RESALE AGREEMENT
(West Virginia)
PREFACE
THIS RESALE AGREEMENT (this "Agreement") is made effective as
of August 6, 1999 (the "Effective Date") by and between Xxxxxxxxx.Xxx, Inc.
("Reseller"), a Delaware corporation, with offices at Three Xxxxxxxxxx Xxxxx
Xxxxx, Xxxxxxxxxx, XX 00000, and Xxxx Atlantic - West Virginia, Inc. ("Xxxx
Atlantic"), a West Virginia corporation, with offices at 0000 XxxXxxxxx Xxxxxx,
X.X., Xxxxx 000, Xxxxxxxxxx, Xxxx Xxxxxxxx 00000.
WHEREAS, pursuant to Section 251(c)(4) of the Act, 47 U.S.C.
Section 251(c)(4), Reseller wishes to purchase Xxxx Atlantic Retail
Telecommunications Services from Xxxx Atlantic for resale by Reseller as a
Telecommunications Carrier providing Telecommunications Services in the State of
West Virginia; and
WHEREAS, Xxxx Atlantic is willing to provide such Xxxx
Atlantic Retail Telecommunications Services in accordance with this Agreement.
NOW THEREFORE, in consideration of the mutual promises set
forth in this Agreement, Reseller and Xxxx Atlantic, each on behalf of itself
and its respective successors and assigns, agree as follows:
1. DEFINITIONS
1.1 As used in the Principal Document, the terms listed below
shall have the meanings stated below:
1.1.1 "Act" means the Communications Act of 1934, 47 U.S.C.
Section 151, ET SEQ., as amended from time-to-time.
1.1.2 "Agent" means agent or servant.
1.1.3 "Applicable Law" means all applicable laws and government
regulations and orders.
1.1.4 "Xxxx Atlantic Ancillary Service" means any service offered by
Xxxx Atlantic to Reseller in Exhibit 1.
1.1.5 "Xxxx Atlantic Retail Telecommunications Service' means any
Telecommunications Service that xxxx atlantic provides at retail to
subscribers who are not Telecommunications Carriers. The term "Xxxx
Atlantic Retail Telecommunications Service!" does not include any
exchange access service (as defined in Section 3(16) of the act, 47
U.S.C. section 153(16)) provided by Xxxx Atlantic.
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1.1.6 "Xxxx Atlantic Service" means and includes any Xxxx Atlantic
Retail Telecommunications Service and any Xxxx Atlantic Ancillary
Service.
1.1.7 "Xxxx Atlantic's Affiliates" means any corporations,
partnerships or other persons who control, are controlled by, or are
under common control with, Xxxx Atlantic.
1.1.8 "Xxxx Atlantic's Tariffs" and "Xxxx Atlantic Tariff" mean and
include:
(a) Xxxx Atlantic's effective Federal and state
tariffs, as amended by Xxxx Atlantic' from time-to-time; and,
(b) to the extent Xxxx Atlantic Services are not
subject to Xxxx Atlantic tariffs, any standard agreements and other
documents, as amended by Xxxx Atlantic from time-to-time, that set
forth the generally available terms, conditions and prices under which
Xxxx Atlantic offers such Xxxx Atlantic Services.
The terms "Xxxx Atlantic's Tariffs" and "Xxxx
Atlantic Tariff" do not include Xxxx Atlantic's "Statement of Generally
Available Terms and Conditions for Interconnection, Unbundled Network
Elements, Ancillary Services and Resale of Telecommunications Services"
which has been approved by the Commission pursuant to Section 252(f) of
the Act, 47 U.S.C. Section 252(f).
1.1.9 "Commission" means the West Virginia Public Service
Commission.
1.1.10 "Contract Period", as used in Section 1.1.25 and Section 6.2,
means a stated period or minimum period of time for which Reseller is
required by this Agreement to subscribe to, use and/or pay for a Xxxx
Atlantic Service.
1.1.11 "Customer" means and includes customers, subscribers and
patrons, of a Party, purchasers and users of Telecommunications
Services (including, but not limited to, resold Xxxx Atlantic Retail
Telecommunications Services) provided by a Party, and purchasers and
users of other services and products provided by a Party. The term
"Customer" does not include a Party.
1.1.12 "Xxxx Atlantic Customer" means a Customer of Xxxx Atlantic.
1.1.13 "Customer Information" means CPNI of a Customer and any other
nonpublic, individually identifiable information about a Customer or
the purchase by a Customer of the services or products of a Party.
1.1.14 "Customer Proprietary Network Information" ("CPNI") means
"Customer Proprietary Network Information" as defined in Section 222 of
the Act, 47 U.S.C. Section 222.
1.1.15 "Effective Date" means the date first above written.
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1.1.16 "Jurisdiction" means the State of West Virginia.
1.1.17 "Operator Services" means: (a) services accessed by dialing
411, 555-1212, 0-000-0000, 0+ local, O+ intraLATA, and, 0-; and, (b)
any other automated or live operator or directory assistance service.
1.1.18 "Order" means an order or application.
1.1.19 "Principal Document" means this document, including the
Preface, Sections 1 through 39, the signature page, Exhibit I, Exhibit
II, and Exhibit II, Attachment 1.
1.1.20 "Reseller Customer" means a Customer of Reseller.
1.1.21 "Retail Prices" means the prices at which Xxxx Atlantic Retail
Telecommunications Services are provided by Xxxx Atlantic at retail to
subscribers who are not Telecommunications Carriers.
1.1.22 "Telecommunications Carrier" means "Telecommunications
Carrier" as defined in Section 3(44) of the Act, 47 U.S.C. Section
153(44).
1.1.23 "Telecommunications Service" means "Telecommunications
Service" as defined in Section 3(46) of the Act, 47 U.S.C. Section
153(46).
1.1.24 "Telephone Exchange Service" means "Telephone Exchange
Service" as defined in Section 3(47) of the Act, 47 U.S.C. Section
153(47).
1.1.25 "Termination Date Xxxx Atlantic Service" means: (a) any Xxxx
Atlantic Service being provided by Xxxx Atlantic under this Agreement
at the time of termination of this Agreement, that at the time of
termination of this Agreement is subject to a Contract Period which is
greater than one (1) month; and, (b) any Xxxx Atlantic Service
requested by Reseller under this Agreement in an Order accepted by Xxxx
Atlantic prior to termination of this Agreement but not yet being
provided by Xxxx Atlantic at the time of termination of this Agreement,
that is subject to an initial Contract Period which is greater than one
(1) month.
1.2 Unless the context clearly indicates otherwise, any defined
term which is defined or used in the singular shall include the plural,
and any defined term which is defined or used in the plural shall
include the singular.
2. THE AGREEMENT
2.1 This Agreement includes: (a) the Principal Document; (b) Xxxx
Atlantic's Tariffs (which Xxxx Atlantic Tariffs are incorporated into
this Agreement by reference and made a part hereof); and, (c) a
Reseller Order to provide, change or terminate a Xxxx Atlantic Service,
which has been accepted by Xxxx Atlantic (including, but not limited
to,
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any Order which includes a commitment to purchase a stated number or
minimum number of lines or other Xxxx Atlantic Services, or a
commitment to purchase lines or other Xxxx Atlantic Services for a
stated period or minimum period of time).
2.2 Conflicts among terms in the Principal Document, Xxxx
Atlantic's Tariffs, and a Reseller Order which has been accepted by
Xxxx Atlantic, shall be resolved in accordance with the following order
of precedence, where the document identified in subsection "(a)" shall
have the highest precedence: (a) the Principal Document; (b) Xxxx
Atlantic's Tariffs; and, (c) a Reseller Order which has been accepted
by Xxxx Atlantic. The fact that a term appears in the Principal
Document but not in a Xxxx Atlantic Tariff, or in a Xxxx Atlantic
Tariff but not in the Principal Document, shall not be interpreted as,
or deemed grounds for finding, a conflict for the purposes of this
Section 2.2.
2.3 This Agreement (including the Principal Document, Xxxx
Atlantic's Tariffs, and Reseller Orders which have been accepted by
Xxxx Atlantic), constitutes the entire agreement between the Parties on
the subject matter hereof, and supersedes any prior or contemporaneous
agreement, understanding, or representation on the subject matter
hereof. Except as otherwise provided in the Principal Document, the
terms in the Principal Document may not be waived or modified except by
a written document which is signed by the Parties. Subject to the
requirements of Applicable Law, Xxxx Atlantic shall have the right to
add, modify, or withdraw, a Xxxx Atlantic Tariff at any time, without
the consent of, or notice to, Reseller.
2.4 A failure or delay of either Party to enforce any of the
provisions of this Agreement, or any fight or remedy available under
this Agreement or at law or in equity, or to require performance of any
of the provisions of this Agreement, or to exercise any option provided
under this Agreement, shall in no way be construed to be a waiver of
such provisions, fights, remedies, or options.
3. XXXX ATLANTIC SERVICES
3.1 During the term of this Agreement, Reseller, pursuant to
Section 25 1 (c)(4) of the Act, 47 U.S.C. Section 251(cX4), may submit
Orders to Xxxx Atlantic requesting Xxxx Atlantic to provide Xxxx
Atlantic Retail Telecommunications Services for resale by Reseller as a
Telecommunications Carrier providing Telecommunications Services.
3.2 During the term of this Agreement, Reseller may submit Orders
to Xxxx Atlantic requesting Xxxx Atlantic to provide Xxxx Atlantic
Ancillary Services for use by Reseller as a Telecommunications Carrier
providing Telecommunications Services.
3.3 Xxxx Atlantic may require that Reseller's Orders requesting
Xxxx Atlantic to provide Xxxx Atlantic Services be in writing on forms
specified by Xxxx Atlantic or in an electronic form specified by Xxxx
Atlantic.
3.4 Upon receipt and acceptance by Xxxx Atlantic of a Reseller
Order requesting Xxxx Atlantic to provide a Xxxx Atlantic Service, Xxxx
Atlantic shall provide,
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and Reseller shall subscribe to, use and pay for, the Xxxx Atlantic
Service, in accordance with this Agreement.
3.5 Xxxx Atlantic Retail Telecommunications Services may be
purchased by Reseller under this Agreement only for the purpose of
resale by Reseller as a Telecommunications Carrier providing
Telecommunications Services, pursuant to Section 251(c)(4) of the Act,
47 U.S.C. Section 251(c)(4). Xxxx Atlantic Retail Telecommunications
Services to be purchased by Reseller for other purposes (including, but
not limited to, Reseller's own use) must be purchased by Reseller
pursuant to separate written agreements, including, but not limited
to, applicable Xxxx Atlantic Tariffs. Reseller warrants and agrees
that Reseller will purchase Xxxx Atlantic Retail Telecommunications
Services from Xxxx Atlantic under this Agreement only for the purpose
of resale by Reseller as a Telecommunications Carrier providing
Telecommunications Services, pursuant to Section 251(c)(4) of the Act,
47 U.S.C. Section 251 (c)(4).
3.6 Xxxx Atlantic Ancillary Services may be purchased by Reseller
under this Agreement only for use by Reseller as a Telecommunications
Carrier providing Telecommunications Services. Xxxx Atlantic Ancillary
Services to be purchased by Reseller for other purposes must be
purchased by Reseller pursuant to separate written agreements,
including, but not limited to, applicable Xxxx Atlantic Tariffs.
Reseller warrants and agrees that Reseller will purchase Xxxx Atlantic
Ancillary Services from Xxxx Atlantic under this Agreement only for use
by Reseller as a Telecommunications Carrier providing
Telecommunications Services.
3.7 Subject to the requirements of Applicable Law, Xxxx Atlantic
shall have the right to add, modify, grandfather, discontinue or
terminate Xxxx Atlantic Services at any time, without the consent of
Reseller.
4. PRICES
4.1 Reseller shall pay Xxxx Atlantic for Xxxx Atlantic Services
at the prices stated in this Agreement, including, but not limited to,
in Exhibit II, Attachment 1.
4.2 If, prior to establishment of a Xxxx Atlantic Service,
Reseller cancels or changes its Order for the Xxxx Atlantic Service,
Reseller shall reimburse Xxxx Atlantic for the costs associated with
such cancellation or changes as required by this Agreement (including,
but not limited to, Xxxx Atlantic's Tariffs).
4.3 Upon request by Xxxx Atlantic, Reseller shall provide to Xxxx
Atlantic adequate assurance of payment of charges due to Xxxx Atlantic.
Assurance of payment of charges may be requested by Xxxx Atlantic: (a)
if Reseller, in Xxxx Atlantic's reasonable judgment, at the Effective
Date or at any time thereafter, is unable to show itself to be
creditworthy; (b) if Reseller, in Xxxx Atlantic's reasonable judgment,
at the effective date or at any time thereafter, is not creditworthy;
or, (c) if Reseller fails to timely pay a xxxx rendered to Reseller by
Xxxx Atlantic. Unless otherwise agreed by the parties, the
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assurance of payment shall be in the form of a cash deposit and shall
be in an amount equal to the charges for Xxxx Atlantic Services that
Reseller may reasonably be expected to incur during a period of two (2)
months. Xxxx Atlantic may at any time use the deposit or other
assurance of payment to pay amounts due from Reseller.
5. BILLING AND PAYMENT
5.1 Except as otherwise permitted or required by this Agreement,
or agreed in writing by the Parties, Xxxx Atlantic shall render bills
to Reseller monthly. Except as otherwise agreed in writing by the
Parties, Xxxx Atlantic will render bills to Reseller in a paper form.
5.2 Reseller shall pay Xxxx Atlantic's bills in immediately
available U.S. funds. Except as otherwise agreed in writing by the
Parties, payments shall be transmitted by electronic funds transfer.
5.3 Payment of charges shall be due by the due date stated on Xxxx
Atlantic's bills. Except as otherwise required by Xxxx Atlantic's
Tariffs or agreed in writing by the Parties, the due date shall not be
sooner than twenty (20) days after the date the xxxx is received by
Reseller.
5.4 Charges which are not paid by the due date stated on Xxxx
Atlantic's xxxx shall be subject to a late payment charge. The late
payment charge shall be in an amount specified by Xxxx Atlantic, which
shall not exceed a rate of one-and-one-half percent (1.5%) of the
over-due amount (including any unpaid, previously billed late payment
charges) per month.
5.5 Reseller acknowledges and agrees that:
5.5.1 During the term of this Agreement, Xxxx Atlantic will be
engaged in developing and deploying new or modified forms of bills for
Telecommunications Carriers who are engaged in the resale of Xxxx
Atlantic Retail Telecommunications Services and new or modified systems
and methods for computing and rendering such bills.
5.5.2 Prior to the completion of deployment of such new or modified
forms of bills and such new or modified systems and methods for
computing and rendering bills, Xxxx Atlantic's form of xxxx and systems
and methods for computing and rendering bills may be subject to
limitations and restrictions, including, but not limited to, the
limitations stated in Section 5.5.3, below, the inability to provide
Reseller with a single, consolidated xxxx for all Xxxx Atlantic
Services purchased by Reseller, and the unavailability of bills and
billing information in an electronic form (e.g., bills may be rendered
in a paper form).
5.5.3 Prior to the completion of deployment of the new or modified
forms of bills and the new or modified systems and methods for
computing and rendering bills,
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Xxxx Atlantic may apply the discount identified in Exhibit II, Section
1.1, in a manner (including, but not limited to, in a
"bottom-of-the-xxxx" format) that results in the Exhibit II, Section
1.1 discount being applied to charges stated in the xxxx (including,
but not limited to, Subscriber Line Charges, Federal Line Cost Charges,
end user common line charges, carrier selection and change charges,
Audiotex Service charges, and charges for services which are not Xxxx
Atlantic Retail Telecommunications Services) which are not subject to
the Exhibit II, Section 1.1 discount. Xxxx Atlantic will implement a
"true-up" process and within six (6) months after the due date of each
monthly xxxx, issue to Reseller a "true-up" xxxx for amounts which were
not collected from Reseller under the monthly xxxx because of the
application of the Exhibit II, Section 1.1 discount to charges which
are not subject to the Exhibit II, Section 1.1 discount. The "true-up"
xxxx may be issued as a part of or an entry on a monthly xxxx, as a
xxxx separate from a monthly xxxx, or in such other form as Xxxx
Atlantic may determine.
5.6 Although it is the intent of Xxxx Atlantic to submit timely
and accurate bills, failure by Xxxx Atlantic to present bills
(including, but not limited to, monthly bills and "true-up" bills) to
Reseller in a timely or accurate manner shall not constitute a breach
or default of this Agreement, or a waiver of a right of payment of the
incurred charges, by Xxxx Atlantic. Reseller shall not be entitled to
dispute charges for Xxxx Atlantic Services provided by Xxxx Atlantic
based on Xxxx Atlantic's failure to submit a xxxx for the charges in a
timely fashion.
6. TERM
6.1 The term of this Agreement shall commence on the Effective
Date, and, except as otherwise provided in this Agreement, shall remain
in effect through August 5, 2000 (the "Initial Term Ending Date").
After the Initial Term Ending Date, this Agreement shall continue in
force and effect unless and until terminated as provided in this
Agreement. Following the Initial Term Ending Date, either Party may
terminate this Agreement by providing written notice of termination to
the other Party, such written notice to be provided at least ninety
(90) days in advance of the date of termination.
6.2 Following termination of this Agreement pursuant to Section
6.1, this Agreement, as amended from time to time, shall remain in
effect as to any Termination Date Xxxx Atlantic Service for the
remainder of the Contract Period applicable to such Termination Date
Xxxx Atlantic Service at the time of the termination of this
Agreement. If a Termination Date Xxxx Atlantic Service is terminated
prior to the expiration of the Contract Period applicable to such
Termination Date Xxxx Atlantic Service, Reseller shall pay any
termination charge provided for in this Agreement.
7. SERVICE INSTALLATION AND MAINTENANCE
Reseller shall comply with Xxxx Atlantic's processes and
procedures (including, but not limited to, requirements by Xxxx
Atlantic that reseller use Xxxx Atlantic OSS Services) for the
communication to Xxxx Atlantic of (a) Reseller's orders to provide,
change or terminate, Xxxx Atlantic Services, and (b) Reseller's
requests for
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information about, assistance in using, or repair or maintenance of,
Xxxx Atlantic Services. Xxxx Atlantic may, from time-to-time, upon
notice to Reseller, change these processes and procedures.
8. ASSIGNMENT
8.1 Reseller shall not assign this Agreement or any right or
interest under this Agreement, nor delegate any obligation under this
Agreement, without the prior written approval of Xxxx Atlantic, which
approval shall not be unreasonably withheld, conditioned or delayed.
Any attempted assignment or delegation in contravention of the
foregoing shall be void and ineffective.
8.2 Xxxx Atlantic may, without the consent of Reseller, assign
this Agreement or any right or interest under this Agreement, and/or
delegate any obligation under this Agreement, to any of Xxxx Atlantic's
Affiliates, or to a person with which Xxxx Atlantic merges or which
acquires substantially all of Xxxx Atlantic's assets.
9. AVAILABILITY OF SERVICE
9.1 Subject to the requirements of Applicable Law, Xxxx Atlantic
shall be obligated to provide Xxxx Atlantic Services to Reseller under
this Agreement only where Xxxx Atlantic is able, without unreasonable
expense (as determined by Xxxx Atlantic in its reasonable judgment),
(a) to obtain, retain, install and maintain suitable facilities for the
provision of such Xxxx Atlantic Services, and (b) to obtain, retain and
maintain suitable rights for the provision of such Xxxx Atlantic
Services.
9.2 Xxxx Atlantic's obligation to provide a Xxxx Atlantic Retail
Telecommunications Service to Reseller under this Agreement shall be
limited to providing the Xxxx Atlantic Retail Telecommunications
Service to Reseller where, and to the same extent, that Xxxx Atlantic
provides such Xxxx Atlantic Retail Telecommunications Service to Xxxx
Atlantic's own end user retail Customers.
10. BRANDING
10.1 Except as stated in Section 10.2, in providing Xxxx Atlantic
Services to Reseller, Xxxx Atlantic shall have the right, but not the
obligation, to identify the Xxxx Atlantic Services with Xxxx Atlantic's
trade names, trademarks and service marks. Any such identification of
the Xxxx Atlantic Services shall not constitute the grant of a license
or other right to Reseller to use Xxxx Atlantic's trade names, trade
marks or service marks.
10.2 To the extent required by Applicable Law, upon request by
Reseller and at prices, terms and conditions to be negotiated by
Reseller and Xxxx Atlantic, Xxxx Atlantic shall provide Xxxx Atlantic
Retail Telecommunications Services that are identified by Reseller's
trade name, or that are not identified by trade name, trademark or
service xxxx.
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11. CHOICE OF LAW
11.1 The construction, interpretation and performance of this
Agreement shall be governed by the laws of the United States of America
and the laws of Jurisdiction (without regard to Jurisdiction's
conflicts of laws rules). All disputes relating to this Agreement shall
be resolved through the application of such laws.
11.2 Reseller agrees to submit to the jurisdiction of any court,
commission or other governmental entity in which a claim, suit-or
proceeding which arises out of or in connection with this Agreement or
Xxxx Atlantic Services provided under this Agreement and in which Xxxx
Atlantic is a party, is brought.
12. COMPLIANCE WITH APPLICABLE LAW
12.1 Each Party shall in its performance of this Agreement comply
with Applicable Law, including, but not limited to, all applicable
regulations and orders of the Commission and the Federal Communications
Commission (hereinafter the "FCC").
12.2 Reseller shall in providing Xxxx Atlantic Retail
Telecommunications Services to Reseller Customers comply with
Applicable Law, including, but not limited to, all applicable
regulations and orders of the Commission and the FCC.
13. CONFIDENTIAL INFORMATION
13.1 For the purposes of this Section 13, "Confidential
Information" means the following information disclosed by one Party
("Discloser") to the other Party ("Recipient") in connection with this
Agreement:
(a) Customer Information related to a Reseller
Customer which is disclosed by Reseller to Xxxx Atlantic (except to the
extent that (i) the Customer Information is subject to publication in-
a directory, (ii) the Customer Information is subject to disclosure
through an Operator Service or other Telecommunications Service, or in
the course of furnishing Telecommunications Services, or (iii) the
Reseller Customer to whom the Customer Information is related, in the
manner required by Applicable Law, has given Xxxx Atlantic permission
to use and/or disclose the Customer Information);
(b) Customer Information related to a Xxxx
Atlantic Customer which is disclosed by Xxxx Atlantic to Reseller
(except to the extent that the Xxxx Atlantic Customer to whom the
Customer Information is related, in the manner required by Applicable
Law, has given Reseller permission to use and/or disclose the Customer
Information);
(c) Information related to specific Xxxx
Atlantic facilities and equipment (including, but not limited to,
cable-and-pair information) which is disclosed by Xxxx Atlantic to
Reseller; and
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(d) Any other information which is identified by
the Discloser as Confidential Information in accordance with Section
13.2.
13.2 All information which is to be treated as Confidential
Information under Section 13.1 (d) shall:
(a) if in written, graphic, electromagnetic, or
other tangible form, be marked as "Confidential" or "Proprietary"; and
(b) if oral, (i) be identified by the Discloser
at the time of disclosure to be "Confidential" or "Proprietary", and
(ii) be set forth in a written summary which identifies the information
as "Confidential" or "Proprietary" and is delivered by the Discloser to
the Recipient within ten (10) days after the oral disclosure.
Each Party shall have the right to correct an
inadvertent failure to identify information as Confidential Information
pursuant to Section 13.1(d) by giving written notification within
thirty (30) days after the information is disclosed. The Recipient
shall, from that time forward, treat such information as Confidential
Information.
Notwithstanding any other provision of this
Agreement, a Party shall have the right to refuse to accept receipt of
information which the other Party has identified as Confidential
Information pursuant to Section 13.1 (d).
13.3 In addition to any requirements imposed by law, including,
but not limited to, 47 U.S.C. Section 222, for a period of five years
from the receipt of Confidential Information from the Discloser, except
as otherwise specified in this Agreement, the Recipient agrees:
(a) to use the Confidential Information only for
the purpose of performing under this Agreement;
(b) using the same degree of care that it uses
with similar confidential information of its own, to hold the
Confidential Information in confidence and restrict disclosure of the
Confidential Information solely to the Recipient's Affiliates, and the
directors, officers and employees of the Recipient and the Recipient's
Affiliates, having a need to know the Confidential Information for the
purpose of performing under this Agreement. The Recipient's Affiliates
and the directors, officers and employees of the Recipient and the
Recipient's Affiliates, shall be required by the Recipient to comply
with the provisions of this Section 13 in the same manner as the
Recipient. The Recipient shall be liable for any failure of the
Recipient's Affiliates and the directors, officers and employees of the
Recipient and the Recipient's Affiliates, to comply with the provisions
of this Section 13.
13.4 If the Recipient wishes to disclose the Discloser's
Confidential Information to a third party Agent or contractor, such
disclosure must be mutually agreed
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to in writing by the Parties to this Agreement, and the Agent or
contractor must have executed a written agreement of non-disclosure and
non-use comparable in scope to the terms of this Section 13.
13.5 The Recipient may make copies of Confidential Information only
as reasonably necessary to perform its obligations under this
Agreement. All such copies shall bear the same copyright and
proprietary rights notices as are contained on the original.
13.6 The Recipient shall return or destroy all Confidential
Information received from the Discloser, including any copies made by
the Recipient, within thirty (30) days after a written request by the
Discloser is delivered to the Recipient, except for (a) Confidential
Information that the Recipient reasonably requires to perform its
obligations under this Agreement, and (b) Customer Information related
to a Reseller Customer that is to be treated by Xxxx Atlantic as
Confidential Information pursuant to Section 13.1(a). If the Recipient
loses or makes an unauthorized disclosure of the Discloser's
Confidential Information, it shall notify the Discloser immediately and
use reasonable efforts to retrieve the lost or improperly disclosed
information.
13.7 The requirements of this Section 13 shall not apply to
Confidential Information:
(a) which was in the possession of the Recipient free of
restriction prior to its receipt from the Discloser;
(b) after it becomes publicly known or available
through no breach of this Agreement by the Recipient, the Recipient's
Affiliates, or the directors, officers, employees, Agents, or
contractors, of the Recipient or the Recipient's Affiliates;
(c) after it is rightfully acquired by the
Recipient free of restrictions on its disclosure;
(d) after it is independently developed by the
Recipient; or
(e) to the extent the disclosure is required by
Applicable Law, a court, or governmental agency; provided, the
Discloser has been notified of the required disclosure promptly after
the Recipient becomes aware of the required disclosure, the Recipient
undertakes reasonable lawful measures to avoid disclosing the
Confidential Information until the Discloser has had reasonable time to
seek a protective order, and the Recipient complies with any protective
order that covers the Confidential Information to be disclosed.
13.8 Each Party's obligations to safeguard Confidential Information
disclosed prior to expiration, cancellation or termination of this
Agreement shall survive such expiration, cancellation or termination.
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13.9 Confidential Information shall remain the property of the
Discloser, and the Discloser shall retain all of the Discloser's right,
title and interest in any Confidential Information disclosed by the
Discloser to the Recipient. Except as otherwise expressly provided
elsewhere in this Agreement, no license is granted by this Agreement
with respect to any Confidential Information (including, but not
limited to, under any patent, trademark, or copyright), nor is any such
license to be implied, solely by virtue of the disclosure of any
Confidential Information.
13.10 Each Party agrees that the Discloser would be irreparably
injured by a breach of this Section 13 by the Recipient, the
Recipient's Affiliates, or the directors, officers, employees, Agents
or contractors of the Recipient or the Recipient's Affiliates, and that
the Discloser shall be entitled to seek equitable relief, including
injunctive relief and specific performance, in the event of any breach
of the provisions of this Section 13. Such remedies shall not be deemed
to be the exclusive remedies for a breach of this Section 13, but shall
be in addition to any other remedies available under this Agreement or
at law or in equity.
13.11 The provisions of this Section 13 shall be in addition to and
not in derogation of any provisions of Applicable Law, including, but
not limited to, 47 U.S.C. Section 222, and are not intended to
constitute a waiver by a Party of any right with regard to protection
of the confidentiality of information of the Party or its Customers
provided by Applicable Law. In the event of a conflict between a
provision of this Section 13 and a provision of Applicable Law, the
provision of Applicable Law shall prevail.
14. CONTINGENCIES
Neither Party shall be liable for any delay or
failure in performance by it which results from strikes, labor
slowdowns, or other labor disputes, fires, explosions, floods,
earthquakes, volcanic action, delays in obtaining or inability to
obtain necessary services, facilities, equipment, parts or repairs
thereof, power failures, embargoes, boycotts, unusually severe weather
conditions, revolution, riots or other civil disturbances, war or acts
of the public enemy, acts of God, or causes beyond the Party's
reasonable control.
15. COUNTERPARTS
This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original and all of
which shall together constitute one and the same instrument.
16. CUSTOMER INFORMATION
16.1 Without in any way limiting Section 12, each Party shall
comply with Applicable Law with regard to Customer Information,
including, but not limited to, 47 U.S.C. Section 222 and the FCC rules
in 47 CFR Section 64.2001 - Section 64.2009.
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16.2 A Party ("Accessing Party") shall not access (including, but
not limited to, in the case of Reseller, through Xxxx Atlantic OSS
Services), use or disclose Customer Information made available to the
Accessing Party by the other Party pursuant to this Agreement unless
the Accessing Party, in the manner required by Applicable Law, has
obtained any Customer authorization for such access, use and/or
disclosure required by Applicable Law. By accessing, using or
disclosing Customer Information made available to the Accessing Party
by the other Party pursuant to this Agreement, the Accessing Party
represents and warrants that the Accessing Party has obtained, in the
manner required by Applicable Law, any Customer authorization for such
action required by Applicable Law. The Accessing Party shall upon
request by the other Party provide proof of such authorization
(including, a copy of any written authorization).
16.3 Xxxx Atlantic shall have the right (but not the obligation) to
audit Reseller to ascertain whether Reseller is complying with the
requirements of Applicable Law and this Agreement, with regard to
Reseller's access to, and use and disclosure of, Customer Information
which is made available to Reseller by Xxxx Atlantic pursuant to this
Agreement.
16.4 In addition to Xxxx Atlantic's audit rights under Section
16.3, Xxxx Atlantic shall have the right (but not the obligation) to
monitor Reseller's access to and use of Customer Information which is
made available by Xxxx Atlantic to Reseller pursuant to this Agreement,
to ascertain whether Reseller is complying with the requirements of
Applicable Law and this Agreement, with regard to Reseller's access to,
and use and disclosure of, such Customer Information. The foregoing
right shall include, but not be limited to, the right (but not the
obligation) to electronically monitor Reseller's access to and use of
Customer Information which is made available by Xxxx Atlantic to
Reseller pursuant to this Agreement through Xxxx Atlantic OSS
Facilities or other electronic interfaces or gateways.
16.5 Information obtained by Xxxx Atlantic pursuant to Section 16.3
or Section 16.4 shall be treated by Xxxx Atlantic as Confidential
Information of Reseller pursuant to Section 13; provided that, Xxxx
Atlantic shall have the right (but not the obligation) to use and
disclose information obtained by Xxxx Atlantic pursuant to this Section
16 to enforce Applicable Law and/or Xxxx Atlantic's rights under this
Agreement.
17. DEFAULT
17.1 If Reseller materially breaches a material provision of this
Agreement (other than an obligation to make payment of any amount
billed under this Agreement), and such breach continues for more than
thirty (30) days after written notice thereof from Xxxx Atlantic, then,
except as otherwise required by Applicable Law, Xxxx Atlantic shall
have the right, upon notice to Reseller, to terminate or suspend this
Agreement and/or provision of Xxxx Atlantic Services, in whole or in
part.
17.2.1 If Reseller fails to make a payment of any amount billed under
this Agreement by the due date stated on the xxxx and such failure
continues for more than
13
thirty (30) days after written notice thereof from Xxxx Atlantic, then,
except as provided in Section 17.2.2, below, or as otherwise required
by Applicable Law, Xxxx Atlantic shall have the right, upon notice to
Reseller, to terminate or suspend this Agreement and/or provision of
Xxxx Atlantic Services, in whole or in part.
17.2.2 If a good faith dispute arises between the Parties concerning
the obligation of Reseller to make payment of an amount billed under
this Agreement, the failure to pay the amount in dispute shall not
constitute cause for termination or suspension of this Agreement or
provision of Xxxx Atlantic Services, if, within thirty (30) days of the
date that Xxxx Atlantic gives Reseller written notice of the failure to
pay the amount in dispute, Reseller (a) gives Xxxx Atlantic written
notice of the dispute stating the basis of the dispute, and (b)
furnishes to Xxxx Atlantic an irrevocable letter of credit in a form
acceptable to Xxxx Atlantic or other security arrangement acceptable to
Xxxx Atlantic, guaranteeing payment to Xxxx Atlantic of any portion of
the disputed amount (including the whole of the disputed amount) which
is thereafter agreed by Xxxx Atlantic and Reseller, or determined by a
court or other governmental entity of appropriate jurisdiction, to be
due to Xxxx Atlantic. The existence of such a dispute shall not relieve
Reseller of its obligations to pay any undisputed amount which is due
to Xxxx Atlantic and to otherwise comply with this Agreement.
18. FACILITIES
18.1 Xxxx Atlantic or its suppliers shall retain all right, title
and interest in, and ownership of, all facilities, equipment, software,
information, and wiring, used to provide Xxxx Atlantic Services. Xxxx
Atlantic shall have access at all reasonable times to Reseller and
Reseller Customer locations for the purpose of installing, inspecting,
maintaining, repairing, and removing, facilities, equipment, software,
and wiring, used to provide the Xxxx Atlantic Services. Reseller shall,
at Reseller's expense, obtain any rights and authorizations necessary
for such access.
18.2 Except as otherwise agreed to in writing by Xxxx Atlantic,
Xxxx Atlantic shall not be responsible for the installation,
inspection, repair, maintenance, or removal, of facilities, equipment,
software, or wiring, provided by Reseller or Reseller Customers for use
with Xxxx Atlantic Services.
19. INTELLECTUAL PROPERTY
Except as expressly stated in this Agreement, nothing
contained within this Agreement shall be construed as the grant of a
license, either express or implied, with respect to any patent,
copyright, trade name, trade xxxx, service xxxx, trade secret, or other
proprietary interest or intellectual property, now or hereafter owned,
controlled or licensable by either Party.
14
20. JOINT WORK PRODUCT
The Principal Document is the joint work product of
the representatives of the Parties. For convenience, the Principal
Document has been drafted in final form by Xxxx Atlantic. Accordingly,
in the event of ambiguities, no inferences shall be drawn against
either Party solely on the basis of authorship of the Principal
Document.
21. LIABILITY
21.1.1 AS USED IN THIS SECTION 21, "OTHER XXXX ATLANTIC PERSONS"
MEANS XXXX ATLANTIC'S AFFILIATES, AND THE DIRECTORS, OFFICERS,
EMPLOYEES, AGENTS AND CONTRACTORS, OF XXXX ATLANTIC AND XXXX ATLANTIC'S
AFFILIATES.
21.1.2 AS USED IN THIS SECTION 21, "XXXX ATLANTIC SERVICE FAILURE"
MEANS AND INCLUDES ANY FAILURE TO INSTALL, RESTORE, PROVIDE OR
TERMINATE A XXXX ATLANTIC SERVICE, AND ANY MISTAKE, OMISSION,
INTERRUPTION, DELAY, ERROR, DEFECT, FAULT, FAILURE, OR DEFICIENCY, IN A
XXXX ATLANTIC SERVICE.
21.2 THE LIABILITY, IF ANY, OF XXXX ATLANTIC AND OTHER XXXX
ATLANTIC PERSONS, TO RESELLER, RESELLER CUSTOMERS AND/OR ANY OTHER
PERSON, FOR ANY CLAIM, LOSS OR DAMAGES ARISING OUT OF OR IN CONNECTION
WITH A XXXX ATLANTIC SERVICE FAILURE, SHALL BE LIMITED AND/OR EXCLUDED
AS SET FORTH IN XXXX ATLANTIC'S TARIFFS.
21.3.1 TO THE EXTENT THE XXXX ATLANTIC TARIFFS APPLICABLE TO A XXXX
ATLANTIC SERVICE DO NOT CONTAIN A PROVISION WHICH LIMITS OR EXCLUDES
THE LIABILITY OF XXXX ATLANTIC AND/OR OTHER XXXX ATLANTIC PERSONS TO
RESELLER, RESELLER CUSTOMERS AND/OR ANY OTHER PERSON, FOR ANY CLAIM,
LOSS OR DAMAGES ARISING OUT OF OR IN CONNECTION WITH A XXXX ATLANTIC
SERVICE FAILURE, SECTION 21.3.3 SHALL APPLY.
21.3.2 TO THE EXTENT A XXXX ATLANTIC SERVICE IS NOT SUBJECT TO A XXXX
ATLANTIC TARIFF, SECTION 21.3.3 SHALL APPLY.
21.3.3 THE LIABILITY, IF ANY, OF XXXX ATLANTIC AND OTHER XXXX
ATLANTIC PERSONS, TO RESELLER, RESELLER CUSTOMERS AND/OR ANY OTHER
PERSON, FOR ANY CLAIM, LOSS OR DAMAGES ARISING OUT OF OR IN CONNECTION
WITH A XXXX ATLANTIC SERVICE FAILURE, SHALL BE LIMITED TO A TOTAL
AMOUNT NOT IN EXCESS OF: (a) TWICE THE PROPORTIONATE CHARGE FOR THE
XXXX ATLANTIC SERVICE AFFECTED DURING THE PERIOD OF THE XXXX ATLANTIC
15
SERVICE FAILURE; OR, (b) IF THERE IS NO CHARGE FOR THE XXXX ATLANTIC
SERVICE AFFECTED, FIVE HUNDRED DOLLARS ($500.00).
21.4 NOTWITHSTANDING ANYTHING CONTAINED IN SECTION 21.2, SECTION
21.3.1, SECTION 21.3.2, OR SECTION 21.3.3, ABOVE, XXXX ATLANTIC AND
OTHER XXXX ATLANTIC PERSONS SHALL HAVE NO LIABILITY TO RESELLER,
RESELLER CUSTOMERS, AND/OR ANY OTHER PERSON, FOR ANY SPECIAL, INDIRECT,
INCIDENTAL, OR CONSEQUENTIAL, DAMAGES (INCLUDING, BUT NOT LIMITED TO,
DAMAGES FOR HARM TO BUSINESS, LOST REVENUES, LOST PROFITS, LOST
SAVINGS, OR OTHER COMMERCIAL OR ECONOMIC LOSS), ARISING OUT OF OR IN
CONNECTION WITH A XXXX ATLANTIC SERVICE FAILURE OR ANY BREACH OR
FAILURE IN PERFORMANCE OF THIS AGREEMENT BY XXXX ATLANTIC.
21.5 THE LIMITATIONS AND EXCLUSIONS FROM LIABILITY STATED IN
SECTIONS 21.2 THROUGH 21.4 SHALL APPLY REGARDLESS OF THE FORM OF A
CLAIM OR ACTION, WHETHER IN CONTRACT, WARRANTY, TORT (INCLUDING, BUT
NOT LIMITED TO, THE NEGLIGENCE OF XXXX ATLANTIC AND/OR OTHER XXXX
ATLANTIC PERSONS), STRICT LIABILITY, OR OTHERWISE, AND REGARDLESS OF
WHETHER XXXX ATLANTIC HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH
DAMAGES.
21.6 Reseller shall, in its tariffs or other contracts with
Reseller Customers, provide that in no case shall Xxxx Atlantic or
Other Xxxx Atlantic Persons be liable to Reseller Customers or to any
other third parties for any indirect, special, incidental,
consequential, or other damages, including, but not limited to, harm to
business, lost revenues, lost profits, lost savings, or other
commercial or economic loss, whether foreseeable or not, and
regardless of notification of the possibility of such damages. Reseller
shall indemnify, defend and hold Xxxx Atlantic and Other Xxxx Atlantic
Persons harmless from claims by Reseller Customers and other third
parties as provided in Xxxx Atlantic's Tariffs.
21.7 Xxxx Atlantic's obligations under this Agreement shall extend
only to Reseller. Xxxx Atlantic shall have no liability under this
Agreement to Reseller Customers or to any other third party. Nothing in
this Agreement shall be deemed to create a third party beneficiary
relationship between Xxxx Atlantic and Reseller Customers or any other
third party.
21.8 Reseller shall indemnify, defend and hold harmless Xxxx
Atlantic, Xxxx Atlantic's Affiliates, and the directors, officers and
employees of Xxxx Atlantic and Xxxx Atlantic's Affiliates, from any
claims, suits, government proceedings, judgments, fines, liabilities,
losses, damages, costs or expenses (including reasonable attorneys
fees) arising out of or in connection with: (a) the failure of Reseller
to transmit to Xxxx Atlantic a request by a Reseller Customer to
install, provide, change or terminate, a Xxxx Atlantic
16
Retail Telecommunications Service; (b) the transmission by Reseller to
Xxxx Atlantic of an Order to install, provide, change or terminate, a
Xxxx Atlantic Retail Telecommunications Service, which Order was not
authorized by the applicable Reseller Customer; (c) erroneous or
inaccurate information in an Order transmitted by Reseller to Xxxx
Atlantic; (d) the transmission by Reseller to Xxxx Atlantic of an Order
to change or terminate a Telecommunications Service provided to an end
user by Xxxx Atlantic or another Telecommunications Service provider,
or to install or provide a Telecommunications Service for an end user,
which Order was not authorized by the applicable end user; (e) the
transmission by Reseller to Xxxx Atlantic of an Order to select, change
or reassign a telephone number for an end user, which Order was not
authorized by the applicable end user; (f) the transmission by Reseller
to Xxxx Atlantic of an Order to select a Telephone Exchange Service
provider for an end user, or to change or terminate an end user's
selection of a Telephone Exchange Service provider, which Order was not
authorized by the applicable end user in the manner required by
Applicable Law (or, in the absence of such Applicable Law, in the
manner required by the rules and procedures in 47 CFR Section 64.1100);
(g) access to, or use or disclosure of, Customer Information or Xxxx
Atlantic OSS Information by Reseller or Reseller's employees, Agents or
contractors; (h) the failure of Reseller to transmit, or to transmit in
a timely manner, E911/911 information to Xxxx Atlantic; (i) erroneous
or inaccurate E911/911 information transmitted by Reseller to Xxxx
Atlantic; (j) any information provided by Reseller for inclusion in
Xxxx Atlantic's LIDB; or, (k) the marketing, advertising or sale of
Reseller's services and/or products (including, but not limited to,
resold Xxxx Atlantic Retail Telecommunications Services), or the
billing or collection of charges for Reseller's services and/or
products (including, but not limited to, resold Xxxx Atlantic Retail
Telecommunications Services). For the purposes of Section 21.8(b), (d)
and (e), an Order shall be deemed not to have been authorized by a
Reseller Customer or end user if Applicable Law and/or this Agreement
required such authorization to be obtained in a particular manner, and
Reseller did not obtain the authorization in the manner required by
Applicable Law and this Agreement.
22. NON-EXCLUSIVE REMEDIES
Except as otherwise expressly provided in this
Agreement, each of the remedies provided under this Agreement is
cumulative and is in addition to any other remedies that may be
available under this Agreement or at law or in equity.
23. NOTICES
All notices and other communications under this
Agreement shall be deemed effective upon receipt by the Party being
notified, provided such notices or communications are in writing and
are sent by certified or registered mail, return receipt requested, or
by a reputable private delivery service which provides a record of
delivery, and addressed as shown below:
To Xxxx Atlantic:
00
Xxxx Xxxxxxxx - Xxxx Xxxxxxxx, Inc.
c/x Xxxx Atlantic Network Services, Inc.
0000 Xxxxx Xxxxxxxxxx Xxxx
Xxxxxxxxx, Xxxxxxxx 00000
Attn.: Director, Resale
Initiatives
To Reseller: President
Xxxxxxxxx.Xxx, Inc.
0 Xxxxxxxxxx Xxxxx Xxxxx
Xxxxxxxxxx, XX 0 1803
Tel: (000) 000-0000
Fax: (000) 000-0000
Either Party may from time-to-time designate another
address or addressee by giving notice in accordance with this Section
23.
24. OPTION TO OBTAIN XXXX ATLANTIC SERVICE UNDER OTHER AGREEMENTS
24.1 If, at any time while this Agreement is in effect, Xxxx
Atlantic is a party to an agreement with a Telecommunications Carrier
other than Reseller ("Third-Person Telecommunications Carrier) to
provide Xxxx Atlantic Services to the Third-Person Telecommunications
Carrier, which agreement has been approved by the Commission pursuant
to 47 U.S.C. Section 252, upon request by Reseller, Xxxx Atlantic, to
the extent required by Applicable Law (including, but not limited to 47
U.S.C. Section 252(i)), shall make available to Reseller any Xxxx
Atlantic Service offered by Xxxx Atlantic under the agreement with the
Third-Person Telecommunications Carrier upon the same terms and
conditions (including prices) provided in the agreement with the
Third-Person Telecommunications Carrier, but (except as otherwise
expressly agreed in writing by the Parties) only on a prospective
basis. Following such request by Reseller and prior to provision of the
Xxxx Atlantic Service by Xxxx Atlantic to Reseller pursuant to the
Terms and conditions (including prices) of the Third-Person
Telecommunications Carrier agreement, this Agreement shall be amended
to incorporate the terms and conditions (including prices) from the
Third-Person Telecommunications Carrier agreement applicable to the
Xxxx Atlantic Service Reseller has elected to purchase pursuant to the
terms and conditions (including prices) of the Third-Person
Telecommunications Carrier agreement. Except as otherwise expressly
agreed in writing by the Parties, the amendment shall apply on a
prospective basis only and shall not apply with regard to any Xxxx
Atlantic Service provided by Xxxx Atlantic to Reseller prior to the
effective date of the amendment.
24.2 To the extent the exercise of the foregoing option requires a
rearrangement of facilities by Xxxx Atlantic, Reseller shall be liable
for the non-recurring charges associated therewith, as well as for any
termination charges associated with the termination of existing
facilities or Xxxx Atlantic Services.
18
25. REGULATORY APPROVALS
25.1 Within thirty (30) days after execution of this Agreement by
the Parties, Xxxx Atlantic shall file the Agreement with the Commission
for approval by the Commission.
25.2 Each Party shall exercise reasonable efforts (including
reasonably cooperating with the other Party) to secure approval of this
Agreement, and any amendment to this Agreement agreed to by the
Parties, from the Commission, the FCC, and other applicable
governmental entities.
25.3 Upon request by Xxxx Atlantic, Reseller shall, at Reseller's
expense, provide reasonable, good-faith support and assistance to Xxxx
Atlantic in obtaining any governmental approvals necessary for (a)
this Agreement and any amendment to this Agreement agreed to by the
Parties, and/or (b) the provision of Xxxx Atlantic Services by Xxxx
Atlantic to Reseller. Without in any way limiting the foregoing, upon
request by Xxxx Atlantic, Reseller shall (a) join in petitions
requesting approval of this Agreement, or an Amendment to this
Agreement agreed to by the Parties, to be filed with the Commission,
the FCC, or other applicable governmental entities, and (b) file other
documents with and present testimony to the Commission, the FCC, or
other applicable governmental entities, requesting approval of this
Agreement or an amendment to this Agreement agreed to by the Parties.
26. REGULATORY CONTINGENCIES
26.1 Neither Party shall be liable for any delay or failure in
performance by it which results from requirements of Applicable Law, or
acts or failures to act of any governmental entity or official.
26.2 In the event that any provision of this Agreement shall be
invalid or unenforceable, such invalidity or unenforceability shall not
invalidate or render unenforceable any other provision of this
Agreement, and this Agreement shall be construed as if it did not
contain such invalid or unenforceable provision.
26.3 In the event that any legislative, regulatory, judicial or
other governmental action materially affects any material terms of this
Agreement, the ability of either Party to perform any material terms of
this Agreement, or the rights or obligations of either Party under this
Agreement, the Parties shall take such action as shall be necessary to
conform this Agreement to the governmental action and/or to permit
Xxxx Atlantic to continue to provide and Reseller to continue to
purchase Xxxx Atlantic Services, including, but not limited to,
conducting good faith negotiations to enter into a mutually acceptable
modified or substitute agreement, filing tariffs, or additional,
supplemental or modified tariffs, and making other required filings
with governmental entities.
26.4 In the event of a governmental action described in Section
26.3, above, to the extent permitted by Applicable Law, Xxxx Atlantic
shall continue to provide and
19
Reseller shall continue to subscribe to, use and pay for, any Xxxx
Atlantic Services affected by the governmental action until the action
to be taken by Xxxx Atlantic and Reseller under Section 26.3, above, is
taken and becomes effective in accordance with Applicable Law. Such
continued provision of and subscription to, use of and payment for, the
affected Xxxx Atlantic Services shall be in accordance with the terms
(including prices) of this Agreement, unless other terms, including but
not limited to the terms of a Xxxx Atlantic Tariff, are required by
Applicable Law.
26.5 If suspension or termination of the provision of any Xxxx
Atlantic Service is required by or as a result of a governmental
action, such suspension or termination shall not affect Reseller's
subscription to, use or obligation to pay for, other Xxxx Atlantic
Services, unless such suspension or termination has a material, adverse
effect on Reseller's ability to use the other Xxxx Atlantic Services.
26.6 If any of the Xxxx Atlantic Services to be provided by Xxxx
Atlantic pursuant to a tariff shall at any time become detariffed or
deregulated, Xxxx Atlantic may transfer the provisions of the tariff
relative to such Xxxx Atlantic Services to a Xxxx Atlantic "Guide for
Detariffed Services" or similar document, and such "Guide for
Detariffed Services" or similar document, as amended by Xxxx Atlantic
from time-to time, shall become a part of this Agreement.
27. RELATIONSHIP OF THE PARTIES
27.1 The relationship between the Parties under this Agreement
shall be that of independent contractors.
27.2 Nothing contained in this Agreement shall:
(a) make either Party the Agent or employee of
the other Party;
(b) grant either Party the authority to enter
into a contract on behalf of, or otherwise legally bind, the other
Party in any way;
(c) create a partnership, joint venture or other
similar relationship between the parties; or
(d) grant to Reseller a franchise,
distributorship or similar interest.
27.3 Each Party shall be solely responsible for selection,
supervision, termination, and compensation, of its respective
employees, Agents and contractors.
27.4 Each Party shall be solely responsible for payment of any
Social Security or other taxes which it is required by Applicable Law
to pay in conjunction with its employees, Agents or contractors, and
for collecting and remitting to applicable taxing authorities any taxes
which it is required by Applicable Law to collect from its employees,
Agents or contractors.
20
27.5 The relationship of the Parties under this Agreement is a
non-exclusive relationship. Xxxx Atlantic shall have the right to
provide services offered by Xxxx Atlantic under this Agreement to
persons other than Reseller. Reseller shall have the right to purchase
services that may be purchased by Reseller under this Agreement from
persons other than Xxxx Atlantic.
28. RESELLER'S PROVISION OF SERVICE
28.1 Prior to providing Xxxx Atlantic Retail Telecommunications
Services purchased by Reseller under this Agreement to Reseller
Customers, Reseller shall obtain from the Commission, the FCC, and any
other applicable governmental entities, any certificates or other
authorizations required by Applicable Law for Reseller to provide
Telecommunications Services. Reseller shall promptly notify Xxxx
Atlantic in writing of any governmental action which suspends, cancels
or withdraws any such certificate or authorization, or otherwise limits
or affects Reseller's right to provide Telecommunications Services.
28.2 To the extent required by Applicable Law, Reseller shall: (a)
file with the Commission, the FCC, and/or other applicable governmental
entities, the tariffs, arrangements and other documents that set forth
the terms, conditions and prices under which Reseller provides
Telecommunications Services; and, (b) make available for public
inspection, the tariffs, arrangements and other documents that set
forth the terms, conditions and prices under which Reseller provides
Telecommunications Services.
29. RESELLER'S RESALE AND USE OF SERVICE
29.1 Reseller shall comply with the provisions of this Agreement
(including, but not limited to, Xxxx Atlantic's Tariffs) regarding
resale or use of Xxxx Atlantic Services, including, but not limited to,
any restrictions on resale or use of Xxxx Atlantic Services.
29.2 Without in any way limiting Section 29.1, (a) Reseller shall
not resell residential service to persons not eligible to subscribe to
such service from Xxxx Atlantic (including, BUT NOT limited to,
business Reseller Customers and other nonresidential Reseller
Customers), and (b) Reseller shall not resell Lifeline or other
means-tested service offerings, or grandfathered or discontinued
service offerings, to persons not eligible to subscribe to such service
offerings from Xxxx Atlantic.
29.3 Reseller shall undertake in good faith to ensure that Reseller
Customers comply with the provisions of Xxxx Atlantic's Tariffs
applicable to their use of Xxxx Atlantic Retail Telecommunications
Services.
29.4 Reseller shall comply with Applicable Law, and Xxxx Atlantic's
procedures, for handling requests from law enforcement and other
government agencies
21
for service termination, assistance with electronic surveillance, and
provision of information.
30. RESPONSIBILITY FOR CHARGES
30.1 Reseller shall be responsible for and pay all charges for any
Xxxx Atlantic Service provided by Xxxx Atlantic to Reseller, whether
the Xxxx Atlantic Service is ordered, activated or used by Reseller, a
Reseller Customer, or another person.
30.2 In addition to the charges for Xxxx Atlantic Services,
Reseller agrees to pay any charges for Telecommunications Services,
facilities, equipment, software, wiring, or other services or products,
provided by Xxxx Atlantic, or provided by persons other than Xxxx
Atlantic and billed for by Xxxx Atlantic, that are ordered, activated
or used by Reseller, Reseller Customers or other persons, through, by
means of, or in association with, Xxxx Atlantic Services provided by
Xxxx Atlantic to Reseller.
30.3 Reseller agrees to indemnify, defend and hold Xxxx Atlantic
harmless from, any charges for Telecommunications Services, facilities,
equipment, software, wiring, or other services or products, provided by
persons other than Xxxx Atlantic that are ordered, activated or used by
Reseller, Reseller Customers or other persons, through, by means of, or
in association with, Xxxx Atlantic Services provided by Xxxx Atlantic
to Reseller.
30.4 Without in any way limiting Reseller's obligations under
Section 30.1, Section 30.2 and Section 30.3, Reseller shall pay, or
collect and remit to Xxxx Atlantic, without discount, all Subscriber
Line Charges, Federal Line Cost Charges, end user common line charges,
carrier selection and change charges (PIC change charge), and the
Presubscribed Interexchange Carrier Charge applicable to Reseller
Customers who have not presubscribed to an interexchange carrier for
long distance services, associated with Xxxx Atlantic Services provided
by Xxxx Atlantic to Reseller.
30.5 Upon request by Reseller, Xxxx Atlantic will provide for use
on resold Xxxx Atlantic Retail Telecommunications Service dial tone
lines purchased by Reseller such Xxxx Atlantic Retail
Telecommunications Service call blocking services as Xxxx Atlantic
provides to Xxxx Atlantic's own end user retail Customers, where and to
the extent Xxxx Atlantic provides such Xxxx Atlantic Retail
Telecommunications Service call blocking services to Xxxx Atlantic's
own end user retail Customers.
31. SECTION HEADINGS.
The section headings in the Principal Document are
for convenience only and are not intended to affect the meaning or
interpretation of the Principal Document.
32. SERVICES NOT COVERED BY THIS AGREEMENT
22
32.1 This Agreement applies only to Xxxx Atlantic Services (as the
term "Xxxx Atlantic Service" is defined in Section 1.1.6) provided, or
to be provided, by Xxxx Atlantic to Reseller, as specified in Section
3. Any Telecommunications Services, facilities, equipment, software,
wiring, or other services or products (including, but not limited to,
Telecommunications Services, facilities, equipment, software, wiring,
or other services or products, interconnected or used with Xxxx
Atlantic Services provided, or to be provided, by Xxxx Atlantic to
Reseller) provided, or to be provided, by Xxxx Atlantic to Reseller,
which are not subscribed to by Reseller under this Agreement, must be
subscribed to by Reseller separately, pursuant to other written
agreements (including, but not limited to, applicable Xxxx Atlantic
Tariffs). Reseller shall use and pay for any Telecommunications
Services, facilities, equipment, software, wiring, or other services or
products, provided, or to be provided, by Xxxx Atlantic to Reseller,
which are not subscribed to by Reseller under this Agreement, in
accordance with such other written agreements (including, but not
limited to, applicable Xxxx Atlantic Tariffs).
32.2 Without in any way limiting Section 32.1 and without
attempting to list all Xxxx Atlantic products and services that are not
subject to this Agreement, the Parties agree that this Agreement does
not apply to the purchase by Reseller of the following Xxxx Atlantic
services and products: except as expressly stated in the Principal
Document, exchange access services as defined in Section 3(16) of the
Act, 47 U.S.C. Section 153(16) (including, but not limited to, primary
interLATA toll carrier and primary intraLATA toll carrier choice or
change); Xxxx Atlantic Answer Call, Xxxx Atlantic Answer Call Plus,
Xxxx Atlantic Home Voice Mail, Xxxx Atlantic Home Voice Mail Plus, Xxxx
Atlantic Voice Mail, Xxxx Atlantic Basic Mailbox, Xxxx Atlantic
OptiMail Service, and other Voice mail, fax mail, voice messaging, and
fax messaging, services; Xxxx Atlantic Optional Wire Maintenance Plan;
Xxxx Atlantic Guardian Enhanced Maintenance Service; Xxxx Atlantic
Sentry I Enhanced Maintenance Service; Xxxx Atlantic Sentry II Enhanced
Maintenance Service; Xxxx Atlantic Sentry III Enhanced Maintenance
Service; Xxxx Atlantic Call 54 Service; Xxxx Atlantic Public Telephone
Service; customer premises equipment; Xxxx Atlantic telephone directory
listings offered under agreements or arrangements other than Xxxx
Atlantic Tariffs filed with the Commission; and, Xxxx Atlantic
telephone directory advertisements.
32.3 Without in any way limiting Section 32.1, the Parties also
agree that this Agreement does not apply to the installation,
inspection, maintenance, repair, removal, or use of any facilities,
equipment, software, or wiring, located on Reseller's side of the
Network Rate Demarcation Point applicable to Reseller and does not
grant to Reseller or Reseller Customers a right to installation,
inspection, maintenance, repair, or removal, by Xxxx Atlantic, or use,
by Reseller or Reseller Customers, of any such facilities, equipment,
software, or wiring.
32.4 Without in any way limiting Section 32.1, the Parties agree
that this Agreement does not apply to the purchase by Reseller of
Audiotex Services (including, but not limited to, Dial-it, 976, 915 and
556* services) for resale to- Audiotex Service providers or other
information service providers. Xxxx Atlantic shall have the right (but
not the obligation) to block calls made to Audiotex Service numbers
(including, but not
23
limited to, Dial-It numbers and 976, 915 and 556 numbers) through Xxxx
Atlantic Services purchased by Reseller under this Agreement.
Notwithstanding the foregoing, Reseller shall pay, without discount,
any charges for Audiotex Services (including, but not limited to,
Dial-It, 976, 915 and 556 services) that are ordered, activated or used
by Reseller, Reseller Customers or other persons, through, by means of,
or in association with, Xxxx Atlantic Services provided by Xxxx
Atlantic to Reseller.
32.5 Nothing contained within this Agreement shall obligate Xxxx
Atlantic to provide any service or product which is not a Xxxx Atlantic
Service (including, but not limited to, the services listed in Sections
32.2, 32.3 'and 32.4, above) to Reseller.
32.6 Nothing contained within this Agreement shall obligate Xxxx
Atlantic to provide a Xxxx Atlantic Service or any other service or
product to a Reseller Customer. Without in any way limiting the
foregoing, except as otherwise required by Applicable Law, Xxxx
Atlantic reserves the right to terminate provision of services and
products (including, but not limited to, Telecommunications Services
and the services listed in Sections 32.2 and 32.3, above) to any person
who ceases to purchase Xxxx Atlantic Retail Telecommunications Service
dial tone line service from Xxxx Atlantic.
32.7 Nothing contained in this Section 32 shall in any way exclude
or limit Reseller's obligations and liabilities under Section 30,
including, but not limited to Reseller's obligations and liabilities to
pay charges for services and products as required by Section 30.
33. SERVICE QUALITY
Xxxx Atlantic Services provided by Xxxx Atlantic to
Reseller under this Agreement shall comply with the quality
requirements for such Xxxx Atlantic Services specified by Applicable
Law (including, but not limited to, any applicable provisions of 47
CFR Sections 51.311 and 51.603(b)).
34. SINGLE POINT OF CONTACT
34.1 Reseller shall be the single point of contact for Reseller
Customers and other persons with regard to Telecommunications Services
and other services and products which they wish to purchase from
Reseller or which they have purchased from Reseller. Communications by
Reseller Customers and other persons with regard to Telecommunications
Services and other services and products which they wish to purchase
from Reseller or which they have purchased from Reseller, shall be made
to Reseller, and not to Xxxx Atlantic. Reseller shall instruct Reseller
Customers and other persons that such communications shall be directed
to Reseller.
34.2 Without in any way limiting Section 34. 1, requests by
Reseller Customers for information about or provision of
Telecommunications Services which they wish to purchase from reseller,
requests by reseller customers to change, terminate, or obtain
information about, assistance in using, or repair or maintenance of,
Telecommunications
24
Services which they have purchased from Reseller, and inquiries by
Reseller Customers concerning Reseller's bills, charges for Reseller's
Telecommunications Services, and, if the Reseller Customers receive
dial tone line service from Reseller, annoyance calls, shall be made by
the Reseller Customers to Reseller, and not to Xxxx Atlantic.
34.3 Reseller shall establish telephone numbers and mailing
addresses at which Reseller Customers and other persons may communicate
with Reseller and shall advise Reseller Customers and other persons who
may wish to communicate with Reseller of these telephone numbers and
mailing addresses.
35. SURVIVAL
The liabilities and obligations of a Party for acts
or omissions of the Party prior to the termination, cancellation or
expiration of this Agreement, the rights, liabilities and obligations
of a Party under any provision of this Agreement regarding
indemnification or defense, Customer Information, confidential
information, or limitation or exclusion of liability, the rights of
Xxxx Atlantic and the liabilities and obligations of Reseller under
Section 18.1, and the rights, liabilities and obligations of a Party
under any provision of this Agreement which by its terms is
contemplated to survive (or be performed after) termination,
cancellation or expiration of this Agreement, shall survive
termination, cancellation or expiration of this Agreement.
36. TAXES
36.1 With respect to any purchase of Xxxx Atlantic Services under
this Agreement, if any Federal, state or local government tax, fee,
duty, surcharge (including, but not limited to any E911/911,
telecommunications relay service, or universal service fund,
surcharge), or other tax-like charge (a "Tax") is required or permitted
by Applicable Law to be collected from Reseller by Xxxx Atlantic, then
(a) to the extent required by Applicable Law, Xxxx Atlantic shall. xxxx
Reseller for such Tax, (b) Reseller shall timely remit such Tax to Xxxx
Atlantic (including both Taxes billed by Xxxx Atlantic and Taxes
Reseller is required by Applicable Law to remit without billing by
Xxxx Atlantic), and (c) Xxxx Atlantic shall remit such collected Tax to
the applicable taxing authority.
36.2 With respect to any purchase of Xxxx Atlantic Services under
this Agreement, if any Tax is imposed by Applicable Law on the receipts
of Xxxx Atlantic, which Applicable Law permits Xxxx Atlantic to exclude
certain receipts received from sales of Xxxx Atlantic Services for
resale by Reseller, such exclusion being based on the fact that
Reseller is also subject to a Tax based upon receipts ("receipts tax"),
then Reseller (a) shall provide Xxxx Atlantic with notice in writing in
accordance with section 36.7 of its intent to pay the Receipts Tax, and
(b) shall timely pay the Receipts Tax to the applicable taxing
authority.
36.3 With respect to any purchase of Xxxx Atlantic services under
this Agreement, that are resold by Reseller to a Reseller Customer, if
any Tax is imposed by
25
Applicable Law on the Reseller Customer in connection with the Reseller
Customer's purchase of the resold Xxxx Atlantic Services which Reseller
is required to impose and/or collect from the Reseller Customer, then
Reseller (a) shall impose and/or collect such Tax from the Reseller
Customer, and (b) shall timely remit such Tax to the applicable taxing
authority.
36.4.1 If Xxxx Atlantic has not received an exemption certificate
from Reseller and fails to xxxx Reseller for any Tax as required by
Section 36.1, then, as between Xxxx Atlantic and Reseller, (a) Reseller
shall remain liable for such unbilled Tax, and (b) Xxxx Atlantic -shall
be liable for any interest and/or penalty assessed on the unbilled
Tax by the applicable taxing authority.
36.4.2 If Reseller fails to remit any Tax to Xxxx Atlantic as
required by Section 36.1, then, as between Xxxx Atlantic and Reseller,
Reseller shall be liable for such uncollected Tax and any interest
and/or penalty assessed on the uncollected Tax by the applicable taxing
authority.
36.4.3 If Xxxx Atlantic does not collect a Tax because Reseller has
provided Xxxx Atlantic with an exemption certificate which is later
found to be inadequate by the applicable taxing authority, then, as
between Xxxx Atlantic and Reseller, Reseller shall be liable for such
uncollected Tax and any interest and/or penalty assessed on the
uncollected Tax by the applicable taxing authority.
36.4.4 Except as provided in Section 36.4.5, if Reseller fails to
pay the Receipts Tax as required by Section 36.2, then, as between Xxxx
Atlantic and Reseller, (a) Xxxx Atlantic shall be liable for any Tax
imposed on Xxxx Atlantic's receipts, (b) Reseller shall be liable for
any interest and/or penalty imposed on Xxxx Atlantic with respect to
the Tax on Xxxx Atlantic's receipts, and (c) Reseller shall be liable
for any Tax imposed on Reseller's receipts and any interest and/or
penalty assessed by the applicable taxing authority on Reseller with
respect to the Tax on Reseller's receipts.
36.4.5 If any discount or portion of a discount in price provided to
Reseller under this Agreement (including, but not limited to, a
discount provided for in Exhibit II, Section 1.1) represents Tax
savings to Xxxx Atlantic which it was anticipated Xxxx Atlantic would
receive, because it was anticipated that receipts from sales of Xxxx
Atlantic Services, that would otherwise be subject to a Tax on such
receipts, could be excluded from such Tax under Applicable Law because
the Xxxx Atlantic Services would be sold to Reseller for resale, and
Xxxx Atlantic is, in fact, required by Applicable Law to pay such Tax
on receipts from sales of Xxxx Atlantic Services to Reseller, then, as
between Xxxx Atlantic and Reseller, (a) Reseller shall be liable for,
and shall indemnify and hold harmless Xxxx Atlantic against (on an
after-tax basis), any such Tax, and (b) Reseller shall be liable for,
and shall indemnify and hold harmless Xxxx Atlantic against (on an
after-tax basis), any interest and/or penalty assessed by the
applicable taxing authority on either Reseller or Xxxx Atlantic with
respect to the Tax on Xxxx Atlantic's receipts.
26
36.4.6 If Reseller fails to impose and/or collect any Tax from
Reseller Customers as required by Section 36.3, then, as between Xxxx
Atlantic and Reseller, Reseller shall remain liable for such
uncollected Tax and any interest and/or penalty assessed on such
uncollected Tax by the applicable taxing authority.
36.4.7 With respect to any Tax that Reseller has agreed to pay, is
responsible for because Reseller received a discount in price on Xxxx
Atlantic Services attributable to anticipated Tax savings by Xxxx
Atlantic, or is required to impose on and/or collect from Reseller
Customers, Reseller agrees to indemnify and hold Xxxx Atlantic harmless
on an after-tax basis for any costs incurred by Xxxx Atlantic as a
result of actions taken by the applicable taxing authority to recover
the Tax from Xxxx Atlantic due to failure of Reseller to timely remit
the Tax to Xxxx Atlantic, or timely pay, or collect and timely remit,
the Tax to the taxing authority.
36.5 If either Party is audited by a taxing authority, the other
Party agrees to reasonably cooperate with the Party being audited in
order to respond to any audit inquiries in a proper and timely manner
so that the audit and/or any resulting controversy may be resolved
expeditiously.
36.6.1 If Applicable Law clearly exempts a purchase of Xxxx Atlantic
Services under this Agreement from a Tax, and if such Applicable Law
also provides an exemption procedure, such as an exemption certificate
requirement, then, if Reseller complies with such procedure, Xxxx
Atlantic shall not collect such Tax during the effective period of the
exemption. Such exemption shall be effective upon receipt of the
exemption certificate or affidavit in accordance with Section 36.7.
36.6.2 If Applicable Law clearly exempts a purchase of Xxxx Atlantic
Services under this Agreement from a Tax, but does not also provide an
exemption procedure, then Xxxx Atlantic shall not collect such Tax if
Reseller (a) furnishes Xxxx Atlantic with a letter signed by an officer
of Reseller requesting an exemption and citing the provision in the
Applicable Law which clearly allows such exemption, and (b) supplies
Xxxx Atlantic with an indemnification agreement, reasonably acceptable
to Xxxx Atlantic, which holds Xxxx Atlantic harmless on an after-tax
basis with respect to forbearing to collect such Tax.
36.7 All notices, affidavits, exemption certificates or other
communications required or permitted to be given by either Party to the
other under this Section 36, shall be made in writing and shall be sent
by certified or registered mail, return receipt requested, or by a
reputable private delivery service which provides a record of delivery,
to the addressee stated in Section 23 at the address stated in sECTION
23 and to the following:
To Xxxx Atlantic:
Tax Administration
Xxxx Atlantic Corporation
1095 Avenue of the Americas
27
Room 3109
Xxx Xxxx, Xxx Xxxx 00000
To Reseller: Controller
Xxxxxxxxx.Xxx, Inc.
0 Xxxxxxxxxx Xxxxx Xxxxx
Xxxxxxxxxx, XX 00000
Tel: (000) 000-0000
Fax: (000) 000-0000
Either Party may from time-to-time designate another
address or addressee by giving notice in accordance with the terms of
this Section 36.7.
Any notice or other communication shall be deemed to
be given when received.
37. TELEPHONE EXCHANGE SERVICE PROVIDER SELECTION
37.1 Without in any way limiting Reseller's obligations under
Section 12, Reseller shall comply with Applicable Law with regard to
end user selection of a Telephone Exchange Service provider. Until the
Commission or the FCC adopts regulations and/or orders applicable to
end user selection of a Telephone Exchange Service provider, Reseller
shall apply the rules and procedures set forth in Section 64.1100 of
the FCC Rules, 47 CFR Section 64.1100, to the process for end user
selection of a Telephone exchange Service provider (including, to end
user selection of a Telephone Exchange Service provider that occurs
during any telemarketing contact with an end user), and shall comply
with such rules and procedures.
37.2 By submitting to Xxxx Atlantic an Order to install, provide,
change or terminate a Telecommunications Service, to select, change or
reassign a telephone number, or to select, change or terminate an end
user's Telephone Exchange Service provider, Reseller represents and
warrants: (a) that Reseller has obtained authorization for such action
from the applicable end user; and, (b) that if Applicable Law and/or
this Agreement required such authorization to be obtained in a
particular manner, Reseller obtained the authorization in the manner
required by Applicable Law and this Agreement. Reseller shall upon
request by Xxxx Atlantic provide proof of such authorization
(including, a copy of any written authorization).
37.3 If Reseller submits an Order to Xxxx Atlantic to install,
provide, change or terminate a Telecommunications Service, to select,
change or reassign a telephone number, or to select, change or
terminate an end users Telephone Exchange Service provider, and (a)
when requested by Xxxx Atlantic to provide a written document signed
by the end user stating the end user's Telephone Exchange Service
provider selection, fails to provide such document to Xxxx Atlantic, or
(b) has not obtained authorization for such installation, provision,
selection, change, reassignment or termination, from the end user in
the manner required by Applicable Law (or, in the absence of Applicable
Law, in
28
the manner required by the rules and procedures in 47 CFR Section
64.1100), Reseller shall be liable to Xxxx Atlantic for all charges
that would be applicable to the end user for the initial installation,
provision, selection, change, reassignment or termination, of the end
user's Telecommunications Service, telephone number, and/or Telephone
Exchange Service provider, and any charges for restoring the end user's
Telecommunications Service, telephone number, and/or Telephone Exchange
Service provider selection, to its end user authorized condition.
38. TELEPHONE NUMBERS
38.1 Reseller's use of telephone numbers shall be subject to
Applicable Law (including, but not limited to, the rules of the FCC,
the North American Numbering Council, and the North American Numbering
Plan Administrator), the applicable provisions of this Agreement
(including, but not limited to, this Section 38), and Xxxx Atlantic's
practices and procedures for use and assignment of telephone numbers,
as amended from time-to-time.
38.2 Subject to Sections 38.1 and 38.3, if an end user who
subscribes to a Xxxx Atlantic Retail Telecommunications Service dial
tone line from either Reseller or Xxxx Atlantic changes the
Telecommunications Carrier from whom the end user subscribes for such
dial tone line (including a change from Xxxx Atlantic to Reseller, from
Reseller to Xxxx Atlantic, or from Reseller to a Telecommunications
Carrier other than Xxxx Atlantic), after such change, the end user may
continue to use with the dial tone line the telephone numbers which
were assigned to the dial tone line by Xxxx Atlantic immediately prior
to the change.
38.3 Xxxx Atlantic shall have the right to change the telephone
numbers used by an end user if at any time: (a) the type or class of
service subscribed to by the end user changes; (b) the end user
requests service at a new location, that is not served by the Xxxx
Atlantic switch and the Xxxx Atlantic rate center from which the end
user previously had service; or, (c) continued use of the telephone
numbers is not technically feasible.
38.4 If service on a Xxxx Atlantic Retail Telecommunications
Service dial tone line subscribed to by Reseller from Xxxx Atlantic
under this Agreement is terminated, the telephone numbers associated
with such dial tone line shall be available for reassignment by Xxxx
Atlantic to any person to whom Xxxx Atlantic elects to assign the
telephone numbers, including, but not limited to, Xxxx Atlantic, Xxxx
Atlantic end user retail Customers, Reseller, or Telecommunications
Carriers other than Xxxx Atlantic and Reseller.
39. WARRANTIES
EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, XXXX
ATLANTIC MAKES NO WARRANTIES WITH RESPECT TO XXXX ATLANTIC SERVICES,
WHETHER EXPRESS OR IM[PLIED, WRITTEN OR ORAL, IN FACT OR IN LAW. THE
WARRANTIES SET FORTH IN THIS
29
AGREEMENT ARE XXXX ATLANTIC'S EXCLUSIVE WARRANTIES WITH RESPECT TO XXXX
ATLANTIC SERVICES AND ARE IN LIEU OF ALL OTHER WARRANTIES, EXPRESS OR
IMPLIED, WRITTEN OR ORAL, IN FACT OR IN LAW. XXXX ATLANTIC DISCLAIMS
ANY AND ALL OTHER WARRANTIES, INCLUDING, BUT NOT LIMITED TO, WARRANTIES
OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, WARRANTIES
AGAINST INFRINGEMENT, AND WARRANTIES ARISING BY TRADE CUSTOM, TRADE
USAGE, COURSE OF DEALING, OR OTHERWISE.
40. PUBLICITY AND USE OF TRADEMARKS OR SERVICE MARKS
40.1.1 Neither Party nor its subcontractors or agents will use the
other Party's trademarks, service marks, logos or other proprietary
trade dress in connection with the sale of products and services, or in
any advertising, press releases, publicity matters or other promotional
materials without such Party's prior written consent.
40.1.2 Neither Party may imply any direct or indirect affiliation
with or sponsorship or endorsement of its company, products and
services by the other Party.
41. AUTHORIZATION
41.1.1 Xxxx Atlantic is a corporation duly organized, validly
existing and in good standing under the laws of the State of West
Virginia and has full power and authority to execute and deliver this
Agreement and to perform the obligations hereunder on behalf of
Xxxx Atlantic.
41.2 Xxxxxxxxx.Xxx, Inc., a corporation, is duly organized, validly
existing and in good standing under the laws of Delaware, and has full
power and authority to execute and deliver this Agreement and to
perform its obligations hereunder.
30
IN WITNESS WHEREOF, intending to be legally bound, Reseller
and Xxxx Atlantic have caused this Agreement to be executed by their respective
authorized representatives.
XXXXXXXXX.XXX, INC.
BY: /s/ Xxxxx Xxxxxxx
-------------------------------------------
Signature
Xxxxx Xxxxxxx
-------------------------------------------
Name (Printed)
ITS: CEO
-------------------------------------------
Title
BY: /s/ Xxxxxxx Xxxxx
-------------------------------------------
Signature
Xxxxxxx Xxxxx
-------------------------------------------
Name (Printed)
ITS: Vice President-Operations
-------------------------------------------
Title
BY: /s/ Xxxx Xxxxx
-------------------------------------------
Signature
Xxxx Xxxxx
-------------------------------------------
Name (Printed)
ITS: Vice President -Business Development
-------------------------------------------
Title
XXXX ATLANTIC - WEST VIRGINIA, INC.
BY: /s/ Xxxxxxx X. Xxxxxxx
-------------------------------------------
Signature
Xxxxxxx X. Xxxxxxx
-------------------------------------------
Name (Printed)
TITLE: Vice President - Telecom Industry Services
-------------------------------------------
31
EXHIBIT I
XXXX ATLANTIC ANCILLARY SERVICES
1. XXXX ATLANTIC OSS SERVICES
1.1 DEFINITIONS
As used in the Principal Document, the terms listed below
shall have the meanings stated below:
1.1.1 "Xxxx Atlantic Operations Support Systems" means Xxxx Atlantic
systems for pre ordering, ordering, provisioning, maintenance and
repair, and billing.
1.1.2 "Xxxx Atlantic OSS Services" means access to Xxxx Atlantic
Operations Support Systems functions. The term "Xxxx Atlantic OSS
Services" includes, but is not limited to: (a) Xxxx Atlantic's
provision of Reseller Usage Information to Reseller pursuant to Exhibit
1, Section 1.3, below; and, (b) "Xxxx Atlantic OSS Information", as
defined in Exhibit I, Section 1.1.4, below.
1.1.3 "Xxxx Atlantic OSS Facilities" means any gateways, interfaces,
databases, facilities, equipment, software, or systems, used by Xxxx
Atlantic to provide Xxxx Atlantic OSS Services to Reseller.
1.1.4 "Xxxx Atlantic OSS Information" means any information accessed
by, or disclosed or provided to, Reseller through or as a part of Xxxx
Atlantic OSS Services. The term "Xxxx Atlantic OSS Information"
includes, but is not limited to: (a) any. Customer Information related
to a Xxxx Atlantic Customer or a Reseller Customer accessed by, or
disclosed or provided to, Reseller through or as a part of Xxxx
Atlantic OSS Services; and, (b) any Reseller Usage Information (as
defined in Exhibit I, Section 1.1.5, below) accessed by, or disclosed
or provided to, Reseller.
1.1.5 "Reseller Usage Information" means the usage information for
a Xxxx Atlantic Retail Telecommunications Service purchased by Reseller
under this Agreement that Xxxx Atlantic would record if Xxxx Atlantic
was furnishing such Xxxx Atlantic Retail Telecommunications Service to
a Xxxx Atlantic end-user retail Customer.
1.2 XXXX ATLANTIC OSS SERVICES
1.2.1 Upon request by Reseller, Xxxx Atlantic shall provide to
Reseller, pursuant to Section 251(c)(3) of the Act, 47 U.S.C. Section
251(c)(3), Xxxx Atlantic OSS Services.
1.2.2 Subject to the requirements of Applicable Law, Xxxx Atlantic
Operations Support Systems, Xxxx Atlantic Operations Support Systems
functions, Xxxx Atlantic OSS
32
Facilities, Xxxx Atlantic OSS Information, and the Xxxx Atlantic OSS
Services that will be offered by Xxxx Atlantic, shall be as determined
by Xxxx Atlantic. To the extent required by Applicable Law and
technically feasible, Xxxx Atlantic will offer to Reseller the Xxxx
Atlantic OSS Services that Xxxx Atlantic offers, under agreements
approved by the Commission pursuant to 47 U.S.C. Section 252, to other
Telecommunications Carriers that are engaged in the resale of Xxxx
Atlantic Retail Telecommunications Services pursuant to 47 U.S.C.
Section 251(c)(4). Subject to the requirements of Applicable Law, Xxxx
Atlantic shall have the right to change Xxxx Atlantic Operations
Support Systems, Xxxx Atlantic Operations Support Systems functions,
Xxxx Atlantic OSS Facilities, Xxxx Atlantic OSS Information, and the
Xxxx Atlantic OSS Services, from time-to-time, without the consent of
Reseller.
1.3 Reseller Usage Information
1.3.1 Upon request by Reseller, Xxxx Atlantic shall provide to
Reseller, pursuant to Section 251(c)(3) of the Act, 47 U.S.C. Section
251(c)(3), Reseller Usage Information.
1.3.2 Reseller Usage Information will be available to Reseller
through the following:
(a) Daily Usage File on Data Tape.
(b) Daily Usage File through Network Data Mover ("NDM").
(c) Daily Usage File through Centralized Message Distribution
System ("CMDS").
1.3.3.1 Reseller Usage Information will be provided in a Bellcore
Exchange Message Records ("EMR") format.
1.3.3.2 Daily Usage File Data Tapes provided pursuant to Exhibit I,
Section 1.3.2(a) will be issued each day, Monday through Friday, except
holidays observed by Xxxx Atlantic.
1.3.4 Except as stated in this Exhibit I, Section 1.3, subject to
the requirements of Applicable Law, the manner in which, and the
frequency with which, Reseller Usage Information will be provided to
Reseller shall be determined by Xxxx Atlantic.
1.4 PRICES
The prices for Xxxx Atlantic OSS Services shall be as stated
in Exhibit II, Section 2 following.
1.5 ACCESS TO AND USE OF XXXX ATLANTIC OSS FACILITIES
1.5.1 Xxxx Atlantic OSS facilities may be accessed and used by
Reseller only to the extent necessary for Reseller's access to and use
of Xxxx Atlantic OSS Services pursuant to this Agreement
33
1.5.2 Xxxx Atlantic OSS Facilities may be accessed and used by
Reseller only to provide Telecommunications Services to Reseller
Customers.
1.5.3 Reseller shall restrict access to and use of Xxxx Atlantic OSS
Facilities to Reseller. This Agreement does not grant to Reseller any
right or license to grant sublicenses to other persons, or permission
to other persons (except Reseller's employees, Agents and contractors,
in accordance with Exhibit 1, Section 1.5.7, below), to access or use
Xxxx Atlantic OSS Facilities.
1.5.4 Reseller shall not (a) alter, modify or damage the Xxxx
Atlantic OSS Facilities (including, but not limited to, Xxxx Atlantic
software), (b) copy, remove, derive, reverse engineer, or decompile,
software from the Xxxx Atlantic OSS Facilities, or (c) obtain access
through Xxxx Atlantic OSS Facilities to Xxxx Atlantic databases,
facilities, equipment, software, or systems, which are not offered for
Reseller's use under this Agreement.
1.5.5 Reseller shall comply with all practices and procedures
established by Xxxx Atlantic for access to and use of Xxxx Atlantic OSS
Facilities (including, but not limited to, Xxxx Atlantic practices and
procedures with regard to security and use of access and user
identification codes).
1.5.6 All practices and procedures for access to and use of Xxxx
Atlantic OSS Facilities, and all access and user identification codes
for Xxxx Atlantic OSS Facilities: (a) shall remain the property of Xxxx
Atlantic; (b) shall be used by Reseller only in connection with
Reseller's use of Xxxx Atlantic OSS Facilities permitted by this
Agreement; (c) shall be treated by Reseller as Confidential Information
of Xxxx Atlantic pursuant to Section 13; and, (d) shall be destroyed or
returned by Reseller to Xxxx Atlantic upon the earlier of request by
Xxxx Atlantic or the expiration or termination of this Agreement.
1.5.7 Reseller's employees, Agents and contractors may access and
use Xxxx Atlantic OSS Facilities only to the extent necessary for
Reseller's access to and use of the Xxxx Atlantic OSS Facilities
permitted by this Agreement. Any access to or use of Xxxx Atlantic OSS
Facilities by Reseller's employees, Agents, or contractors, shall be
subject to the provisions of this Agreement, including, but not limited
to, Section 13, Exhibit 1, Section 1.5.6, and Exhibit I, Section
1.6.3.3.
1.6 XXXX ATLANTIC OSS INFORMATION
1.6.1 Subject to the provisions of this Agreement and Applicable
Law, Xxxx Atlantic grants to Reseller a non-exclusive license to use
Xxxx Atlantic OSS Information.
1.6.2 All Xxxx Atlantic OSS Information shall at all times remain
the property of Xxxx Atlantic. Except as expressly stated in this
Agreement, Reseller shall acquire no rights in or to any Xxxx Atlantic
OSS Information.
34
1.6.3.1 The provisions of this Exhibit 1, Section 1.6.3 apply to all
Xxxx Atlantic OSS Information, except (a) Reseller Usage Information,
(b) CPNI of Reseller, and (c) CPNI of a Xxxx Atlantic Customer or a
Reseller Customer, to the extent the Customer has authorized Reseller
to use the Customer Information.
1.6.3.2 Xxxx Atlantic OSS Information may be accessed and used by
Reseller only to provide Telecommunications Services to Reseller
Customers.
1.6.3.3 Reseller shall treat Xxxx Atlantic OSS Information that is
designated by Xxxx Atlantic, through written or electronic notice
(including, but not limited to, through the Xxxx Atlantic OSS
Services), as "Confidential" or "Proprietary" as Confidential
Information of Xxxx Atlantic pursuant to Section 13.
1.6.3.4 Except as expressly stated in this Agreement, this Agreement
does not grant to Reseller any right or license to grant sublicenses to
other persons, or permission to other persons (except Reseller's
employees, Agents or contractors, in accordance with Exhibit 1, Section
1.6.3.5), to access, use or disclose Xxxx Atlantic OSS Information.
1.6.3.5 Reseller's employees, Agents and contractors may access, use
and disclose Xxxx Atlantic OSS Information only to the extent necessary
for Reseller's access to, and use and disclosure of, Xxxx Atlantic OSS
Information permitted by this Agreement. Any access to, or use or
disclosure of, Xxxx Atlantic OSS Information by Reseller's employees,
Agents or contractors, shall be subject to the provisions of this
Agreement, including, but not limited to, Section 13 and Exhibit 1,
Section 1.6.3.3.
1.6.3.6 Reseller's license to use Xxxx Atlantic OSS Information shall
expire upon the earliest of (a) the time when the Xxxx Atlantic OSS
Information is no longer needed by Reseller to provide
Telecommunications Services to Reseller Customers; (b) termination of
the license in accordance with this Agreement; or (c) expiration or
termination of this Agreement.
1.6.3.7 All Xxxx Atlantic OSS Information received by Reseller shall
be destroyed or returned by Reseller to Xxxx Atlantic, upon expiration,
suspension or termination of the license to use such Xxxx Atlantic OSS
Information.
1.6.4 Unless sooner terminated or suspended in accordance with this
Agreement (including, but not limited to, Section 17.1 and Exhibit I,
Section 1.7. 1), Reseller's access to Xxxx Atlantic OSS Information
through Xxxx Atlantic OSS Services shall terminate upon the expiration
or termination of this Agreement.
1.6.5.1 Without in any way limiting Section 16.3, Xxxx Atlantic shall
have the right (but not the obligation) to audit reseller to ascertain
whether Reseller is complying with the requirements of Applicable Law
and this Agreement, with regard to Reseller's access to, and use and
disclosure of, Xxxx Atlantic OSS Information.
35
1.6.5.2 Without in any way limiting Section 16.3, Section 16.4, or
Exhibit I, Section 1.6.5.1, Xxxx Atlantic shall have the right (but not
the obligation) to monitor Reseller's access to and use of Xxxx
Atlantic OSS Information which is made available by Xxxx Atlantic to
Reseller pursuant to this Agreement, to ascertain whether Reseller is
complying with the requirements of Applicable Law and this Agreement,
with regard to Reseller's access to, and use and disclosure of, such
Xxxx Atlantic OSS Information. The foregoing right shall include, but
not be limited to, the right (but not the obligation) to electronically
monitor Reseller's access to and use of Xxxx Atlantic OSS Information
which is made available by Xxxx Atlantic to Reseller through Xxxx
Atlantic OSS Facilities.
1.6.5.3 Information obtained by Xxxx Atlantic pursuant to this Exhibit
1, Section 1.6.5 shall be treated by Xxxx Atlantic as Confidential
Information of Reseller pursuant to Section 13; provided that, Xxxx
Atlantic shall have the right (but not the obligation) to use and
disclose information obtained by Xxxx Atlantic pursuant to this Exhibit
1, Section 1.6.5 to enforce Applicable Law and/or Xxxx Atlantic's
rights under this Agreement.
1.6.6 Reseller acknowledges that the Xxxx Atlantic OSS Information,
by its nature, is updated and corrected on a continuous basis by Xxxx
Atlantic, and therefore that Xxxx Atlantic OSS Information is subject
to change from time to time.
1.7 LIABILITIES AND REMEDIES
1.7.1 Any breach by Reseller, or Reseller's employees, Agents or
contractors, of the provisions of Exhibit 1, Section 1.5 or Exhibit 1,
Section 1.6, shall be deemed a material breach of a material provision
of this Agreement by Reseller under Section 17.1 of this Agreement. In
addition, if Reseller or an employee, Agent or contractor of Reseller
at any time breaches a provision of Exhibit I, Section 1.5 or Exhibit
I, Section 1.6, and such breach continues for more than ten (10) days
after written notice thereof from Xxxx Atlantic, then, except as
otherwise required by Applicable Law, Xxxx Atlantic shall have the
right, upon notice to Reseller, to suspend the license to use Xxxx
Atlantic OSS Information granted by Exhibit I, Section 1.6.1 and/or
the provision of Xxxx Atlantic OSS Services, in whole or in part.
1.7.2 Reseller agrees that Xxxx Atlantic would be irreparably
injured by a breach of Exhibit 1, Section 1.5 or Exhibit 1, Section 1.6
by Reseller or the employees, Agents or contractors of Reseller, and
that Xxxx Atlantic shall be entitled to seek equitable relief,
including injunctive relief and specific performance, in the event of
any breach of exhibit 1, Section 1.5 or Exhibit 1, Section 1.6 by
Reseller or the employees, Agents or contractors of Reseller. Such
remedies shall not be deemed to be the exclusive remedies for a breach
of Exhibit 1, Section 1.5 or Exhibit 1, Section 1.6, but shall be in
addition to any other remedies available under this Agreement or at law
or in equity.
1.8 RELATION TO APPLICABLE LAW
The provisions of Exhibit 1, Sections 1.5, 1.6 and 1.7 shall
be in addition to and not in derogation of any provisions of Applicable
Law, including, but not limited to, 47
36
U.S.C. Section 222 and the FCC rules in 47 CFR Section 64.2001 -
Section 64.2009, and are not intended to constitute a waiver by Xxxx
Atlantic of any right with regard to protection of the confidentiality
of the information of Xxxx Atlantic or Xxxx Atlantic Customers provided
by Applicable Law.
1.9 CORPORATION
Reseller, at Reseller's expense, shall reasonably cooperate
with Xxxx Atlantic in using Xxxx Atlantic OSS Services. Such
cooperation shall include, but not be limited to, the following:
1.9.1 Upon request by Xxxx Atlantic, Reseller shall by no later than
the fifteenth (15th) day of each calendar month submit to Xxxx Atlantic
reasonable, good faith estimates (by central office or other Xxxx
Atlantic office or geographic area designated by Xxxx Atlantic) of the
volume of each Xxxx Atlantic Retail Telecommunications Service for
which Reseller anticipates submitting Orders in each week of the next
calendar month.
1.9.2 Upon request by Xxxx Atlantic, Reseller shall submit to Xxxx
Atlantic reasonable, good faith estimates of other types of
transactions or use of Xxxx Atlantic OSS Services that Reseller
anticipates.
1.9.3 Reseller shall reasonably cooperate with Xxxx Atlantic in
submitting Orders for Xxxx Atlantic Retail Telecommunications Services
and otherwise using the Xxxx Atlantic OSS Services, in order to avoid
exceeding the capacity or capabilities of such Xxxx Atlantic OSS
Services.
1.9.4 Reseller shall participate in cooperative testing of Xxxx
Atlantic OSS Services and shall provide assistance to Xxxx Atlantic in
identifying and correcting mistakes, omissions, interruptions, delays,
errors, defects, faults, failures, or other deficiencies, in Xxxx
Atlantic OSS Services.
1.10 Xxxx Atlantic access to information related to Reseller
CUSTOMERS
1.10.1 Xxxx Atlantic shall have the right to access, use and disclose
information related to reseller customers that is in xxxx atlantic's
possession (including, but not limited to, in Xxxx Atlantic OSS
Facilities) to the extent such access, use and/or disclosure has been
authorized by the reseller customer in the manner required by
Applicable Law.
1.10.2 Upon request by Xxxx Atlantic, Reseller shall negotiate in
good faith and enter into a contract with Xxxx Atlantic, pursuant to
which Xxxx Atlantic may obtain access to reseller's operations support
systems (including, systems for pre-ordering, ordering, provisioning,
maintenance and repair, and billing) and information contained in such
systems, to permit Xxxx Atlantic to obtain information related to
Reseller Customers (as authorized by the applicable Reseller Customer),
to permit customers to transfer service from one telecommunications
carrier to another, and for such other purposes as may be permitted by
Applicable Law.
37
2. E911/911 SERVICES
2.1 Where and to the extent that Xxxx Atlantic provides E911/911
call routing to a Public Safety Answering Point ("PSAP") to Xxxx
Atlantic's own end user retail Customers, Xxxx Atlantic will provide to
Reseller, for resold Xxxx Atlantic Retail Telecommunications Service
dial tone lines, E911/911 call routing to the appropriate PSAP. Xxxx
Atlantic will provide Reseller Customer information for resold Xxxx
Atlantic Retail Telecommunications Service dial tone lines to the PSAP
as that information is provided to Xxxx Atlantic by Reseller where and
to the same extent that Xxxx Atlantic provides Xxxx Atlantic end user
retail Customer information to the PSAP. Xxxx Atlantic will update and
maintain, on the same schedule that Xxxx Atlantic uses with Xxxx
Atlantic's own end user retail Customers, for Reseller Customers served
by resold Xxxx Atlantic Retail Telecommunications Service dial tone
lines, the Reseller Customer information in Xxxx Atlantic's E911/911
databases.
2.2 Reseller shall provide to Xxxx Atlantic the name, telephone
number and address, of all Reseller Customers, and such other
information as may be requested by Xxxx Atlantic, for inclusion in
E911/911 databases. Any change in Reseller Customer name, address or
telephone number information (including addition or deletion of a
Reseller Customer, or a change in Reseller Customer name, telephone
number or address), or in other E911/911 information supplied by
Reseller to Xxxx Atlantic, shall be reported to Xxxx Atlantic by
Reseller within one (1) day after the change.
2.3 To the extent that it is necessary (whether as a requirement
of Applicable Law or otherwise) for Reseller to enter into any
agreements or other arrangements with governmental entities (or
governmental entity contractors) related to E911/911 in order for
Reseller to provide Telecommunications Services, Reseller shall at
Reseller's expense enter into such agreements and arrangements.
3. Routing to Directory Assistance and Operator Services
3.1 Upon request by Reseller, to the extent technically feasible,
Xxxx Atlantic will provide to Reseller the capability of rerouting to
Reseller's platforms directory assistance traffic (411 and 555-1212
calls) from Reseller Customers served by resold Xxxx Atlantic Retail
Telecommunications Service dial tone line service and operator services
traffic (0+ and 0- intraLATA calls) from Reseller Customers served by
resold Xxxx Atlantic Retail Telecommunications Service dial tone line
service.
3.2 A request for the rerouting service described in Exhibit I,
Section 4.1 must be made by Reseller (a) on a Xxxx Atlantic
switch-by-Xxxx Atlantic switch basis, and (b) at least ninety (90) days
in advance of the date that the rerouting capability is to be made
available in an applicable Xxxx Atlantic switch.
3.3 The prices for the rerouting service described in exhibit I,
Section 4.1 shall be as stated in Exhibit II, Section 2.
38
4. LIDB/BVS
4.1 Upon request by Reseller, Xxxx Atlantic will maintain
information (including calling card numbers and collect and xxxx to
third party billing restriction notation) for Reseller Customers who
subscribe to resold Xxxx Atlantic Retail Telecommunications Service
dial tone line service, in Xxxx Atlantic's Line Information Database
("LIDB"), where and to the same extent that Xxxx Atlantic maintains
information in Xxxx Atlantic's LIDB for Xxxx Atlantic's own end-user
retail Customers.
4.2 If an end-user terminates Xxxx Atlantic Retail
Telecommunications Service dial tone line service provided to the
end-user by Xxxx Atlantic and, in place thereof, subscribes to Reseller
for resold Xxxx Atlantic Retail Telecommunications Service dial tone
line service, Xxxx Atlantic will remove from Xxxx Atlantic's LIDB any
Xxxx Atlantic assigned telephone line calling card number (including
area code) ("TLN") and Personal Identification Number ("PIN")
associated with the terminated Xxxx Atlantic Retail Telecommunications
Service dial tone line service. The Xxxx Atlantic-assigned TLN and PIN
will be removed from Xxxx Atlantic's LIDB within twenty-four (24) hours
after Xxxx Atlantic terminates the Xxxx Atlantic Retail
Telecommunications Service dial tone line service with which the number
was associated. Reseller may issue a new telephone calling card to
such end-user, utilizing the same TLN, and the same or a different PIN.
Upon request by Reseller, Xxxx Atlantic will enter such TLN and PIN in
Xxxx Atlantic's LIDB for calling card validation purposes.
4.3 Reseller information which is stored in Xxxx Atlantic's LIDB
will be subject, to the same extent as Xxxx Atlantic information stored
in Xxxx Atlantic's LIDB, to access and use by, and disclosure to, those
persons (including, but not limited to, Xxxx Atlantic) to whom Xxxx
Atlantic allows access to information which is stored in Xxxx
Atlantic's LIDB. Reseller hereby grants to Xxxx Atlantic and the
persons to whom Xxxx Atlantic allows access to information which is
stored in Xxxx Atlantic's LIDB, a royalty free license for such access,
use and disclosure.
4.4 Reseller shall obtain contractual agreements with each of the
persons authorized to have access to Xxxx Atlantic's LIDB, under which
Reseller will xxxx Reseller Customers for calling card, third party,
collect and other calls validated by such persons through Xxxx
Atlantic's LIDB.
4.5 Reseller warrants that the information provided by Reseller
for inclusion in Xxxx Atlantic's LIDB will at all times be current,
accurate and appropriate for use for billing validation services.
4.61 Upon request by Reseller, Xxxx Atlantic will provide to
Reseller Xxxx Atlantic Billing Validation Service, in accordance with
xxxx atlantic's Tariffs, for use by Reseller in connection with Xxxx
Atlantic Retail Telecommunications Services purchased and provided by
Reseller pursuant to this Agreement.
39
4.7 Information in Xxxx Atlantic's LIDB provided to Reseller shall
be treated by Reseller as Confidential Information of Xxxx Atlantic
pursuant to Section 13.
4.8 The prices for the services described in this Exhibit I,
Section 5 shall be as stated in Exhibit 11, Section 2.
40
EXHIBIT II
PRICES FOR XXXX ATLANTIC SERVICES
1. XXXX ATLANTIC RETAIL TELECOMMUNICATIONS SERVICES
1.1 PRICES
The prices for Xxxx Atlantic Retail Telecommunications
Services shall be the Retail Prices stated in Xxxx Atlantic's Tariffs for such
Xxxx Atlantic Retail Telecommunications Services, less: (a) the applicable
discount stated in Xxxx Atlantic's Tariffs for Xxxx Atlantic Retail
Telecommunications Services purchased for resale pursuant to 47 U.S.C. Section
251(c)(4); or, (b) in the absence of an applicable Xxxx Atlantic Tariff discount
for Xxxx Atlantic Retail Telecommunications Services purchased for resale
pursuant to 47 U.S.C. Section 251(c)(4), the applicable discount stated in
Exhibit II, Attachment 1.
1.2 INAPPLICABILITY OF DISCOUNTS
The discounts provided for in Exhibit 11, Section 1.1, shall
not be applied to:
1.2.1 Retail Prices that are in effect for no more than ninety (90)
days;
1.2.2 Charges for services and products provided by Xxxx Atlantic
that are not Xxxx Atlantic Retail Telecommunications Services, including, but
not limited to, Xxxx Atlantic Ancillary Services, and exchange access services
as defined in Section 3(16) of the Act, 47 U.S.C. Section 153(16);
1.2.3 Subscriber Line Charges, Federal Line Cost Charges, end user
common line charges, carrier selection and change charges, and Audiotex Service
charges, and to the extent applicable, the Presubscribed Interexchange Carrier
Charge applicable to Reseller Customers who have not presubscribed to an
interexchange carrier for long distance services; and,
1.2.4 Any service or charge which the Commission, the FCC, or other
governmental entity of appropriate jurisdiction, determines is not subject to a
wholesale rate discount under 47 U.S.C. Section 251(c)(4).
1.3 DISCOUNT CHANGES
1.3.1 Xxxx Atlantic shall change the discounts provided for in
Exhibit II, Section 1.1, above, from time-to-time, to the extent such change is
required by Applicable Law, including, but not limited to, by regulation or
order of the Commission, the FCC, or other governmental entity of appropriate
jurisdiction.
1.3.2 Xxxx Atlantic shall have the right to change the discounts
provided for in Exhibit 11, Section 1.1, above, from time-to-time, to the extent
such change is required, approved or
41
permitted by Applicable Law, including, but not limited to, by regulation or
order of the Commission, the FCC, or other governmental entity of appropriate
jurisdiction.
1.4 Offers of Merchandise and Services which are not Xxxx Atlantic
Retail Telecommunications Services
Reseller shall not be eligible to participate in any Xxxx
Atlantic plan or program under which Xxxx Atlantic end user retail Customers may
obtain products or merchandise, or services which are not Xxxx Atlantic Retail
Telecommunications Services, in return for trying, agreeing to purchase,
purchasing, or using, Xxxx Atlantic Retail Telecommunications Services.
2. XXXX ATLANTIC ANCILLARY SERVICES
2.1 PRICES
2.1.1 The prices for Xxxx Atlantic Ancillary Services shall be as
stated: (a) in Xxxx Atlantic's Tariffs; or, (b) in the absence of an applicable
Xxxx Atlantic Tariff price, in Exhibit II, Attachment 1.
2.1.2 If Xxxx Atlantic at any time offers a Xxxx Atlantic Ancillary
Service the prices for which are not stated in Xxxx Atlantic's Tariffs or
Exhibit II, Attachment 1, Xxxx Atlantic shall have the right to revise Exhibit
II, Attachment 1, to add the prices to Exhibit II, Attachment 1.
2.2 PRICE CHANGES
2.2.1 Xxxx Atlantic shall change the prices for Xxxx Atlantic
Ancillary Services, from time-to-time, to the extent such change is required by
Applicable Law, including, but not limited to, by regulation or order of the
Commission, the FCC, or other governmental entity of appropriate jurisdiction.
2.2.2 Xxxx Atlantic shall have the right to change the prices for
Xxxx Atlantic Ancillary Services, from time-to-time, to the extent such change
is required, approved or permitted by Applicable Law, including, but not
limited to, by regulation or order of the Commission, the FCC, or other
governmental entity of appropriate jurisdiction.
2.2.3 Except as otherwise required by Applicable Law, Xxxx Atlantic
shall give Reseller thirty (30) days advance written notice of any increase in
the prices stated in Exhibit II, Attachment I for Xxxx Atlantic Ancillary
Services.
42
ATTACHMENT I
to EXHIBIT II
XXXX ATLANTIC - WEST VIRGINIA, INC.
DETAILED SCHEDULE OF ITEMIZED CHARGES(1)
1. Wholesale Discount for Resale of Xxxx Atlantic Retail Telecommunications
Services
Resale of Xxxx Atlantic Retail 17.84% or discount rate as
Telecommunications Services if RESELLER established by further
provides its own Operator Services. Commission Order.
Resale of Xxxx Atlantic Retail 15.05% or discount rate as
Telecommunications Services if RESELLER established by further
uses Xxxx Atlantic Operator Services. Commission Order.
---------------------------------
(1) All rates and charges set forth in this Exhibit II, Attachment
I are subject to change from time-to-time as provided in this Agreement,
including, but not limited to, in Section 2.3 and Exhibit II of this Agreement.
The rates and charges set forth in this Exhibit II, Attachment I shall apply
until such time as they are replaced by new rates as may be approved or allowed
into effect by the Commission from time to time, subject to a stay or other
order issued by any court of competent jurisdiction. At such time(s) as such new
rates have been approved or allowed into effect by the Commission, the Parties
shall amend this Exhibit II, Attachment I to reflect the new approved rates.
Except for citations to generally available services and rates
offered under Xxxx Atlantic's Tariffs, all services and rates listed in this
Exhibit II, Attachment I are available to Reseller only in connection with the
purchase and resale of Xxxx Atlantic Retail Telecommunications Services by
Reseller under this Agreement. Adherence to this limitation shall be subject to
reasonable audit by Xxxx Atlantic.
The rates set forth in Sections II through IV of this Exhibit
II, Attachment 1, are in addition to, and not in lieu of, any other rates set
forth in this Agreement.
In addition to charges for Xxxx Atlantic Services, Reseller
shall pay, or collect and remit, applicable taxes and surcharges (including, but
not limited to, E911/911, telecommunications relay service, and universal
service fund, surcharges), as required by Applicable Law and this Agreement.
SERVICE OR ELEMENT DESCRIPTION: RECURRING CHARGES: NON-RECURRING
CHARGE:
II. Access to Operation Support Systems
A. Pre-Ordering $.26/Query Not Applicable
B. Ordering $4.3123/Transaction Not Applicable
C. Provisioning Included in Ordering Not Applicable
D. Maintenance & Repair
1. ECG Access $.26/Query Not Applicable
2. EB/OSI Access $1.18/Trouble Ticket Not Applicable
E. Billing
1. CD-ROM $250.02/CD-ROM Not Applicable
2. Daily Usage File
a. Existing Message Recording $.000262/Message Not Applicable
2. Daily Usage File (Continued)
b. Delivery of DUF
Data Tape $19.94/Tape $62.25/Programming Hour
Network Data Mover $.000095/Message Not Applicable
CMDS $.000095/Message $62.25/Programming Hour
c. DUF Transport
9.6 kb Communications Port $10.39/Month $7987.36/Port
56 kb Communications Port $28.69/Month $33,054.84/Port
256 kb Communications Port $28.69/Month $55,026.09/Port
T1 Communications Port $364.3 1/Month $196,348.98/Port
Line Installation Not Applicable $62.25/Programming Hour
Port Set-up Not Applicable $10.00/port
Network Control Programming Coding Not Applicable $62.25/Programming Hour
2
SERVICE- OR ELEMENT DESCRIPTION: RECURRING CHARGES: NON-RECURRING
CHARGE:
III. Directory Assistance/Operator Services Routing
To Reseller Platform $.157388/Line/Month $3.89/Line
To BA Platform for Re-Branding $.0787/Call $3.89/Line
IV. LIDB Interconnection/Billing Validation Service
LIDB Point Codes Not Applicable $87.04/Point Code
Calling Card $.0149/Query Not Applicable
Billed Number Screening $.0149/Query Not Applicable
Storage of RESELLER's Data in LIDB Database Not Applicable $1,490.34 Service
Establishment/
Request
3
Appendix 1, Attachment 25
QUALIFIED BUSINESS LINES FOR VOLUME COMMITMENT
WEST VIRGINIA
------------------------------------------------------------------------------------------------------------------------
Access Lines
------------------------------------------------------------------------------------------------------------------------
Message Business Service WHB
------------------------------------------------------------------------------------------------------------------------
Measured Business Service RUB AQE
------------------------------------------------------------------------------------------------------------------------
Flat Rate IUB AAY
------------------------------------------------------------------------------------------------------------------------
Direct Inward Dial Trunks NDT
------------------------------------------------------------------------------------------------------------------------
Direct Inward Dial Blocks NDZ NDJ
------------------------------------------------------------------------------------------------------------------------
PBX Trunks Measured TV4 TFR
------------------------------------------------------------------------------------------------------------------------
PBX Trunks Flat TV1 ++
------------------------------------------------------------------------------------------------------------------------
PBX Digital trunks D7Z D7W
------------------------------------------------------------------------------------------------------------------------
CENTREX:**
------------------------------------------------------------------------------------------------------------------------
**Excludes:
1. Centrex systems priced under a special contract (ICB, FPO, LSO, Custom
Pricing)
2. Centrex systems which serve multiple end user customers
------------------------------------------------------------------------------------------------------------------------
CENTREX - CUSTOPAK I CLASS OF SERVICE
------------------------------------------------------------------------------------------------------------------------
Measured CEM+X
------------------------------------------------------------------------------------------------------------------------
CUSTOPAK LINES
------------------------------------------------------------------------------------------------------------------------
Unrestricted R3G
------------------------------------------------------------------------------------------------------------------------
Restricted R3K
------------------------------------------------------------------------------------------------------------------------
Primary: Off Prem RX3
------------------------------------------------------------------------------------------------------------------------
CENTREX - CUSTOFLEX 2100 / CLASS OF SERVICE
------------------------------------------------------------------------------------------------------------------------
Measured XXX+X
------------------------------------------------------------------------------------------------------------------------
CUSTOFLEX 2100 LINES
------------------------------------------------------------------------------------------------------------------------
Unrestricted R4N
------------------------------------------------------------------------------------------------------------------------
Restricted RHK
------------------------------------------------------------------------------------------------------------------------
Primary Off Prem RX3
------------------------------------------------------------------------------------------------------------------------
ISDN - Unrestricted XQA
------------------------------------------------------------------------------------------------------------------------
ISDN - Restricted XQK
------------------------------------------------------------------------------------------------------------------------
PAGE 1 OF 1
APPENDIX 1, ATTACHMENT 26
PRODUCT AND SERVICES ELIGIBLE FOR VTD DISCOUNT
WEST VIRGINIA
----------------------------------------------------------------------------------------------------------------
Access Lines
----------------------------------------------------------------------------------------------------------------
Message Business Service WHB
----------------------------------------------------------------------------------------------------------------
Measured Business Service RUB AQE
----------------------------------------------------------------------------------------------------------------
Flat Rate IUB AAY
----------------------------------------------------------------------------------------------------------------
Direct Inward Dial Trunks NDT
----------------------------------------------------------------------------------------------------------------
Direct Inward Dial Blocks NDZ NDJ
----------------------------------------------------------------------------------------------------------------
PBX Trunks Measured 1V4 XXX
----------------------------------------------------------------------------------------------------------------
XXX Xxxxxx Xxxx XX0 ++
----------------------------------------------------------------------------------------------------------------
PBX Digital trunks D7Z D7W
----------------------------------------------------------------------------------------------------------------
INTRA-LATA TOLL
* Must be associated with a resold VTD Qualified Business Line
----------------------------------------------------------------------------------------------------------------
Message Rate Service N/A
----------------------------------------------------------------------------------------------------------------
MTS, including Key Connections & Rewarding Connections VVVDKI WRV
----------------------------------------------------------------------------------------------------------------
Optional Calling Plan but excluding all other OCPs OVSXX OVS1X
----------------------------------------------------------------------------------------------------------------
Features
* Must be associated with a resold VTD Qualified Business Line
----------------------------------------------------------------------------------------------------------------
Touch Tone TTB TJ B
----------------------------------------------------------------------------------------------------------------
IQ SERVICES:
* Must be associated with a resold VTD Qualified Business Line
----------------------------------------------------------------------------------------------------------------
Call Forwarding ESM
----------------------------------------------------------------------------------------------------------------
Call Waiting ESX
----------------------------------------------------------------------------------------------------------------
Call Waiting ID NWT
----------------------------------------------------------------------------------------------------------------
Speed Dialing 8 ESL
----------------------------------------------------------------------------------------------------------------
Speed Dialing 30 ESF
----------------------------------------------------------------------------------------------------------------
3 Way Calling (per Use or Monthly) ESC
----------------------------------------------------------------------------------------------------------------
*69 (per Use or Monthly) NSS
----------------------------------------------------------------------------------------------------------------
Call Trace (Per Use Charge)
----------------------------------------------------------------------------------------------------------------
Caller ID NSD
----------------------------------------------------------------------------------------------------------------
Caller ID with Name NDF
----------------------------------------------------------------------------------------------------------------
Per Call Blocking (Per Use Charge)
----------------------------------------------------------------------------------------------------------------
Repeat Dialing NSQ
----------------------------------------------------------------------------------------------------------------
Ultra Forward FRM
----------------------------------------------------------------------------------------------------------------
Distinctive Ring DRQ+X
----------------------------------------------------------------------------------------------------------------
Priority Call NSK
----------------------------------------------------------------------------------------------------------------
Select Forward NCE
----------------------------------------------------------------------------------------------------------------
Call Block NSY
----------------------------------------------------------------------------------------------------------------
Call Gate OC4
----------------------------------------------------------------------------------------------------------------
Anonymous Call Rejection - w/Caller ID AWY
----------------------------------------------------------------------------------------------------------------
PAGE 1 of 1
