy Line Verification ("BLV")
and Busy Line Verification and Interrupt
("BLVI") services on calls between their
respective end-users. BLV and BLVI
inquiries between operator bureaus shall be
routed over the appropriate trunk groups.
Carrier and Sprint will reciprocally
provide adequate connectivity to facilitate
this capability. In addition, upon request
of Carrier, Sprint will make available to
Carrier for purchase under contract BLV and
BLVI services at wholesale rates.
4. ADDITIONAL RESPONSIBILITIES OF THE PARTIES
4.1. Law Enforcement And Civil Process
4.1.1. Intercept Devices. Local and federal law enforcement
agencies periodically request information or
assistance from local telephone
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service providers. When either Party receives a
request associated with a customer of the other
Party, it shall refer such request to the Party that
serves such customer, unless the request directs the
receiving Party to attach a pen register,
trap-and-trace or form of intercept on the Party's
facilities, in which case that Party shall comply
with any valid request. Charges for the intercept
shall be at Sprint's applicable charges.
4.1.2. Subpoenas. If a Party receives a subpoena for
information concerning an end-user the Party knows
to be an end-user of the other Party, it shall refer
the subpoena back to the requesting Party with an
indication that the other Party is the responsible
Company, unless the subpoena requests records for a
period of time during which the Party was the
end-user's service provider, in which case the Party
will respond to any valid request.
4.1.3. Hostage or Barricaded Persons Emergencies. If a
Party receives a request from a law enforcement
agency for temporary number change, temporary
disconnect or one-way denial of outbound calls for
an end-user of the other Party by the receiving
Party's switch, that Party will comply with any
valid emergency request. However, neither Party
shall be held liable for any claims or damages
arising from compliance with such requests on behalf
of the other Party's end-user and the Party serving
such end-user agrees to indemnify and hold the other
Party harmless against any and all such claims.
IN WITNESS WHEREOF, each of the Parties has caused this Agreement to be
executed by its duly authorized representatives.
CARRIER SPRINT
By: /s/▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
---------------------------- ----------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
-------------------------- --------------------------
Title: President Title: Reg Dir - Carrier Mkts
------------------------- -------------------------
Date: 9/31/98 Date: October 14, 1998
-------------------------- --------------------------
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EXHIBIT 1
SPRINT - UNITED TELEPHONE COMPANY OF INDIANA, INC.
RESALE DISCOUNTS
Sprint (United Telephone Company of Indiana, Inc.) is discounting as listed
below from the current tariffed rates until such time as appropriate tariffs are
filed. These discounts are based upon Sprint's Avoided Cost Studies.
SERVICES DISCOUNTS
-------- ---------
Residential Local Service 9.92%
Simple Business Local Service 9.92%
Local Measured Service 9.92%
Extended Area Service 9.92%
Centrex Line 9.92%
Key System 9.92%
PBX 9.92%
Custom Calling Features 9.92%
CLASS 9.92%
Centrex Features 9.92%
Directory Assistance 7.26%
Operator Assistance 7.26%
Private Line Assistance 9.92%
Intralata Toll 9.92
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